Allahabad High Court
Kusum Lata vs Heera Lal Gupta, Secy. Sec.Education & 6 ... on 25 November, 2010
Author: Pradeep Kant
Bench: Pradeep Kant, Ritu Raj Awasthi
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. 1. Special Appeal No. 739 of 2007 Kusum Lata Vs. Mr. Heera Lal Gupta and others; Connected with: (1) Special Appeal No. 260 of 2006 Kusum Lata Vs. State of U.P. and others; (2) Special Appeal No. 772 of 2007 Ram Sewak, Chairman, U.P. Public Service Commission, Allahabad Vs. Smt. Reeta Asthana and another; (3) Special Appeal No. 280 of 2006 U.P. Public Service Commission, Allahabad Vs. Smt. Reeta Asthana and others; and (4) Special Appeal No. 260 of 2002 U.P. Public Service Commission, Allahabad Vs. Smt. Reeta Asthana and others. Hon'ble Pradeep Kant, J.
Hon'ble Ritu Raj Awasthi, J.
These are five special appeals; two of them were filed by Smt. Kusum Lata; two by the U.P. Public Service Commission and one by Sri Ram Sewak, the then Chairman, U.P. Public Service Commission.
Smt. Kusum Lata has filed two special appeals bearing nos. 739 of 2007 and 260 of 2006.
Special Appeal No. 739 of 2007 has been filed against the order passed by the learned Contempt Judge dated 17.8.07, whereas the other Special Appeal No. 260 of 2006 has been filed challenging the order passed by the learned Single Judge dated 10.3.06, by means of which, the result declared by the U.P. Public Service Commission (hereinafter referred to as 'Commission') selecting Smt. Kusum Lata, has been quashed and a direction has been issued that she may be considered in the future vacancies.
In regard to the claim of Smt. Reeta Asthana, the present respondent no.7, though observations have been made and her plea has been accepted that she was qualified and was wrongly excluded from being considered for selection, but no direction has been issued that she be given appointment.
The Commission has filed Special Appeal No. 280 of 2006 challenging the same order passed by the learned Single Judge dated 10.3.06 mainly on the ground that the result declared in favour of Smt. Kusum Lata was genuinely and rightly declared, which could not have been interfered with, by the learned Single Judge and that Smt. Reeta Asthana, respondent no.7, since could not secure her place in the merit, even after being considered against the one vacancy, which was reserved under the interim orders of the Court, as against the merit which could be secured by Smt. Kusum Lata, therefore, her appointment was wrongly quashed and that she was entitled to continue in service.
A further plea is that the learned Single Judge has observed that the Special Appeal No. 260 of 2002 filed against the order dated 6.8.02 passed by the learned Single Judge in Writ Petition No. 5801 (SS) of 2000, has become infructuous, though the said appeal cannot be said to be rendered infructuous, in view of the fact that the plea of the Commission that Smt. Reeta Asthana was not educationally qualified as per the terms of the advertisement, was wrongly decided by the learned Single Judge in that appeal, and which requires an answer in special appeal.
Special Appeal No. 772 of 2007 has been filed by Ram Sewak, the then Chairman, U.P. Public Service Commission against the order passed by the learned Contempt Judge dated 17.8.07, and Special Appeal No. 739 of 2007, by Smt. Kusum Lata has also been filed challenging the same order of the learned Contempt Judge.
The following questions arise out of the order passed by the learned Single Judge dated 10.3.06; (1) whether in a case where a vacancy is kept unfilled under the interim orders passed by the High Court, for filling up that vacancy, the candidature of the person only on whose writ petition, the said vacancy has been kept reserved, would be entitled to be considered for selection or all the candidates, who are otherwise eligible and who have a right to be considered against all the vacancies advertised, would also have a right to be considered for that unfilled vacancy also; (2) The equivalence of qualification as directed by the learned Single Judge in regard to the educational qualification of Smt. Reeta Asthana can be upheld, in view of the plea of the Commission that the qualification prescribed in the advertisement was Post Graduate Degree in Botany or Zoology with preferential qualification of B.Ed., whereas Smt. Reeta Asthana was not Post Graduate in Botany or Zoology, but she was M.Sc. in Plant Science from Lucknow University.
The Commission invited applications for appointment on various posts in the State Government Inter Colleges, including the post of Lecturer (Women Branch). The total number of posts of Lecturer in Biology advertised in the said advertisement were seven, out of which, one post was reserved for Scheduled Caste, two posts were reserved for Other Backward Classes and four posts belonged to General Category.
Smt. Kusum Lata as well as Smt. Reeta Asthana both, alongwith other candidates applied for being appointed against the aforesaid posts, as candidate of General Category.
