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2013 DIGILAW 1398 (ALL)

VIVEK SINGH v. STATE OF U. P.

2013-05-10

L.K.MOHAPATRA, SUNITA AGARWAL

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JUDGMENT Hon’ble L.K. Mohapatra, J.—Out of several prayers made in the writ petition, the main prayer is for a direction to the respondents to fill up one post of Deputy Collector through the Combined State Upper/Subordinate Services 2010 under Special Recruitment Drive in order to fill up the backlog quota for Physically Handicapped category relating to the year 2001-2002. 2. In pursuance of an advertisement published in 2001, the petitioner had applied for being appointed as a Deputy Collector. For that year 800 posts were advertised and the petitioner’s application was under Physically Handicapped category. The preliminary examination was held on 3.6.2001. After the petitioner became successful, he filled up form for main examination. He also qualified in the main examination and by letter dated 27.7.2002, he was asked to appear in the interview. As desired by the respondents, he also submitted disability certificate issued by the Chief Medical Officer indicating therein that his disability would not create any hindrance in functioning on the post of Deputy Collector. The petitioner appeared in the interview and succeeded. The result was declared on 27.11.2003 and it is the case of the petitioner that he had been placed at Sl. No. 38 in the overall final merit list prepared by the respondent No. 2. Out of 800 posts advertised, allocation had been made and 9 posts were allocated for Deputy Collector. The petitioner had given his first preference for appointment on the post of Deputy Collector and the second preference on the post of Trade Tax Officer(now Assistant Commissioner). The petitioner learnt that he is being appointed on the post of Trade Tax Officer having been placed at Sl. No. 4 in the merit list prepared for the said category of posts and immediately rushed to this Court by filing present writ petition on the ground that no post of Deputy Collector was reserved for Physically Handicapped category candidates and accordingly, he having succeeded in the examination should have been appointed as a Deputy Collector against the post meant for Physically Handicapped candidates. 3. During pendency of the writ petition, the petitioner was appointed on the post of Trade Tax Officer and has been continuing till today. 4. 3. During pendency of the writ petition, the petitioner was appointed on the post of Trade Tax Officer and has been continuing till today. 4. Sri Samir Sharma, learned counsel appearing for the petitioner submitted that only for the year 1991-92 one post of Deputy Collector had been reserved for the Physically Handicapped candidates out of the total posts advertised and thereafter in between 1993-2001, several posts of Deputy Collector had been filled up without any reservation for Physically Handicapped category candidates. It was further submitted by Sri Sharma, learned counsel for the petitioner that under the U.P. Act No. 4 of 1993, 1% of the total number of vacancies is to be reserved at the stage of direct recruitment for the Physically Handicapped candidates but the said provision was not followed and from 1993 onwards, the posts of Deputy Collectors were being filled up by direct recruitment without following the provisions contained in the said Act providing for reservation of posts for the Physically Handicapped candidates. Referring to the supplementary-affidavit, it was contended by Sri Sharma, the learned counsel for the petitioner that in 2010 while implementing a judgement of this Court, it came to the light that one post of Deputy Collector could be reserved for the Physically Handicapped candidates for the recruitment year 2001-2002. Therefore, the petitioner modified his prayer and now seeks for a direction to the respondents to appoint him against the post of Deputy Collector which could not be reserved for the Physically Handicapped candidates for the recruitment year 2001-2002. 5. A counter-affidavit has been filed on behalf of the respondent No. 2 i.e. the U.P. Public Service Commission. It is stated in the counter-affidavit that the advertisement for the year 2001-2002 was issued by the Commission on the basis of requisition sent by the State Government. The requisition contained reservation for different categories of posts and for the post of Deputy Collector, the requisition was for 9 posts only. The amended law provides for reservation of 3 % of the total number of posts, for the Physically Handicapped category. Therefore, it was not possible to reserve 1 post, out of the 9 requisitioned posts of Deputy Collectors, for the Physically Handicapped candidates. 