Uttarakhand High Court
Mohammad Hasnain Raza vs Uttarakhand Public Service Commission ... on 11 October, 2019
Equivalent citations: AIRONLINE 2019 UTR 873
Author: Ravindra Maithani
Bench: Ramesh Ranganathan, Ravindra Maithani
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (S/B) No. 478 of 2019
Mohammad Hasnain Raza .......Petitioner
Versus
Uttarakhand Public Service Commission & others
.......Respondents
Mr. Mohd. Hasnain Raza, petitioner, in-person.
Mr. B.S. Parihar, Standing Counsel for the State.
Mr. B.D. Kandpal, Advocate for the respondent no.1.
Mr. Shobhit Saharia, Advocate for the respondent no.3.
JUDGMENT
Coram: Hon'ble Ramesh Ranganathan, C.J.
Hon'ble Ravindra Maithani, J.
Dated: 11th October, 2019 RAMESH RANGANATHAN, C.J. (Oral) This Writ Petition is filed by a young law graduate who completed his three year LL.B course on 31.07.2019. His grievance in this Writ Petition is regarding the errata issued on 27.08.2019, to the earlier advertisement dated 01.06.2019, intimating that 13 additional vacancies, besides the originally advertised 15 vacancies, would be filled up in the ensuing selection process, for which the preliminary examination was scheduled to be held on 01.09.2019. The petitioner's complaint is that persons, similarly situated as he is, are thereby deprived of the opportunity of applying, and participating in the selection process, for being considered for appointment as Civil Judges (Junior Division) against these 13 vacancies for which a separate advertisement ought to have been issued, and an independent selection process undertaken.
2. The petitioner not only relies on Rule 20(1) of the Uttarakhand Public Service Commission (Procedure and Conduct of Business) Rules, 2013 (for short the "2013 Rules") but also on the judgments of the Supreme Court in Rakhi Ray & others vs. High Court of Delhi & others: (2010) 2 SCC 637; State of U.P. & others vs. Rajkumar Sharma: (2006) 3 SCC 330; Secretary, A.P. Public Service Commission vs. B. Swapna & others:
(2005) 4 SCC 154; Arup Das & others vs. State of Assam & others:
[order in Special Leave Petition (C) No.27 of 2012 dated 27.01.2012]; and Sri Kant Tripathi vs. State of U.P: (2001) 10 SCC 237, to submit that vacancies, beyond those which are advertised, cannot be filled up, since 2 other eligible candidate may not have applied considering the limited number of advertised vacancies; and they may have submitted their application for being considered for appointment in case they were aware that the number of vacancies would be much higher than what was originally advertised.
3. Before referring to the judgments relied upon by the petitioner, it is necessary to note the circumstances under which the errata dated 27.08.2019 came to be issued, thereby increasing the number of advertised vacancies, in the post of Civil Judges (Junior Division), from 15 to 28. Initially an advertisement was issued on 28.12.2018 inviting applications for filling up 30 posts of Civil Judges (Junior Division). While the process of selection was underway, another advertisement was issued on 01.06.2019 inviting applications to fill up 15 additional posts of Civil Judges (Junior Division). The said advertisement stipulated that the last date for submitting applications would be 21.06.2019; and the vacancies mentioned in the advertisement could be subjected to variation. After the advertisement dated 01.06.2019 was issued, the High Court of Uttarakhand undertook the exercise of promoting judicial officers in the cadre of Civil Judge (Junior Division), to fill up eleven posts of Civil Judges (Senior Division). Since sufficient number of eligible candidates, with the minimum required service of five years as Civil Judges (Junior Division) were not available, and as there was an urgent need to fill up these vacant posts, the Uttarakhand Judicial Service Rules, 2005, prescribing a minimum of five years' service to be eligible for promotion, was amended and notified on 18.07.2019; and the minimum required service, for being considered for promotion as Civil Judges (Senior Division) was reduced from a minimum of five years to four years. Consequently, 11 posts of Civil Judges (Senior Division) were sought to be filled up.
