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2019 DIGILAW 2598 (ALL)

Manoj Kumar v. State of U. P.

2019-11-19

SANGEETA CHANDRA

body2019
JUDGMENT : 1. This writ petition has been filed by the petitioners praying for a mandamus to be issued to the Respondent No.2, The U.P. Subordinate Services Selection Commission, Lucknow to prepare a waiting list of candidates securing marks next to the final cut off marks for appointment on the post of Village Development Officer in pursuance of the advertisement No. 3 Examination 2016 issued by the Respondent No.2. 2. The learned counsel for the petitioners has submitted on the basis of the Government Order dated 29.8.1992 that there is a provision for preparing of waiting list in every selection undertaken by the State Government. The petitioner Nos. 1 to 7 participated in the selection that was held for the post of Village Development Officers in pursuance of the Advertisement No.3, as aforesaid, they have secured equal marks to the cut off marks of the selected candidates but have not been proclaimed as selected only because they obtained lesser marks in the written examination than the marks of the last selected candidate. Since the Respondent No.2 did not issue any waiting list, they have not been appointed. 3. When the learned counsel for the petitioners was put a specific query as to whether there is any provision in the rules under which the selection was made for preparing a waiting list, the learned counsel for the petitioners has pointed out a judgment of this Court dated 9.8.2018 rendered by Division Bench in Special Appeal No. 163 of 2018 (Tarunesh Kumar and two others Vs. State of U.P. and others). A copy of the judgment relied upon by the petitioners has been filed as Annexure-7 to the petition. 4. This Court has perused the judgment of the Division Bench. The appeal was preferred against the judgment and order dated 22.8.2017 passed by the Writ Court in Writ A No. 25706 of 2017 dismissing the same. State of U.P. and others). A copy of the judgment relied upon by the petitioners has been filed as Annexure-7 to the petition. 4. This Court has perused the judgment of the Division Bench. The appeal was preferred against the judgment and order dated 22.8.2017 passed by the Writ Court in Writ A No. 25706 of 2017 dismissing the same. This Court after considering the Government Order dated 15.11.1999 also considered the U.P. Panchyat Sevak Service Rules, 1978 where Rule 15 specifically prescribed that the number of names to be included in the select list of candidates in orders of merit would be larger by more than 25% than the number of vacancies, came to a conclusion that the list that was to be so prepared was a waiting list or a reserved list, that was required to be operated upon in the event of non-availability of selected candidates to fill up the vacancies existing. 5. This Court also took into account that in the Government Order dated 15.11.1999 an exception was carved out for single cadre post and Gram Panchyat Adhikari was found to be a single cadre post by this Court. 6. Miss. Divya Chaurasiya who appears for the Respondent No.2 has placed before this Court a copy of U.P. Rural Development (Gram Sevak) Service Rules 1980 that have been issued to regulate the service conditions of Village Development Officers. In the said rules there is no such provision for preparing a select list which was 25% or even 10% larger than the post advertised for and says that since there is no provision in the rules applicable to the service which the petitioners applied for, the provisions of Government Order dated 15.11.1999 would apply which prohibit the preparation of a waiting list or a reserved list. 7. The learned counsel for the petitioner in rejoinder has submitted that in the advertisement itself in paragraph 12 a mention has been made that the criteria for selection would be U.P. Group C Direct Recruitment Procedure Rules 2015 and there being no mention of the U.P. Rural Development Gram Sevak Service Rules, 1980, therefore the Rules as have been cited by the learned counsel for the Respondent No.2 are inapplicable. 8. This Court has perused the copy of the Advertisement no.3 filed as Annexure to the writ petition. 8. This Court has perused the copy of the Advertisement no.3 filed as Annexure to the writ petition. The Rules of 2015 are general rules of direct recruitment relating to all group C services and a procedure is provided for a written examination and an interview and they also relate to the syllabus that is required to be studied by the candidates applying for selection on Group C posts and their eligibility criteria. The said rules apparently have been issued for a different purpose all together. 9. The U.P. Rural Development Gram Sevak Service Rules 1980 on the other hand deal specifically with the service conditions and other matters relating to selection of Village Development Officers. 