State Of U.P And Others v. Rajkumar Sharma And Others

Arijit Pasayat, J.— Leave granted.

2. Challenge in this appeal is to the judgment rendered by a Division Bench of the Allahabad High Court in a letters patent appeal. This is practically the second journey of the parties to this Court. Earlier in State of Uttaranchal v. Sidharth Srivastava (2003) 9 SCC 336 connected issues were considered.

3. The factual background in a nutshell is as follows:

The Uttar Pradesh Public Service Commission (in short “U.P PSC”) published advertisement inviting applications for 544 posts of JE Civil/Technical (507 civil + 37 technical). The result of selection was published on 7-1-2000. U.P PSC sent its recommendations to the U.P Government on 30-10-2000. The U.P Government forwarded the recommendations on 31-10-2000 to the Chief Engineer's Office, Hill Cadre, Almora. The separate State of Uttaranchal came into existence on 9-11-2000. The U.P Government forwarded U.P PSC recommendations in respect of posts in hill cadre to the Government of Uttaranchal. On 29-8-2001, the Government of Uttaranchal issued the order not to appoint the selected candidates mentioning two reasons that (1) the new reservation policy of the State of Uttaranchal is different from that of U.P, and (2) practical and legal difficulties “in such a situation” in giving appointments to the candidates recommended by U.P PSC. The selected candidates, aggrieved by the same, filed a batch of writ petitions assailing the said order, impleading the State of Uttaranchal and its officers, the State of Uttar Pradesh and its officers and U.P PSC. A Division Bench of the High Court by a common judgment allowed the writ petitions and issued direction to the State of Uttaranchal to give appointments to the writ petitioners. The High Court took the view that the recommendations made by U.P PSC of the erstwhile State of U.P were binding on the new State of Uttaranchal. The High Court's judgment was assailed before this Court by the State of Uttaranchal.

4. After noticing various provisions contained in Articles 320 and 323(2) of the Constitution as well as Section 178 of the U.P Reorganisation Act, 2000 it was held that the decision of the High Court was not correct. It was, inter alia, observed as follows:

“27. The High Court misread the government order dated 29-8-2001 and drew wrong inference in saying that the Government of Uttaranchal denied acceptance of the recommendations but did not say that no appointment shall be given on the basis of the recommendations of U.P PSC. If the Government of Uttaranchal has denied to accept the recommendations of U.P PSC, essentially it follows that no appointment could be given. This apart, in the very order in para 2 it is specifically stated that ‘therefore, in this regard after thorough consideration it has been decided that the candidates recommended by U.P PSC may not be appointed in various departments of the Government of Uttaranchal’. Thus, the reason given by the High Court that the Government of Uttaranchal though denied to accept the recommendations of U.P PSC but did not deny to give appointment and as such the said government order could be ignored, does not stand to reason and it is untenable.

30. The interpretation placed by the High Court on Section 78 of the Act is also wrong. Merely because the recommendations received by the erstwhile State of Uttar Pradesh had been sent to the State of Uttaranchal and they were not reserved by the Governor for being placed with the reasons before the Assembly of the State of Uttar Pradesh under Section 78 of the Act, it cannot be held that the recommendations made by U.P PSC were binding on the Government of Uttaranchal. In this regard we have already made the legal position clear. Hence it is unnecessary to deal with the same any further. In our view, looking to the reasons recorded by the High Court in the impugned judgment, which are neither tenable nor acceptable, the impugned judgment cannot be allowed to stand.”

5. Para 31 of the judgment is also significant as the case of the non-official respondents had its foundation on the said paragraph which reads as follows:

“31. It was also urged in the alternative that the State of Uttar Pradesh may be directed to give appointments to the non-official respondents. This aspect was neither raised before the High Court nor was it considered. Hence, we do not wish to deal with the same. All that we can say is that this order shall not come in the way of the State of Uttar Pradesh, if so advised, to consider the claims of the non-official respondents for appointments based on the selection made by U.P PSC. Having regard to the peculiar situation in which the non-official respondents are placed, we would like to say that in case the non-official respondents apply as and when the applications are invited for selection either by U.P PSC or by the Uttaranchal State Public Service Commission in future within a period of three years, U.P PSC or the Uttaranchal State Public Service Commission shall consider them for selection subject to their satisfying all other eligibility requirements but relaxing the upper age-limit.”