4. On these facts being placed before it, in Malik Mazhar Sultan & another vs. U.P. Public Service Commission through its Secretary & others (Civil Appeal No.1867 of 2006), the Supreme Court, in its order dated 30.07.2019, 31.07.2019 and 01.08.2019, while examining the exercise undertaken to fill up the available vacancies in different cadres in the 3 judicial services of the State of Uttarakhand, noted the submission of the High Court that the selection process, for direct recruitment of Additional District Judges, would be completed by the end of August, 2019. With respect to filling up of available vacancies in the cadre of Civil Judges (Senior Division), the Supreme Court directed the High Court to initiate the process of appointment, for the existing vacancies as well as anticipated vacancies, and complete the same as early as possible; however appointments, against the recommendations to be made by the High Court, should only be made, after appointments of the first lost of vacancies (30 posts) in the cadre of Civil Judge (Junior Division) were made. This direction was, evidently, issued to ensure that the working strength, in the cadre of Civil Judge (Junior Division), is not further depleted.
5. With respect to vacancies in the cadre of Civil Judge (Junior Division), the Supreme Court noted that two different selection process had been initiated by the High Court, one against 30 posts for which the advertisement was made on 28.12.2018, and the other against 15 posts by the advertisement dated 31.05.2019 (actually 01.06.2019); the main examination in respect of the 30 posts was scheduled between 12th and 18th September, 2019; and though the Public Service Commission, which was conducting the said selection, had initially stated that they would complete the process by February-March, 2020; they had, by subsequent letter dated 25.07.2019, stated that the selection process would be completed and recommendations send by the Public Service Commission to the Government latest by the end of September, 2019. The State Government was directed to make appointments against the said 30 posts within one month from the date of receipt of the recommendations by the Public Service Commission.
6. In so far as the second lot of 15 posts of Civil Judge (Junior Division) is concerned, the Supreme Court, after noting that the preliminary examination was scheduled to be held in August, 2019, directed the Public Service Commission to complete the process by the end of February, 2020 and directed the State Government to make appointments against the recommendations of the Public Service Commission in respect of these 15 4 posts by the end of March, 2020. The Supreme Court further directed the High Court to make an assessment of the anticipated vacancies that would be available in the cadre of Civil Judge (Junior Division), following promotions to the next higher cadre, and consider the feasibility of issuing a corrigendum, to the advertisement dated 31.05.2019 (actually 01.06.2019), including the additional posts that may have become available for being filled up. The Supreme Court made it clear that, even in the event such a corrigendum is issued, the preliminary examination would be held on 01.09.2019, which is the date fixed for holding the preliminary examination in respect of candidates who may have initially applied pursuant to the advertisement dated 31.05.2019 (actually 01.06.2019).
7. It is pursuant to the aforesaid directions of the Supreme Court, in Malik Mazhar Sultan, that the High Court undertook the process of identifying further vacancies which would arise in the cadre of Civil Judge (Junior Division), as a result of promotion of officers in the Civil Judge (Junior Division) cadre to the cadre of Civil Judge (Senior Division). After such an exercise was undertaken, a requisition was sent to the State Government, by the High Court, on 13.08.2019 informing that 13 more vacancies would be available; and the Uttarakhand Public Service Commission be requested, in terms of the order of the Supreme Court in Civil Appeal No.1687 of 2006 dated 30.07.2019-01.08.2019, to issue an errata to add 13 more vacancies to the originally advertised 15 vacancies i.e. in all 28 vacancies in the cadre of Civil Judge (Junior Division).
8. The petitioner's grievance, regarding his being deprived of the opportunity to be considered for selection and appointment to these 13 advertised vacancies in the cadre of Civil Judge (Junior Division), cannot be brushed aside as devoid of merit, since he obtained his LL.B degree on 31.07.2019 after the original advertisement dated 01.06.2019 was issued and the last date for submission of applications had expired on 21.06.2019; and, if a fresh advertisement is now issued inviting applications afresh for the 13 posts (for which an errata was issued on 27.08.2019), he would have been eligible to apply and participate in the selection process. However, accepting the contention of the petitioner would require these 13 posts, in the cadre of 5 Civil Judge (Junior Division), to be kept unfilled till a fresh process of selection is undertaken and the process is completed by the Public Service Commission which, past events show, would take a minimum of more than one year.
