Allahabad High Court
Pankaj Singh And Ors. vs State Of U.P. Thru. Secy. Deptt. Of ... on 23 May, 2023
Bench: Devendra Kumar Upadhyaya, Saurabh Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Neutral Citation No. - 2023:AHC-LKO:36155-DB Reserved Court No. - 1 Case :- SPECIAL APPEAL No. - 264 of 2021 Appellant :- Pankaj Singh And Ors. Respondent :- State Of U.P. Thru. Secy. Deptt. Of Finance Lucknow And Ors. Counsel for Appellant :- Sarvesh Kumar Tiwari,Abhishek Dwivedi,Anisha Dwivedi,Arvind Kumar Tiwari,Ashish Chaturvedi,Ashwani Kumar,Kazim Ibrahim,Ritesh Ranjan Chaubey Counsel for Respondent :- C.S.C.,Gaurav Mehrotra,Tushar Verma connected with (1) Case :- SPECIAL APPEAL No. - 266 of 2021 Appellant :- Kaushalendra Kumar Tripathi And Ors. Respondent :- State Of U.P.Thru Prin.Secy.Finance Deptt. Lucknow And Ors. Counsel for Appellant :- Amrendra Nath Tripathi,Rajesh Kumar Counsel for Respondent :- C.S.C.,Gaurav Mehrotra (2) Case :- SPECIAL APPEAL No. - 279 of 2021 Appellant :- Prianshu Verma And Ors. Respondent :- State Of U.P.Thru Prin.Secy. Finance Deptt. Lucknow And Ors. Counsel for Appellant :- Agendra Sinha Counsel for Respondent :- C.S.C.,Gaurav Mehrotra (3) Case :- SPECIAL APPEAL No. - 290 of 2021 Appellant :- Rajesh Yadav And Ors. Respondent :- State Of U.P. Thru. Secy. Finance Lko. And Ors. Counsel for Appellant :- Anubhav Awasthi,Km. Aditi Mishra,Rajeev Mishra Counsel for Respondent :- C.S.C.,Gaurav Mehrotra (4) Case :- SPECIAL APPEAL No. - 291 of 2021 Appellant :- Pravesh Kumar And Ors. Respondent :- State Of U.P.Thru Prin.Secy. Finance Deptt. And Ors. Counsel for Appellant :- Gopal Pandey Counsel for Respondent :- C.S.C.,Gaurav Mehrotra (5) Case :- SPECIAL APPEAL No. - 350 of 2021 Appellant :- Anurag Shukla And Ors. Respondent :- State Of U.P. Thru. Prin. Secy. Finance Lko. And Ors. Counsel for Appellant :- Avinash Tripathi Counsel for Respondent :- C.S.C.,Gaurav Mehrotra (6) Case :- SPECIAL APPEAL DEFECTIVE No. - 307 of 2021 Appellant :- Sudhir Singh And Ors. Respondent :- State Of U.P. Thru. Prin. Secy. Finance Lko. And Ors. Counsel for Appellant :- Alok Mishra Counsel for Respondent :- C.S.C.,Gaurav Mehrotra Hon'ble Devendra Kumar Upadhyaya,J.
Hon'ble Saurabh Srivastava,J.
(1) The appellants in this batch of intra-Court Appeals filed under Chapter VIII Rule 5 of the Rules of the Court have questioned the judgment and order dated 22.06.2021 passed by the learned Single Judge whereby certain writ petitions were dismissed and certain others have been disposed of with direction to the State-authorities for consideration of such writ petitioners for promotion to the post of Senior Clerk/Assistant Treasury Accountant in terms of the statutory Rules as amended from time to time.
(2) The appellants of of Special Appeal No.264 of 2021, 266 of 2021, 279 of 2021, 290 of 2021, 291 of 2021 and 307 of 2021 have questioned the judgment and order dated 22.06.2021, whereas the appellants of Special Appeal No. 350 of 2021 have questioned the judgment and order 02.09.2021 which follows the judgment and order dated 22.06.2021.
(3) Having regard to the averments made in the application seeking condonation of delay in Special Appeal Defective No.307 of 2021, we are satisfied that the delay has satisfactorily been explained. Accordingly, the application is allowed and the delay in filing the Special Appeal is hereby condoned. Special Appeal No. 291 of 2021 has been filed in time, whereas the delay in rest of Special Appeal Nos. 264 of 2021, 266 of 2021, 279 of 2021, 290 of 2021 and 350 of 2021 has been condoned earlier by this Court.
(4) Heard Sri J. N. Mathur, learned Senior Advocate who led the arguments on behalf of the appellants alongwith Sri Kazim Ibrahim, Sri Amrendra Nath Tripathi, Sri Anubhav Awasthi, Sri Ritesh Ranjan Chaubey, Sri Gopal Pandey, Sri Avinash Tripathi, Sri Agendra Sinha and Sri Alok Mishra, learned counsel representing the appellants and Sri Amitabh Rai, learned Additional Chief Standing Counsel representing the State-authorities. Sri Gaurav Mehrotra, learned counsel representing the U.P. Subordinate Services Selection Commission has also been heard.
