Allahabad High Court
Manoj Gautam vs State Of U.P. And Others on 10 February, 2020
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 34 Case :- WRIT - A No. - 18385 of 2008 Petitioner :- Manoj Gautam Respondent :- State of U.P. and Others Counsel for Petitioner :- V. Singh, A.D. Singh,V. K. Singh Counsel for Respondent :- C.S.C., Anoop.Trivedi Hon'ble Sudhir Agarwal,J.
1. Heard Sri V. Singh, learned counsel for petitioner and learned Standing Counsel for respondents.
2. Petitioner's appointment on Class IV post has been cancelled and he has challenged the same in the present writ petition.
3. Regional Director of Education (Secondary) IIIrd Region, Bareilly published Advertisement No.1 of 2002 dated 02.09.2002 wherein for District-Shahjahanpur, seven vacancies were advertised out of which three vacancies were for Scheduled Caste and four vacancies were for Other Backward Castes. It appears that against seven advertised vacancies for District-Shahjahanpur, appointment letters were issued to eighteen persons on different dates as under :
Sl No. Name of candidates Date of appointment Caste
1.
Sri Om Prakash 19.12.2002 Backward Caste
2. Sri Ram Dhiraj Yadav 24.12.2002 Backward Caste
3. Sri Satyapal Singh 24.12.2002 Backward Caste
4. Sri Amit Kumar Rastogi 26.12.2002 Backward Caste
5. Sri Satyendra Singh 29.01.2003 Backward Caste
6. Sri Himanshu Gupta 04.02.2003 Backward Caste
7. Sri Sanjeev Kumar Singh 04.02.2003 Backward Caste
8. Sri Rajesh Kumar 04.02.2003 Backward Caste
9. Sri Umesh Chand 19.12.2002 Scheduled Caste
10. Sri Ramadhar 20.12.2002 Scheduled Caste
11. Sri Mahendra Pal 23.12.2002 Scheduled Caste
12. Sri Sanjay Kumar 23.12.2002 Scheduled Caste
13. Sri Manoj Bharti 24.12.2002 Scheduled Caste
14. Sri Surendra Kumar 26.12.2002 Scheduled Caste
15. Sri Manoj Gautam 06.01.2003 Scheduled Caste
16. Sri Madan Singh 21.01.2003 Scheduled Caste
17. Sri Vimal Kumar Katheria 04.02.2003 Scheduled Caste
18. Sri Suraj Pal 07.04.2003 Scheduled Caste
4. Name of petitioner is at serial number 15 and he was appointed on 06.01.2003. However, it is not stated anywhere in the writ petition that aforesaid appointments letters were not in accordance with merit list or persons appointed earlier to petitioner were lower in merit to him, and therefore, cancellation of appointment of petitioner is illegal, arbitrary, irrespective of merit etc.
5. Moreover, against seven advertised vacancies, eighteen appointments could not have been made, therefore, District Inspector of Schools, Shahjahanpur (hereinafter referred to as "DIOS") stopped payment of salary to petitioner and ultimately vide impugned order dated 13.03.2008, petitioner's appointment has been cancelled.
6. It is contended that once an appointment was made, it was not open to respondents to cancel the same and that too without giving any show cause notice to petitioner.
7. When questioned, learned counsel for petitioner could not dispute that for District-Shahjahanpur, only seven vacancies were advertised which included three for Scheduled Caste and four for Other Backward Caste. Against seven vacancies advertised, eighteen appointments were made on various dates commencing from 19.12.2002 to 07.04.2003 as detailed above, which could not have been done legally.
8. It is well settled that numbers of vacancies advertised stand exhausted after making appointments thereagainst and no other vacancy which is not advertised could be filled in from the said selection when said selection stands exhausted.
9. In Union of India and Ors. Vs. Ishwar Singh Khatri and Ors 1992 Suppl. (3) SCC 84, Court held that selected candidate have right to appointment only against 'vacancies notified' and that too during the life of the select list as the panel of selected candidate cannot be valid for indefinite period. Moreover, empanelled candidates, in any event cannot have a right against future vacancies.
