Allahabad High Court
Krishna Kumar Singh vs State Of U.P. And Ors. on 7 March, 2000
Equivalent citations: (2000)2UPLBEC1203
Author: Kamal Kishore
Bench: Kamal Kishore
JUDGMENT
R.H. Zaidi and Kamal Kishore, JJ.
1. By means of this petition filed under Article 226 of the Constitution of India, petitioner prays for Issuance of a writ, order or direction in the nature of mandamus commanding the respondents to appoint the petitioner under quota of Superior Forest Service Course 1984-86, as Assistant Conservator of Forest and to provide seniority, pay fixation and increments, etc. with effect from the date the candidate at Serial No. 1 of the Availing list was granted the same. Prayer for grant of exemption from Superior Forest Training Course has also been made.
2. The relevant facts of the case arc that on 9-9-1983, the U.P. Public Service Commission at Allahabad advertised that it shall hold a competitive examination at Allahabad some time in December, 1983 for selection of 32 candidates for training in Superior Forest Service Diploma in 1984-86. The candidates, who were to be selected and were required to fulfill the other requirements and qualifications and thereafter were to be appointed as Assistant Conservator of Forest in U.P. Forest Department. On the basis of the said advertisement, the petitioner also applied for his appointment. Thereafter, petitioner was called by the Public Service Commission, U.P. at Allahabad to participate in the written examination. Petitioner appeared in the said examination. The result of the said examination was declared and the petitioner was also declared successful. He was, thereafter, called for interview in the month of January, 1984. The result of which was declared on 1-5-1984 by the Commission vide notification of the said date, in which also the petitioner was declared successful. He was, thereafter, sent for Forest Training institute, Haldwani for competition of one year training in the year 1984-85, which he got completed successfully and was thereafter appointed as Forest Ranger. The nomenclature of the said post was thereafter changed as Forest Rasnger Officer. The petitioner was awarded higher standard certificate of Forest Ranger's Course and he was posted in Kedarnath Forest Division, Gopeshwar (Chamoli) in the month of July, 1985. On the said post he continued to discharge his duties to the satisfaction of his superior officers. It was in the month of January, 1996 that the seniority list of Assistant Conservators of Forest was published in which name of one Sri G.K. Khusharia was shown who was on the waiting list at serial No. 1. Petitioner also came to known that five vacancies were available to be offered to the selected candidates within one year of declaration of result on 1-5-1984. Instead of calling five candidates the State Government called only Sri G.K. Khusharia for training and appointment. Sri Hari Shankar Shukla, a candidate of the main list at serial No. 1 resigns from training, Sri Vinay Kumar Singh also a candidate from the main list serial No. 11 and Sri Makkhan Lal did not turn up for training at Dehradun College. Similarly Santosh Kumar and Prainod Kumar candidates of the main list at serial Nos. 23 and 20 their candidature was cancelled by the Government Order dated 27-2-1985. Candidates selected for training were subjected to medical test in which Sri Udai Pratap Singh, a candidate of waiting list at serial No. 1 was not found fit Similarly Awadhesh Kumar selected for training for the year 1983-85 was allowed to join in November. 1984 at Parnihat Training College. Assam, therefore, seat held by him also fell vacant. As soon as the petitioner came to know about the aforesaid vacancies, he immediately made a representation to the Principal Secretary, Forest Department on 14-2-1997 and requested him to appoint the petitioner on the post in question but of no avail hence the present petition.
3. On behalf of the respondents a counter-affidavit has been filed denying the facts stated in the writ petition. It has been asserted that after expiry of one year from the date of publication of the result, in view of the Government Order dated 15-7-1982 the petitioner had no right to be appointed in superior Forest Services Diploma Course 1984-86. It was stated that there were 29 persons in the main list and the selected candidates and there were six persons in the waiting list. The writ petition was stated to be barred by limitation as the same was filed after 12 years and was liable to be dismissed on the ground of limitation. Other material facts stated in the writ petition were not denied. It was also admitted that Sri G.S. Khusaria who was at serial No. 1 in the waiting list was called for training and no other candidate was called by the respondents. It was also admitted that five vacancies came into existence within one year of the declaration of the result of the above noted examination. -
4. In the rejoinder affidavit filed by the petitioner the facts stated in the counter-affidavit have been denied and the facts stated in the writ petition have been reiterated. It has also been stated that there were six vacancies within one year from the date of declaration of examination/interview but inspite of there being a vacancy the petitioner was not called for training.