6. The amended law provides for reservation of 3 % of the total number of posts, for the Physically Handicapped category. Therefore, it was not possible to reserve 1 post, out of the 9 requisitioned posts of Deputy Collectors, for the Physically Handicapped candidates. 6. The State has also filed a counter-affidavit wherein it is stated that in view of the order dated 26.11.2010 passed in the case of National Federation of the Blind, U.P. Branch and another v. State of U.P. and others [Writ Petition No. 6047 (MB) of 2009], a roster has been prepared and vacancies have been calculated from July 1997 to December, 2010. Thereafter for filling up 32 vacancies of Deputy Collectors, a requisition was sent on 16.3.2010 for 18 vacancies and subsequently, another requisition was sent on 23.6.2010 for 14 vacancies. Out of 32 vacancies of Deputy Collectors, it was decided to fill up 05 posts as backlog vacancies of the Physically Handicapped category under horizontal quota of 3% of the Physically Handicapped category. The calculation of aforesaid 5 posts came w.e.f. the recruitment year 1998 up to the year 2010, considering the total number of posts as 183. Out of the said 05 posts, 02 were meant for the candidates who were completely blind or suffered from low vision, 02 posts for hearing impaired and 01 post for locomotor disability or cerebral palsy. The said posts had been directed to be filled up by making a requisition to the U.P. Public Service Commission. It is specifically contended in the counter-affidavit that so far as one vacancy in roster for the year 2001-2002 is concerned, it is to be filled up by the Special Recruitment Drive but the case of the petitioner cannot be considered, as a policy decision was taken by the department of Physically Handicapped Welfare that the recruitment of Physically Handicapped persons should be made in respect of the backlog vacancies through a special recruitment process. It is also contended by the State that 1 post for the year 2001-2002 shown as backlog, does not necessarily mean that the petitioner can be appointed against that post. 7. From perusal of the writ petition and the counter-affidavits filed by both the respondents, it is clear that for the year 2001-2002, the respondent No. 2 had advertised for selection of candidates to fill up 9 posts of Deputy Collector. 7. From perusal of the writ petition and the counter-affidavits filed by both the respondents, it is clear that for the year 2001-2002, the respondent No. 2 had advertised for selection of candidates to fill up 9 posts of Deputy Collector. No reservation was made for the Physically Handicapped candidates even though there was a provision. Though it is pleaded in the counter-affidavit filed by the respondent No. 2 that had the U.P. Public Service Commission followed the 1993 Act for reservation in respect of the Physically Handicapped candidates, no post could be reserved for the Physically Handicapped category, out of the 9 posts available to be filled up. From the counter-affidavit filed by the State, it appears that in pursuance of the above judgement, when a fresh exercise was undertaken, it was found that from the year 1998-2010, 5 vacancies could be identified as backlog vacancies for the Physically Handicapped category and out of the said 5 vacancies, 1 was for the recruitment year 2001-2002. 8. On consideration of the above undisputed facts, the question that arises for consideration is as to whether the petitioner could be appointed as a Deputy Collector against one vacancy now found to be available for the recruitment year 2001-2002. 9. The learned counsel Sri Sharma placed reliance on a judgement of this Court in the case of Dr. Ravindra Kumar Pandey v. State of U.P. and others, 2006 (3) ESC 1880 . The question involved in the said reported judgement was whether horizontal reservation was to be provided by the Director, U.P. Higher Education, while advertising the vacancies for appointment of Lecturers and whether the U.P. Higher Education Services Commission while making selection, is bound to make selection for horizontal vacancies as a matter of law irrespective of whether it was mentioned in the advertisement or not, apart from other issues. On consideration of facts involved in the said case and the relevant provisions concerning reservation in favour of the Physically Handicapped persons, the Court held that the reservation for the Physically Handicapped persons was to be provided as a matter of law. In the case of Smt. Anu Bath v. State of U.P. and others, 2011 (5) ADJ 408 , the question involved was as to whether 3% reservation for the Physically Handicapped candidates, should be provided on total available existing vacancies or on the basis of total sanctioned strength. In the case of Smt. Anu Bath v. State of U.P. and others, 2011 (5) ADJ 408 , the question involved