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2018 DIGILAW 116 (ALL)

ATUL KUMAR v. STATE OF U. P.

2018-01-11

SANGEETA CHANDRA

body2018
JUDGMENT : 1. In terms of the order passed by this Court on 22.09.2017, the office has submitted service report dated 09.10.2017 informing that despite issuance of notice neither acknowledgment nor un-served notice has been received in the office. Consequently, service is deemed sufficient on Respondent Nos. 4 & 5. 2. Heard Sri Seemant Singh, learned counsel for the petitioners, who has prayed for a mandamus directing the respondents to terminate the services of 856 of female OBC candidates, who have been selected and appointed in excess to the actual horizontal quota available to them which is 1890 female OBC candidates only in pursuance of a selection held after advertisement dated 17.02.2009 issued by the Respondent No. 2, Uttar Pradesh Police Recruitment and Promotional Board, Lucknow. A further prayer has been made for issuance of a mandamus directing the respondents to initiate selection proceedings on the vacancies of police constables, which fell vacant in the year 2009 if these 856 female OBC candidates are ousted. 3. The case of the petitioners as argued by learned counsel for the petitioners is that on 07.02.2009, an advertisement was issued by the Respondent No. 2 for filling up 35000 posts of police constables by way of direct recruitment. 20% horizontal reservation was envisaged for female candidates and 2% horizontal reservation was provided for dependent of Freedom Fighters and 5% horizontal reservation was provided for ex-serviceman and 5% horizontal reservation was provided for Home Guards. This horizontal reservation was to be applied category wise. However, due to misinterpretation of the law settled by the Hon'ble Supreme Court in the case of Rajesh Kumar Daria; 2007 (8) SCC 785 , 856 OBC candidates were got selected in excess of 20% reservation admissible to them. Results were challenged in writ petitions before this Court, which writ petitions were initially dismissed but later on in Special Appeal No. 1120 of 2010 (Rajiv Kumar Vs. Results were challenged in writ petitions before this Court, which writ petitions were initially dismissed but later on in Special Appeal No. 1120 of 2010 (Rajiv Kumar Vs. State of U.P. & Ors.), this Court by means of its judgement and order dated 12.07.2013 held that the Principal of the horizontal reservation category wise was wrongly interpreted and a direction was issued by this Court that the petitioners-appellants be considered afresh by the Police Recruitment Board in the light and observation made in the said judgement and in the event the appellants-petitioners succeed in their claim upon re-calculation of vacancies, the respondents shall be obliged to offer appointment if they are otherwise eligible. The entire exercise was directed to be completed within a time frame by this Court. The State Government approached the Supreme Court by filing Special Leave Petition. The Supreme Court did not interfere in the matter and reiterated the judgement rendered by it in the case of Anil Kumar Gupta Vs. State of U.P. And Others; 1995 (5) SCC 173 . After the dispute was finally settled by the Hon'ble Supreme Court, the authorities complied with the directions issued by the High Court and re-considered the case of the petitioners-appellants therein and it transpires that the Police Recruitment Board sent a list of 856 female OBC candidates, who were displaced from the vertical merit list, to accommodate 856 male OBC candidates. The last cut off marks of 856 male OBC candidates was 110.833. Rajiv Kumar as well as other writ petitioners who fell within the cut off marks now determined for OBC category candidates were adjusted and given appointment. However, the Police Recruitment Board referred the matter to the State Government which took the decision not to oust the 856 female OBC candidates, who had already been selected and appointed in pursuance of earlier result declared by the Government applying horizontal reservation wrongly. It is against this decision of the State Government that this writ petition has been filed by the petitioners, who are ten in number. It is their case that 856 female OBC candidates , who had been wrongly selected giving horizontal reservation to them in the selection held in pursuance of the advertisement dated 17.02.2009 should not have been adjusted in the vacancies which were unadvertised as it violates Article 14 of the Constitution of India. 4. It is their case that 856 female OBC candidates , who had been wrongly selected giving horizontal reservation to them in the selection held in pursuance of the advertisement dated 17.02.2009 should not have been adjusted in the vacancies which were unadvertised as it violates Article 14 of the Constitution of India. 4. Sri Seemant Singh, learned counsel for the petitioner has argued that on the basis of judgement rendered by the Hon'ble Supreme Court in the case of Rakhi Ray Vs. High Court of Delhi; LAWS (SC)-2010-2-15 that unadvertised vacancy cannot be filled up by non selected candidates. He has relied upon the observation made by the Supreme Court. In paragraph no. 4 of the said judgement, which reads as follows: "It is a settled legal proposition that vacancies cannot be filled up over and above the number of vacancies advertised as "the recruitment of the candidates in excess of the notified vacancies is a denial and deprivation of the constitutional right under Article 14 read with Article 16(1) of the Constitution", of those persons who acquired eligibility for the post in question in accordance with the statutory rules subsequent to the date of notification of vacancies." 5. However, Supreme Court in the aforesaid judgement has also observed as under: "Filling up the vacancies over the notified vacancies is neither permissible nor desirable, for the reason, that it amounts to "improper exercise of power and only in a rare and exceptional circumstance and in emergent situation, such a rule can be deviated and such a deviation is permissible only after adopting policy decision based on some rational", otherwise the exercise would be arbitrary. " 6. It is the case of the State-Respondents that due to wrong application of horizontal reservation such 856 female OBC category candidates were selected and appointed in 2010 and they continued to work till a decision was rendered by the Hon'ble Supreme Court in S.L.P. (Civil) No. 32344 of 2010 on 12.07.2013. There were vacancies available in the Department for constables, therefore, it was thought appropriate to let the constables so appointed continue to work. This decision was taken by the Government on 31.03.2014 and on 11.06.2015, the Principal Secretary Home issued a letter after which such 856 female OBC category candidates, additionally selected, were allowed to work. 7. There were vacancies available in the Department for constables, therefore, it was thought appropriate to let the constables so appointed continue to work. This decision was taken by the Government on 31.03.2014 and on 11.06.2015, the Principal Secretary Home issued a letter after which such 856 female OBC category candidates, additionally selected, were allowed to work. 7. Learned counsel for the petitioner has submitted in rejoinder that had these vacancies been advertised, the petitioners as well as other eligible candidates would have got a chance to participate in the open competition and their right was, therefore, denied. These 856 female OBC category candidates were given appointment due to faulty interpretation of the principal of horizontal reservation, which ought to be applied category wise by the State-Respondents. Since these 856 female OBC category candidates were beneficiary of fault of the State-Respondents, the petitioners cannot be allowed to suffer as their right to compete for such 856 unadvertised vacancies, had these vacancies been duly advertised, has been taken away by arbitrary action of the State-Respondents. 8. I have considered the arguments made by learned counsel for the petitioners and I find that the said argument is based on a contingent right, which would have accrued in favour of the petitioners, had the said 856 vacancies been advertised, and had the petitioners been selected therein. It was not a vested or accrued right, which has been taken away by the Government by its decision to adjust 856 female OBC category candidates in existing unadvertised vacancies. No other point has been pressed or argued by the learned counsel for the petitioners. 9. The writ petition is dismissed. 10. No order as to costs.