5. Learned Counsel appearing for the petitioner vehemently urged that the vacancies which came into being within one year of declaration of the result of the examination/Interview legally were to be filled by calling the candidates whose names appeared in the waiting list. The respondents have not called those candidates including the petitioner for training and appointment and failed to discharge their duty. The said respondents are, therefore, liable to be direct to appoint the petitioner on the post in question. It was also submitted that under the facts and circumstances of the present case, this petitioner cannot be said to be belated. Inasmuch as the respondents cannot be permitted to take advantage of their failure to perform their statutory duty. It was also urged that in the Government Order dated 15-7-1982 it was not provided that after expiry of one year, the candidates who were selected for appointment or who were on the waiting list were not entitled to be appointed. It actually provided that the candidates selected in the aforesaid examination/interview were not entitled to be appointed in the vacancies which came into existence after one year of declaration of result of the said examination.
6. On the other hand, learned Standing Counsel submitted that the petitioner, on the basis of the aforesaid examination, was not entitled to be appointed on the post in question particularly after one year of declaration of the result. It was also urged that the writ petition was liable to be dismissed on the ground of limitation.
7. We have considered the submissions made by the learned Counsel for the parties and perused the record.
8. Admittedly petitioner applied for his appointment on the post of Assistant Conservator of Forest and he was declared as successful along with other candidates. The names of 29 candidates were placed in the main list while the names of six candidates were placed in the waiting list. The petitioner was one of the candidates placed of waiting list. Legally it can not disputed that petitioner and other candidates whose names were placed in the waiting list were entitled to be appointed, if six or more vacancies came into existence within one year of declaration of the result of the said examination. From the material on record it is evident that six vacancies came into existence within one year of declaration of result, the Government Order dated 15-7-1982 (Annexure CA-1 to the counter-affidavit) read as under :--
^^mDr iz'u ij leqfpr fopkjksijkUr 'kklu us ;g fu.kZ; fy;k gS fd lfEefyr jkT; lsok ijh{kk ds vk/kkj ij Hkjs tkus okys inksa ds vfrfjDRk vk;ksx dh ifjf/k esa vkus okys 'ks"k vU; jkT;k/khu lsokvks ds leLr inksa ij lh/kh HkrhZ ds fy;s vk;ksftr ijh{kkvksa@lk{kkRdkjksa dk ijh{kkQy ?kksf"kr gksus dh frfFk ls ,d o"kZ ds ckn fdlh Hkh lacaf/kr lsok esa gqbZ fjfDr;ksa ds fy, mDr ijh{kkQy dk mi;ksx ugha fd;k tk;sxk A** A reading of the above noted Government Order reveals that if any vacancy came into existence after one year of declaration of result the selected candidates or others will have no right to be appointed on the said post. The said Government Order docs not provide that if the vacancies came into existence within one year of notification, the candidates selected for training and appointment will have no right for appointment on those vacancies. Thus submission made by the learned Standing Counsel to the contrary, therefore, cannot be accepted. Similar controversy as is involved in the present case was involved in writ petition No. 15243 of 1984 (Ram Naresh v. State of U.P.). A Division Bench of this Court in the said case was pleased to rule as under :--
"Even if the petitioner would not have moved within one year it would not have made any difference in law, as vacancy having arisen within one year, it had to be filled by the candidate in waiting list. Accrual of vacancy within one year and its filling by candidate in waiting list are automatic. It had to be done by Government. It does not depend on movement by the candidate, many of whom may not know if vacancy had arisen. The Government Order therefore was in favour of petitioner and not against him. Even the vacancy caused due to cancellation of Jagdish Singh's candidature was available. The declaration that he obtained forged certificate applied from the date when result was declared. His candidature in law was non est. It did not apply from the date of declaration but related back. In either case vacancy having arisen within one year or it being available the opposite parties committed error of law in not filling the same from candidates of waiting list as one year had elapsed from the declaration result. If such construction is put on the Government Order it shall result in not only frustrating it but its effect would be that a candidate in the waiting list shall be deprived because of delay on which he can have no control."
