Allahabad High Court
Ashish Mishra And 22 Others vs State Of U.P. And 10 Others on 17 December, 2019
Author: Mahesh Chandra Tripathi
Bench: Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 36 Case :- WRIT - A No. - 7199 of 2017 Petitioner :- Ashish Mishra And 22 Others Respondent :- State Of U.P. And 10 Others Counsel for Petitioner :- Vijay Gautam,Ambarish Chatterji Counsel for Respondent :- C.S.C. AND Case :- WRIT - A No. - 10791 of 2017 Petitioner :- Parmeet Singh And 3 Others Respondent :- State Of U.P. And 8 Others Counsel for Petitioner :- Vijay Gautam,Vinod Kumar Mishra Counsel for Respondent :- C.S.C. Hon'ble Mahesh Chandra Tripathi,J.
Heard counsel for the parties.
Since the controversy involved in both the aforementioned writ petitions are similar in nature, they are being decided collectively by this common judgement and Writ Petition No. 7199/2017 is being treated as leading case.
Petitioners are before this Court with the prayer to quash the impugned selection list dated 21.12.2016 of Computer Operator Grade-A, Direct Recruitment (General Selection) 2016 in U.P. Police Department in pursuance of an advertisement dated 23.02.2016 issued by respondent no.4 only upto the extent that by excluding those selected candidates, who have been managed to get appointment letters in violation to the selection procedure laid down in U.P. Police Computer (Non-gazetted) Staff Service Rules 2011 and its 1st Amendment Rules 2015. Further prayer has been made to direct the respondent authorities to prepare the select list afresh after removing ineligible candidates under computer typing, adjustment of reserve category candidates (horizontal) in their respective social category and the vacancies which remain unfilled due to non joining of the selected candidates.
At the very outset, learned counsel for the petitioners submits that the controversy involved in the present petition is squarely covered by a decision of this Court dated 30.07.2019 passed in Writ A No. 7494/2019 (Vatsyayan Shukla and another vs. State of U.P. and others). Therefore, it is urged that the writ petition may be decided in terms of the aforementioned decision.
For ready reference, the order dated 30.07.2019 passed in Writ A No. 7494/2019 (Vatsyayan Shukla and another vs. State of U.P. and others) is extracted as under:-
"This petition has been filed for a direction to be issued to the respondents to fill up advertised posts of Computer Operator Grade-A, which have remained unfilled on account of non joining of selected candidates by permitting the petitioners to join against it.
Facts, which are not in dispute, are that recruitment process was initiated by the respondents to fill up the posts in question, according to the provisions of 'The Uttar Pradesh Police Computer Staff (Non-Gazetted Service) (Amended) Rules, 2011'. The Rule itself was amended on 30.6.2015. It is averred that 1865 posts of Computer Operator Grade-A were notified for recruitment, out of which 934 pots were for the open category candidates. According to the petitioners, cut off in open category was 113.75 marks. Total number of 73 candidates had scored 113.75 marks but only 21 out of 73 were selected by applying the rule of ' tie break '. Petitioners have also scored 113.75 marks but have been left out. They have approached this Court with the grievance that initially horizontal reservation was not correctly applied, therefore, a Writ Petition No. 4486 of 2017 was filed which has remained pending. However, 81 persons out of 933 recommended for selection in open category have apparently not joined, and consequently, 81 vacancies have remained unfilled.
Attention of the Court has been invited to Annexure- 5, which is a letter dated 30.10.2018, according to which 81 vacancies of unreserved candidates have remained unfilled and that such candidates have actually not joined. Petitioners submit that once 81 vacancies have remained available on account of non joining of candidates concerned, petitioners are liable to be considered for recruitment.
Learned counsel for the petitioners has placed reliance upon an observation of the Apex Court passed in Special Leave to Appeal (Civil) No. 10604 of 2013 dated 26.7.2013, which is extracted hereinafter:-
"In our view, the policy decision taken by the State Government does not have any bearing on the case of respondent no. 1 because he acquired a vested right to be apointed against the advertised post which remained unfilled due to non-joining of the candidate who was more meritorious than him. It is neither the pleaded case of the petitoenrs nor it has been argued before us that Dr. Vinod Kumar Lavania had joined the service and then resigned. Rather, it is the admitted case of the parties that one of the advertised posts remained unfilled due to non-joining of the selected candidate. This being the positon, the concept of waiting list cannot be brought in picture for defeating the legitimate right of respondent no. 1 appointed against the unfilled post."
It is submitted that the petitioners' claim is liable to be considered in light of the aforesaid observations.
A counter affidavit has been filed in which facts in that regard are not in dispute. Learned Standing Counsel however submits that no waiting list has been prepared and, therefore, petitioners' claim cannot be considered.
So far as the plea of waiting list is concerned, the same will have no applicability in a case of the present nature where the selected candidates have not joined. In case vacancies remain available, the authorities would be expected to fill up the posts from the candidates next in the order of merit, and their claim cannot be rejected only on the ground that a waiting list has not bee prepared. The observation of the Apex Court in the case of State of U.P. and another Vs. Rajiv Kumar Srivastava and others, would be clearly applicable in the facts of the present case.
In view of the above, writ petition succeeds and is allowed. A direction is issued to the respondents to consider petitioners' claim for appointment in light of the observations made above, by passing a reasoned order within a period of three months from the date of presentation of certified copy of this order."
Shri B.B.Pandey, learned Chief Standing Counsel submits that as per directions issued in various other writ petitions wherein similar controversy have been raised, the number of vacancies, as has been indicated while passing the order dated 30.07.2019 in Vatsyayan Shukla (supra), would have been reduced and as such, mandamus may not be issued in the matter. However, the grievance of the petitioners would definitely be redressed by the Authority concerned in accordance with law.
Accordingly, with the consent of parties of present writ petition as well as other connected matter, are disposed of asking the Competent Authority to look into the grievance of the petitioners and in case vacancies are still available and the petitioners fall in the zone of consideration, their claim be decided in the light of the observations so made in Vatsyayan Shukla (supra), expeditiously, preferably within a period of two months from the date of production of certified copy of this order.
Order Date :- 17.12.2019 A.K.Srivastava