Allahabad High Court
Prabhakar Pandey vs State Of U.P. And Others on 28 February, 2019
Author: Ashok Kumar
Bench: Ashok Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 22.01.2019 Delivered on 28.02.2019 Court No. - 5 Case :- WRIT - A No. - 37846 of 1998 Petitioner :- Prabhakar Pandey Respondent :- State Of U.P. And Others Counsel for Petitioner :- Satya Prakash Counsel for Respondent :- S.C. Hon'ble Ashok Kumar,J.
Heard Sri Satya Prakash, learned counsel for the petitioner and Sri S.P. Singh, learned Standing Counsel for the respondents.
An advertisement dated 16th June, 1993 was issued/ published inviting the applications to fillup the post of Fire Services Second Officer. The candidates were required to appear in pre examination thereafter in main examination and then for interview.
The claim of the petitioner is that the petitioner was possessing the requisite qualification and the qualification of the petitioner was M.A., LL.B. and he also possessed the degree of B.Ed.
An application was submitted by the petitioner for the post of Fire Services Second Officer and he appeared in pre examination and his result was declared as a successful candidate. The petitioner was called for physical examination and there also he was declared successful. The petitioner appeared in main written examination and was declared successful on 08.01.1997.
The respondent has sent the petitioner before the medical board and there also the petitioner was found medically fit and an interview letter was issued on 28.03.1997 by Deputy Inspector General of Police (Establishment), U.P. Police Headquarter, Allahabad.
The claim of the petitioner is that the petitioner was also possessing the certificate of U.P. Bharat Scout and Guides of State Level and considering the petitioner's qualification the petitioner was placed in the waiting list at serial no. 5 in the result declared by the respondent no. 5 on 15.11.1997.
The list of the selected candidates of 94 was sent by the respondent no. 5 and thereafter the respondent no. 4 has sent 94 candidates for training at State Fire Services Training Centre at Unnao.
The submission of the counsel for the petitioner is that apart from 94 candidates the respondent no. 4 has also sent 8 candidates from the waiting list (4 candidates of general category, 2 candidates of backward class and 2 candidates from scheduled caste). These eight candidates were sent by the respondent no. 4 for training on 12.02.1998.
After the declaration of result the petitioner has submitted a representation before the respondent no. 5 with a request that the qualification of the petitioner is M.A., LL.B., B.Ed. and his Scout certificate have not been properly considered by the interview board and no marks have been allotted to the petitioner regarding the aforesaid extra qualification, which in fact requires consideration. A copy of the representation was also sent by the petitioner to the respondent no. 2, Director General of Police, U.P., Lucknow. No decision was taken on the representation of the petitioner, therefore, a fresh representation dated 17.04.1998 was submitted by the petitioner before the respondent no. 5 and the copy of the same was also sent to the respondent no. 3.
It is claimed in the said representation that two candidates namely, Rakesh Mohan Chaudhari and Rai Sahab Yadav, were sent for training in the list of 94 candidates have resigned during the period of one year.
The claim of the petitioner was that the Secretary, U.P. Public Service Commission and State Government has issued the Government Order dated 27.10.1992 and 31.01.1994 clearly entitles the petitioner to be sent for training as the petitioner was admittedly in the waiting list at serial no. 5. Another representation/ reminder was sent by the petitioner dated 04.08.1998 addressed to the respondent no. 5, copy of which was also sent to the respondent nos. 2 and 3 in which the petitioner reiterated his claim and thereafter reminders were sent dated 12.08.1998, 17.10.1998 and 24.10.1998.
Learned counsel for the petitioner has submitted that the State Government has issued a Government Order dated 23.10.1997 by which the State Government has modified the earlier Government Order dated 31.01.1994 which was issued regarding the vacancy occurred during the life time of one year of waiting list.
The claim of the petitioner is that during the life time of one year of waiting list two persons namely Rakesh Mohan Chaudhari and Rai Sahab Yadav have resigned, therefore, two posts fell vacant during the life time of one year of the waiting list and since the petitioner was in the waiting list, therefore, the name of the petitioner and the claim of the petitioner should have been considered for selection and the petitioner was required to be sent for training.
Learned counsel for the petitioner has submitted that in pursuance of the representations a letter was issued by the respondent no. 5 to the respondent no. 3 on 05.05.1998 for consideration of the claim of the petitioner but no orders are passed by the higher authorities.
The case of the respondent is that the vacancies, which occurred on account of candidates having joined and then left the service, are not to be filled from amongst the wait-listed candidates.
It is not disputed that the list of select candidate is one year. The case of the petitioner is that a vacancy occurring during the period of one year should be filled from amongst the wait-listed candidate. The case of the respondent on the other hand is that only such of the vacancies can be filled from amongst the wait-listed candidates as arise on account of non-joining of selected candidates. To be more specific, the case of the respondent in the counter affidavit is that the vacancies, which occurred on account of candidates having joined and then left the service, are not to be filled from amongst the wait-listed candidates.
