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Allahabad High Court · body

2019 DIGILAW 1029 (ALL)

Ram Darash Prasad Ranjan v. State Of U. P.

2019-04-22

ABDUL MOIN

body2019
JUDGMENT : 1. Heard Sri Mohd. Mansoor, learned counsel for the petitioner, learned Standing counsel appearing for the respondents no. 1 and 2 and Sri Ashok Shukla, learned counsel appearing for the respondent no. 3. 2. By means of the present petition, the petitioner has prayed for the following reliefs: "(i) Issue a writ, order or direction in the nature of Mandamus commanding the opposite party no. 1 and 2 to issue an appointment letter in pursuance of recommendation of U.P Public Service Commission, Allahabad on the post of Statistician in Family Welfare Department forthwith and pay his salary with all consequential benefits. (ii) Issue a writ, order or direction in the nature of Mandamus commanding and directing the opposite parties no. 1 and 2 to adjust the petitioner anywhere in U.P by issuing appointment letter on the post of Statistician. (iiA) Issue a writ, order or direction in the nature of CERTIORARO quashing the impugned order dated 11.04.2018 (No. 540/five920185(3)/2014) passed by the Secretary, Medical, Health and Family Welfare, State of U.P by means of which recommendation of the Uttar Pradesh Public Services Commission in favour of the petitioner dated 07.05.2007 has been cancelled, contained as Annexure No. 12 to the writ petition. (IIB) Issue a writ, order or direction in the nature of CERTIORARI quashing the impugned order dated 11.04.2018 (No. W163/five920185(3)/2014) passed by the Secretary, Medical Health and Family Welfare, State of U.P by means of which representation of the petitioner has been rejected, contained as Annexure No. 13 to the writ petition. (iv) Issue any other order or direction which this Hon'ble Court deems just and proper in facts and circumstances of the case. (v) to allow the writ petition with cost in favour of the petitioner." 3. The case set forth by the petitioner is that an advertisement was published in June, 2006 for holding selection by Uttar Pradesh Public Service Commission (hereinafter referred to as "Commission") for one reserved post of 'Statistician' in the Department of Medical Health and Family Welfare. Copy of the advertisement is annexure 4 to the writ petition. In pursuance thereof, the petitioner finding himself eligible applied and through a notice dated 29.03.2007, the Commission found petitioner suitable for appointment and through an order dated 07.05.2007, a copy of which is annexure 7 to the writ petition, he was recommended for appointment to the post of Statistician. Copy of the advertisement is annexure 4 to the writ petition. In pursuance thereof, the petitioner finding himself eligible applied and through a notice dated 29.03.2007, the Commission found petitioner suitable for appointment and through an order dated 07.05.2007, a copy of which is annexure 7 to the writ petition, he was recommended for appointment to the post of Statistician. However, no efforts were made by the respondents to appoint him on the post of Statistician. In the meanwhile, Writ Petition No. 490 (SB) of 2007 was filed in which an order dated 18.05.2007 was passed by this Court whereby this Court considering that there are only two sanctioned posts of Statistician in the cadre, therefore, there could not be any reservation for schedule caste for one post, directed that the vacancy in question shall not treated as reserved and may be readvertised inviting applications from all candidates. The order dated 18.05.2007 has been quoted in paragraph 8 (b) of the short counter affidavit dated 26.04.2014 filed by the respondents. Subsequent thereto, the writ petition was dismissed as infructuous vide order dated 08.05.2013, a copy of which has been filed as annexure 9 to the petition. Once the interim order passed by this Court stood merged with the final order i.e dismissal of the writ petition as infructuous, the petitioner preferred a representation dated 13.05.2013, copy of which is annexure 10 to the writ petition staking his claim for being appointed in pursuance to the advertisement of June, 2006 and the order of the Commission dated 07.05.2007. The respondents also vide their earlier letter dated 01.08.2007, a copy of which is annexure 11 to the petition on the basis of legal opinion had been of the view that the advertisement that had been published was perfectly in accordance with the rules and the relevant Government orders in this regard by which one post, in the cadre of two posts, had been reserved as per roster. 4. However, when despite the aforesaid letter dated 01.08.2007 and the aforesaid writ petition having itself been dismissed as infructuous the petitioner's appointment did not take place, the petitioner filed the present petition. 