10. Learned counsel for the petitioner has also made his submission on the basis of a judgment rendered in Triloki Nath Mishra and others Vs. State of U.P. and others by Coordinate Bench reported in 2002 (4) AWC page 2804 where the Government Order dated 15th November, 1999 which prohibited preparation of waiting list and reshuffling by U.P. Public Service Commission in respect of selections proposed by the State Government to be made by the U.P. Public Service Commission, has been quashed. It has been submitted that since the Government Order dated 15.11.1999 has been quashed, the prohibition for preparing a waiting list has also been done away with. Therefore, this Court can issue a mandamus as prayed for. 11. This Court has perused the judgment rendered in Triloki Nath Mishra's case by Coordinate Bench of this Court. The writ petition was filed by unsuccessful candidates of Combined Lower Subordinate Examination of 1998. The advertisement was issued on 6th September, 1998 for holding the preliminary examination. Candidates who were successful in the preliminary examination were allowed to appear in the main examination and then interviews were held in between 1.11.1999 to 4.12.1999. During the period when the interviews were in progress, the impugned order dated 15th November, 1999 was issued by the Secretary Karmik Anubhag-4, Government of U.P. Lucknow directing the U.P. Public Service Commission not to prepare waiting list and not to resort to reshuffling in all the selections to be made thereafter, except where there was a single post in the cadre. The select list was declared on 19.12.1999 and later on corrected by corrigendum dated 26.6.2000 and the recommendations were sent to the Government by the Commission. 12. The select list was declared on 19.12.1999 and later on corrected by corrigendum dated 26.6.2000 and the recommendations were sent to the Government by the Commission. 12. It was argued before the writ court in Triloki Nath Mishra (supra) that the government cannot change the rules during the course of the selection. The selection having been advertised in 1998 on the basis of Government Order dated 31.12.1994 which provided for preparation of waiting list also, would have to be continued only on the basis of such provision in the earlier government order. The selections cannot be governed by a government order which was issued during the time when the interviews were being held. The rules of the game could be changed during the time when the game was being played on the earlier professed rules. This Court found that at the time when the advertisement was issued in 1998, the Government Order of 1994 was in operation and, therefore, came to a conclusion that the Government Order dated 31.1.1994 would apply and the Government Order dated 15th November, 1999 would not apply. A direction was issued to the U.P. Public Service Commission and State Government to prepare a waiting list according to the Government Order of 1994, and a fresh list of candidates was to be prepared by the U.P. Public Service Commission with respect to number of vacancies which could not be filled up out of the original advertised vacancies and which fell vacant within one year from the date of issuance of the select list. 13. The judgment in the case of Triloki Nath Mishra and others (supra) clearly does not apply to the facts of the petitioner. 14. Even if this Court treats the Government Order dated 15.11.1999 to have been quashed in its entirety, as has been observed by the Writ Court in Triloki Nath Mishra's case, still there being no provision under the U.P. Rural Development of Gram Sevak Service Rules of 1980 for preparation of a waiting list, along with the select list, no mandamus can be issued to the authorities to ignore the provisions of the Rules. Since there is no subsisting legal right of the petitioners, who only took part in the selection, this Court moreover cannot issue any such mandamus to the authorities to ignore the provisions of law. 15. Since there is no subsisting legal right of the petitioners, who only took part in the selection, this Court moreover cannot issue any such mandamus to the authorities to ignore the provisions of law. 15. The learned counsel for the petitioners has submitted that in similar matters, the writ court has dismissed the writ petitions of Dheeraj Kumar and 30 others, but Special Appeal was filed by the writ petitioners namely Special Appeal No. 923 of 2018, which has been entertained on 30.9.2019. 16. This Court has also considered this submission of the learned counsel for the petitioner and the submission made by Miss. Divya Chaurasia that a Coordinate Bench of this Court in Writ A No. 16817 of 2018 Dheeraj Kumar Singh and 73 others as already dismissed such petitioners on 8.8.2018, the Special Appeal has been filed by some writ petitioners as has been referred to by the learned counsel for the petitioner namely Special Appeal No. 923 of 2018 against such order of the writ court. 17. This Court has perused the judgment of the Coordinate Bench. Since it is a finally decided case by a coordinate Bench and the reasons given therein apparently suffers from no infirmity for this Court not to follow such precedent of a Coordinate Bench. The mere pendency of Special Appeal No. 923 of 2018 cannot stand in the way of this Court dismissing this writ petition also. The petitioners are always at liberty to approach against this order also before the Division Bench. 18. This Court is impressed by the assistance given by Miss Divya Chaurasiya holding brief of Mr. Siddharth, learned counsel for Respondent no.2. 19. The writ petition stands dismissed. No order as to costs.