10. In State of Bihar and Ors. Vs. The Secretariat, Assistant S.E. Union, 1986 and Ors. AIR 1994 SC 736, Court held that "a person who is selected does not, on account of being empanelled alone, acquire any indefeasible right of appointment. Empanelment is at the best a condition of eligibility for purposes of appointment, and by itself does not amount to selection or create a vested right to be appointed unless relevant service rules say to the contrary." In the said case as the selection process was completed in five years after the publication of the advertisement, the contention was raised that the empanelled candidates deserved to be appointed over and above the vacancies notified. The Hon'ble Apex Court rejected the contention observing that keeping the selection process pending for long and not issuing any fresh advertisement in between, may not be justified but offering the posts in such a manner would adversely prejudice the cause of those candidates who achieved eligibility in the meantime.
11. In Surinder Singh and Ors. v. State of Punjab and Ors AIR 1998 SC 18, Court held as under:
"A waiting list, prepared in an examination conducted by the Commission does not furnish a source of recruitment. It is operative only for the contingency that if any of the selected candidates does not join then the persons from the waiting list may be pushed up and be appointed in the vacancy so caused or if there is some extreme exigency the Government may as a matter of policy decision pick up persons in order of merit from the waiting list. But the view taken by the High Court that since the vacancies have not been worked out properly, therefore, the candidates from the waiting list were liable to be appointed does not appear to be sound. This practice, may result in depriving those candidates who became eligible for competing for the vacancies available in future. If the waiting list in one examination was to operate as infinite stock for appointment, there is danger that the State may resort to the device of not holding the examination for years together and pick up candidates from the waiting list as and when required. The Constitutional discipline requires that this Court should not permit such improper exercise of power which may result in creating a vested interest and perpetuating the waiting list for the candidates of one examination at the cost of entire set of fresh candidates either from the open or even from service Exercise of such power has to be tested on the touch-stone of reasonableness. It is not a matter of course that the authority can fill up more posts than advertised."
12. In Kamlesh Kumar Sharma Vs. Yogesh Kumar Gupta and Ors. AIR 1998 SC 1021, Court similarly observed as under:
"As per the scheme of the Act and the aforesaid provisions, for each academic year in question, the management has to intimate the existing vacancies and vacancies likely to be caused by the end of the ensuing academic year in question. Thereafter, the Director shall notify the same to the Commission and the Commission, in turn, will invite applications by giving wide publicity in the State of such vacancies. The vacancies cannot be filled except by following the procedure as contained therein. Sub-section (1) of Section 12 has incorporated in strong words that any appointment made in contravention of the provisions of the Act shall be void. This was to ensure to back-door entry but selection only as provided under the said sections."
13. Similar view has been reiterated by Apex Court in Sri Kant Tripathi v. State of U.P. and Ors. (2001) 10 SCC 237 and State of J&K v. Sanjeev Kumar and Ors. (2005) 4 SCC 148.
14. In State of Punjab Vs. Raghbir Chand Sharma and Ors. AIR 2001 SC 2900, Court examined the case where only one post was advertised and the candidate whose name appeared at Serial No. 1 in the select list joined the post, but subsequently resigned. The Court rejected the contention that post can be filled up offering the appointment to the next candidate in the select list observing as under:
"With the appointment of the first candidate for the only post in respect of which the consideration came to be made and select list prepared, the panel ceased to exist and has outlived its utility and at any rate, no one else in the panel can legitimately contend that he should have been offered appointment either in the vacancy arising on account of the subsequent resignation of the person appointed from the panel or any other vacancies arising subsequently."
15. Referring to and relied on the above authorities, a Division Bench of this Court in District Judge and Hon'ble High Court of Judicature through its Registrar Vs. Sri Anurag Kumar 2006 (5) AWC 4682 held:
" In view of the above, we are of the considered opinion that as only ten vacancies had been advertised, there could be no justification for the authority concerned to fill up more than ten vacancies ... Once ten vacancies had been filled up, the selection process stood exhausted, and the authority concerned become functus officio. Any appointment made by him beyond that number, is without jurisdiction, therefore a nullity, inexecutable and unenforceable in law.