(5) We have also perused the records available before us on these Special Appeals.
(6) Before adverting to the rival submissions made by learned Counsel representing the respective parties, we find it appropriate to note certain facts which are essential for appropriate adjudication of the issues involved in this case.
(7) The Uttar Pradesh Treasuries Ministerial Establishment is a Subordinate Ministerial Service comprising Group 'C' posts. For governing the conditions of service of the members of the said service, the State of U.P. has framed Rules under the proviso appended to Article 309 of the Constitution of India which are known as U.P. Treasuries Ministerial Service Rules, 1978 [here-in-after referred to as 'the 1978 Rules']. Strength of service of each category of posts as per Rule 4 (1) is to be determined by the Governor from time to time and as per Rule 4 (2) strength of service of each category of posts shall, until orders varying the same are passed, shall be as given in the Appendix appended to the said Rules. Proviso appended to Rule 4 (2) provides that the appointing authority may leave unfilled or the Governor may hold in abeyance any vacant post, without thereby entitling any person to compensation. The second proviso appended to provides that the Governor may create such additional permanent or temporary posts as he may consider proper.
(8) When the 1978 Rules were framed on 29.08.1978, the Appendix 'A' appended to the 1978 Rules contained four posts, namely (1) Treasury Head Clerk/Additional Treasury Head Clerk, (2) Assistant Treasury Head Clerk, (3) Senior Grade Clerk and (4) Routine Grade Clerk. The Appendix also contained the sanctioned strength of the aforesaid posts of service.
(9) Rule 5 of the 1978 Rules provides for the source of recruitment according to which certain posts in the service are to be filled in by the direct recruitment and certain other posts are to be filled in by promotion. Rule 15 of the 1978 Rules provides the procedure for direct recruitment, whereas Rule 16 of the 1978 Rules provides the procedure for recruitment by way of promotion.
(10) On 20.11.1987, the State Government issued a Government Order whereby nomenclature of certain posts in the service was changed. The said Government Order provided that the post of Treasury Senior Clerk will be known as Assistant Treasury Officer; Bill Passing Clerk/Cheque Writer will be known as Treasury Accountant; Pension Clerk, Senior Clerk, Record Keeper and Establishment Clerk will be known as Assistant Treasury Accountant Grade - I and Routine Grade Clerk will be known as Assistant Treasury Accountant Grade - II. It also provided that in future minimum educational qualification for direct recruitment to the post of Assistant Treasury Accountant Grade - 2 shall be Graduation Degree with Mathematics or Commerce (Accountancy) as a subject. The Government Order further provided that the corresponding amendments in the Service Rules shall be made separately.
(11) Another Government Order was issued on 21.03.1990 sanctioning certain posts in the Treasury Establishment. The said Government Order contained an enclosure according to which the pay-scale of Rs.1200-2040 was sanctioned to the post of Assistant Treasury Accountant Grade - I and pay-scale of Rs.980-1500 was sanctioned to the post of Assistant Treasury Accountant Grade - II. As per enclosure appended to the Government Order dated 21.03.1990, 72 posts of Assistant Treasury Accountant Grade - II were to be separated from 788 posts occupied by those who were transacting routine nature of work and they were to be known as Junior Clerk for whom the educational qualification for appointment would be Intermediate with Commerce (Accountancy). It further provided that against these posts, in future, recruitment shall be made by the Selection Board. This Government Order also provided that after excluding 72 posts out of the cadre strength of 788 posts of Assistant Treasury Accountant Grade - II, rest 716 posts shall be known as Assistant Treasury Accountant, which shall be placed in the pay-scale of Rs.1200-2040.
(12) After issuance of the said Government Order dated 21.03.1990, the State Government took a decision which is embodied in another Government Order dated 30.04.1993 whereby it was provided that recruitment to the post of Assistant Treasury Accountant shall be made through direct recruitment. The Government Order further provided that corresponding amendments in the 1978 Rules be also made. For the said purpose, the Director, Directorate of Treasury was required to submit a proposal.
