Allahabad High Court
Brijesh Kumar Singh And Anr. vs U.P. Public Service Commission And Ors. on 23 March, 2004
Equivalent citations: 2004(3)AWC2538
Author: R.B. Misra
Bench: R.B. Misra
JUDGMENT R.B. Misra, J.
1. Heard Sri Ashok Khare, learned senior advocate with Sri S. K. Gupta, advocate as well as standing counsel for the State and Sri B. N. Singh, advocate of Public Service Commission.
2. In the Writ Petition No. 38335 of 1999 the prayer has been made directing the U. P. Public Service Commission, Allahabad (in short 'Commission' hereinafter) to declare the waiting list of the year 1987 in respect of Upper Division Assistant and Lower Division Assistant and send the name of the petitioner to the State Government of Uttar Pradesh by issuing a writ of mandamus commanding the State Government of Uttar Pradesh to demand the name from the waiting list of the examination of the year 1987 of Upper Division Assistant and Lower Division Assistant.
3. In the Writ Petition No. 8146 of 1994, Prem Shanker Rai v. State of U. P., a writ of mandamus has been prayed directing the respondents to consider the appointment of the writ-petitioner to the post of Upper Division Assistant for which he had already been declared selected and also placed in the waiting list in the competitive examination conducted by the 'Commission' for Upper Division Assistant and Lower Division Assistant to the examination of 1987 (which was held in the year 1989).
4. The brief facts necessary for adjudication of the present case are that the petitioners in the two writ petitions had appeared in recruitment and selection conducted by the 'Commission' in pursuance to advertisement No. A-4/E-1987-1988 for making recruitment on the post of Upper Division Assistant and Lower Division Assistant in the Civil Secretariat of the State of U. P. The total number of posts of Upper Division Assistant advertised was 167 out of which only 152 recommended candidates join. As contended by the petitioner in spite of several vacancies existing in Upper Division Assistants the petitioners were not allowed to join. The candidates who secured 312 out of 500 in the examination were selected for the post of Upper Division Assistant in the general category and those candidates among backward quota who secured 309 were selected in the Upper Division Assistant and those who have secured less marks were to be in waiting list of Upper Division Assistant. Sri Brijesh Kumar petitioner No. 1 being a general candidate by virtue of securing 312 marks and petitioner No. 2 being a backward class by virtue of securing 308 marks were only given appointment as Lower Division Assistant ignoring their claims for appointment to the post of Upper Division Assistant. The grievance of the petitioners is against the non-grant of appointment to the petitioners against such remaining unfilled vacancies. The two petitioners of Writ Petition Nos. 38335 of 1999 and 8146 of 1994 were selected in the same selection recommended and granted appointment on the post of Lower Division Assistant on which post they are working. The order of State Government dated 11.3.1997 (Annexure-6 to the Writ Petition No. 38335 of 1999) as also the counter-affidavit of Sri Amar Sen Singh filed on behalf of the State Government in Writ Petition No. 38335 of 1999 admits the factual position that vacancies of Upper Division Assistant covered by the above mentioned advertisement remained unfilled on account of several of the selected candidates having failed to join in pursuance to the order of appointment issued in their favour. The counter-affidavit also does not dispute that vacancies of Upper Division Assistant are not available as on date.
5. The letter dated 11th March, 1997, of the State Government (Annexure-6 to the Writ Petition No. 38335 of 1999) reveals that the State Government issued the appointment only to those candidates who were recommended by the 'Commission'. Since the petitioners were not recommended by the 'Commission', therefore, they were not given appointment to the post of Upper Division Assistant and according to the respondent after lapse of considerable number of years the vacancies in respect of particular examination were carried forward and the names of those candidates whose names were requisitioned from the 'Commission' during the life time of select list were issued appointments and for not recommending the names of candidates for the post of Upper Division Assistant the appointment order cannot be issued. According to G.O. dated 29th August, 1992 and 27.10.1992 enclosed as (Annexures-8 and 7 to the writ petition) in the requisition, the State Government was to calculate the number of vacancies and accordingly in consonance to the requisition vacancies were not to be altered and only that number of candidates were to be given appointment as many vacancies were available and the waiting list was not to be published and was to be kept in the envelop. However, according to the existing norms the names of the candidates were not to be forwarded to the State Government from such waiting list and the waiting list was valid for one year and after one year the waiting list was of no use and if the waiting list is not utilised within one year the vacancies which had fallen vacant were deemed to be carry forwarded in respect of those examinations which are being held every year. According to the petitioners the action of the respondents in non-granting appointment to the petitioners against the remaining unfilled vacancies of Upper Division Assistant on the basis of merit list prepared by the Commission is unjustified.
