Allahabad High Court
Vijai Kumar Saini vs State Of U.P. And Others on 25 November, 2019
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 34 Case :- WRIT - A No. - 5333 of 2004 Petitioner :- Vijai Kumar Saini Respondent :- State of U.P. and Others Counsel for Petitioner :- Vijai S. Sinha,K.D.Tiwari,Krishna Dutt Tiwari,Prabhakar Singh Counsel for Respondent :- C.S.C. Hon'ble Sudhir Agarwal,J.
1. Heard Sri Brijesh Shukla, Advocate, holding brief of Sri K.D.Tiwari, learned counsel for petitioner and learned Standing Counsel for respondents.
2. This writ petition under Article 226 of Constitution of India has been filed by sole petitioner Vijay Kumar Saini posted as Peon-cum-Chowkidar in the office of Incharge Homeopathic Medical Officer, State Homeopathic Dispensary Agwanpur, District Moradabad with the prayer to issue writ of certiorari and quash order dated 15.12.2003 (Annexure 1 to the writ petition) wherein it has held that his appointment was patently illegal as there was no vacancy on which he could have been appointed and therefore his appointment stands cancelled. Consequential order of termination dated 15.12.2003 passed by District Homeopathic Medical Officer, Moradabad, which is collectively filed as Annexure 1, has also been challenged.
3. Facts in brief giving rise to present writ petition are as under :
4. An advertisement was published for making appointment on the post of Peon cum Chaukidar, a Class IV post. Pursuant to the selection made, an appointment letter was issued on 19.10.2002 by District Homeopathic Medical Officer, Moradabad (hereinafter referred to as "DHMO") appointing petitioner as Class IV employee on the post of Peon-cum-Chaukidar on temporary basis. Appointment letter clearly says that appointment is temporary and liable to be terminated at any point of time without any prior notice. Petitioner joined on the post of Peon-cum-Chowkidar on 23.10.2002. While working on the said post, petitioner received a show cause notice dated 06.12.2003 to show cause as to why his appointment be not cancelled since there was no backlog vacancy on which petitioner could have been appointed hence his appointment is illegal.
5. Challenging aforesaid show cause notice, petitioner along with some others filed Writ Petition No.55247 of 2003 in which show cause notice was stayed vide order dated 16.12.2003.
6. Later on all the petitioners were terminated vide order dated 15.12.2003. Those termination orders were challenged by some in Writ Petition No.5336 of 2004 (Iftekhar Hussain vs. The State of U.P. & Ors.) which was connected to Writ Petition Nos.5432 of 2004, 5430 of 2004, 5334 of 2004, 5332 of 2004 and 5330 of 2004.
7. The above writ petition no.55247 of 2003 has been dismissed vide judgment and order dated 23.12.2009, which reads as under :
Heard Sri V.S.Sinha for the petitioners and learned Standing Counsel for the respondents.
The writ petition is directed against a show cause notice dated 06.12.2003 issued by the District Homoeopathic Medical Officer, Moradabad requiring the petitioners to show cause as to why their appointments be not cancelled since the above appointments were made alleging the vacancies to be backlog reserved vacancy though in fact the same were not and could not have been filled in by treating the same to be reserved.
It is not the case of the petitioners that the impugned show cause notice has been issued by an authority who was not competent to do so i.e. it is without jurisdiction and it was open to the petitioners to show cause and explain before the competent authority that their appointments were not illegal, as alleged in the show cause notice. No cause of action, in my view, arose by mere issuance of show cause notice since it was open to the petitioners to submit their reply. It is only when an order adverse to their interest or having civil consequences would have been passed by the competent authority, the petitioners could have avail such remedy as available under law against such an order.
Learned counsel for the petitioners at this stage submitted that during pendency of this matter the petitioners submitted their reply and thereafter the respondents have passed the final order of termination on 15.12.2003 where against the petitioners except petitioner No.3-Vijay Kumar Saini have already filed writ petitions No.5336 of 2004, 5432 of 2004, 5334 of 2004 and 5430 of 2004 respectively which are pending.
Since against the final order of termination the writ petitions are already pending before this Court, in my view, no cause of action survive in this writ petition since the show cause notice has already culminated in a final order which is subjudice in separate writ petitions. This writ petition is accordingly dismissed. The interim order, if any, stands vacated.
