Allahabad High Court
Vinay Kumar Singh And 360 Others vs Union Of India And 2 Others on 12 October, 2020
Equivalent citations: AIRONLINE 2020 ALL 2723
Bench: Munishwar Nath Bhandari, Piyush Agrawal
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 29 Case :- SPECIAL APPEAL DEFECTIVE No. - 962 of 2018 Appellant :- Vinay Kumar Singh And 360 Others Respondent :- Union Of India And 2 Others Counsel for Appellant :- Siddharth Khare,Anup Kumar Khare,Arvind Singh Kushwaha,Ashok Khare,Senior Advocate Counsel for Respondent :- A.S.G.I.,Apurva Hajela,Gyan Prakash With Case :- SPECIAL APPEAL No. - 126 of 2019 Appellant :- Jitendra Yadav Respondent :- Union Of India And 2 Others Counsel for Appellant :- Pramod Kumar Tripathi Counsel for Respondent :- A.S.G.I.,Apurva Hajela With Case :- SPECIAL APPEAL DEFECTIVE No. - 963 of 2018 Appellant :- Chote Lal Yadav And 144 Others Respondent :- Union Of India And 2 Others Counsel for Appellant :- Shantanu Khare,Ashok Khare,Senior Advocate,Siddharth Khare Counsel for Respondent :- A.S.G.I.,Gyan Prakash,Rajesh Kumar Vidyarthi With Case :- SPECIAL APPEAL DEFECTIVE No. - 1 of 2019 Appellant :- Ajit Singh And 166 Others Respondent :- Union Of India And 2 Others Counsel for Appellant :- Pawan Kumar Yadav,Narendra Kumar,Shailendra Kumar Verma Counsel for Respondent :- A.S.G.I.,Apurva Hajela,Gyan Prakash With Case :- SPECIAL APPEAL DEFECTIVE No. - 2 of 2019 Appellant :- Manish Yadav And 121 Others Respondent :- Union Of India And 4 Others Counsel for Appellant :- Siddharth Khare,Ashok Khare,Senior Advocate,Shantanu Khare Counsel for Respondent :- A.S.G.I.,Apurva Hajela,Gyan Prakash With Case :- SPECIAL APPEAL DEFECTIVE No. - 4 of 2019 Appellant :- Satyedra Pratap Singh And 313 Others Respondent :- Union Of India And 2 Others Counsel for Appellant :- Siddharth Khare,Ashok Khare,Senior Advocate,Shantanu Khare Counsel for Respondent :- A.S.G.I.,Apurva Hajela,Gyan Prakash With Case :- SPECIAL APPEAL DEFECTIVE No. - 5 of 2019 Appellant :- Pramod Singh And 170 Others Respondent :- Union Of India And 2 Others Counsel for Appellant :- Raju Kumar,Narendra Kumar,Shailendra Kumar Verma Counsel for Respondent :- A.S.G.I.,Rajesh Kumar Vidyarthi,Gyan Prakash With Case :- SPECIAL APPEAL DEFECTIVE No. - 6 of 2019 Appellant :- Rajneesh Yadav And 175 Others Respondent :- Union Of India And 2 Others Counsel for Appellant :- Pawan Kumar Yadav,Narendra Kumar,Shailendra Kumar Verma Counsel for Respondent :- A.S.G.I.,Rajesh Kumar Vidyarthi,Gyan Prakash With Case :- SPECIAL APPEAL DEFECTIVE No. - 64 of 2019 Appellant :- Raj Kumar Singh And 2 Others Respondent :- Union Of India And 2 Others Counsel for Appellant :- Siddharth Khare Counsel for Respondent :- A.S.G.I.,Apurva Hajela,Gyan Prakash With Case :- SPECIAL APPEAL DEFECTIVE No. - 66 of 2019 Appellant :- Triloki Nath Pandey And 51 Others Respondent :- Union Of India And 2 Others Counsel for Appellant :- Shailendra Yadav Counsel for Respondent :- A.S.G.I.,Gyan Prakash,Rajesh Kumar Vidyarthi With Case :- SPECIAL APPEAL DEFECTIVE No. - 196 of 2019 Appellant :- Mahinuddin And 6 Others Respondent :- Union Of India And 2 Others