Allahabad High Court
Rohit Sharma And Another vs State Of U.P. And 5 Others on 4 May, 2022
Author: Manju Rani Chauhan
Bench: Manju Rani Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 33 Case :- WRIT - A No. - 13670 of 2021 Petitioner :- Rohit Sharma And Another Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Rishi Kant Singh Chauhan Counsel for Respondent :- C.S.C. Hon'ble Mrs. Manju Rani Chauhan,J.
1. Heard Mr. Ashok Khare, learned Senior Counsel assisted by Mr. Rishi Kant Singh Chauhan, learned counsel for the petitioners and Mr. Pranav Ojha, learned Additional Chief Standing Counsel for the State-respondents.
2. Initially the writ petition has been filed with the following prayer:-
"(i) Issue a writ, order or direction in the nature of mandamus directing respondents to fill up all the 81 posts of Computer Operator available due to non joining of the selected candidates of general category in pursuant to the advertisement dated 23.02.2016.
(ii) Issue a writ, order or direction in the nature of mandamus directing respondents to consider the vested, legitimate right of the petitioners against posts fallen vacant due to non joining of candidates."
3. The amendment application was moved which was allowed by order dated 07.12.2021 and the amended prayer is as follows:-
"(i) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 05.08.2021 passed by Respondent no.3 (Annexure No.8) to the writ petition to the extent of not considering petitioners for appointment against the available left out 60 posts."
4. Brief of the facts are that, the U.P. Police Recruitment and Promotion Board, Lucknow issued an advertisement dated 23.02.2016 notifying the recruitment of 1865 posts of U.P. Police Computer Operator. The petitioners belonging to general category, being fully qualified and eligible, applied for consideration, pursuant to the aforesaid advertisement. The petitioners were issued admits cards and after appearing in the written examination, they have declared successful and thereafter, they have also appeared in computer typing test. The final result/select list of the selection was published and after declaration of result the cut-off merit with regard to the individual categories of finally selected candidates were also notified on 21.12.2016.
5. From the perusal of the aforesaid cut-off merit, it is apparent that the last selected candidate in General category has secured an aggregate of 113.75 marks, the candidate selected under the O.B.C. category has secured 90 marks and the candidate belonging to Schedule Caste category has secured 80 marks whereas the candidate under dependent of Freedom Fighter category has secured 95 marks and for females the cut-off marks is 81.25.
6. It is very much clear from the aforesaid cut-off marks that the petitioners have secured marks a little bit lower than the last selected candidate in the General category.
7. The selection in question is being done as per provisions of U.P. Police Computer Operator (Non-Gazetted) Staff Service Rules 2011 which was amended by first amendment of Rule 2015 (in short 2011). The petitioners being a little lower than in marks could not be selected as the respondents have taken stand that there is no provision for preparation of waiting list in U.P. Police Computer Operator (Non-Gazetted) Staff Service Rules 2011.
8. Learned counsel for the petitioners submits that out of total 1592 advertised posts only 1462 candidates have turned up for document verification meaning thereby 130 seats were still vacant which is also apparent from the letter dated 31.01.2019 as 130 vacant seats were available due to non turning up of candidates for documents verification. The aforesaid seats should have been filled by the number of petitioners being next in merit.
9. Due to non consideration of claim of the petitioners, Writ Petition No.23016 of 2017 was filed and the Hon'ble Court, vide order dated 03.12.2019 was pleased to allow the writ petition and direct the respondents to consider the claim of the petitioners against unfilled vacancies.
10. The operative portion of the order dated 03.12.2019 is as follows:-
"Accordingly, with the consent of parties of present writ petition as well as other connected, all the writ petitions are disposed of asking the Competent Authority to look into the grievance of the petitioner and in case vacancies are still available and the petitioners fall in the zone of consideration, their claim be decided in the light of the observations so made in Vatsyayan Shukla (supra), expeditiously, preferably within a period of two months from the date of production of certified copy of this order."
11. The aforesaid order dated 03.12.2019 was challenged by the State by means of filing Special Appeal No.1181 of 2021 and the Hon'ble Court has been pleased not to interfere in the order passed by the learned Single Judge.
