Allahabad High Court
Chunni Lal vs State Of U.P. & Others on 16 July, 2014
Bench: Rajiv Sharma, Mahendra Dayal
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH RESERVED WRIT PETITION NO. 1181 (S/B) OF 1996 Chunni Lal ........ Petitioner Versus State of Uttar Pradesh and others ........ Opposite parties ****** Hon'ble Rajiv Sharma, J.
Hon'ble Mahendra Dayal, J.
Heard Mr. S.K. Kalia, Senior Advocate, duly assisted by Mr. Vidhu Bhushan Kalia, learned Counsel for the petitioner, Ms. Bulbul Godiyal, learned Additional Advocate General, appearing on behalf of the State of U.P. and Mr. Rajnish Kumar, learned Counsel for the U.P. Public Service Commission.
In order to make selection for appointment to various State Services, Combined State Service Examination, 1985 was conducted by the U.P. Public Service Commission in consonance with the Government Order dated 20.8.1977 issued by the State Government, which provides reservation in favour of the Backward Classes apart from the reservation made for other categories. In the aforesaid examination, the petitioner appeared and had given his preference for the post of P.C.S. (Executive) i.e. Deputy Collector. The result of the aforesaid examination was declared on 18.4.1987 by the U.P.Public Service Commission [hereinafter referred to as the "Commission"]. On 17.6.1987, the Commission sent its recommendation to the State Government. The procedure adopted by the Commission for the allotment of service cadre to the successful candidate is merit list, subject to the preference of candidates and also taking into consideration the reservation quota, viz. the candidate securing highest marks in the merit list is offered service/cadre of P.C.S. (Executive) i.e. Deputy Collector, whereas the candidate next placed in the merit list is offered service/cadre of Deputy Superintendent of Police and next in the merit list is offered other services/cadre.
According to the petitioner, two candidates selected in the aforesaid examination for the services/cadre of Deputy Collector, namely, Sri Ram Subhag Singh (General Category) and Sri Ramesh Kumar Yadav (Backward Category), vide letters dated 23.1.1988 and 16.4.1988, shown inability/declined to join the State Services as they were selected for All India Services. Accordingly, the State Government asked the Commission to take necessary action and sent the name of two other candidates for appointment on the post of Deputy Collector in order of merit from the respective categories. In pursuance to the aforesaid demand made by the State Government, the Commission sent the name of petitioner being on the top of the merit list of the candidates belonging to Backward Class for appointment on the post of Deputy Collector in lieu of vacancy caused by non-joining of Sri Ramesh Kumar Yadav vide letter dated 22.11.1988.
On the basis of the aforesaid recommendation by the Commission, the State Government issued a letter on 24.4.1989 to the petitioner for Medical Examination. In the meanwhile, being aggrieved by the quota given to the petitioner, one Mr. Ajay Shanker Pandey approached this Court by filing writ petition No. 22966 of 1988. A Division Bench of this Court, vide judgment and order dated 9th May, 1989, allowed the writ petition and directed the Commission to recommend name of Ajay Shanker Pandey at an early date for being appointed in Executive Cadre and the State may decide the claim of Ajay Shanker Pandey in accordance with law. In compliance of the aforesaid judgment and order dated 9.5.1989, the Commission, vide letter dated 24.6.1989, withdraw the recommendation made in favour of the petitioner. On 26.6.1989, an Ordinance, bearing Act No. 21 of 1989, was introduced by the State Government, providing for reservation in favour of backward classes w.e.f. 20.8.1977. The clause 3rd of the aforesaid Government Order dated 26.6.1989 provided that notwithstanding in the judgment decree or order of any Court, any appointment of any member of the backward class specified in schedule to any post or service in connection with the affairs of the State Government made in pursuance of any rules or Government Orders providing for reservation for such classes shall be deemed to have been made under the provisions of this Ordinance and shall be deemed to have always been followed. But even then, the petitioner has not been given appointment to the post of Deputy Collector and as such, the petitioner has approached this Court by filing Civil Misc. Writ Petition No. 13410 of 1989.
