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Allahabad High Court · body

2006 DIGILAW 1346 (ALL)

IN RE: STATE OF U. P. v. .

2006-05-10

PRADEEP KANT, RAJIV SHARMA

body2006
JUDGMENT : Pradeep Kant and Rajiv Sharma, JJ. 1. This petition of the year 1992 has been filed by one Arvind Kumar Singh, an ex-Army man, who was selected for the post of Deputy Superintendent of Police by the U.P. Public Service Commission, in the combined examination, held for appointment on the posts of Deputy Collector, Deputy Superintendent of Police and various other posts in the year 1985. He challenges his appointment to the post of Deputy Superintendent of Police due to denial of his placement against the post of Deputy Collector which was his first preference despite the vacancy being available. 2. An advertisement was issued by the U.P. Public Service Commission for Combined State Services Competitive Examination of 1985. The Petitioner applied under the reserved category for ex-Army persons. The final result was declared on 20.4.1987. The Petitioner's name found place at serial No. 5 in the reserved category (ex-army personnel) but he was not offered appointment on the post of Deputy Collector and on repeated enquiry being made, he was informed that the matter is engaging attention, sometimes by the State Government and sometimes by the Central Government. Later on, he came to know that there was some dispute regarding claim of benefit of Army service as he has not put in five years minimum service in the Army. 3. The aforesaid controversy was settled by the Full Bench of this Court in re: Hari Shanker Upadhayay v. Public Service Commission in Special Appeal No. 40 of 1991, wherein it was held that under the requirement of minimum five years of service in Army for claiming reservation under the said category is not necessary and that 'fulfilment' of such a condition is necessary only if the candidate seeks relaxation in the upper age limit prescribed for the purpose. This decision was rendered on 9.12.1997 reported in (1998) 1 CRC 101. 4. On constant effort being made by the Petitioner, he was not allowed to join the post of Deputy Collector. After the aforesaid judgment of the Court the Petitioner was offered appointment for the post of Deputy Superintendent of Police on 11.7.1999. The Petitioner, however, did not join and made the representation that since the post of Deputy Collector is lying vacant and his first preference is for the said post, the post be changed. After the aforesaid judgment of the Court the Petitioner was offered appointment for the post of Deputy Superintendent of Police on 11.7.1999. The Petitioner, however, did not join and made the representation that since the post of Deputy Collector is lying vacant and his first preference is for the said post, the post be changed. This prayer was not accepted and the representation of the Petitioner remained pending. 5. The Petitioner since had filed the writ petition in the year 1992 and also made representation and waited for its decision, the representation was decided during pendency of the writ petition on 15.12.2003. The said order is also under challenge in this writ petition. While rejecting the representation of the Petitioner, the State Government has observed that the post of Deputy Collector which is lying vacant was decided not to be filled up and that no reshuffling can be done. It may be brought on record that, in the meantime, another selection was held by the U.P. Public Service Commission. The Petitioner was selected as Trade Tax Officer in that selection, where he is presently working. 6. Sri S.K. Kalia, senior Advocate, says, under the instruction, that the Petitioner is still willing to join the post of Deputy Collector. 7. There is no dispute that amongst the reserved category candidates of ex-army men, the Petitioner's position was fifth in the Combined State Services Examination. His first choice was for the post of Deputy Collector, second for the Deputy Superintendent of Police and third for the post of Assistant Regional Transport Officer. Three posts of Deputy Collector were reserved. Out of them, one candidate joined the IAS and another preferred a post of Assistant Regional Transport Officer as his first preference. So, the third post of Deputy Collector was available for the Petitioner. In case the Petitioner was offered appointment at that time, the Petitioner would have been offered the vacancy of the Deputy Collector. It was because of the misunderstanding of the legal position and the terms of the advertisement with respect to the requirement of five years of service in the Army, the Petitioner's matter remained pending and awaited from 1990 to 1998 before the State Government or the Central Government. The Petitioner cannot be faulted for this delay. 8. It was because of the misunderstanding of the legal position and the terms of the advertisement with respect to the requirement of five years of service in the Army, the Petitioner's matter remained pending and awaited from 1990 to 1998 before the State Government or the Central Government. The Petitioner cannot be faulted for this delay. 