12. The operative portion of the order dated 08.02.2021 passed in Special Appeal is as follows:-
"It is in view of the fact that on the cut off marks of open category, there were 73 candidates out of which 21 were given appointments based on the age as none of them were having preferential qualification. It is a fact that out of the total candidates offered appointment, 81 open category candidates did not join the post. The list of the candidates scored same marks could have been used for giving appointment as the list of those candidates was available thus list of candidates next in the merit was not required to be called. There would be no purpose to keep post vacant in a case where there are number of candidates scored same marks. It is not a case where the department was not having the list of the candidates who can be offered appointment which otherwise remain in the shape of waiting list and to be called.
The case has peculiarity and thereby we find no reason to cause interference in the judgment passed by learned Single Judge but it need to clarify that the judgment of learned Single Judge would not be treated as precedent. It is not only for the reason that the case has peculiarity as more than 73 candidates scored same marks in the selection and list of those was available. The direction in this case cannot be made applicable in general and therefore while not causing interference in the judgment and order of learned Single Judge, it is made clear that this judgment would not be treated as precedent."
13. Against the order dated 08.02.2021, passed in Special Appeal, State Government filed S.L.P. before the Hon'ble Apex Court, which has been dismissed by order dated 19.07.2021.
14. In compliance of the aforesaid orders of this Court, the respondents published the names of only 21 candidates against the 81 vacant posts of General category on 05.08.2021, leaving 60 candidates of General category during training period. The petitioners approached the respondents by means of filing the representation which has been rejected by the impugned order dated 05.08.2021, hence, the present petition has been filed.
15. Learned counsel for the petitioners submits that the respondents have rejected the claim of the petitioners, ignoring the relevant fact that posts are still lying vacant due to non joining of some candidates. While passing the order impugned, the respondents have ignored the settled legal position that posts covered by particular advertisement are required to be filled up on the basis of remaining merit list so prepared and any such vacant posts are covered by same advertisement.
16. Learned counsel for the petitioners submits that it is settled principle of law that selections starts with the advertisement and ends with issuance of appointment letters, hence, any posts which has following vacancy prior to issuance of appointment letter shall not be notified for next recruitment so far. In support of his submission, learned counsel for the petitioners relied upon the judgement of Munja Praveen Vs. State of Telangana, passed in Civil Appeal No. 10583 of 2017.
17. There is no prohibition in Rules for preparation of the waiting list, hence, the petitioners who are next in merit list were to be considered for being appointed.
18. Learned counsel for the petitioners further submits that the posts as advertised cannot be left vacant without any rhyme or reason and there should be plausible reason for not filling up such posts. It is also settled legal position that posts covered by particular advertisement are required to be filled up on the basis of remaining merit list prepared in pursuance thereto.
19. Learned counsel for the petitioners submits that in the present case 60 candidates did not turn up against 81 posts having the same cut-off marks, hence, the petitioners being next in merit of legal right to be appointed in all such vacant posts. The case of the petitioners was to be decided in the light of Vatsyayan Shukla And Another Vs State of U.P. And 5 Others, passed in Writ A No.7494 of 2019, vide order dated 30.07.2019, wherein it has been held that in case vacancies remain available due to non joining of selected candidates, the authorities are expected to fill up the posts from the candidates next in the order of merit and their claim cannot be rejected only on the ground that the waiting list has not been prepared. He further submits that petitioners have acquired knowledge to be appointed against the advertised posts which remains unfilled due to non joining of the candidates who were more meritorious than him. The concept of waiting list cannot brought in picture for defeating the legitimate right of such candidates against unfilled posts.
20. He further submits that while passing the impugned order the authorities concerned have not considered the observations as made in the case of Vatsyayan Shukla and another wherein the respondents were directed to consider the claim of the appointment of the petitioners without taking a plea that waiting list was not prepared.
21. There is no justifiable reason for not considering the candidature of the candidates figuring in the comparative merit list who was just below the selected candidates who had not joined the posts. Therefore, the impugned order is arbitrary, discriminating and cannot be sustained in the eyes of law, hence, the same may be set aside.