was as to whether 3% reservation for the Physically Handicapped candidates, should be provided on total available existing vacancies or on the basis of total sanctioned strength. The Court ultimately held that the reservation is to be made on the basis of total sanctioned strength and not on the basis of available vacancies for the recruitment year. The stand taken by the U.P. Public Service Commission in the counter-affidavit is contrary to the above decision. The respondent No. 2, the U.P. Public Service Commission, in the counter-affidavit has calculated 3% reservation on the basis of vacancies available on the post of Deputy Collector for the recruitment year 2001-2002 and not on the basis of total sanctioned strength of Deputy Collectors. 10. The other decisions cited by the learned counsel for petitioner clearly hold that horizontal reservation is to be made as a matter of law and there should not be any departure from it. 11. The learned counsel for the State, in response to above submissions of the learned counsel for petitioner, submitted that if the petitioner is adjusted against the sole vacancy for the year 2001-2002, the entire seniority list shall get disturbed. In answer to above objection raised by the learned counsel for the State, it was contended by the learned counsel for petitioner that it was obligatory on the part of respondents to keep one post reserved for the Physically Handicapped candidates in view of Section 3(1) (ii) of the U.P. Public Services (Reservation for Physically Handicapped, Dependants of Freedom Fighters and Ex-Servicemen) Act, 1993 and the plea of estoppel is not applicable, as there can be no estoppel against law. In support of the above submission, the learned counsel for petitioner placed reliance on 2 decisions of the Apex Court in the case of M/s. Elson Machines v. Collector of Central Excise, 1989 (1) SCC 671 and in the case of S. Sethuraman v. R. Venkatraman and others, 2007 (6) SCC 382 . The learned counsel for petitioner also submitted that in similar circumstances relief of appointment with retrospective effect has been given by Hon’ble Supreme Court and in support of the above contention reliance is placed on 3 decisions of the Apex Court. 12. The learned counsel for petitioner also submitted that in similar circumstances relief of appointment with retrospective effect has been given by Hon’ble Supreme Court and in support of the above contention reliance is placed on 3 decisions of the Apex Court. 12. There cannot be any dispute with regard to the law laid down by the Apex Court and this Court that horizontal reservation is to be made as a matter of law and there should not any departure from it. In the year 2001-2002, when the requisition was made by the State Government to the Public Service Commission, 9 posts of Deputy Collectors were to be filled up. The stand taken by the Public Service Commission is that 3% of the available vacancies came to less than 1 and therefore, no reservation could be made for the Physically Handicapped candidates. The judgements cited by the learned counsel for petitioner clearly lay down law that the calculation of reservation of posts has to be made on the basis of total number of posts available in the cadre and not on the basis of vacancies available for the recruitment year. This procedure, admittedly has not been followed when the recruitment took place for the year 2001-2002. For the above reason, when an exercise was undertaken in compliance of a judgement of this Court in 2010, it was found that 1 post of Deputy Collector could be reserved for the recruitment year 2001-2002. On the basis of above calculation, now the petitioner makes a submission for giving him appointment retrospectively on the post of Deputy Collector against the reserve vacancy which had not been advertised. In this connection reliance was placed by the learned counsel for petitioner on 3 decisions as stated earlier. One of the 3 decisions is the case of Sanjay Dhar v. J & K Public Service Commission and another, (2000) 8 SCC 182 . 13. In the said reported case, in December 1992 applications were invited by J & K Public Service Commission for selection and appointment to the post of Munsif. One of the 3 decisions is the case of Sanjay Dhar v. J & K Public Service Commission and another, (2000) 8 SCC 182 . 