By an order dated 6.9.2000, Smt. Reeta Asthana, respondent no.7 was informed that she lacks the minimum educational qualification, therefore, she was not called for interview. The respondent no.7 challenged the aforesaid order dated 6.9.2000 by filing Writ Petition No. 5801 (SS) of 2000.
In the aforesaid writ petition, an interim order was passed that one post advertised in the advertisement shall not be filled up. The said writ petition was finally disposed of on 6.8.02 with the direction that the Commission should invite respondent no.7 for interview for the post of Lecturer (Biology) in terms of the advertisement. Against the said judgement and order dated 6.8.02, the Commission filed a Special Appeal No. 260 of 2002, in which an interim order was passed on 24.2.03 restraining the Commission from declaring the result for two months or till disposal of the special appeal, whichever is earlier.
It appears that the said special appeal could not be decided, which in fact, has not yet been decided, but for the observation made by the learned Single Judge in his order dated 10.3.06 that the said special appeal has become infructuous. The Commission, therefore, moved an application for extension of the interim order dated 24.2.03, which was extended on 25.4.03, but the Commission, for the reasons best known to it, declared the result of that selection during the interregnum period between 24.4.03 and 25.4.03, before the interim order could be extended.
The learned Single Judge has taken an exception to the conduct of the Commission and we also agree with the observation made that if the Commission intended to get the interim order extended, which was to expire on 24.4.03, for which they have moved an application only on 24.4.03, there was no occasion for declaring the result on 25.4.03, when the application was to be taken up on that very date and on which date, the interim order was also extended. The action of the Commission does not seem to be very reasonable nor transparent.
As a consequence to the declaration of result, the present appellant, Smt. Kusum Lata was found selected and she was given appointment on the post on 26.5.05.
In the writ petition preferred by Smt. Reeta Asthana, respondent no.7, in which the order dated 10.3.06 has been passed, a plea was taken that respondent no.7, was not found higher in the merit list, therefore, she could not be appointed, but the said plea did not impress the learned Single Judge mainly because of the conduct of the Commission in declaring the result in the manner aforesaid and also because the learned Single Judge was of the view that the post in question having been kept reserved, i.e. unfilled only because of the exclusion of respondent no.7 for being considered in the interview, therefore, she was the only candidate, who should have been considered against that post and not Smt. Kusum Lata.
The learned Single Judge relying upon the averments made in Para-22 of the writ petition of Smt. Reeta Asthana, observed that since the candidate who was placed at Serial No.1, namely, Ms. Ruchi Srivastava was not qualified, therefore, respondent no.7 be given appointment.
In Para-22 of the writ petition, besides giving the other details of the post and the persons selected under the reserved category, it has been stated as under with respect to General Category candidates:
"22. That subsequently, the petitioner made inquiries in the U.P. Public Service Commission and the Education Department and then she came to know that 7 persons had been selected for the post of Lecturer in Biology against 7 advertised posts out of which, two posts were filled up from amongst other backward class out of which, one post was filled up from backward class and one against the scheduled caste candidate and no posts were filled up from amongst the scheduled caste candidate. The general category candidate who had been selected were at serial no.1 Km. Ruchi Srivastava, serial no.2 Neelam Yadav, other backward class, serial no.3 Subhashini and out of three candidates, Km. Ruchi Srivastava qualified High School Examination First Division, Intermediate Examination First Division, B.Sc. First Division and M.Sc. First Division. She did not possess the preferential qualification of B.Ed. Out of the other three candidates as far as the preferential qualifications are concerned; Neelam Yadav secured Second Division in Theory and First Division in Practical of B.Ed. examination."
A perusal of the writ petition reveals that though there were allegations against one Ms. Ruchi Srivastava in para-22, of not having the preferential qualification of B.Ed., but in the entire body of the writ petition, there was no allegation or any shortcoming suggested with respect to the candidature of Smt. Kusum Lata, namely, the appellant. But strangely enough, Smt. Kusum Lata was impleaded as respondent to the writ petition, whereas Smt. Ruch Srivastava was not impleaded. The relief claimed in the writ petition was to quash the declaration of result dated 25.4.03, by means of which, Smt. Kusum Lata was declared as selected and then to declare respondent no.7 herself as selected.
Admittedly, against the one vacancy, which remained unfilled in pursuance of the interim order passed by this Court was to be filled in, by considering the candidature of respondent no.7. The Commission, however, after considering the candidature of respondent no.7, while declaring the result of the said post, considered the merit of all the candidates, who were eligible for being considered for the said post, and in fact had already been interviewed, and in doing so, it revealed that the respondent no.7 was less in merit than the appellant Smt. Kusum Lata. In fact, respondent no.7 could not secure her place even in the waiting list, as there were actually 5 candidates apart from the appellant, who were over and above her, in the merit list.