(13) An advertisement was issued by U. P. Subordinate Services Selection Commission in the year 2015 bearing No.11 of 2015 whereby 304 posts of Assistant Treasury Accountants in the then existing pay-scale of Rs.5200-20200 with Grade Pay of Rs.2,800/- were advertised. However, this advertisement was challenged by certain Routine Grade Clerks claiming their promotion on the post of Assistant Treasury Accountant by filing Writ Petition No.2346 (SS) of 2016, Indra Kumar Shrotria and 2 others v. State of U.P. and others and other connected writ petitions. The claim putforth by the Routine Grade Clerks in this bunch of writ petitions was that the post of Assistant Treasury Accountant cannot be filled in by direct recruitment for the reason that 1978 Rules do not contain any such prescription and against the posts so advertised the Routine Grade Clerks are entitled to be considered for promotion. This bunch of writ petitions, leading writ petition being Writ Petition No. 2346 (SS) of 2016, was decided by a learned Single Judge of this Court by means of judgment and order dated 21.08.2017. Learned Single Judge while disposing of the said bunch of writ petitions directed the State Government to consider the claim of Routine Grade Clerks for promotion to the post of Senior Clerk/Assistant Treasury Accountant Grade - I in accordance with 1978 Rules.
(14) Another advertisement was issued by the U.P. Subordinate Services Selection Commission in the year 2016 bearing advertisement No. 12 of 2016 whereby 702 posts of Assistant Treasury Accountant were advertised for appointment to be filled in by way of direct recruitment. A corrigendum was issued by the Commission on 27.10.2016, pursuant to a letter of the Director, Directorate of Treasury, dated 03.10.2016 whereby it was provided that the selection to the post of Assistant Treasury Accountant shall be held only against 540 posts. The advertisement issued in the year 2016 was also challenged by certain Routine Grade Clerks working in the department who were waiting for consideration of their cases for promotion to the post of Assistant Treasury Accountant by filing various writ petitions, including Writ Petition No. 3522 (SS) of 2018, Anoop Singh v. State of U.P. and others. In this petition, an interim order was passed by the learned Single Judge dated 08.02.2018 providing therein that the selection shall continue but the result of the same shall not be declared. Learned Single Judge also provided in the said interim order dated 08.02.2018 that it will be open for the State Government to look into the matter and take appropriate decision. The aforesaid writ petitions have also been decided by the learned Single Judge by means of judgment and order dated 22.06.2021 which is under appeal herein.
(15) Accordingly, pursuant to the advertisement No.12 of 2016, the selection proceeded and the written examination was held on 11.09.2016 whereafter first set of interviews were conducted between 23.03.2017 and 21.05.2017 and thereafter second set of interviews were conducted between 28.08.2018 and 10.12.2018. The result of the selection was not, however, declared as the interim order dated 08.02.2018 passed by the learned Single Judge in Writ Petition No. 3522 (SS) 2018 and another interim order dated 19.04.2018 passed in Writ Petition No. 11256 (SS) of 2018 were operating. The State Government thereafter considered the matter and took a decision to withdraw the requisition pursuant to which Advertisement No. 12 of 2016 was issued and also to cancel the selection process. The said decision is embodied in the Government Order dated 25.07.2019 which was challenged by several individuals by instituting writ petitions before this Court, including Writ Petition No. 24163 (SS) of 2019, Pankaj Singh and others v. State of U.P. and others.
(16) It is also to be noticed that prior to issuance of the Government Order dated 25.07.2019, whereby the selection in question was cancelled, certain applicants who had submitted their applications pursuant to Advertisement No. 12 of 2016 also instituted writ petitions with the prayer to direct the respondents to declare the result of the selection held.
(17) Thus there were three categories of writ petitions which were preferred by various individuals and were clubbed together which have been decided by the judgment and order dated 22.06.2021 which is under challenge in these Special Appeals.
(18) The first set of writ petitions were filed by the Routine Grade Clerks working in the department challenging the advertisement No.12 of 2016 and praying therein that they be considered for promotion to the post of Assistant Treasury Accountant in terms of 1978 Rules. The second set of writ petitions were filed by those who had appeared in the selection held pursuant to the advertisement No. 12 of 2016 with the prayer that the result of the said selection be declared. In the third category of writ petitions decided by the learned Single Judge, validity of the Government Order dated 25.07.2019 passed by the State Government was challenged whereby the selection itself was cancelled after withdrawing the requisition.
(19) These three set of Writ Petitions were clubbed together and have been decided by the learned Single Judge by means of judgment and order dated 22.06.2021 which is under appeal before us in these Special Appeals. The first set of writ petitions filed by Routine Grade Clerks praying for consideration of their cases for promotion to the post of Assistant Treasury Accountant have been allowed, whereas the second and third sets of writ petitions whereby declaration of result pursuant to the selection was prayed for and the order of State Government cancelling the selection dated 25.07.2019 was challenged, have been dismissed.
(20) Lengthy arguments have been made by the learned Counsel for the appellants primarily touching upon the factual aspects of the matter as to how, in past the cadre structure of service has undergone change and as to whether without making amendments in the 1978 Rules which have been framed under Article 309 of the Constitution of India, by Executive Orders the structure of cadre etc. can be altered or not. However, in our opinion, the controversy which has emerged for our consideration and the issue which needs to be adjudicated in these Special Appeals lies in a very narrow compass. The issue in this case is as to whether the State, which is the employer in this case, has unbridled authority and power to cancel a selection, once the selection process has reached upto the stage of declaration of result and as to whether those writ petitioners who had appeared in the selection have got any vested right to seek declaration of result and appointment on the basis of such result.