8. The Public Service Commission had issued the advertisement on the requisition being sent by the State Government and the meaning and contents of specific condition of reservation with respect to ex-Army men was supposed to be well in the knowledge of the State Government as well as the Commission. In case the Commission or the State Government or the Central Government misunderstood the terms of the advertisement, an eligible officer like the Petitioner, who stood successful in the examination and finally selected, cannot be deprived of his legitimate claim of having the post to which he was entitled in accordance with his merit and in order of preference given by him. 9. Since it has not been disputed that one post of Deputy Collector was lying vacant as incumbent did not join, and merely because one year period had elapsed, the Petitioner's claim for the said post cannot be denied on the ground that the waiting list expires after one year. In this regard, it is pertinent to note that the question of waiting list or its tenure is not at all an issue in the instant case. The Petitioner is a duly selected candidate in the main list having found his place at serial No. 5. Even assuming against three vacancies of Deputy Collector, the Petitioner could have been offered appointment on any one vacancy on a contingency namely that the persons, who were placed over and above the Petitioner, had refused the said post, the fact remains that the Petitioner was finally selected candidate and in accordance with his choice was allowed second preference of Deputy Superintendent of Police. 10. Looking to the posts advertised, there were three posts of Deputy Collector which were later on enhanced to four. In terms of the advertisement, six posts were for ex-army men which was later on increased to nine. The Petitioner, who was placed at serial No. 5 in the list of finally selected candidates in the ex-Army personnel quota, was to get an appointment necessarily against one of the aforesaid posts. In terms of the advertisement, six posts were for ex-army men which was later on increased to nine. The Petitioner, who was placed at serial No. 5 in the list of finally selected candidates in the ex-Army personnel quota, was to get an appointment necessarily against one of the aforesaid posts. It was only because that the candidature of the Petitioner became disputed, the Petitioner was denied offer of appointment. A candidate cannot be strictly said to be on waiting list, in case the post being available because of remaining unfilled for non-joining of the candidate, has to be offered to the next person in merit but that does not mean that the person next below in merit is a candidate of waiting list. It is only reshuffling against the vacancy or the posts available after final select list is made and appointment is given to all the finally selected candidates. This is also evident by the fact that the Petitioner has been offered appointment on the post of Deputy Superintendent of Police on reshuffling by the State Government. The plea of the State, therefore, that they were not prepared to reshuffle the post by offering him the post of Deputy Collector appears to be unreasonable. 11. The other reason for their refusal, appears equally non-existent namely expiry of tenure of one year of the waiting list and the wisdom of the State Government to keep the post vacant. In the order rejecting the Petitioner's representation, no such reason has been indicated, which only says that reshuffling is not possible for the purpose of offering appointment on the post of Deputy Collector. 12. We have considered two reasons stated by the learned State Government verbally. We have already found, firstly this is not a case of a candidate on the waiting list, being offered an appointment after a period of one year; secondly, it is a case where the Petitioner was duly selected and was to get an appointment against any one vacancy of Deputy Collector, Deputy Superintendent of Police or Assistant Regional Transport Officer etc. but he was denied the appointment on the misinterpretation and misconception of the advertisement in respect of the reserved ex-army quota by the State Government for which the Petitioner cannot be punished and, thirdly, one post of Deputy Collector was vacant due to non-joining of one of the incumbents and the Petitioner could have been offered appointment on that post, at that very time. The decision not to reshuffle for the purpose of offering appointment on the post of Deputy Collector cannot be said to be a reasonable decision, particularly when reshuffling was done in the case of two officers Digvijay Singh and Ajay Shanker Pandey of the same batch who were initially appointed Deputy Superintendent of Police and subsequently offered appointment in the PCS Executive in the general category on reshuffling. 13. We would also like to observe that it is not the sweet will of the State Government to offer or not to offer appointment to duly finally selected candidate to a post to which he is entitled in order of merit and in order of preference. It is not the choice of the State Government or the Commission to change the merit or the preference given by the candidate. It is the obligation of the Commission as well as the State Government to offer appointment to a candidate on the basis of his merit and in order of preference given by him. Since the Petitioner from the day one when the post of Deputy Collector became available because of non-joining of the incumbent, cannot be denied appointment for the post in question simply because the State Government took eleven years in sorting out that the Petitioner was eligible under the ex-army quota or not. 14. For the reasons stated above, we issue a writ in the nature of mandamus directing the State Government to complete the exercise of reshuffling and offer appointment to the Petitioner on the post of Deputy Collector and if necessary by taking a decision to fill up the post of Deputy Collector of 1985 batch. This shall be done, within a maximum period of one month, from the date a certified copy of this order is produced/filed. 15. The writ petition is allowed.