Allahabad High Court
State Of U.P. And Another vs Mohd. Akram Siddeeque And 20 Others on 23 June, 2021
Bench: Sanjay Yadav, Vivek Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Chief Justice's Court Case :- SPECIAL APPEAL DEFECTIVE No. - 324 of 2021 Appellant :- State Of U.P. And Another Respondent :- Mohd. Akram Siddeeque And 20 Others Counsel for Appellant :- Anand Kumar Ray Counsel for Respondent :- Siddharth Khare Hon'ble Sanjay Yadav,Chief Justice Hon'ble Vivek Agarwal,J.
(As Per Vivek Agarwal,J.)
1. Matter is taken up through video conferencing.
2. Heard learned Standing Counsel for the State and Sri Ashok Khare, learned Senior Advocate assisted by Sri Siddharth Khare, learned counsel for respondents.
3. This appeal is filed by the State of U.P. being aggrieved of order dated 22.05.2019 passed in Writ A No. 20955 of 2018 (Mohd. Akram Siddeeque And 19 Others vs. State Of U.P. And 2 Others), whereby writ petition was disposed of in terms of the order passed in Service Single No. 25178 of 2018 (Atul Tiwari and others Vs. State of U.P. and others), passed by a Coordinate Bench at Lucknow.
4. The controversy in narrow compass is to the effect that petitioners in Service Single No. 25178 of 2018 were candidates, who participated in the selection process, initiated vide advertisement dated 29.04.2015 for recruitment to the post of Assistant Prosecution Officer.
5. It is admitted that on 08th September, 2017, final result was declared and some of the candidates, whose name find place in the merit list/waiting list, had not joined within the stipulated period, as a result of which, petitioners prayed for issuance of a writ, order or direction commanding the opposite party nos. 1 and 3 to call additional names from remaining merits list/waiting list, prepared by Uttar Pradesh Public Service Commission, Allahabad.
6. Vide order dated 11.12.2019, Single Service No. 25178 of 2018, was disposed of directing the competent authority to accommodate the petitioners, eleven in numbers, against the vacant post and opposite parties, were restrained from taking a stand that the waiting list has come to an end after expiry of one year period, as the same has been protected by the interim order dated 28.09.2018.
7. Learned Standing Counsel for the State submits that vide extraordinary Gazette Notification, published in Government Gazette, Uttar Pradesh on 31st March, 2010, exercising the authority under Article 309 of the Constitution of India, Governor of Uttar Pradesh had amended the provisions of Uttar Pradesh Prosecution Officer Service Rules, 1991. This amendment is titled as Uttar Pradesh Prosecuting Officers Service (Second Amendment) Rules, 2009. These Rules are herein after called as 'Rules of 2009'. Placing reliance on amendment of Rule 15 of the Service Rules of 1991, it is submitted that arrangement for recommending candidates as wait listed candidates, was repealed. For ready reference, relevant provisions of the Rules existing prior to amendment and one, which was substituted through Rules of 2009, is reproduced hereunder:-
"...............4. In the said rules, in rule 15, for existing sub-rule (4) set out in column-I below, the sub rule as set out in column-2 shall be substituted namely:-
COLUMN-1 Existing sub-rule (4) The Commission shall prepare a list of candidate in order of merits as disclosed by the aggregate of marks obtained by them in the written examination and interview. If two or more candidate obtain equal marks in the aggregate the name of the candidates obtaining higher marks in the written examination shall placed higher. The number of names in the lists shall be larger (But not larger by more than 25 per cent) than the number of vacancies. The Commission shall forward the list of the appointing authority."
COLUMN-2 Sub-rule as hereby substituted (4) The Commissioner shall prepare a list of candidate in order of merit as disclosed by the aggregate of marks obtained by them in the written examination and interview. If two or more candidate obtain equal marks in the aggregate the name of the candidates obtaining higher marks in the written examination shall be placed higher in the list. If two or more candidates obtain equal marks in the written examination also, the candidate senior in age shall be placed higher in the list. The Commission shall forward the list to the appointing authority."
8. Placing reliance on this provisions, it is submitted that learned Single Judge, both at Lucknow as well as at Allahabad, erred in not referring to the provisions of amended Rule 15(4) and assumed that there was a provision for wait list and on such presumption, order dated 13.12.2019 came to be passed.