6. After this Court's judgment, the candidates whose names had been included in the select list approached the State of Uttar Pradesh to appoint them. However, their requests were turned down. Challenging the order of the State Government, the writ application was filed which was allowed by the learned Single Judge. The State of Uttar Pradesh and its functionaries filed a letters patent appeal before the Division Bench which affirmed the order of the learned Single Judge.

7. The stand of the appellant State before the High Court was that considering the peculiar circumstances the only relief granted by this Court was relaxation in age for a period of 3 years whenever the selection is held. The Uttar Pradesh Hill Sub-Cadre Rules, 1992 (in short “the 1992 Rules”) were enacted for certain hill areas of the State of Uttar Pradesh as it stood before the reorganisation, and the Rules were applicable in all districts of the hills, namely, Almora, Chamoli, Dehradun, Nainital, Pauri Garhwal, Pithoragarh, Tehri Garhwal, Uttarkashi and Udham Singh Nagar. All the said districts now stand included in the State of Uttaranchal. Therefore, the vacancies which were advertised for the hills could not be filled up as the said cadre stood abolished. Reliance has been placed by the High Court on office memorandums issued on 31-1-1994 and 15-12-1999 which did not have any application whatsoever.

8. Stand of the non-official respondent, however, was that the note appended to the advertisement made it clear that there was one application to be made for all the posts in different departments. It was only indicated that the screening shall be made at the time of final selection regarding posting in plain or hill areas. It was pointed out that in similar circumstances those candidates who had not been appointed by the State of Uttaranchal, were appointed by the State of U.P as Sub-Registrar and Passengers Goods Officers in the Transport Department. There could not be differential treatment so far as the writ petitioners are concerned. No fresh advertisement has been issued since 1998 though period of more than 6 years has lapsed.

9. The High Court accepted that the hill sub-cadre stood abolished. But held that currency of select list had not expired and the vacancies could be filled up. The High Court noted that appointments beyond number advertised would amount to filling up future vacancies which is impermissible. It also noted that mere inclusion in the select list did not confer any enforceable right to be selected even if some of the vacancies remain unfilled. Though it was noted that even if a mistake has been committed in some case, that cannot be a ground to perpetuate the mistake, on the logic of negative equality yet this is a case, according to the High Court, which was not based on any mistake. The select list was operative and its validity had not expired. If the State Government had given effect to the office memorandums while making appointment in other departments, there could be no justification to deprive the writ petitioners of some benefit particularly when the select list was in force and no vacancies had been advertised since 1998. It was held that this Court left the matter to be determined by the State Government. The discretion had not been exercised objectively. Accordingly, the special appeal was dismissed, upholding similar views expressed by the learned Single Judge.

10. In support of the appeal, Mr R.G Padia, learned Senior Counsel appearing for the State of U.P and its functionaries submitted that the High Court's judgment is unsupportable on more than one count. First, all the posts which were advertised for the plain areas cadre have been filled up. After having accepted that the appointments cannot be made beyond the number of posts advertised, should not have directed appointment.

11. The High Court having noticed that even if by mistake some appointments have been made that cannot confer a right on others, therefore erroneously held that this was not a case of mistake and/or that the select list was in force. Even the Uttar Pradesh Cadre Rules, 1992 clearly stipulate that the list was valid only for one year. The High Court erroneously placed reliance on the office memorandums dated 31-1-1994 and 15-12-1999.

12. The office memorandums had no application to the facts of the case. Even otherwise, the office memorandums clearly indicated that the select list is valid only for one year. It is of relevance to note that U.P PSC had prepared two lists, one for the plains and the other for the hill cadre. Further, in the earlier case at para 23 grievance had been made that the Uttaranchal Government had made appointments by picking up some candidates selected by U.P PSC. This Court observed that there was no evidence of any mala fides and similar is the position in the case at hand. It is pointed out by Mr Padia that only 11 persons in total were appointed in the two departments. Rules 12 and 16 of the Uttar Pradesh Public Works Department Subordinate Engineering Rules, 1951 (in short “the Engineering Rules”) substantiate the stand of learned counsel for the appellants that the select list is valid only for one year.