9. As noted hereinabove, for the advertisement issued on 28.12.2018 more than nine months ago, the process of selection has not yet been completed; and, while the main examination has been held, the results have not yet been declared, and interviews for selection to these 30 posts are yet to take place. The process of selection, from the date on which the advertisement is issued till the State Government makes appointments, takes more than one year to complete. Quashing the errata dated 27.08.2019, and directing the High Court to issue an advertisement afresh inviting applications to fill up these 13 posts, would require these 13 posts, in the Civil Judge (Junior Division) cadre, to be kept vacant for a period in excess of one year.
10. It is in the light of these facts that we must examine the judgments relied upon by the petitioner.
11. In Rakhi Ray, the Supreme Court observed:-
".........It is a settled legal proposition that vacancies cannot be filled up over and above the number of vacancies advertised as "the recruitment of the candidates in excess of the notified vacancies is a denial and deprivation of the constitutional right under Article 14 read with Article 16(1) of the Constitution", of those persons who acquired eligibility for the post in question in accordance with the statutory rules subsequent to the date of notification of vacancies. Filling up the vacancies over the notified vacancies is neither permissible nor desirable, for the reason, that it amounts to "improper exercise of power and only in a rare and exceptional circumstance and in emergent situation, such a rule can be deviated and such a deviation is permissible only after adopting policy decision based on some rational", otherwise the exercise would be arbitrary. Filling up of vacancies over the notified vacancies amounts to filling up of future vacancies and thus, not permissible in law. (Vide Union of India and Ors. v. Ishwar Singh Khatri and Ors. (1992) Supp 3 SCC 84; Gujarat State Deputy Executive Engineers' Association v. State of Gujarat and Ors.: (1994) Supp 2 SCC 591; State of Bihar and Ors. v. The Secretariat Assistant S.E. Union 1986 and Ors.: AIR 1994 SC 736; Prem Singh and Ors. v. Haryana State Electricity Board and Ors.:
(1996) 4 SCC 319; and Ashok Kumar and Ors. v. Chairman, 6 Banking Service Recruitment Board and Ors.: AIR 1996 SC
976)..... (emphasis supplied)
12. In Rajkumar Sharma, the Supreme Court opined:-
".....Filling up of vacancies over and above the number of vacancies advertised would be violative of the fundamental rights granted under Articles 14 and 16 of the Constitution. (Union of India and Ors. v. Ishwar Singh Khatri and Ors.: (1992) Supp. 3 SCC 84, Gujrat State Dy. Executive Engineers, Association v. State of Gujarat and Ors.: (1994) Supp. 3 SCC 84; State of Bihar and Ors. v. the Secretariat Assistant S.E. Union 1986 and Ors.:
AIR 1994 SC 736; Prem Singh and Ors. v. Haryana State Electricity Board and Ors.: (1996) IILLJ 786 SC; Surendra Singh and Ors. v. State of Punjab and Anr. AIR 1998 SC 18, and Kamlesh Kumar Sharma v. Yogesh Kumar Gupta and Ors.: AIR 1998 SC 1021).
Selectees cannot claim the appointment as a matter of right. Mere inclusion of candidates' name in the list does not confer any right to be selected, even if some of the vacancies remained unfilled and the concerned candidates cannot claim that they have been given a hostile discrimination. (Shankarsan Dash v. Union of India: (1992) IILLJ 18 SC, Smt. Asha Kaul and Anr. v. State of Jammu & Kashmir and Anr.: (1993) 2 SCC 573, Union of India v. S.S. Uppal: [1996] 1 SCR 230, Hanman Prasad v. Union of India: (1996) 10 SCC 742, Bihar Public Service Commission and Ors. v.