22. Learned Standing Counsel on the other hand submits that petitioner have secured 112.50 marks in the said examination and the cut-off marks of selected candidates was 113.75, therefore, there is no question of considering the claim of the petitioners who are less than the cut-off marks as secured by the selected candidates. He further submits that learned Single Judge had directed the respondents to consider the claim of the petitioners in the light of observations made in Vatsyayan Shukla (supra) case wherein it was held that in case vacancies remain available due to non joining of selected candidates the authorities were expected to fill up the posts from the candidates next in order of merit, whereas in the special appeal filed against the aforesaid order, it was clarified that on the cut-of marks of open category there were 73 candidates out of which 21 were given appointment based on age as none of them were having preferential qualification. It was also mentioned that in case 81 open category candidates did not join the posts, the list of candidates who had secured same marks was already prepared, therefore, the candidates scoring the same marks would have been used for giving appointment as such a list of those candidates were available, hence, the list of next in merit was not required to be called.
23. Learned Standing counsel submits that the appointment was to be offered to those candidates who had secured same marks, as secured by the selected candidates who had not joined and such a list was already prepared, therefore, there is no illegality in the order impugned wherein claim of the petitioners has been rejected on the ground that they had not secured same marks as the selected candidates who had not joined on the said post and there was no need to prepare merit list or depend on any waiting list for the same.
24. Learned Standing Counsel has further clarified that as per the provisions contained in the relevant Government Service Rules, the selection process comes to an end after issuance of the select list and the appointments have to be made from the said list only, there being no provisions of preparation of any other list for the purpose of considering the claim of appointment of persons on unfilled posts due to non joining of selected candidates.
25. Learned Standing Counsel further submits that in the present case, the marks obtained by the last selected candidate was 113.75 whereas the petitioners have secured only 112.50 which is less than the tie break marks, hence, they cannot be selected, considering the directions as issued by Hon'ble Court in the writ petition as well as in the Special Appeal relating to the petitioners .
26. As per the directions of the writ Court, the claim of the petitioners was to be decided in the light of Vatsyayan Shukla (supra) case wherein it has been held that in case, vacancies remain unfilled due to non joining of selected candidates, the authorities are expected to fill up the posts from the candidates next in order and their claim cannot be rejected only on the ground that waiting list has not been prepared whereas in the Special Appeal, the court has clarified the position that the select list of the candidates scoring same marks which was already available, could have been used for giving appointment in order to fill the vacancies, arisen due to non joining of the selected candidates. It is clear that the petitioners had obtained less marks than that of the last selected candidate and as per direction, only those candidates were to be considered who had obtained 113.75 marks, hence, the petitioners cannot claim parity of 113.75 tie break marks. The petitioners have also not been discriminated as the claim of similarly situated candidates has already been rejected by the respondents-authorities, therefore, there is no illegality in the order impugned and no interference is required by this Court.
27. Learned Standing Counsel submits that, as per the procedure for direct recruitment to the post of Computer Operator in Rule 15 of U.P. Police Computer (Non-Gazetted) Staff Service Rules 2011 as applicable, in the case of the petitioners, the successful candidates shall be placed higher and such candidates who obtained equal marks the candidates having preferential qualification shall be placed higher, and such candidates as have obtained equal marks having no preferential qualification the candidates senior in age shall be placed higher in the list. Accordingly, as list was prepared and appointments were given, based on age as none of the candidates were having preferential qualification, therefore, those having equal marks were to be considered for appointment on the vacancies left unfilled due to non joining of the selected candidates, as per the direction of the writ court as well as special appeal court. Since, the petitioners did not have equal marks as obtained by the last selected candidates, therefore, their claim has been rightly rejected.
28. Heard learned counsel for the parties and perused the material available on record.
29. Before discussing the merit of the case, it would be appropriate to quote the procedure for direct recruitment as provided in Rule 15 of U.P. Police Computer (Non-Gazetted) Staff Service Rules 2011. Rule 15 is as follows:-
15. Procedure for Direct Recruitment-- Procedure for recruitment of Computer Operator Grade-A-
"(1) Direct recruitment to the post of Computer Operator Grade-A in the service shall be made through Uttar Pradesh Police Recruitment and Promotion Board, Lucknow.