4. However, when despite the aforesaid letter dated 01.08.2007 and the aforesaid writ petition having itself been dismissed as infructuous the petitioner's appointment did not take place, the petitioner filed the present petition. Upon filing of the writ petition, the respondents vide order dated 19.01.2016, a copy of which is annexure 16 to the petition formed a committee which was of the view that the post on which the petitioner had been recommended for appointment now stands merged with the post of Research Officer and presently three posts of Research Officer are available and all three posts are vacant. It was also opined that in case the petitioner is given appointment against the post of Research Officer then the department would not have any objection. In pursuance of the said letter, the petitioner was asked vide letter dated 08.03.2017 by the respondent no. 2 to appear before the respondent no. 2 along with his documents. Copy of the said letter is annexure 17 to the writ petition. In pursuance thereof, the petitioner appeared before the respondent no. 2 but instead of passing any order for appointment of the petitioner on the post of Research Officer, the representation of the petitioner was rejected vide order dated 11.04.2018, a copy of which is annexure 13 to the writ petition. Through another order dated 11.04.2018, the recommendation of the Commission dated 07.05.2007 was also cancelled. The said order is annexure 12 to the writ petition. 5. As the said order was passed during the pendency of the present petition, consequently after making an amendment, both the orders have also been challenged. 6. Learned counsel for the petitioner while seeking to challenge both the orders dated 11.04.2018 contends that the advertisement of June, 2006 was correctly issued inasmuch as there were two posts in the cadre of Statistician and consequently there was no error when the respondents proceeded to reserve one post for schedule caste as per roster and as such once the advertisement was issued, the petitioner applied in pursuance thereof and has also been selected by the Commission and approved for appointment vide order dated 07.05.2007, accordingly the respondents, by turn of subsequent events, could not have prevented the petitioner from being appointed on the post of Statistician and could not have rejected the claim of the petitioner while passing the impugned order. It is also contended that a perusal of the impugned order dated 11.04.2018, a copy of which is annexure 13 to the writ petition indicates that the respondents have proceeded to reject the claim of the petitioner on two grounds i.e with the coming into force of the Rules, 2012, the post of Statistician now stands merged with the post of Research Officer and thus there is no occasion to appoint the petitioner on the post of Statistician. It has also being contended in the impugned order that reservation of one post against the total of two posts in the cadre exceeds the reservation limits of 21 percent for schedule caste and consequently there is no occasion to appoint the petitioner and thus even the recommendation of the Commission dated 07.05.2007 has been withdrawn. 7. Sri Mohd. Mansoor, learned counsel for the petitioner contends that both the impugned orders are patently misconceived inasmuch as even if the Rules, 2012 have come into force in the year 2012 which are subsequent to the advertisement issued by the respondents and subsequent to the selection of the petitioner dated 07.05.2007, consequently Rules, 2012 cannot take away the vested right of the petitioner for being appointed on the post of Statistician which flows out of the advertisement of June, 2006 inasmuch as any subsequent change/amendment in the rules cannot and will not take away the vested right which has accrued to the petitioner in terms of being declared as selected by the Commission. 8. So far as the other ground which has been taken by the respondents of 21 percent quota for schedule caste being exceeded as there are only two posts in the cadre, Sri Ahmad submits that at the relevant time when the advertisement was issued, the said advertisement was correctly issued as per the roster position and as had been opined by the letter dated 01.08.2007 and, consequently the respondents cannot be permitted to reject the case of the petitioner on such arbitrary grounds. 9. Sri Mohd. Mansoor, learned counsel for the petitioner has shown the usual fairness at his command to fairly submit that the matter in issue is squarely covered by the Full Bench judgment of this Court in the case of Heera Lal Vs. State of U.P and Ors reported in (2010) 3 UPLBEC 1761 as well as a larger Bench in the case of Dr. State of U.P and Ors reported in (2010) 3 UPLBEC 1761 as well as a larger Bench in the case of Dr. Archana Mishra and Ors Vs. State of U.P and ors passed in Writ Petition No. 51212 of 2010 which in turn has been affirmed by the Hon'ble Supreme Court with the dismissal of SLP (C) No. 31222 of 2018 on 27.11.2018. 10. On the other hand, learned Standing counsel being unaware of the aforesaid Full Bench judgment in the case of Heera Lal (supra) on the basis of averments contained in the counter affidavit argues that initially there was a restraint order passed by this Court in Writ Petition No. 490 (SB) of 2007 and consequently the appointment of the petitioner could not be made. Subsequent thereto, when the writ petition was itself dismissed as infructuous, the case of the petitioner was considered but keeping in view the changed position i.e Rules, 2012 having come into force by which the post of Statistician stood merged with the post of Research Officer and the fact that it was discovered that there being only two posts in the cadre, reserving one post would be exceeding the limit of 50 percent of reservation, consequently by means of the impugned order dated 11.04.2018, the representation of the petitioner has been rejected and the recommendation of the Commission has also been withdrawn. Thus, it is contended that there is no illegality or infirmity in both the impugned orders and the petition deserves to be dismissed. 12. Heard learned counsels for the contesting parties and perused the records. 