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2017 DIGILAW 1903 (ALL)

TRIBHUWAN KUMAR v. STATE OF U. P.

2017-08-18

ARUN TANDON, RITU RAJ AWASTHI

body2017
JUDGMENT By the Court.—Heard Sri Ashok Khare, learned Senior Advocate assisted by Sri Sanjeev Singh on behalf of the appellant. 2. This intra Court appeal is directed against the judgment and order of learned Single Judge dated 12.7.2017, passed in Writ-A No. 51591 of 2016. 3. The facts relevant for deciding the present special appeal are as under: An advertisement was published for appointment on the post of Junior Clerk for filling up of the backlog vacancies within the quota for SC/ST and OBC category candidates by the Office of District Magistrate, Mau. It is not in dispute that under the advertisement one vacancy on the post of Junior Clerk was shown within the category of other backward class and six vacancy within the category of SC/ST were notified. According to the petitioner he being a member of scheduled caste applied and participated in the selection. A select list was prepared which contain as many as 10 names against the 6 vacancies belonging to SC/ST category and 4 names against one vacancy earmarked for other backward class category. 4. According to the petitioner appointment was offered to 2 persons from the other backward class category and at best 5 persons have been offered appointment against 6 vacancies earmarked for SC/ST category. According to the petitioner since his name was mentioned at serial No. 8 of the said list and the person mentioned at serial No. 7 had been offered appointment (who is stated to have expired subsequently) the petitioner claim that against the vacancy which had remained unfilled he was entitled to be offered appointment. It is further explained to the Court that the petitioner had set up his claim for the said appointment by filing Writ Petition No. 29017 of 1998. It is stated that in between the Divisional Commissioner proceeded to pass an order dated 31.12.1997 followed by the consequential order of the District Magistrate dated 6.1.1998, whereby the entire selections were cancelled. The person who had been appointed after selection namely Naseem Alam Ansari filed Writ Petition No. 1766 of 1998. This writ petition was ultimately allowed vide judgement and order dated 17.2.2016 and the Divisional Commissioner was directed to examine the legality or validity of the appointment of the said petitioner afresh. The person who had been appointed after selection namely Naseem Alam Ansari filed Writ Petition No. 1766 of 1998. This writ petition was ultimately allowed vide judgement and order dated 17.2.2016 and the Divisional Commissioner was directed to examine the legality or validity of the appointment of the said petitioner afresh. It is the case of the petitioner that the Divisional Commissioner under the order dated 29.9.2006 found no material irregularities in the selection and has therefore proceeded to allow the persons who had already been appointed to continue. Writ Petition No. 29017 of 1986 filed by the petitioner was also disposed of with a direction to the Divisional Commissioner to examine the grievance of the petitioner. In the case of the petitioner on the same date an order has been passed by the Divisional Commissioner stating therein that since the name of petitioner was included in the wait list the life whereof was only one year the question of offering appointment to the petitioner does not arise. 5. Not being satisfied with the order of the Divisional Commissioner the petitioner filed Writ-A No. 51591 of 2016 which has been dismissed under the order dated 12.7.2017 amongst others on the ground that High Court in exercise of its jurisdiction under Article 226 of the Constitution of India does not deem it fit and proper to issue any mandamus after more than 20 years of the alleged selection for any appointment being offered to a candidate placed in the wait list. 6. Challenging the order so passed Sri Ashok Khare, learned Senior Advocate on behalf of the appellant-petitioner submits that the petitioner had not been sleeping over his rights. He had been contesting his claim since 1998 and once the Divisional Commissioner has upheld the selections in the year 2016 the right of the petitioner for being offered appointment against the available vacancy as persons higher in the merit list than the petitioner had not joined the writ Court should have directed for opportunity being offered instead of dismissing the writ petition. 7. 7. He has placed reliance on the judgment of the Supreme Court in the case of State of U.P. v. Ram Swarup Saroj; (2000) 3 SCC 699 , for the proposition that the right of the selected candidate would not be defeated because of the currency of the select panel having expired during the pendency of the litigation when the candidate had staked his claim during the currency of the panel. 8. We have heard learned counsel for the appellant and examined the records of the present special appeal. 9. From a simple reading of the note which has been put up in the matter of appointment being offered to the selected candidates enclosed at page 36 and 37 of the paper book, we find that the recommendations were made for appointment being offered to two candidates belonging to other backward class category and similarly recommendation was made for appointment being offered to 8 persons belonging to SC/ST category (Page 36 and 37 of the paper book). 10. In our opinion, the recommendation on the face of it is in excess of the advertised vacancies. It is not in dispute that only one vacancy within the reserved category of other backward caste was advertised and only 6 vacancies within the category of SC/ST were advertised. There cannot be any appointment beyond the advertised vacancies. The legal position in that regard is well-settled. (Ref: Ashok Kumar and others v. The Chairman, Banking Service Recruitment Board and others; AIR 1996 SC 976 and Surinder Singh v. State of Punjab; AIR 1998 SC 18 ). 11. We also find that although there is some material to demonstrate that Dilip Kumar had been offered appointment (since expired) whose name was mentioned at serial No. 8 of the select list while name of petitioner is mentioned at serial No. 9 but the said fact is in itself may not be the basis for coming to a conclusion that the appointment within the advertised vacancies had not been made. 12. Even otherwise we are of the considered opinion that mere inclusion of the name of the petitioner in the select list prepared in the year 1997 cannot be said confer vested right so as to require a writ Court to issue a positive mandamus to offer appointment after twenty years of the said selection. 12. Even otherwise we are of the considered opinion that mere inclusion of the name of the petitioner in the select list prepared in the year 1997 cannot be said confer vested right so as to require a writ Court to issue a positive mandamus to offer appointment after twenty years of the said selection. If the writ Court has refused to exercise its discretion in favour of a person who at best can be said to be included in the select list after expiry of the twenty years of the alleged selection, we see no reason to interfere. Mere selection confers no right is also a well-settled proposition of law. (Ref: Shankarasan Dash v. Union of India; AIR 1991 SC Page 1612). 13. In the totality of circumstances on record, we find no good ground to interfere with the discretion of the learned Single Judge to not to entertain the writ petition/not to grant any relief after twenty years of the preparation of the select list. 14. The judgment relied upon by Sri Ashok Khare, learned Senior Advocate in the case of State of U.P. v. Ram Swarup Saroj (supra) is clearly distinguishable in the facts of the present case. 15. Special appeal is dismissed.