(21) The scope of judicial review of any such action on the part of the State where selection has been cancelled is limited. The legal proposition that mere selection of a candidate for recruitment and appointment to a post does not confer upon him any vested right is also not in dispute. In fact, the issue is no more res integra which stood settled by the Hon'ble Supreme Court in the case of Shankarsan Dash v. Union of India [(1991) 3 SCC 47].In this judgment, Hon'ble Supreme Court has categorically held that candidates selected in the merit list do not have any indefeasible right of appointment even in case of availability of vacancies, however, the State while filling-up the vacancies has to act bona fide and not arbitrarily. Hon'ble Supreme Court further held that any notification or advertisement to fill-up vacancies amounts to invitation to qualified candidates to apply for appointment, however, on their selection they do not acquire any right to the post. Hon'ble Supreme Court has further held that the State is not under any legal duty to fill-up all or any of the vacancies. Hon'ble Supreme Court in Shankarsan Dash (supra), having observed as above, also laid down the legal principle that though the selected candidates do not acquire any right to be appointed against the available vacancies, however, it does not mean that the State has the licence to act in an arbitrary manner and further that the decision not to fill-up vacancies has to be taken for appropriate reasons. Para - 7 of the judgment in the case of Shankarsan Dash (supra) is relevant in this regard, which is extracted here-in-below:-
"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 bona fide 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 v. Subhash Chander Marwaha and Others, [1974] 1 SCR 165; Miss Neelima Shangla v. State of Haryana and Others, [1986] 4 SCC 268, or Jitendra Kumar and Others v. State of Punjab and Others, [1985] 1 SCR 899.
(22) Similar view as that in Shankarsan Dash (supra) was also expressed by the Hon'ble Supreme Court yet in another case of Asha Kaul (Mrs.) and another v. State of Jammu and Kashmir and others [(1993) 2 SCC 573] wherein it has been held that mere inclusion in the select list does not confer upon the candidates selected therein an indefeasible right to appointment but that is only one aspect of the matter and the other aspect is the obligation of the Government to act fairly. The Apex Court has further observed that having sent a requisition/request to the Commission to select a particular number of candidates for a particular category in pursuance of which the Commission issues a notification, holds a written test, conducts interviews, prepares a select list and then communicates to the Government, the Government cannot quietly and without good and valid reasons nullify the whole exercise and tell the candidates that they have no legal right to appointment. Para - 8 of the judgment in the case of Asha Kaul (supra) is extracted here-in-below:-
"8. It is true that mere inclusion in the select list does not confer upon the candidates included therein an indefeasible right (State of Haryana v. Subhash Chandra Marwaha A.I.R. 1 973 S.C.2216; Mani Subrat Jain v. State of Haryana A.I.R. 1977 S.C. 276; State of Kerala v. A. Lakshmikutty A.I.R. 1987 S.C 331] but that is only one aspect of the matter. The other aspect is the obligation of the government to act fairly. The whole exercise cannot be reduced to a farce. Having sent a requisition/request to the Commission to select a particular number of candidates for a particular category, - in pursuance of which the Commission issues a notification, holds a written test, conducts interviews, prepares a select list and then communicates to the Government - the Government cannot quietly and without good and valid reasons nullify the whole exercise and tell the candidates when they complain that they have no legal right to appointment. We do not think that any Government can adopt such a stand with any justification today. This aspect hs been dealt with by a Constitution Bench of this Court in Shankarsan Dash v. Union of India [(1991) 3 SCC 47] where the earlier decisions of this Court are also noted. ..."