6. The petitioners has placed reliance on the following judgments in support of their claim :
(a) Jai Narain Ram v. State of U. P. and Ors., AIR 1996 SC 703 ;
(b) A.V. Bhogeshwarudu v. A. P. Public Service Commission, 1989 (59) FLR 749 ;
(c) Ved Prakash Tripathi v. State of U. P. and Ors., 2001 (1) AWC 669 : 2001 (1) ESC 317 ;
(d) Dvijendra Singh and Ors. v. State of U. P. and Ors., 2001 (2) AWC 1389 : 2001 (2) UPLBEC 1432.
7. According to the petitioner it is not the case of the respondent that many of the selected candidates left the services after joining and as such vacancies were to be fulfilled for the respective years of selection and was not available to be fulfilled by the respondents. According to the petitioners undisputedly the vacancies in the cadre of Upper Division Assistant were available for the whole year as less number of candidates were recommended by the Commission for lack of requisition by the State Government, According to the petitioner the State Government was under obligation to make a requisition to such number of posts which were advertised and the selection was held keeping in view the number of those vacancies and during the life time of waiting list of the said examination.
8. In the case of Jai Narain Ram (supra) four posts of Treasury Officer/Accounts Officer in U. P. Finance and Accounts Service were reserved for members of the Scheduled Caste which were not fulfilled and the appointments to the next four qualified candidates from the waiting list stand in the waiting list were being ignored on the ground that there was no requisition by the State Government to invite the names from the U. P. Public Service Commission. In such condition both the State Government and the Commission were directed to recommend the name and issue appointment order to those deserving candidates from the waiting list against the vacant post.
9. In A.V. Bhogeshwarudu v. A. P. Public Service Commission and Anr., 1989 (59) FLR 749 (SC), it was observed that the only point which requires consideration is as to whether if out of the names recommended for appointment, some candidates do not join, whether the vacancies remaining unfilled should or should not be filled up from out of the remaining successful candidates. No justification was found in the stand of the State Public Service Commission that instead of filling up the vacancies by recommending the candidates next in order of merit out of the list why a fresh selection was made, and the directions were issued that the number of vacancies remaining to be filled up on account of non-joining of selected candidates for whatever reasons out of the list in question.
10. In Ved Prakash Tripathi v. State of U. P., 2001 (1) AWC 669 :
2001 (1) ESC 317, this Court (DB) has observed that the candidates included in the select list though offered appointments did not Join as such their names were to be cancelled and in their place such candidates from the waiting list were to be offered appointments and the State Government and the U. P. Public Service Commission were directed to send additional names from the waiting list of Assistant Prosecuting Officer Examination, 1996. Relying upon the decision of Ved Prakash Tripathi (supra) this Court (DB) in Dvijendra Singh and Ors. v. State of U. P. and Ors., 2001 (2) AWC 1389 : 2001 (2) UPLBEC 1432, has issued directions for appointment to the post of Assistant Prosecuting Officer shown in the select list when the five persons out of 99 appointees from the select list resigned within the life of select list even in those conditions the five persons next in the select list were directed to be appointed to the post created after the resignation.
11. I have heard learned counsel for the parties, I find that the State Government has acknowledged that 167 vacancies to the post of Upper Division Assistant were to be fulfilled and for that purpose requisition was sought by the Commission and the advertisement was issued in the year 1987 and the petitioners were duly given appointment to the post of Lower Division Assistant. However, a considerable number of vacancies to the post of Upper Division Assistant were available and the petitioners have also secured marks where they could have been appointed to the post of Upper Division Assistant if all the vacancies were to be fulfilled and treating the life time of the select list of vacancies to the post of Upper Division Assistant were available and their due right were postponed by only saying that the requisition was not sought from the State Government and the 'Commission' therefore could not recommend of such petitioners. This attitude of the respondent is discriminatory in derogation to the provisions of Article 14 of the Constitution and since the vacancies were available therefore, the petitioners were entitled to be recommended to the post of Upper Division Assistant and the State Government was under legal obligation to demand on requisition, the names of the candidates from the Commission whereof the 'Commission' might send their names to the State Government. In these circumstances the prayers made in the writ petition are allowed and mandamus is issued to the State Government are directed to make requisition of the name of the petitioners from the 'Commission' so that the proper appointment could be made in favour of the petitioners expeditiously.
12. The writ petitions are allowed.