The Board shall scrutinize the applications and require the eligible candidates to appear in a written examination and a Computer Typing examination. Written examination will be as under:
(2) Written Examination (200 marks) : written examination shall be of objective type. Examination shall be of total 200 marks. The written examination paper shall consist of questions related to General Knowledge, Mental Ability, Reasoning and Computer Science. The level of question paper shall be according to the level of minimum required educations qualification for the post.
Minimum 40 per cent marks are must in the written examination. The Selection Committee shall call successful candidates for the Computer Typing Examination on the basis of merit in the written examination, in such numbers as required.
(3) Computer Typing Examination (Qualifying)-- The Computer Typing Examination shall be qualifying examination. Candidates who type minimum 25 words per minute in Hindi and 40 words per minute in English, shall be declared successful in the Computer Typing Examination.
(4) The Board after due consideration of proper representation of candidates according to the norms specified for reservation, shall prepare a list from the list of successful candidates in Computer Typing Examination, in order of their marks obtained in written examination by considering preferential qualification, and recommend such number of candidates as it considers necessary for appointment. Such candidates who obtained equal marks the candidates having preferential qualification shall be placed higher and such candidates as have obtained equal marks having no preferential qulification, the candidate senior in age shall be placed higher in the list. The Board shall forward the list of successful candidates to the Appointing Authority."
30. Accordingly, the select list was to be prepared from successful candidates in Computer Typing Examination, in order of their marks obtained in the written examination by considering the preferential qualification and in case of candidates who obtained equal marks, the candidates having preferential qualification were to be placed higher whereas those candidates who obtained equal marks having no preferential qualification, the candidates senior in age was to be placed higher in the list.
31. Considering the aforesaid provision in the present case, the list was prepared based on age as none of the candidates were having preferential qualification from such a list, those candidates having marks 113.75 were declared successful and names were recommended. When the selected candidates from the said list did not join, the posts left vacant due to the aforesaid, was to be filled from the list as prepared according to Rule 15(4) of the aforesaid Act, which was already available with the respondents authorities, considering which, the petitioners having less than 113.75 marks as per the tie break marks were not eligible for being considered.
32. There is no provision for preparation of any waiting list as per the aforesaid rules, therefore, such a list of those candidates who was not figuring in the comparative merit list as already available, could not be considered for appointment on the posts by preparing another list of the persons next in the merit.
33. It is settled position of law that in absence of any specific provision for waiting list and on the contrary, there being specific provision that there shall not be any waiting list and that the posts remaining unfilled on any ground shall have to be carried forward for the next recruitment. The candidates lower in merit than that last selected candidate have no right to claim for appointment on vacancies left unfilled due to non joining of the selected candidates. The issue with respect to claim of candidates for consideration of their appointment on unfilled posts due to non joining of the selected candidates came to be considered in the case of Vallampati Sathish Babu Vs. State of Andhra Pradesh and Others, reported in 2022 SCC Online SC 470, wherein the Apex Court observed that even in case selected candidates have not joined in the absence of statutory rules, to the contrary, the employer is not bound to offer the unfilled vacancy to the candidates next below the said candidates in the merit list. It has been held that in absence of any provision the employer is not bound to prepare waiting list in addition to the panel of candidates to appoint candidates from the waiting list, in case the candidates from the panel could not join.
34. Erstwhile rightly interpreting the directions as given by the writ Court and special appeal court in case of the petitioner, the claim of the petitioners has been rejected on the ground that they did not have the tie break marks as obtained by the last selected candidates as the posts which were vacant due to non joining of the selected candidates was to be filled from the list already available with the respondents, wherein the petitioners have obtained less than the tie break marks of 113.75.
35. In view of the aforesaid discussion, this Court finds no good ground to interfere in this matter.
36. Accordingly, the writ petition is dismissed.
Order Date :- 4.5.2022 Rahul.