(23) The issue which we have been called upon to answer in this case had earlier engaged the attention of this Court in the case of Amar Nath Singh and others v. Union of India and others [(1998) 3 UPLBEC 1885] wherein a learned Single Judge of this Court observed that it is well settled that mere inclusion in the select list does not confer upon the candidates included therein an indefeasible right to appointment, but the other aspect of the matter is the obligation of the State to act fairly. The learned Single Judge further observed that if an order is passed to set at naught the entire selection process, it has to conform to the test of reasonableness and fairness and further that the order should be passed bona fide and on some concrete and tangible material and certainly it cannot be the outcome of an arbitrary act. Paragraphs 8, 13, 16, 17 and 18 of the said judgment are extracted here-in-below:-
"8. The law, therefore, is well settled that mere inclusion in the select list does not confer upon the candidates included therein an indefeasible right to appointment, but that is only one aspect of the matter. The other aspect is the obligation of the State to act fairly. The whole exercise cannot be reduced to a farce. The observations made in Asha Kaul (Mrs.) and another v. State of Jammu and Kashmir and others, (1993) 2 SCC 573, may profitably be adverted to. In that case, the select list prepared by the Public Service Commission was sent for approval of the Government. The list was kept pending by the Government on being prima facia satisfied with some of the complaints received against the selection process. Subsequently, the State Government asked for the list of 20 candidates and appointed them. Names of rest of the 7 candidates in the list were not approved. It was held that the Government has no absolute discretion in the matter; it must act fairly; it cannot pick and choose or approve a part of it and reject the other part and must record reasons for disapproval of one set of candidates and approval of other candidates. When selection list is sent in accordance with the requisition of the Government, it must accord its sanction irrespective of the number of vacancies. The Government's action in rejecting a part of the list was found to be unsustainable. The most striking observation in Ashs Raul's case (supra), is that "the Government cannot quietly and without good and valid reasons nullity the whole exercise and tell the candidates when they complain that they have no legal right to appointment. No Government can adopt such a stand with any justification today." Every in K.S. Gandhi's case (supra), in which the order of cancellation of result of account of mass copying was cancelled, the Supreme Court held that if the order cancelling the examination came to be passed, the record should indicate the reason though the order may not contain reasons. Every candidate who has applied for a particular post in pursuance of the advertisement and who has gone through the rigour of the entire process of selection, in my view, is entitled to have a legitimate expectation for being considered for appointment, may be that he is ultimately not appointed. Appointment on a post in one thing while consideration for appointment is another. Both the things cannot be mixed up and the confusion, if any, in the mind of all and sundry, must be clear with reference to these two aspects of the matter, which are quite separate and distinct. The order of cancellation of the recruitment process cannot be attached with that much of sanctity as it may render it inviolable or beyond the pale of scrutiny. The law is that if an order has been passed to set at naught the entire selection process, it has to conform to the test of reasonableness and fairness. The order should be passed bonafide and must be passed on some concrete and tangible material and certainly it cannot be the outcome of an arbitrary act imbued with subjectively."
"13. I am conscious of the fact that a selection process is not sacrosanct. It can be cancelled, scrapped or annulled if there is concrete and reliable evidence of large scale bungling, malpractice, corruption, favoritism and nepotism of the like of if there is a violation of fundamental procedural requirements. It is true that fabrication would obviously either be not known or no one could come forward to bear the burnt. Nevertheless, there should be wealth of material to take the extreme and drastic step of scrapping the whole recruitment process, particularly when it has reached the final stage. The cancellation or scrapping of the recruitment has very serious repercussions and impact not only on the candidates who have undergone the rigorous of the test but on the general public and the Department itself. It also casts aspersions on the members of the Recruitment Committee. I am constrained to observe that the order of scrapping of the recruitment by the DG/RPF, may not be mala fide but is in utter violation of the established norms and devoid of the considerations fairness and reasonableness. The order is the product of irrelevant considerations and has been passed in a cloistered manner. The fact that there has been non-application of mind to the real question, i.e., of removal of the discrepancies and irregularities, is eloquent of the arbitrariness on the part of the DG/RPF. The recruitment has been doled out in a wholly arbitrary manner."
"16. Certainly the most controversial and at the same time most fascinating role of the Court is the exercise of the power of judicial review. It is commonly viewed with almost equal amount of reverence and suspicion. Briefly stated, the Judicial review is the power of the Court to uphold constitutional values by striking down any illegal arbitrary, unreasonable and capricious action of the authorities (De Smith, Judicial Review of Administrative Action (1980) 280, Wade, Administrative Law (1982) 548-50. Jain and Jain, Administrative Law)."
"17. It is a cardinal principle of our constitution that no one, howsoever, highly placed and no authority, however, lofty, can claim to be the sole Judge of its power. The judiciary is the interpreter of the constitution and to the judiciary is assigned the delicate task to determine what is the power conferred on each branch of Government, whether it is limited and if so, what are the limits and whether any action of that branch transgresses such limits, it is for the judiciary to be uphold the constitutional all values and to enforce the constitutional limitations. The power of judicial review is an integral part of our constitutional system. The Supreme Court has taken the view that if there is one feature of our Constitution which, more than any other, is basic and fundamental to the maintenance of democracy and the rule of law, it is the power of judicial review and it is unquestionably, part of the basic structure of the Constitution (1991) 3 SCC 91, G.B. Mahajan and others, v. Calgaon Municipal Council and others; (1991) 4 SCC 485, HC Suman and others, v. Re-habilitation Ministry and Others and (1991) 3 SCC 239, U.P. State Road Transport Corporation v. Mohd. Ismail and others.; (1991) 1 SCJ 521, Subhas Sharma v. Union of India and Hon'ble Rangnath Misra (EX. Chief Justice of India) in Subhas Sharma v. Union of India, (1991) 1 SCJ 521."