9. It is submitted that firstly, Rule, stood amended and secondly, validity of final result declared on 08.09.2017, was only for one year and therefore, without taking note of the amended Rule 15(4), any order passed by the Writ Court is per incurium and not binding on the State authorities.
10. Sri Ashok Khare, learned Senior Advocate, in his turn, submits that State of Uttar Pradesh, Personnel Department-IV, had issued Office Memo dated 15th November, 1999, Annexure-12 to the Special Appeal and submits that this Office Memo will supersede the Rules and will hold the field.
11. Reliance is also placed on the judgment of Supreme Court in case of Sheo Shyam and Others vs. State of U.P. and Others; 2005 (10) SCC 314, wherein the issue was in regard to period of validity of the panel/select list/reserve list/waiting list/merit list/rank list and the date from which period of validity is to be reckoned. It is held that where selected candidates were recommended to the State Government by the U.P.S.C. in piecemeal or installments, then in absence of any statutory Rules in this regard, period of validity is to be reckoned from the date on which last recommendation was made by the U.P.S.C., and not the date on which the first recommendation was made.
12. Learned counsel for respondent submits that in fact, State Government had taken a decision to call for the names of the eligible candidates, consequent to the orders passed by the High Court on 13.12.2019 including the names against the appointments, which were cancelled by the Public Service Commission, out of the waiting list of the candidates in order of merit. Thereafter, vide order dated 28th July, 2020, passed by the Additional Chief Secretary, Home vide which it was decided that vide order dated 15.05.2020, 30 candidates out of 42, in regard to whom recommendation was received from Public Service Commission for giving appointment consequent to character verification and medical examination were issued appointment letter and proceedings are underway in regard to other candidates. Placing reliance on this order, it is submitted that since orders of the Writ Courts have been executed, this Special Appeal has been rendered infructuous and is nothing, but an academic exercise.
13. Learned Senior Advocate appearing for the respondents, however, admits that these orders were obtained under threat of contempt proceedings, which were drawn by some of the petitioners.
14. It has come on record and is mentioned in order dated 28th July, 2020, passed by the Additional Chief Secretary, Home (Police), Branch No. 9, that these candidates had not secured cut-off marks, as was decided by the Public Service Commission, as a result, they could not be selected, but later on certain selected candidates had not joined consequent to which, process was initiated to give them appointment in terms of the orders of the High Court.
15. After hearing learned counsel for the parties and going through the available record, impugned orders cannot be given seal of approval for the reasons that now with the 2009 Amendment, Rule 15(4), is unambiguous and it does not provide for publication of any wait list. In case of Bihar State Electricity Board vs. Suresh Prasad and Others, (2004) 2 SCC 681, it is held that in absence of a statutory rules, the employer is not bound to prepare a waiting list in addition to the panel of selected candidates and to appoint the candidates on the waiting list in case the candidates in the panel did not join.
16. In case of Rakhi Ray and Others vs. High Court of Delhi and Others, (2010) 2 SCC 637 as well as in case of Shanker Dass vs. Union of India and Another, (1991) 3 SC 47, it has been held that in absence of Rules to such effect, there was no compulsion to prepare a waiting list.
17. In case of State of Punjab vs. Raghbir Chand Sharma and Another, (2002) 1 SCC 113, it is held that where a select list is prepared for a single post, the panel cease to exist with first appointment and outlive its utility, so that even if the first appointee subsequently resigns or a vacancy arises otherwise, the empaneled candidates as such do not have right to be considered for appointment on merit because of such empanelment.
18. In the advertisements itself, it is mentioned that on the basis of the preliminary examination, approximately eighteen times candidates to number of vacancies, shall be declared qualified for the main examination and approximately three times of the number of vacancies, candidates to the basis of the main examination shall be called for the interview. Thus, once it has come on record, as is mentioned in the order dated 28th July, 2020, passed by the Additional Chief Secretary, that admittedly, petitioners had not achieved cut-off marks, when, approximately three times of the successful candidates in the main examination were recommended for interview, then petitioners have no indefeasible right to claim appointment.