The plea of respondent no.7 that against the unfilled post, only respondent no.7 could have been considered, is not worth being accepted.
It was a combined selection for the post of Lecturer in Biology, i.e., 4 in number, where all the candidates, including Smt. Kusum Lata and Smt. Reeta Asthana, had applied against all the four posts and such a candidate may not have been selected against three posts, but could have been selected for the forth post. All the candidates, thus were not only entitled to be considered against all the four posts, but were already considered as such, though the result of one post was not declared.
The interview with respect to selection against all the four posts was held jointly, in which all the candidates, who were called for interview, including the appellant, Kusum Lata participated, but before the result of such selection could be declared, the respondent no.7 approached the High Court, where an interim order was passed restraining the Commission from declaring the result of one post, that means one post was directed to be remained unfilled, which is termed as 'reserved post'.
In pursuance of the directives issued by the High Court, respondent no.7 was called for the interview, as she was not found eligible earlier and was not called by the Commission for considering her candidature. After the interview, the Commission considered the merit of all the candidates, who applied for the said post and having found that respondent no.7 was placed much below the meritorious candidates and Smt. Kusum Lata being at the top, declared the result selecting the appellant on the post in question.
If a post is directed to be kept unfilled under the interim orders of the Court, it does not mean that against the said post, only the petitioner, who approached the Court would be considered. The only right which the Court gives to such a petitioner, is to participate in the selection, which otherwise could not be availed because of the shortlisting or scrutiny being done or for any reason whatsoever, on an order being passed by the Commission.
Giving a right to participate in the selection does not assure or guarantee appointment nor it means exclusion of other eligible candidates from consideration.
This can also be viewed from another angle, namely, keeping in mind that in pursuance of an advertisement inviting applications for four posts, all the candidates apply and they are entitled to be appointed against any one such post, therefore, their candidature after the interview, i.e. after the completion of the selection process has to be considered against all the posts, one by one and in order of merit, the selection is to be finalized and the post is to be offered for appointment. In this process, a candidate may not succeed in getting selected on three posts, but can stand selected against the forth post, as per her/his merit. In case any other interpretation is given to the interim order passed by the Court or such selection is directed to be confined only to the petitioner or the person, who comes to the Court, on whose behest, any number of posts/vacancies are directed to be remain unfilled, it would mean hostile discrimination against the candidates, who are otherwise eligible and who had participated in the selection process, but would stand excluded from consideration because of the intervention of the Court.
In view of the admitted position regarding the merit of the appellant as against the respondent no.7, coupled with the fact that respondent no.7 could not secure her place even in the waiting list and there are five candidates over and above in the merit, we do not have any reason for not allowing the appellant to resume duties and giving appointment on the post of Lecturer (Biology).
We are informed that under the threat of contempt during the contempt proceedings, recommendations made in favour of the appellant were withdrawn.
We, therefore, direct that the said recommendation shall not be treated as cancelled, but shall be given effect to, and the appointment made in the year 2005 shall remain effective and shall be revived.
In view of the order aforesaid, the special appeals preferred against the order of the learned Contempt Judge also deserve to be allowed and the orders passed by the learned Contempt Judge are liable to be set aside, which are hereby set aside.
Before parting, we would also like to observe that the observation made by the learned Single Judge in his order dated 10.3.06 that the Special Appeal No. 206 of 2002 has become infructuous, cannot be sustained, as the said appeal cannot be said to have become infructuous because the plea of equivalence of qualification required consideration in the said appeal, but in view of the fact that respondent no.7 could not make her place in the merit list, we do not find it necessary to record any finding on the said plea and, therefore, we leave this matter open.
The orders passed by the learned Single Judge are set aside.
For the reasons aforesaid, we allow the special appeals with a direction that the Commission shall forward the recommendations, which have been withdrawn by them to the State Government for issuing an appointment order to the appellant, either for continuing with the college where she was appointed, if the substantive vacancy still exists there, and if not, then in any other college where the vacancy exists. The Commission shall forward its recommendation within a period of four weeks from the date of receipt of a certified copy of this order and the State Government shall issue the necessary appointment order within next two weeks.
We further provide that the appellant shall be entitled for the salary from the date she resumes the charge of the post of Lecturer (Biology), but she shall not be entitled for any salary for the period during which she remained out of employment, but the period aforesaid, shall not be treated as break in service and the same shall be treated as continuity in service for the purpose of other service benefits, including post retiral dues.
Accordingly, the special appeals are allowed.
Dated: 25.11.2010 Sachin