"18. In our modern day society, dominated by complex legislative programmes and large-scale Government involvement in the every day lives of all of us, judicial review of administrative action is essential for the protection of individuals illegally harmed by that action. The frontiers of the power of judicial review have considerably expanded. Even where the function is said to be administrative, the Court will not hesitate to intervene in a suitable case if it is necessary in order to secure fairness."
(24) Learned Single Judge in the case of Amar Nath Singh (supra) has not only reiterated the legal principle that the candidates selected have no indefeasible right to appointment, however action of the State in a situation where selection is cancelled. has to be based on justifiable and good reasons based on tangible material, but has also culled out the legal principles governing the power of judicial review of this Court under Article 226 of the Constitution of India in relation to administrative action of the State Government. Thus the petitioners who had appeared in the selection held pursuant to the said Advertisement No.12 of 2016 do not have any indefeasible right to seek declaration of result and later on, appointment, if they succeed in selection, however, the action of the State Government in cancelling the selection and recalling the requisition is to be tested on the anvil of such action being non-arbitrary, fair and bona fide based on tangible material.
(25) We may, at this stage itself, observe that 1978 Rules which were framed under Article 309 of the Constitution of India governing the conditions of service including the appointment to the posts included in the cadre/service contain a very important provision in the first proviso appended to Rule 4(2) according to which the appointing authority may leave unfilled or the Governor may hold in abeyance any vacant post, without thereby entitling any person to compensation. Rule 4 (2) of the 1978 Rules is extracted here-in-below:-
"4 (2) The strength of the service and of each category of posts therein shall, until orders, varying the same are passed under sub-rule (1) be as given in Appendix 'A' Provided that -
(i) the appointing authority may leave unfilled or the Governor may hold in abeyance any vacant post, without thereby entitling any person to compensation.
(ii) the Governor may create such additional permanent or temporary posts as he may consider proper."
(26) Thus the statutory prescription available in 1978 Rules governing the appointment in question clearly permit the appointing authority to leave any post unfilled. It also permits and empowers the Government to keep in abeyance any vacant post which however will not entitle any person to any compensation. Thus, so far as the authority of the State Government to cancel the selection is concerned, the same can be easily traced in the provisions contained in first proviso to appended to Rule 4 (2) of 1978 Rules framed under Article 309 of the Constitution of India.
(27) The question however is as to whether the State Government's decision cancelling the selection which led to leaving the vacancies advertised vide Advertisement No. 12 of 2016 unfilled is bona fide, non-arbitrary and is based on some tangible material and further as to whether such decision has been taken by the State Government for justifiable reasons.
(28) For analyzing as to whether the decision of the State Government contained in the Government Order dated 25.07.2019 is based on some tangible material and for some good reasons, we may refer to the interim order dated 08.02.2018 passed by this Court in Writ Petition No. 3522 (SS) of 2018 which was filed by the Routine Grade Clerks working in the department challenging the Advertisement No.12 of 2016 and praying therein that they be considered for promotion to the post in question, namely, Assistant Treasury Accountant. Learned Single Judge while passing the interim order dated 08.02.2018 has provided that the selection shall continue but the result of the same shall not be declared. Learned Single Judge further observed in the said order that it will be open for the State Government to look into the matter and take appropriate decision. In our opinion, the purport of the said interim order dated 08.02.2018, whereby it was kept open for the State Government to look into the matter and take appropriate decision, has to understand in the context in which Writ Petition No. 3522 (SS) of 2018 was filed. The petitioners in the said writ petition were working on the post of Routine Grade Clerks in the department and in terms of 1978 Rules they were claiming their promotion to the post of Assistant Treasury Accountant resisting the action of the State to fill-up the said post by way of direct recruitment on the ground that 1978 Rules did not provide for direct recruitment to the post of Assistant Treasury Accountant. Besides this ground, another ground taken in Writ Petition No. 3522 (SS) of 2018 was that though several changes had taken place in the cadre structure by issuing Government Orders, however, corresponding changes in the statutory rules were not made and until and unless the Rules were amended, the post of Assistant Treasury Accountant could not be filled-up by way of resorting to the process of direct recruitment.
(29) We may also note at this juncture that the petitioners of the bunch of writ petitions leading writ petition being Writ Petition No. 2346 (SS) of 2016, Indra Kumar Shrotria and 2 others v, State of U.P. and others, had filed the writ petitions challenging the advertisement issued in the year 2015. In the said writ petition as well, the petitioners who were the Routine Grade Clerks resisted the process adopted by the State-authorities to fill-up the post of Assistant Treasury Accountant by way of direct recruitment on the assertion that unless and until the corresponding changes in the 1978 Rules framed under Article 309 of the Constitution of India were made, recourse to the process of direct recruitment to fill-up the post of Assistant Treasury Accountant, could not be permitted. Learned Single Judge while disposing of the said bunch of writ petitions directed the State Government to consider the claim of the petitioners of the said bunch of writ petitions for promotion to the post of Senior Clerk/Assistant Treasury Accountant in terms of 1978 Rules vide the judgment and order dated 21.08.2017.