Counsel for Appellant :- Devendra Kumar Mishra Counsel for Respondent :- A.S.G.I.,Apurva Hajela With Case :- SPECIAL APPEAL DEFECTIVE No. - 230 of 2019 Appellant :- Satyendra Nath Yadav And 10 Others Respondent :- Union Of India And 2 Others Counsel for Appellant :- Manoj Kumar Singh Counsel for Respondent :- A.S.G.I.,Rajesh Kumar Vidyarthi With Case :- SPECIAL APPEAL DEFECTIVE No. - 277 of 2019 Appellant :- Rajesh Sharma And Another Respondent :- Union Of India And 2 Others Counsel for Appellant :- Manish Kumar Tiwari Counsel for Respondent :- A.S.G.I.,Gyan Prakash,Rajesh Kumar Vidyarthi With Case :- SPECIAL APPEAL DEFECTIVE No. - 284 of 2019 Appellant :- Rinku Sharma And 13 Others Respondent :- Union Of India And 2 Others Counsel for Appellant :- Phool Singh Counsel for Respondent :- A.S.G.I.,Apurva Hajela,Gyan Prakash With Case :- SPECIAL APPEAL DEFECTIVE No. - 380 of 2019 Appellant :- Pawan Kumar And 22 Others Respondent :- Union Of India And 4 Others Counsel for Appellant :- Lal Mani Singh,Ajay Pratap Singh Counsel for Respondent :- A.S.G.I.,Gyan Prakash,Rajesh Kumar Vidyarthi With Case :- SPECIAL APPEAL DEFECTIVE No. - 460 of 2019 Appellant :- Sudhakar Pandey And 166 Others Respondent :- Union Of India And 2 Others Counsel for Appellant :- Siddharth Khare,Shantanu Khare,Sri Ashok Khare, Senior Advocate Counsel for Respondent :- A.S.G.I.,Gyan Prakash,Rajesh Kumar Vidyarthi With Case :- SPECIAL APPEAL DEFECTIVE No. - 762 of 2019 Appellant :- Ravindra Pandey And 10 Others Respondent :- Union Of India And 2 Others Counsel for Appellant :- Brijesh Kumar Srivastava,Neha Roy Choudhury,Shirish Mohan Srivastava Counsel for Respondent :- A.S.G.I.,Rajesh Kumar Vidyarthi With Case :- SPECIAL APPEAL DEFECTIVE No. - 1048 of 2019 Appellant :- Nagendra Kumar Singh Respondent :- Union Of India And 2 Others Counsel for Appellant :- Sanjai Kumar Singh Counsel for Respondent :- A.S.G.I. Hon'ble Munishwar Nath Bhandari,J.
Hon'ble Piyush Agrawal,J.
Order on Delay Condonation Applications.
Since the matter has been heard and decided on merits, the applications for condonation of delay is not opposed by the counsel for the side opposite and accordingly it is accepted.
Delay in filing the appeals is condoned.
Accordingly the application is allowed as aforesaid.
Order on Appeal.
The batch of special appeals are arising out of the judgment dated 20th August, 2018 whereby the writ petitions preferred by the petitioner-appellants were disposed of with certain directions.
The writ petitions were filed by the petitioner-appellants to seek direction for their appointment on the post of constable pursuant to the recruitment on the post of Constables (GD) in B.S.F., C.I.S.F.,C.R.P.F. and S.S.B. and even for the post of Constable (GD), I.T.B.P. and Rifleman (GD) in Assam Rifles. The recruitment to the posts was held pursuant to the advertisement issued for it by the Commission. All the petitioner-appellants had participated in the selection but despite availability of large number of vacancies, they were not given appointment. Thus, limited to the aforesaid issue, these appeals have been preferred.