8. Further writ petitions filed by Iftkhar Hussain, Kishan Pal Singh, Kamal Kumar, Mustaqeem Hussain, Sanjai Kumar and Raju, who were ultimately terminated vide order dated 15.12.2003, came up for consideration before this Court (Single Judge) and vide judgment dated 23.12.2009, all the aforesaid writ petitions have been dismissed. Details of aforesaid writ petitions are :
Sl.No. Writ Petition Number/Parties Name 1 5336 of 2004 (Iftekhar Hussain vs. The State of U.P. & Ors.) 2 5432 of 2004 (Kishan Pal Singh vs. State of U.P. & Ors.) 3 5430 of 2004 (Kamal Kumar vs. State of U.P. & Ors.) 4 5334 of 2004 (Mustaqeem Hussain vs. State of U.P. & Ors.) 5 5332 of 2004 (Sanjai Kumar vs. State of U.P. & Ors.)
6.
5330 of 2004 (Raju vs. State of U.P. & Ors.)
9. I may also place on record that against judgment dated 23.12.2009, Iftkhar Hussain filed Special Appeal No.273 of 2010, which was dismissed by Division Bench vide judgment dated 5.12.2012 which reads as under :
"Heard the learned counsel for both the sides.
Detailed facts are mentioned in the impugned order of the learned Single Judge dated 23.12.2009. We are not repeating the same here.
The short issue was, as to what vacancies would be called 'backlog reserve vacancies'.
It is obvious that there must be a difference between 'vacancies' and 'backlog vacancies'.
The learned Single Judge after discussing the matter in detail has held that only 'reserved vacancies' which could not be filled up despite efforts for want of suitable candidates or for other similar reasons, alone can be treated to be 'backlog reserve vacancies' carried over to the next selection. Any other unfilled vacancies would be mere 'vacancies' and not 'backlog vacancies', although they may have been included in the next advertisement.
We have been shown no good reason to take a different view. In fact, if the argument of the learned counsel for the appellant was to be accepted it would mean that every vacancy, which could not be included in or filled at the previous selection and has been included in the current advertisement, would become a 'backlog vacancy'.
Since the Government had relaxed the ban on filling up of vacancies only to the extent of filling "backlog reserved vacancies", therefore, the petitioner could not have succeeded in the writ petition, which has rightly been dismissed by the impugned order.
There is no merit in this appeal. It is, accordingly, dismissed."
10. Similar other petitioners also filed Special Appeal No.270 of 2010, 269 of 2010, 268 of 2010, 274 of 2010 and 275 of 2010 and they have also been dismissed vide judgment dated 05.12.2012.
11. Learned counsel for petitioner could not dispute that Vijai Kumar Saini, present petitioner is also similarly situated as petitioners of above cases wherein similar termination order has been upheld by Single Judge and Division Bench has also confirmed the same.
12. What a backlog vacancy is, has been considered by Supreme Court in State of U.P. and Ors. Vs. Sangam Nath Pandey and Ors (2011) 2 SCC 105 and Court in para 33 has said :
"A harmonious construction of Sections 2(d), 3(2) and 3(5) would lead to the conclusion, as stated by the Division Bench, that only those vacancies can be declared backlog vacancies, within the reserved category, which were subject- matter of advertisement but remained unfilled because of non-availability of suitable candidates, within the reserved category, after selection. It is only in respect of such vacancy that the procedure qua backlog vacancy can be adopted. Any vacancy, which has not been subjected to a complete process of selection, even though vacant, cannot be treated as a backlog vacancy."
13. This has been followed by another Division Bench of this Court in Dr. Narendra Singh & Ors. Vs. State of U.P. & Ors. 2014 (4) ADJ 356 and by a learned Single Judge in Suresh Kumar & Ors. Vs. State of U.P. and Another 2016 (10) ADJ 391.
14. In view of above it cannot be said that there was any backlog vacancy and the very appointment of petitioner being wholly illegal, I find no reason to interfere. Writ petition is accordingly dismissed.
15. Interim order, if any, stands vacated.
Order Date :- 25.11.2019 KA