(30) If we examine the Government Order dated 25.07.2019 which was challenged before the learned Single Judge in the bunch of writ petitions which have been decided by the judgment and order dated 22.06.2021 which is under appeal, what we find is that by the said order, the requisition sent earlier by the department to the U.P. Subordinate Services Selection Commission for making recruitment was recalled and the selection process was cancelled. The said Government Order dated 25.07.2019 clearly mentions the interim orders dated 08.02.2018 passed by this Court in Writ Petition No. 3522 (SS) of 2018 and dated 19.04.2018 passed in Writ Petition No. 11256 (SS) of 2018.
(31) In the counter affidavit filed by the State Government in the proceedings of the writ petition before the learned Single Judge, it was stated that considering various orders passed by this Court including the interim order dated 19.04.2018 passed in Writ Petition No. 11256 (SS) of 2018, the Public Services Commission was consulted and the Commission had opined that the State Government should consider amendment of 1978 Rules retrospectively or may withdraw the requisition and consequently direct the Commission to cancel the advertisement No.12 of 2016. The State Government in the counter affidavit further submitted that the Government after due consideration decided to withdraw the requisition sent to the Commission and also to cancel the selection process by issuing Government Order dated 25.07.2019 for the reason that amendment of 1978 Rules with retrospective effect may give rise to number of cases and may also cause contempt of the orders passed by this Court. The next ground taken by the Government is that to amend the 1978 Rules with retrospective effect will practically not be possible on account of the fact that designation, number of posts, qualifications and pay-scales have been changed several times in the past by issuing executive orders. The State-authorities also stated in the counter affidavit that this Court in several orders had observed that the advertisement issued in the year 2016 was against 1978 Rules and in case the Rules are now amended retrospectively, it may not be deemed as legitimate action on behalf of the State Government. The State Government also relied upon the Government Order issued on 18.07.1990 by the Karmik Department which provided that no selection should be held on the basis of executive orders/circulars.
(32) A supplementary counter affidavit dated 13.01.2020 was also filed by the Director, Directorate of Treasury in the proceedings of the writ petition before the learned Single Judge wherein it was asserted that during pendency of writ petitions, U.P. Treasury Accountants (Non-Gazetted) Service Rules, 2019 were notified with effect from 02.01.2020 and after promulgation of the said Rules, 96% posts of Assistant Treasury Accountant are to be filled in by way of direct recruitment and 4% posts are to be filled in by way of making promotion amongst Junior Assistants. It was also stated that after promulgation of new Rules, certain promotions on the post of Assistant Treasury Accountant were made and hence the occupancy and vacancy position on the said post has been altered and thus declaration of result on the basis of selection held pursuant to the Advertisement No. 12 of 2016 will not be appropriate.
(33) Sri J. N. Mathur, learned Senior Advocate has submitted that learned Single ought to have considered as to what were the reasons which led to cancellation of the selection process and withdrawal of requisition and having not done so, the order passed by the learned Single Judge which is under appeal herein cannot be permitted to be sustained. It has further been argued by Sri Mathur that reasons given by the State justifying the cancellation of selection and withdrawal of requisition by means of order dated 25.07.2019 are half-hearted and the same do not justify the action of the State Government cancelling the selection.
(34) His submission is that in fact the reasons given in the counter affidavit for cancelling the selection are no reasons and further the learned Single Judge has not considered as to what prompted the State Government to cancel the selection. He has also drawn the attention of the Court to an averment made by the State in the counter affidavit that in para - 7 of the counter affidavit to the effect that without making amendments in the 1978 Rules, recruitment to the post of Assistant Treasury Accountant was made twice firstly in the year 1998 and thereafter in the 2015 by resorting to the process of direct recruitment.
(35) The submission of Sri Mathur is that thus the State having taken recourse to direct recruitment on two previous occasions cannot be justified to cancel the selection for appointment by way of direct recruitment held pursuant to the Advertisement No. 12 of 2016.
(36) In the wake of the reasons given by the State in the counter affidavit, in our considered opinion, submission of the learned Senior Advocate Shri J. N. Mathur in support of those writ petitioners who had participated in the selection and are seeking declaration of result and appointment, if they succeed, is not tenable.
(37) It is admitted that after framing of 1978 Rules, several changes in the cadre structure took place by way of issuing Executive Orders, however, corresponding changes in the Service Rules were not incorporated. When we examine the Executive Orders by which the changes in the cadre structure were sought to be effected by the State Government, what we find is that while issuing the said Executive Orders/Circulars, the State also required to bring corresponding amendments in the 1978 Rules.