Heard learned counsel for the petitioner and learned Standing Counsel.
It is relevant to mention herein that the Government of Uttar Pradesh, Lucknow issued the Government Order on 31.01.1994 and clarified that the life of waiting list is only one year and if any vacancy occurs during one year, the candidate of waiting list shall be appointed. Copy of the Government Order is annexed as annexure no. 7 to the writ petition at page no. 33. The relevant part is on page 36 of the writ petition.
The opposite party no. 5 sent the letter on 05.05.1998 to the Additional Director General, U.P. Fire Services and mentioned that two candidates, Rakesh Mohan Chaudhary and Rai Sahab Yadav have joined the training, but they resigned, therefore, two further vacancies have occurred during one year. The letter dated 05.05.1998 of opposite party no. 5 sent to the Additional Director General of Fire Services is annexed as annexure no. 8 to the writ petition at page no. 38 and 39.
The petitioner Prabhakar Pandey submitted his representations before the opposite parties on 17.04.1998, 04.08.1998, 12.08.1998, 17.10.1998 and 24.10.1998, but the opposite parties have not recommended the name of the petitioner for training on the post of Fire Services Second Officer, therefore the petitioner filed this writ petition, which was heard by this Hon'ble Court on 10.12.1998 and direction was issued to the respondents to send the petitioner for training against the vacancy, which occurred within one year of the preparation of the select list or to show cause by filing the counter affidavit within six weeks as to why the writ prayed for be not issued. In spite of this order, the opposite parties did not file any counter affidavit and has also not sent the petitioner for training. The writ petition was again heard on 22.02.1999 by this Hon'ble Court. The writ petition was admitted and this Hon'ble Court has passed the order that "Since the respondents have not shown any cause by filing counter affidavit, it is provided that the petitioner shall be sent for training in respect of Fire Services Second Officer subject to result of the writ petition." After this order, this Court has further passed the order on 08.10.1999 and as an interim measure it is provided that in case, the petitioner has successfully completed the training pursuant to the order dated 22.02.1999 appropriate order of his posting/ appointment shall be issued subject to further orders by the Court without prejudice to the rights and contentions of the parties.
On 12.10.1999, the petitioner Prabhakar Pandey was appointed as Fire Services Second Officer and was sent on training on 23.10.1999 at State Fire Services Training Centre at Unnao. He completed his training on 29.01.2000. Thereafter, the petitioner was posted as Fire Services Second Officer at District Gonda. The petitioner was promoted on 26.09.2008 as Fire Service Officer and is working since 23.10.1999. Admittedly, the petitioner completed the service of more than 20 years in the department and during the pendency of the writ petition, the petitioner has also got promotion on the post of "Fire Service Officer" with effect from 26.09.2008.
So far as the controversy in the present case is concern, the petitioner was at serial no. 5 in the waiting list and the vacancies occurred after the resignation of two selected candidates, namely Rakesh Mohan Chaudhary and Rai Sahab Yadav within one year from the date of selection, therefore, the petitioner was entitled to get appointment on the vacancy, which occurred within one year.
The question involved in the present writ petition is as to whether the vacancy, which arises as a result of resignation, death or otherwise of selected candidates after they had joined the service during the period of one year from the date of selection, could be filled from amongst the wait-listed candidates.
Learned counsel for the petitioner has placed reliance of the judgment in Civil Misc. Writ Petition No. 32389 of 1997 (Yogendra Kumar Pal Vs. State of U.P. And Others) dated 09.04.1998 in which this Court has held that if any additional vacancy arises before the cancellation of select list then it is just and proper that it should be offered to the candidate, who is next in the panel. On the basis of the aforesaid judgment, this Court has held that the State Government should sent requisition to the commission calling for the names of the wait-listed candidate as against the vacancies, which arose as a result of resignation or otherwise of the selected candidates.
In another judgment of Writ Petition No. 24576 of 1998 (Ram Krishna Pandey and Another Vs. Public Service Commission, U.P., Allahabad and others), this Court has held that many persons, to whom the appointment orders were issued have not joined and some of the persons, who joined, but subsequently, resigned from the post and the post were lying vacant, therefore, the recruitment of those candidates, who are selected and were on waiting list are entitled that their claim be considered and the respondents shall complete the process in this regard.
In the present case, it is not disputed that the name of the petitioner was at serial no. 5 in the waiting list and it is also not disputed that two vacancies occurred during life-time of one year, therefore the petitioner is/ was entitled for appointment on the vacancy occurred due to resignation of the aforesaid two selected candidates.
Admittedly the petitioner is working since last more than 20 years and was promoted, in my opinion the writ petition is liable to be allowed. The petitioner fulfil all the conditions to be appointed as Fire Service Second Officer and to be promoted in accordance with law.
The writ petition is allowed.
Order Date :- 28.2.2019 SK Srivastava