State of Bihar and Ors.: AIR 1997 SC 2280, Syndicate Bank and Ors. v. Shankar Paul and Ors.: (1997) IILLJ 814 SC, Vice Chancellor, University of Allahabad v. Dr. Anand Prakash Mishra and Ors: (1997) 10 SCC 264, Punjab State Electricity Board v. Seema 1999 SCC (L&S) 629; All India SC & ST Employees Association v. A. Arthur Jeen: [2001] 2 SCR 1183, Vinodan T. v. University of Kalikut: [2002] 3 SCR 530, S. Renuka v. State of Andhra Pradesh and Ors.: [2002] 2SCR 697, and Baitariani Gramiya Bank v. Pallab Kumar and Ors. AIR 2000 SC 4248).
Even if in some cases appointments have been made by mistake or wrongly that does not confer any right on another person. Article 14 of the Constitution does not envisage negative equality, and if the State committed the mistake it cannot be forced to perpetuate the same mistake. (Snehprabha v. State of U.P. and Ors.: AIR 1996 SC 540, Secretary, Jaipur Development Authority, Jaipur v. Daulat Mal Jain and Ors.: (1997) 1 SCC 35, State of Haryana and Ors. v. Ram Kumar Mann: (1997) IILLJ 1039 SC, Faridabad C.T. Scan center v. D.G. Health Services and Ors.: 1997 ECR 801 (SC), Jalandhar Improvement Trust v. Sampuran Singh: AIR 1999 SC 1347, State of Punjab and Ors. v. Dr. Rajeev Sarwal: (2000) ILLJ 122 SC, Yogesh Kumar and Ors. v. Govt. of NCT, Delhi and Ors.:
[2003] 2 SCR 662, Union of India and Anr. v. International Trading Co. and Anr.: AIR 2003 SC 3983 and Kastha Niwarak G.S.S. Maryadit, Indore v. President, Indore Development Authority: AIR 2006 SC 1142)........" (emphasis supplied) 7
13. Unlike in the aforesaid cases, where more number of posts, than what was actually advertised, were sought to be filled up, in the present case, the original advertisement dated 01.06.2019 itself states that the 15 advertised vacancies were subject to variation. Further an errata was issued to this advertisement dated 01.06.2019 on 27.08.2019 increasing the available vacancies from 15 to 28. The present case is not one such where more number of posts, than what was actually advertised, are being filled up.
On the other hand the advertisement itself has been amended by the errata dated 27.08.2019, and 13 more posts are shown as being available to be filled up through the process of selection being undertaken pursuant to the advertisement issued on 01.06.2019.
14. While the errata issued on 27.08.2019 was, no doubt, after the last date, for submitting the application forms, had expired on 21.06.2019, it was prior to the date on which the preliminary examination was held on 01.09.2019. Further such an exercise was undertaken in view of the vacancies which arose consequent on the exercise of promotion to the higher post of Civil Judges (Senior Division) having been undertaken, and in strict compliance with the order of the Supreme Court in Malik Mazhar Sultan & another vs. U.P. Public Service Commission through its Secretary & others (orders in Civil Appeal No.1867 of 2006 dated 30.07.2019, 31.07.2019 and 01.08.2019). The present case would, undoubtedly, fall in the "rare and exceptional circumstance" category, as laid down by the Supreme Court, in Rakhi Ray.