Learned Senior Counsel Sri Ashok Khare, assisted by Sri Siddharth Khare submits that applications were invited for the appointment on the post of constable. Number of posts indicated originally were enhanced subsequently and out of enhanced vacancies, the respondents No. 3 to 5 failed to fill around 28,044 posts. To fill up all those posts, cut of marks should have been reduced. The candidature of the petitioner-appellants should have been considered against the vacancies available for Jammu & Kashmir, North-East region, Naxal area or the Militancy affected area. The interchange of the post for those areas was permissible. The candidature of the petitioner-appellants was considered against the vacancies in the State of Bihar and Uttar Pradesh under Regional Centre of Commission Allahabad. It is also argued that even in the State of U.P. the posts for Naxal and Militancy affected areas were available. In view of the above, the respondents have committed grave illegality in not filling all the posts for which the advertisement was issued.
The petitioner-appellants may be coming in the merit on transfer of the posts after reducing the cut off marks but their candidature have not been considered due to adamancy of the respondents not to transfer the posts, despite their interchangeability.
It is submitted that if the posts so remain vacant would have been filled, the petitioner-appellants were liable to be appointed, and accordingly the judgment of the learned Single Judge deserves to be set aside for refusal to fill the vacant posts.
Elaborating the facts, it is submitted that initially advertisement was for 42,000 posts of constable in different regions which includes State of Bihar and Uttar Pradesh. It was for other regions also including North-East regions, Jammu & Kashmir, Naxal and Militancy affected areas.
The posts were then increased to 72,309. The recruitment/appointment has not been given to the extent of advertised posts. It may be true that mere selection or standing in the merit does not give right to the petitioner-appellants to seek appointment but at the same time, the respondents were under obligation to justify their action for denial of appointment to the petitioner-appellants. In absence of a proper explanation, a direction should have been given for appointment of the petitioner-appellants otherwise exercise undertaken to fill up more than 72,000 posts remain half way in a case where huge amount was spent on the recruitment. The endeavor of the respondents should have been to fill all the vacant posts.
The petitioner-appellants were willing to go in the North-East region, Jammu and Kashmir, Naxal and Militancy affected areas.
If the appointments could not have been given in North-East region, Jammu and Kashmir then also there was no reason not to adjudge the merit of the petitioner-appellants for Naxal and Militancy affected areas in the State of U.P. Accordingly, the prayer is to cause interference in the judgment impugned herein with the direction to the respondents to fill all the unfilled posts, so advertised and accordingly, the petitioner-appellants be given appointment as per their merit position.
It is more so when according to the counsel for the petitioner-appellants, after increase of posts from 42,000 to 72,309, bifurcation of posts between different regions were not indicated and this was noted by Single Bench of this court in its judgment dated 24th July, 2018 when an interim order was passed to call for additional affidavit to clarify the facts in that regard.
The direction given in regard to other issues by the Single Bench may be maintained while interfering in the order to the extent of denial of appointment to the petitioner-appellants against the vacant posts. The appeal may accordingly be allowed.
Sri Apurva Hajela has put in appearance on behalf of respondents and opposed all the appeals. It is submitted that the number of posts for different organizations/regions were advertised under different Commissions. The petitioner-appellants made an application under Allahabad Commission. The posts so advertised were filled in order of merit in the regions for which it was given and as the petitioner-appellants were lower in merit, thus, could not be given appointment. The claim for the appointment has been made against the vacancies of other regions in ignorance to the fact that even if some posts remain vacant, it was in the year 2011 and were not interchangeable and now it is year 2020. In between recruitment took place and even if the position of fact is visualized for the relevant year of 2011, the petitioner-appellants were not entitle to seek interchange of the posts of North-East region, Jammu and Kashmir, Naxal and Militancy affected areas. It was in the light of the Government order for the post of North-East region, Jammu and Kashmir, Naxal and Militancy affected areas. Diversion of vacancies of one State to another may have been permitted but vacancies of North-East region, Jammu and Kashmir, Naxal and Militancy affected areas were not made interchangeable. In the light of the order by the Ministry, the diversion of the posts of certain region were not permitted. Contrary to the decision taken by the Government, the appointments could not have been given to the petitioner-appellants. It is otherwise settled principle of law that mere participation in the selection or standing in the merit does not give an indefeasible right of appointment unless action of the respondents is arbitrary and illegal.