In such an eventuality after issuing appointment letters to ten candidates, the select list/waiting list stood exhausted and could not have been used as perennial source for appointment against any other vacancy."
16. Even otherwise, a wait list candidate has no indefeasible right to claim appointment.
17. A Constitution Bench in Shankarsan Dash Vs. Union of India, 1991(3) SCC 47, in para 7, said:
"7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily, the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bonafide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana Vs. Subhash Chander Marwaha and Others, [1974] 1SCR 165; Miss Neelima Shangla Vs. Stae of Haryana and Others, [1986] 4 SCC 268 and Jitendra Kumar and Others Vs. State of Punjab and Others, [1985] 1 SCR 899."
18. In the case of U.P. Public Service Commission, Allahabad and another Vs. State of U.P. and another 2007 (5) ADJ 280 (DB) in which rights of wait list candidate was considered by this Court, in para-15 of the judgment held:
"A wait list candidate does not have any indefeasible right to get appointment merely for the reason that his name finds place in the wait list." This Court in taking the aforesaid view relied upon the decision in Ved Prakash Tripathi Vs. State of U.P., 2001(1) ESC 317 and Surinder Singh and others vs. State of Punjab and another, (1997) 8 SCC 488 and held that even a select list candidate has no indefeasible right to claim appointment.
19. In para-31 of the judgment in U.P. Public Service Commission, Allahabad and another (supra) this Court has further held as under:
"Moreover, even in the case of a select list candidate, the law is well settled that such a candidate has no indefeasible right to claim appointment merely for the reason that his name is included in the select list as the State is under no legal duty to fill up all or any of the vacancy and it can always be left vacant or unfilled for a valid reason."
20. In view of aforesaid exposition of law, it cannot be doubted that no appointment can be said to be validly made which was beyond seven advertised vacancies for District-Shahjahanpur. Since, petitioner's appointment was made at 15th appointment and in absence of anything to show that appointment letters were not issued in accordance with merit or that the persons lower in merit were issued earlier appointment, the presumption that if appointment letters were issued as per merit list and that being so, after making 7th appointment, the select list stood exhausted and no further appointment could have been made from the select list prepared pursuant to selection held in furtherance of Advertisement No.1 of 2002 against a vacancy which was not advertised at all. Appointment of petitioner being beyond the number of vacancies advertised, was patently illegal, hence, in my view appointment of petitioner was rightly cancelled by authority concerned.
21. In view of aforesaid established facts, I do not find that order of cancellation of appointment/termination of petitioner would be vitiated in law only on the ground that no show cause notice was issue to petitioner when number of vacancies advertised and number of appointments made and other factual aspects, are not in dispute. At least there is nothing on record to show otherwise. Hence, I do not find any reason to take a different view. In my view, petitioner is not entitled for any relief.
22. Moreover, when it is evident that appointment of petitioner was illegal having made on the vacancies not advertised, any interference in termination/cancellation of appointment of petitioner would result in revival of another illegality i.e. illegal appointment of petitioner. It is settled that in exercise of jurisdiction under Article 226 of Constitution, this Court would not interfere with an order if setting aside of such order would result in revival of another illegal order.
23. A Division Bench of this Court (of which I was also a member) in Amarendra Singh Vs. State of U.P. 2008(1) ADJ 397 (DB)=2008(1)ESC 734 has held that since the petitioner has invoked extraordinary jurisdiction under Article 226 of the Constitution, the remedy is not as a matter of right and this Court is not bound to interfere even if technically or otherwise the order impugned is found to be illegal or erroneous. There are certain exceptions which are well recognised and one of such exceptions is where setting aside of an order will result in revival of another illegal order.
24. In Champalal Binani v. The Commissioner of Income Tax west Bengal and others AIR 1970 SC 645, Court while dealing with jurisdiction of the Court with respect to issuance of writ of certiorari held that "a writ of certiorari is discretionary, it is not issued merely because it is lawful to do so."