9. From the statement of fact made in the letter dated 14-2-1997 addressed to Principal Secretary, Forest Department, Government of U.P., Lucknow it is evident that in the gradation list names of 8 candidates who were selected for training and appointment were missing. The said candidates were Hari Shankar Shukla. Vipin Bhari, Satish Kumar Singh, Vinay Kumar Singh, Bhola Nath Dwivedi, Pramod Kumar, Satish Kumar and Makkhan Lal. Thus not only 5 or 6 but 8 vacancies came into existence. The similar matter came to be considered again in writ petition No. 6332 of 1989 (decided on May 14, 1990) (Rajesh Kumar Kesarwani and Ors. v. State of U.P.). Taking into consideration the decision in the case of Ram Naresh v. State of U.P. (supra), this Court was pleased to hold as under :--
"It was not worthy that in decision of this Court in writ petition No. 15243 of 1984. Ram Naresh v. State of U.P. and others, has been confirmed by their Lordships of the Supreme Court through their judgment dated 17-2-1986 as Special Leave Petition has been dismissed. As regards second plea on behalf dismissed. As regards second plea on behalf of the opposite parties it is note worthy that in Paragraph 11 of the writ petition it has been stated that 26 posts arc still lying vacant. In Paragraph 7 of the counter-affidavit it has not been specifically stated whether assertion made by the petitioner about 26 posts lying vacant are correct or incorrect. The Paragraph 13 of the rejoinder affidavit the contents of Paragraph 11 of the writ petition are reiterated. In such a circumstances we have no option but to accept that 26 posts are lying vacant. If the posts are vacant, we see no reason why the petitioners should not be granted reliefs claimed in the main writ petition. However it is necessary to mention that the opposite parties are at fault in not absorbing the petitioners in the relevant year. If due to their faults interrupt of come other persons have crept in who are not parties in the present writ petition, it would be bounded duty of the opposite parties to adjust the equity between the parties and provide jobs to the petitioners strictly in accordance with law.
For the foregoing discussions, this writ petition succeeds and the respondents are directed to appoint the petitioners as Forest Rangers and send them for training course without doing any injustice to the persons who are not parties to the present writ petition."
10. Similar view was taken by this Court in writ petition No. 20931 of 1992, Virendra Prasad Tiwari v. State of U.P. and Ors., decided on 19-1-1993 wherein it was held :
"Identical controversy was raised before a Division Bench of this Court in writ petition No. 6332 of 1989, Rajesh Kumar Kesarwani v. State of U.P.. decided on May 14, 1990, In the above case of Rajesh Kumar Kesarwani (supra), the writ petition was allowed and the respondents were directed to appoint the petitioners therein as Forest Ranger, and to send them for training course.
For the reasons given in writ petition of Rajesh Kumar Kesarwani (supra), this writ petition is allowed with costs. The respondents are directed to appoint the petitioner as Forest Ranger and send him for training course in that connection."
11. Relying upon the above noted decisions a learned Single Judge in writ petition No. 30975 of 1992, Jai Prakash Narain Tiwari v. State of U.P. and Ors., decided on 22-7-1994 was pleased to direct as under :
"In the result, this writ petition succeeds and the same is allowed. The respondents are directed to consider the case of the petitioner to give the appointment to him as Forest Ranger and send him for the training course in question. Necessary orders in this regard should be passed by the respondents within a period of two months from the date of filing of a certified copy of this order. It is a case where despite the decisions of this Court, referred to above, the petitioner has not been given the same benefits. Once a principle of law has been laid down by this Court then the respondents should have to comply with the same in respect of all the persons who are placed similarly. There shall been orders as to costs."
12. Explanation for the delay in filing the present writ petition has been given by the writ petitioner in Paragraph Nos. 10 and 19 of the writ petition. In view of the facts stated in the said paragraphs it cannot be said that the petitioner was guilty of latches. The submissions made by the learned Counsel for the respondents that the writ petition was liable to be dismissed on the ground that of limitation and latches, therefore, cannot be accepted. The delay in filing the present writ petition has properly been explained. The same is therefore, condoned. On behalf Of the petitioner a supplementary affidavit was also filed which form part of the record. In the said affidavit it has been stated that the Medical Board in its report dated 1-5-1994 declared Sri Udai Pratap Singh as medically unfit. His name existed in the waiting list above the name of the petitioner. The petitioner, after declaration of Udai Pratap Singh as medically unfit should have been treated as candidate at serial No. 5.
13. From the facts stated in the writ petition, counter and rejoinder affidavits, it is conclusive proof that within one year of declaration of result there exists as many as 8 or 9 vacancies. The respondents were, therefore, bound to call the petitioner for training and appoint him on the post of Assistant Conservator of Forest. Therefore, the respondents are liable to be directed to immediately call the petitioner for training and appoint on the aforesaid post.
14. In the result this petition succeeds and is allowed. The respondents are directed to consider the case of the petitioner to give appointment on the post of Assistant Conservator of Forest with all consequential benefits from the date the candidate at serial No. 1 of the waiting list was granted the same and exempt him for training course in question. Necessary orders in this regard shall be passed by the respondents within a period of one month from the date of a certified copy of this order is communicated to the competent authority.
15. No orders as to costs.