In the instant case, the diversion of the post was not allowed for the North-East region, Jammu and Kashmir, Naxal and Militancy affected areas and in the light of the aforesaid, the petitioner-appellants were not entitle for appointment.
The counsel for the petitioner-appellants has alleged that while initially 42,000 posts were advertised, subsequently it was raised to 72,309 posts and so far as the increased posts are concerned, bifurcation between different states and those areas kept in exception like North-East region, Jammu and Kashmir, Naxal and Militancy affected areas was not made.
It is clarified that the bifurcation of the post was made and increase of post from 42,000 to 72,309 was also on the basis of the vacancies notified by different regions which included the North-East region, Jammu and Kashmir, Naxal and Militancy affected areas. Based on the vacancies notified by different regions, they were increased. Thus, it is not correct to say that the bifurcation of the posts of different regions/organizations was not available.
It is further stated that so far as the petitioner-appellants are concerned, they were not entitled to seek consideration of their candidature against the post of North-East region, Jammu and Kashmir apart from Naxal and Militancy affected areas. Those were kept separate and in that regard, the posts of Naxal and Militancy affected areas were determined separately even for the State of U.P. apart from the other State. As per the decision of the Government of India, those posts were not diverted and accordingly prayer of the petitioner-appellants was rightly declined by the Single Batch.
The prayer is accordingly to dismiss the appeal as otherwise the recruitment in question are old by nine years.
We have considered rival submission of the parties and scanned the matter carefully. The facts which are not in dispute are that the respondents issued advertisement for the post of Constable (G.D.) for different regions and the organizations which included B.S.F.,C.I.S.F.,C.R.P.F. and S.S.B. and apart from the post of Constable (GD), I.T.B.P. and Rifleman (GD) in Assam Rifles with indication of regions. The vacancies were also for different State with a code. The present litigation is for State code 5 and 33 which was for Bihar and Uttar Pradesh respectively. It is also not in dispute the petitioner-appellants participated in the selection pursuant to the advertisement but remain unsuccessful for appointment due to low merit position. The only issue raised before us is in reference to the vacant post which are said to be more than 28,000 after filling the post in different region and the organizations.
The fact aforesaid has been dealt with by the learned Single Judge and for that purpose an affidavit in reference to government order has been quoted in the impugned judgment and is quoted herein under also:-
"The nodal Ministry, i.e., Ministry of Home Affairs, vide para (III) under the heading "Allotment of Vacancies" of guidelines clearly held:-
1) 60% of vacancies will be allotted amongst States/UT's on the basis of population ratio.
2) 20% of vacancies in the Boarder Guarding Forces (BGFs, BSF, ITBP, SSB, Assam Rifles) will be allotted to border States, which fall within the responsibility of the Force.
3) 20% of vacancies in BGFS will be allotted to areas affected by militancy, i.e., J & K, North Eastern States and naxal affected areas. The district / areas affected by militancy shall be notified by the Government from time to time.
4) In forces other than Boarder Guarding Forces, 40% vacancies will be allotted to militancy affected areas i.e., J & K, North Eastern States and naxal affected areas. The district / areas affected by militancy shall be notified by the Government from time to time.
5) For diversion of annual vacancies from one State to another State, and also for diversion of vacancies of new raisings from one State to another in the same category or from one category to another category, approval of MHA will be required.