13. Filling up of vacancies over and above the number of vacancies advertised would be violative of the fundamental rights granted under Articles 14 and 16 of the Constitution. (See Union of India v. Ishwar Singh Khatri 1992 Supp (3) SCC 84, (1992) 21 ATC 851; Gujarat State Dy. Executive Engineers' Assn. v. State of Gujarat 1994 Supp (2) SCC 591, (1994) 28 ATC 78; State of Bihar v. Secretariat Asstt. Successful Examinees Union, 1986 (1994) 1 SCC 126, (1994) 26 ATC 500, AIR 1994 SC 736; Prem Singh v. Haryana SEB (1996) 4 SCC 319; Surinder Singh v. State of Punjab (1997) 8 SCC 488, AIR 1998 SC 18 and Kamlesh Kumar Sharma v. Yogesh Kumar Gupta (1998) 3 SCC 45, AIR 1998 SC 1021.)

14. Selectees cannot claim the appointment as a matter of right. Mere inclusion of candidate's name in the list does not confer any right to be selected, even if some of the vacancies remained unfilled and the candidates concerned cannot claim that they have been given a hostile discrimination. (See Shankarsan Dash v. Union of India (1991) 3 SCC 47, (1991) 17 ATC 95, AIR 1991 SC 1612; Asha Kaul v. State of J&K (1993) 2 SCC 573, (1993) 24 ATC 576; Union of India v. S.S Uppal (1996) 2 SCC 168, (1996) 32 ATC 668, AIR 1996 SC 2340; Hanuman Prasad v. Union of India (1996) 10 SCC 742; Bihar Public Service Commission v. State of Bihar (1997) 3 SCC 198, AIR 1997 SC 2280; Syndicate Bank v. Shankar Paul (1997) 6 SCC 584, AIR 1997 SC 3091; Vice-Chancellor, University of Allahabad v. Dr. Anand Prakash Mishra (1997) 10 SCC 264; Punjab SEB v. Seema 1999 SCC (L&S) 629; All India SC & ST Employees' Assn. v. A. Arthur Jeen (2001) 6 SCC 380, AIR 2001 SC 1851; Vinodan T. v. University of Calicut (2002) 4 SCC 726; S. Renuka v. State of A.P (2002) 5 SCC 195, AIR 2002 SC 1523 and Batiarani Gramiya Bank v. Pallab Kumar (2004) 9 SCC 100, AIR 2003 SC 4248.)

15. Even if in some cases appointments have been made by mistake or wrongly that does not confer any right on another person. Article 14 of the Constitution does not envisage negative equality, and if the State committed the mistake it cannot be forced to perpetuate the same mistake. (See Sneh Prabha v. State of U.P (1996) 7 SCC 426, AIR 1996 SC 540; Secy., Jaipur Development Authority v. Daulat Mal Jain (1997) 1 SCC 35; State of Haryana v. Ram Kumar Mann (1997) 3 SCC 321; Faridabad C.T Scan Centre v. D.G, Health Services (1997) 7 SCC 752; Jalandhar Improvement Trust v. Sampuran Singh (1999) 3 SCC 494, AIR 1999 SC 1347; State of Punjab v. Dr. Rajeev Sarwal (1999) 9 SCC 240; Yogesh Kumar v. Govt. of NCT, Delhi (2003) 3 SCC 548; Union of India v. International Trading Co. (2003) 5 SCC 437 and Kastha Niwarak Grihnirman Sahakari Sanstha Maryadit v. President, Indore Development Authority (2006) 2 SCC 604, JT (2006) 2 SC 259.)

16. In view of the aforesaid, the High Court after having correctly indicated the legal position has failed to apply the same to the factual scenario in its proper perspective. The basic fallacy in the judgment of the learned Single Judge and the Division Bench is that they proceeded under the presumption that the select list was in force. This view is clearly wrong. In para 31 of the earlier judgment it was made clear that it was up to the State to take a decision as to whether any relief can be granted to the persons who were selected in respect of the hill cadre. All the posts advertised for the plains cadre have been filled up. Therefore, the State has rightly taken the stand that there was no scope for appointing non-official respondents. Relaxation was given for a period of three years for applicants, when applications are invited for selection by U.P PSC or the Uttaranchal State Public Service Commission. Obviously, relaxation is to be granted when fresh applications are invited. That is not the case here. Therefore, the judgments of the learned Single Judge as well as Division Bench affirming the same cannot be maintained and are set aside. The appeal is allowed but without any order as to costs.