19. Interim order, as was passed by the High Court on the strength of which it has been held in the final order in case of Atul Tiwari (supra), that "the opposite parties shall not take the stand that the wait list has come to an end after expiry of one year period as the same has been protected by the interim order dated 28.09.2018 of this Court." is contrary to the interim order, which reads as under:-
"............... Accordingly, we provide as an interim measure that in case the State Government ultimately takes a decision to summon the wait-list for filling up the vacancies which would remain unfilled on account of non-joining of the selected candidates, the life of the said wait-list, which is one year, shall not come in the way of the petitioners seeking appointment against the vacancies which may remain unfilled on account of non-joining of the selected candidates. Respondents will file their counter affidavit within a period of four weeks. Two weeks' time thereafter shall be available to the learned counsel for the petitioners to file rejoinder affidavit."
20. Interim order was to the effect that in case the State Government ultimately takes a decision to summon the wait list for filling up the vacancies, then the life of the said wait list, which is one year, shall not come in the way of the petitioners seeking appointment against the vacancies.
21. It is apparent that when interim order was passed, discretion was rightly left to the Will of the State Government, inasmuch as, it is the appointing authority, which has to decide as to the number of posts to be filled up and as has been held in case of State of Bihar vs. Secretariat Assistant Successful Examinee's Union, (1994) 1 SCC 126, that empanelment of candidates in the select list confers no rights on the candidates to be appointed on account of being empaneled.
22. In the present case, senerio is totally different as firstly, Rules do not provide for preparation of any wait list. Office Memo dated 15th November, 1999, on which reliance has been placed by learned Senior Counsel for the respondents also provides that except for single post in a cadre, there shall be no preparation of the wait list and there shall not be any reshuffling. Para-2(5) of this Office Memo provides that in case selected candidates fail to join, then candidature of such candidates shall be cancelled and vacancies arising consequently, shall be forwarded for selection in the next year. Thus, even the Office Memo, on which lot of reliance has been placed by Sri Ashok Khare, learned Senior Advocate is of no help to the petitioners.
23. Supreme Court in case of State of Bihar vs. Upendra Narayan Singh and Others, (2009) 5 SCC 65, in Para-67 held as under:-
".........67. By now it is settled that the guarantee of equality before law enshrined in Article 14 is a positive concept and it cannot be enforced by a citizen or court in a negative manner. If an illegality or irregularity has been committed in favour of any individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior Court for repeating or multiplying the same irregularity or illegality or for passing wrong order ? Chandigarh Administration and another v. Jagjit Singh and another [(1995) 1 SCC 745], Secretary, Jaipur Development Authority, Jaipur v. Daulat Mal Jain and others [(1997) 1 SCC 35], Union of India [Railway Board] and others v. J.V. Subhaiah and others [(1996) 2 SCC 258], Gursharan Singh v. New Delhi Municipal Committee [(1996) 2 SCC 459], State of Haryana v. Ram Kumar Mann [(1997) 1 SCC 35], Faridabad CT Scan Centre v. D.G. Health Services and others [(1997) 7 SCC 752], Style (Dress Land) v. Union Territory, Chandigarh and another [(1999) 7 SCC 89] and State of Bihar and others v. Kameshwar Prasad Singh and another [(2000) 9 SCC 94], Union of India and another v. International Trading Co. and another [(2003) 5 SCC 437] and Directorate of Film Festivals and others v. Gaurav Ashwin Jain and others [(2007) 4 SCC 737] ."
24. Thus, if under threat of coercion or contempt, if any order has been executed without there being any justiciable rights of a person, as has been discussed above, that cannot be given a seal of approval by a Court of Equity and therefore, those appointments or proposed appointments being bad in law will not confer any equitable right on the petitioners.
25. Where there is no provision in Rules for preparation of a waiting list. No names could have been added merely on the presumption of existence of a wait list.
26. Consequently, appeal is allowed, impugned order having been passed in violation of the statutory rules, regulations and office memorandum, so also the scheme of examination, as was advertised, are hereby set aside.
27. The State Authorities will be at liberty to take steps as per law in terms of this order.
Order Date :- 23.6.2021 Vikram/-
(Vivek Agarwal, J.) (Sanjay Yadav, Chief Justice)