25. In Durga Prasad v. The Chief Controller of Imports and Exports and others AIR 1970 SC 769 (para 7) and in Bombay Municipal Corporation for Greater Bombay v. Advance Builders (India) Pvt. Ltd. AIR 1972 SC 793 (para 13), it was held that writ jurisdiction is discretionary and the Court is not bound to interfere even if there is error of law.
26. It would be appropriate to refer the view expressed in Municipal Board, Pratabgarh and Anr. v. Mahendra Singh Chawla and 1982(3) SCC 331, which reads as under:
"...this Court is not bound to tilt at every approach found not in consonance or conformity with law. The interference may have a deleterious effect on the parties involved in the dispute. Laws cannot be interpreted and enforced divorced from their effect on human beings for whom the laws are meant. Undoubtedly, rule of law must prevail but as is often said, 'rule of law must run akin to rule of life. And life of law is not logic but experience'. By pointing out the error which according to us crept into the High Court's judgment the legal position is restored and the rule of law has been ensured its pristine glory. Having performed that duty under Article 136, it is obligatory on this Court to take the matter to its logical end so that while the law will affirm its element of certainty, the equity may stand massacred. There comes in the element of discretion which this Court enjoys in exercise of its extraordinary jurisdiction under Article 136."
27. What has been observed by the Apex Court with reference to Article 136 of the Constitutions, in my view would equally be applicable when this Court is required to exercise its equitable extraordinary jurisdiction under Article 226 of the Constitution of India. In a given case, having set legal position straight, still this Court may decline to interfere where the equity justifies the same or where the facts and circumstances warrant that discretionary relief should be declined. Where interference with an illegal order may result in revival lot another illegal order, the Court would be justified in refusing to interfere.
28. In Employees' State Insurance Corporation and others vs. Jardine Henderson Staff Association and others AIR 2006 SC 2767, Court held that relief in a writ of certiorari can be denied inter alia when it would be opposed to public policy or in a case where quashing of an illegal order would revive another illegal order. In para 62 of the judgment Court held that High Court under Article 226 and Supreme Court under Article 136 read with 142 of the Constitution has the power to mould relief in the facts of the case.
29. In Ramnik Lal N. Bhutta and Anr. v. State of Maharashtra, AIR 1997 SC 1236, Court observed:
"The power under Article 226 is discretionary. It will be exercised only in furtherance of interest of justice and not merely on the making out of a legal point."
30. In State of H.P. v. Raja Mahendra Pal and Ors. (1999) 4 SCC 43, in para 6 of the judgment, Court held:
"...It is true that the powers conferred upon the High Court under Article 226 of the Constitution are necessary in nature which can be invoked for the enforcement of any fundamental right or legal right but not for mere contractual right arising out of an agreement particularly in view of the existence of an efficacious alternative remedy. The constitutional court should insist upon the party to avail of the same instead of invoking of extraordinary writ jurisdiction of this Court. This does not however debar the Court from granting the appropriate relief to a citizen under peculiar and special facts notwithstanding the existence of an alternative efficacious remedy. The existence of special circumstances are required to be noticed before issuance of the direction by the High Court while invoking the jurisdiction under the said Article...."
31. Similarly, in Director of Settlement v. M.R. Apparao (2002) SCC 638 in para 17 Court held that the power vested in High Court under Article 226 of the Constitution is discretionary.
32. Following the principle laid down in the aforesaid decisions, this Court has reiterated the same view in a number of cases, including R.K. Shukla VS. Chairman Town Area Committee & Another (Writ A No. - 19889 of 1991 decided on 17.1.2013). Suffice it to say that this Court is not bound to interfere even if technically or otherwise, order impugned, is found to be illegal or erroneous.
33. In Amrendra Singh Vs. State of U.P. & Ors., 2008 (2) UPLBEC 60, this Court has declined to interfere in intra Court appeal with an order of Single Judge even though legally it was not sustainable since substantial justice had been done therein and setting aside order may have resulted in revival of another pernicious order.
34. In view of above discussions, I am of the opinion that petitioner is not entitled for any relief.
35. Writ petition lacks merit and is accordingly dismissed.
36. Interim order, if any, stands vacated.
Order date :10.02.2020 Manish Himwan