However, as per para 4(ii) of Write Up of Final Result declared on 28.11.2011, it was very clearly mentioned that " MHA has advised that unfilled vacancies in Jammu & Kashmir, North Eastern States (Assam, Arunachal Pradesh, Manipur, Mizoram, Meghalaya, Nagaland, Sikkim, Tripura), Naxal and Militancy affected States (Andhra Pradesh, Bihar, Orissa, Jharkhand, Chhattisgarh, Madhya Pradesh, Maharashtra, Uttar Pradesh, West Bengal) should not be filled with candidates from surplus States / UTs. Therefore, such vacancies were not taken into consideration after preparation of the select list while allotting surplus candidates against vacancies in deficit States / UTs. Surplus candidates securing marks above the highest cut off marks fixed in the written examination for their respective categories were considered for allocation against the unfilled vacancies other than in the States mentioned above, for inclusion in the reserved list."
The learned Senior Counsel is fair to admit that merit list was drawn unit/region wise but the argument is that if vacant posts remain in one unit or the region, the respondents were under obligation to divert the post so that no vacancies remain. In that regard, the figure of vacant post has been given but we find that in the light of the Government Order quoted above, the diversion of the posts was not permissible for the vacancies of North-East region, Jammu and Kashmir, Naxal and Militancy affected areas.
In the light of the Government decision, petitioner-appellants cannot claim diversion of the posts as a right. It is more so when it was not so provided in the advertisement so as to claim it as a matter of right. Diversion of posts from one unit to another was not for North-East region, Jammu and Kashmir, Naxal and Militancy affected areas.
Accordingly, if the petitioner-appellants were not adjudged against the vacant post of those areas, no illegality was committed by the non-appellants.
The issue now remains regarding bifurcation of the posts on its increase. Senior Counsel submits after the increase of the posts from 42,000 to 72,309 posts, bifurcation of post of different unit/regions was not made and accordingly, the suitability of the petitioner-appellants should have been adjudged against the increased posts.
As against the aforesaid, the counsel for the respondents has clarified that after initial advertisement, posts were increased based on the information about vacant post sent by different units/regions. Taking into consideration the vacancies in different units and organizations, the merit list was drawn with cut-off marks. The non-appellants were having details of the vacancies of different regions. The recruitment by Regional Centre of Commission Allahabad was limited to statue of Bihar and U.P. with State code 5 and for State of U.P. the code was 33. The petitioner-appellants applied to the vacancies notified by the Commission at Allahabad. It was not including the post for Naxal and Militancy affected area. The posts were diverted for other States but was not permitted for Jammu & Kasmir, North-East region, Naxal and Militancy affected area where only it remains vacant.
Accordingly, the petitioner-appellants have no right to seek appointment against the post remained vacant in the State of Jammu & Kashmir, North-East region, apart from the Naxal and Militancy affected areas. The denial of appointment to the petitioner-appellants in those areas cannot said to be illegal. It is settled preposition of law that mere standing in the merit or remaining successful in the recruitment does not give right to seek appointment. In this case petitioner was not even coming in merit.
No discrimination or illegality has been committed by the respondents in not filling of the post under different Commissions. The issue in that regard has been addressed by the learned Single Judge.
It is even in reference to 28,044 posts remained vacant. The post meant for Naxal and Militancy affected areas were separate even for the State of U.P. and not open for diversion to seek appointment.
Accordingly, the right claimed by the petitioner-appellants for the appointment on certain posts in the Naxal or Militancy affected ares in the State of U.P. cannot be accepted. Those posts were separately identified and notified hence right cannot be claimed unless an application for appointment in those areas would have been made. The posts were not otherwise diversable in the light of the order of the Government of India.
Taking into consideration the aforesaid, we do no find any reason to cause interference in the impugned judgment of the learned Single Judge and accordingly all the appeals fail and are dismissed with no order as to costs.
Order Date :- 12.10.2020 piyush