15. In B. Swapna, the Supreme Court held as under:-
"......There are two principles in service laws which are indisputable. Firstly, there cannot be appointment beyond the advertised number and secondly norms of selection cannot be altered after the selection process has started. In the instant case 15 posts were to be filled up........" (emphasis supplied)
16. Again in Arup Das, the Supreme Court observed:-
"...Even in Prem Singh's case, which has been strongly relied upon by Mr. Gupta, the proposition sought to be advanced by him does not find support. It is well-established that an authority 8 cannot make any selection/appointment beyond the number of posts advertised, even if there were a larger number of posts available than those advertised. The principle behind the said decision is that if that was allowed to be done, such action would be entirely arbitrary and violative of Articles 14 and 16 of the Constitution, since other candidates who had chosen not to apply for the vacant posts which were being sought to be filled, could have also applied if they had known that the other vacancies would also be under consideration for being filled up. In fact, in the decision rendered in Ishwar Singh Khatri's case (supra) which was referred to by the High Court, this Court while considering the preparation of panel of 1492 selected candidates as against the 654 actual vacancies notified, recorded the fact that after filling up the notified number of vacancies from the panel, no further appointments were made therefrom and instead fresh advertisement was issued for further appointment........" (emphasis supplied)
17. In Sri Kant Tripathi, the Supreme Court opined:-
"......The aforesaid sub-rule unequivocally confers power on the governor in consultation with the high court, not to fill up or hold in abeyance, posts in service though ordinarily, the vacancies determined by the court should be filled up from the different sources. Lengthy arguments had been advanced on the existence of a variation clause in the advertisement. Since the court determines the number of officers to be taken at a particular recruitment, keeping in view the vacancies then existing as well as likely to occur in the next two years and from out of such available vacancies, allocates, in respect of various sources of recruitment, in terms of rule 6, only after which an advertisement could be published for direct recruitment under rule 17, the question of any variation thereafter, would not arise in the ordinary course. But in an extraordinary situation, like sudden creation of posts in the cadre, subsequent to the issuance of advertisement, but before the last date of submission of application forms, the variation clause may become applicable, so that a greater number of persons, than the posts advertised for, could be considered for the said recruitment. However, as has been stated earlier, such a situation will have to be an extraordinary one.........." (emphasis supplied)
18. In Sri Kant Tripathi, the Supreme Court has recognized certain extra-ordinary situations like sudden creation of posts in the cadre, subsequent to the issuance of advertisement etc, as justifying deviation from the Rule that vacancies beyond what is advertised cannot be filled up.
19. In this context, it is useful to note that in Anupal Singh vs. State of U.P.(order in Civil Appeal No.4817 of 2019 and batch dated 30.09.2019), the breakup of the vacancies was changed after the initial 9 advertisement was issued. The Supreme Court, after referring to several of its earlier judgments including in K. Manjusree, Hemani Malhotra etc, held that a correction in the advertisement cannot be said to have resulted in changing the rules, or the basis of selection, as the eligibility criteria of the candidate was not changed; the prohibition against the 'rules of the game' being changed was in so far as the prescription of eligibility criteria was concerned; and it was not applicable to a case where the earlier wrong calculation had been corrected.
20. From the facts as noted hereinabove, it is evident that the errata dated 27.08.2019 was issued only as a result of the extra-ordinary situation of additional 13 vacancies having arisen after the exercise of promotion to the post of Civil Judges (Senior Division) was initiated on 19.07.2019, consequent upon the amended Rules having been notified on 18.07.2019. The aforesaid events took place long after the advertisement was issued on 01.06.2019. Further the errata issued by the Public Service Commission on 27.08.2019, at the instance of the High Court, was strictly in terms of the directions of the Supreme Court, in Malik Mazhar Sultan, referred to hereinabove.
21. Rule 20(1) of the 2013 Rules, on which reliance is placed by the petitioner, requires the Public Service Commission to advertise the vacancies through the print media and invite applications from eligible candidates. While this Rule had been complied with by the Public Service Commission by its advertisement dated 01.06.2019, the errata was issued on 27.08.2019 in the light of the extra-ordinary situation referred to hereinabove.
22. Since the errata was issued at the instance of the High Court which, in turn, was in compliance with the orders of the Supreme Court in Malik Mazhar Sultan (referred to hereinabove), the present case falls under the category of an "extra-ordinary situation" as referred to in Rakhi Ray and Sri Kant Tripathi; and is justified in the facts and circumstance of the present case.10
23. While we understand the anguish of the petitioner, and those similarly situated to him, their grievance must be weighed in the context of the problems which the subordinate judiciary in the State of Uttarakhand would face in case a fresh process of selection is undertaken to fill up these 13 posts, which would then require these 13 posts to be kept unfilled for a period of more than one year which is the minimum period which the Public Service Commission takes to complete the process of selection.
24. We see no reason, therefore, to interfere or to grant the petitioner the relief sought for in the Writ Petition. The Writ Petition fails and is, accordingly, dismissed. No costs.
(Ravindra Maithani, J.) (Ramesh Ranganathan, C. J.) 11.10.2019 11.10.2019 NISHANT