13. In the said reported case, in December 1992 applications were invited by J & K Public Service Commission for selection and appointment to the post of Munsif. Rule 9 of J & K Civil Service (Judicial) Recruitment Rules, 1967 required that a candidate for recruitment to the service must have put in at least two years practice at Bar by the date on which he submitted his application and must produce a certificate to this effect from the District Judge within the local limits of whose jurisdiction, he practised at the Bar. The appellant therein had obtained the certificate of experience from the Registrar, Delhi High Court and accordingly the same was not accepted by the Public Service Commission. Challenging rejection of his application, the appellant filed a writ petition and under interim orders passed by the High Court, he participated in the written examination as well as in the interview and was also selected. During pendency of the writ petition before the High Court, the J & K Public Service Commission once again advertised fresh vacancies in 1996 and the appellant in the said case appeared in the examination and got selected. The advertisement, which was made by the Public Service Commission in 1992, ultimately culminated in appointments in 1995. Therefore, the question before the Apex Court was that whether the appellant therein could be given appointment from 1995. Admittedly the appellant therein had been selected in 1996 and was appointed in December, 1997. Therefore, there was a gap of only 2 years. The Apex Court, on consideration of the facts and law involved in the case, directed that the appellant therein shall be deemed to have been appointed alongwith other appointees of the year 1995. 14. Reliance was also placed by the learned counsel for petitioner in the case of Union of India v. Mohan Singh Rathore and another, (1996) 10 SCC 469 . 15. In the said reported case, the respondent, who succeeded in the High Court, was appointed in Rajasthan State Police Service and he was put in the select list on 28.12.1987. The Union Public Service Commission approved it on 2.2.1988. He was due to retire on 31.5.1988 on attaining the age of superannuation. 15. In the said reported case, the respondent, who succeeded in the High Court, was appointed in Rajasthan State Police Service and he was put in the select list on 28.12.1987. The Union Public Service Commission approved it on 2.2.1988. He was due to retire on 31.5.1988 on attaining the age of superannuation. On consideration of relevant Regulation, the Apex Court directed the Union of India to include the name of the respondent therein in the appointment notification dated 4.10.1988 as a select list candidate and give him the order of appointment letter. Here, there was a gap of only 1 year. 16. The 3rd decision cited by the learned counsel for petitioner is the case of Jai Narain Ram v. State of U.P. and others, (1996) 1 SCC 332 . 17. In the said reported case, the State failed to perform its constitutional duty to requisition the Public Service Commission to recommend the next qualified persons against the posts reserved for Scheduled Caste candidates, which ultimately resulted in denial of appointment to the appellant therein. On perusal of the facts of said case also, it appears that the recruitment was in the year 1988, but there was no direction for appointment with retrospective effect. 18. So far as the facts of the present case are concerned, admittedly the requisition was made for 9 posts of Deputy Collectors in the year 2001-2002 and all the posts were filled up. Therefore, even if we accept the contention of the learned counsel for petitioner that subsequently in the year 2010 it was found that 1 post, out of 9, could be reserved for Physically Handicapped candidates, the posts having been filled up, the petitioner could not be given appointment in that recruitment year. Under the above circumstances, the Court can consider creation of a supernumerary post to adjust the petitioner. But the other aspect of the case is that several recruitments have taken place in between 2001-2002 up to this date. If the petitioner is given appointment with retrospective effect from 2001-2002, the entire seniority position of that recruitment year as well as of the subsequent recruitment years, shall get disturbed and all those appointees whose seniority shall be affected, are not parties before us. If the petitioner is given appointment with retrospective effect from 2001-2002, the entire seniority position of that recruitment year as well as of the subsequent recruitment years, shall get disturbed and all those appointees whose seniority shall be affected, are not parties before us. In the judgements cited by the learned counsel for petitioner, the gap was only of 1 or 2 years, whereas in the present case, the gap is of more than 10 years and in between, the recruitments to the post of Deputy Collectors, as stated earlier, have taken place almost every year. Promotions to higher posts also might have taken place in the mean time. 19. On consideration of the above facts, we are not in a position to accept the prayer of the petitioner to give him appointment to the post of Deputy Collector retrospectively from the year 2001-2002. 20. The writ petition is accordingly dismissed.