(38) The submission of Shri Mathur, learned Senior Advocate does not appeal to us for yet another reason. Certain Routine Grade Clerks working in the department had challenged the advertisement issued in the year 2015 claiming their promotion to the post of Assistant Treasury Accountant and the said writ petition was disposed of with a direction to the State-authorities by means of the judgment and order dated 21.08.2017 whereby the State-authorities were directed to consider the Routine Grade Clerks for appointment by way of their promotion to the post of Assistant Treasury Accountant. Based on the said judgment dated 21.08.2017 in the bunch of writ petitions leading Writ Petition being Writ Petition No. 2346 (SS) of 2016, and learned Single Judge had also passed an interim order dated 08.02.2018 in Writ Petition No. 3522 (SS) of 2018 which was already filed by Routine Grade Clerks challenging the advertisement No. 12 of 2016 and praying that the appointment to the post of Assistant Treasury Accountant be made by way of promotion and not by way of direct recruitment. The interim order provided that it will be open to the State Government to look into the matter and take appropriate decision. Thus the State Government took the decision embodied in the Government Order dated 25.07.2019 cancelling the selection and withdrawing the requisition taking into account inter alia the following facts and materials:-
(i) The judgment and order dated 21.08.2017 was passed by the learned Single Judge in a bunch of writ petitions, leading Writ Petition being Writ Petition No. 2346 (SS) of 2016, Indra Kumar Shrotria and 2 others v. State of U.P. and others, wherein the learned Single Judge had directed the State-authorities to consider the claim of Routine Grade Clerks for promotion to the post of Assistant Treasury Accountant in accordance with 1978 Rules.
(ii) An interim order dated 08.02.2018 was passed by the learned Single Judge in Writ Petition No. 3522 (SS) of 2018 which was filed by a Routine Grade clerk claiming that the post in question has to be filled in by way of promotion and not by way of direct recruitment in view of the fact that no amendments were made in 1978 Rules.
(iii) Another interim order dated 19.04.2018 was passed by this Court in Writ Petition No. 11256 (SS) of 2018 whereby the State Government was again directed to look into the matter and take appropriate decision in accordance with the provisions contained in 1978 Rules.
(iv) Though on several occasions alteration in the cadre structure was sought to be effected, however corresponding changes in the 1978 Rules were not made.
(v) The State Government thought that in case the selection process pursuant to the Advertisement No. 12 of 2016 is allowed to be continued, the same may lead to complications and may also create a situation of Contempt of Court as holding selection by way of direct recruitment would be in the teeth of the earlier orders passed by this Court in various matters.
(39) Thus, for the aforesaid reasons which were based on the material as noted above, the State Government took the decision on 25.,07.2019 for cancellation of selection and withdrawal of requisition. The decision thus taken by the State Government cannot be said, on any count, to be mala fide or arbitrary.
(40) In our opinion, there existed appropriate reasons which impelled the State Government to take a view that the selection initiated pursuant to the advertisement No.12 of 2016 needs to be cancelled. We are also of the opinion that such a decision is based on tangible material and accordingly, it cannot be said that the State Government did not have any justifiable reasons to arrive at the conclusion which led it to cancel the selection and withdraw the requisition.
(41) Learned Single Judge, while passing the judgment and order under appeal after discussing the facts and the Rule position in detail, has arrived at the conclusion that no legal right is vested in any candidate even if he gets selected for being appointed. Learned Single Judge has also recorded a finding/legal principles discussed in the judgment and order under appeal herein that the statutory prescriptions available in 1978 Rules which were framed under Article 309 of the Constitution of India could not be altered by the Executive Orders/Circular.
(42) We have already examined the reasons given by the State for cancelling the selection in question and withdrawal of requisition and the reasons, as noticed above, are based on relevant factors, materials and documents. There is no dispute or quarrel to the legal principle that in a matter of cancellation of selection, the power of the employer, which in this case is the State, is not questionable. However, such power of cancellation of selection can be judicially reviewed on the touchstone of reasonableness. If we examine the facts of the present case in the light of the law laid down in the cases of Shankarsan Dash (supra), Asha Kaul (supra) and Amar Nath Singh (supra) what we find is that it cannot be said on any count that the order dated 25.07.2019 cancelling the selection in question and withdrawal of requisition was based on any irrelevant consideration or it suffered from the vice of mala fide or arbitrariness.
(43) For the discussions made and reasons given above, we are unable to persuade ourselves to take a view different from the view taken by the learned Single Judge while passing the judgment and order dated 22.06.2021 which is under appeal before us.
(44) Resultantly, all the Special Appeals are hereby dismissed.
(45) However, there will be no order as to costs.
.
[Saurabh Srivastava, J.] [Devendra Kumar Upadhyaya, J.] Order Date :- 23.5.2023 lakshman