13. The admitted facts which come out from a perusal of the records are that in terms of the advertisement dated June, 2006 for the post of Statistician, the petitioner had applied and thereafter had been declared as selected by the Commission. However, the appointment of the petitioner could not take place on account of an interim order that had been passed by a Division Bench of this Court in Writ Petition No. 490 (SB) of 2007. Subsequently, the said writ petition was dismissed as infructuous vide order dated 08.05.2013. However, the appointment of the petitioner could not take place on account of an interim order that had been passed by a Division Bench of this Court in Writ Petition No. 490 (SB) of 2007. Subsequently, the said writ petition was dismissed as infructuous vide order dated 08.05.2013. Thereafter, the respondents proceeded to consider the case of the petitioner and there was also a recommendation for appointing him on the post of Research Officer but even before the same could be done, by means of the impugned order dated 11.04.2018, the case of the petitioner was rejected. A perusal of the impugned order dated 11.04.2018 indicates that the respondents have proceeded to reject the case of the petitioner on two grounds namely that subsequent to the advertisement in June, 2006, the Rules, 2012 were promulgated by which the post of Statistician stood merged with the post of Research Officer. The second ground is that at the relevant time when the advertisement was issued, there were only two posts of Statistician in the cadre and reserving one post for schedule case for which the advertisement was issued would amount to exceeding the 21 percent quota which is fixed for schedule caste and consequently it has been contended that the advertisement was itself wrongly issued. 14. Even if the first ground on which the claim of the petitioner is to be ignored i.e the Rules, 2012 having done away with the post of Statistician yet the second ground on which the claim of the petitioner has been rejected i.e there being only two posts of Statistician in the cadre and advertisement having been issued for one post and reserving it for schedule caste would be exceeding the 21 percent quota fixed for schedule caste, would be a perfectly valid ground taking into consideration the law laid down by the Full Bench in this regard in the case of Heera Lal (supra). The Full Bench of this Court in the case of Heera Lal (supra) has held that in order to apply the roster, there have to be a minimum of five posts in the cadre. As already indicated above, there was only two posts in the cadre of Statistician and consequently by no stretch of imagination could the respondents have proceeded to reserve one post for schedule caste candidate while sending the requisition to the Commission. As already indicated above, there was only two posts in the cadre of Statistician and consequently by no stretch of imagination could the respondents have proceeded to reserve one post for schedule caste candidate while sending the requisition to the Commission. For the sake of convenience, the relevant observations of the Full Bench in the case of Heera Lal (supra) are reproduced as under: "28. The rule of roster and the concept of a running account of the roster therefore would commence only if there are five or more posts for extending the benefit of 21% reservation in favour of the scheduled caste category. A numerically less strength figure, below the required number, would therefore not allow the roster to be operated, as a roster is there to implement the rule of reservation and not a tool to create reservation. As noticed in the judgments of the Apex Court that in the event of any conflict between the percentage of reservation and the applicability of the roster, the former would prevail. Thus, in no event can the percentage of reservation be inflated or enhanced by the illusionary or imaginative application of the rule of roster........" 15. Accordingly, when the facts of the instant case are tested on the touch stone of the law down by a Full Bench of this Court in the case of Heera Lal (supra) what this Court finds is that once admittedly there were two posts in the cadre of Statistician consequently, sending of requisition to the Commission for one post by reserving it and the issue of the advertisement in June, 2006 reserving one post for schedule caste could not have validly been done by the respondents. As such, it cannot be said that there is any infirmity or illegality in both the impugned orders dated 11.04.2018 by which the claim of the petitioner has been rejected and the recommendation given by the Commission has been withdrawn. 16. As regards the arguments of learned counsel for the petitioner that as the petitioner had been declared selected by the Commission, consequently such vested right cannot be taken away, needless to mention that it is settled proposition of law that a selectee has no indefeasible right for appointment (See: Shankarsan Dash vs. Union of India reported in 1991 (3) SCC 47 ). Thus merely because petitioner was declared as selected by the Commission, he cannot stake his right for being appointed and the respondents are perfectly justified in rejecting the claim of the petitioner for appointment on the aforesaid ground. 17. Keeping in view the aforesaid discussions, no case for interference is made out. The writ is dismissed. 18. Before parting with case, this Court would like to record the fairness and assistance on the part of Sri Mohd. Mansoor, learned counsel for the petitioner in arguing the matter.