In the meantime, against the judgment and order dated 9.5.1989 passed in Writ Petition No. 22966 of 1988, the petitioner as well as the State of U.P. approached the Hon'ble Supreme Court by filing separate special leave to appeal. Hon'ble Supreme Court, vide common judgment and order dated 21.9.1995, disposed of both the special appeals. The judgment and order dated 21.9.1995 is reproduced as under :
"SLP (C)............./(CC 513) Petitioner's learned counsel states that the petitioner had already moved the High Court by way of a writ petition after the issuance of Ordinance which was replaced by U.P. Act 21 of 1989 and that since relief has been claimed therein, no useful purpose would be served by pursuing this litigation. On the statement of learned counsel, we decline permission to the petitioner to file the SLP, all the more when he was not a party impleaded before the Allahabad High Court in proceedings which are subject matter of challenge herein and in absence the judgment of the High Court being not binding on him. Special leave petition is disposed of accordingly.
SLP (C) No. ........./90 (CC 10272/90) Learned counsel states that since the State of Uttar Pradesh has passed an ordinance which is replaced by Act 21 of 1989, which has retrospective effect application, the judgment sought to be appealed against stands wiped out and therefore, it is not necessary to pursue the special leave petition. On such statement of learned counsel, the S.L.P. stands disposed of."
After the aforesaid judgment and order dated 21.9.1995 by the Hon'ble Supreme Court, the writ petition No. 13410 of 1989 was dismissed in default vide order dated 19.10.1995. Thereafter, the petitioner preferred an application for recall of the aforesaid order dated 19.10.1995, which was rejected, vide order dated 12.1.1996.
According to the petitioner, even after passing the judgment and order dated 22.9.1995 by the Hon'ble Supreme Court, Sri Ajay Shanker Pandey is usurping the office without any title and as such, the petitioner preferred several representations to the Secretary (Appointment), State of U.P. but all went in vain.
Hence the instant writ petition.
While entertaining the instant writ petition, a Division Bench of this Court, vide order dated 8.11.1996, directed the opposite parties to dispose of the representation.
According to the petitioner, in compliance of the order dated 8.11.1996, opposite party No.1 considered the petitioner's representation and rejected the same, vide order dated 13.12.1996. Thereafter, the petitioner preferred an application for amendment of writ petition (C.M. Application No. 2988 of 1997), by means of which, the petitioner has prayed for challenging the order of rejection of the petitioner's representation dated 13.12.1996, which was allowed vide order dated 6.5.1999 and the petitioner was permitted to amend the writ petition.
Mr. S.K. Kalia, Senior Advocate, appearing on behalf of the petitioner submits that in the Combined State Commission Examination held in the year 1985 by the Commission, the petitioner appeared and opted P.C.S. (Executive). The result of the aforesaid examination was declared on 18.4.1987. Thereafter, the Commission recommended the names of Ram Subhag Singh (General Category) and Ramesh Kumar Yadav (Backward Class) for appointment on the post of Deputy Collector and the letter of recommendation was sent to the State Government but the aforesaid two selected candidates chooses not to join on the said post as they were already selected for All India Administrative Services. Thereafter, the State Government requested the Commission to send the names of two suitable candidates in accordance with merit list. In pursuance to the aforesaid request/demand, the Commission had sent the name of the petitioner for appointment on the post of Deputy Collector as he was on top in the merit list. On receipt of the recommendation of the Commission, the State Government issued a letter, requiring the petitioner to get medically examined him. Subsequently, against the quota given to the petitioner, one Ajay Shanker Pandey approached this Court by filing writ petition No. 22966 of 1988, in which, the petitioner was not a party. This Court, vide judgment and order dated 9.5.1989, allowed the writ petition and directed the Commission to recommend the name of Ajay Shanker Pandey at an early date for being appointed in executive service and the State Government was directed to decide the claim of the petitioner in accordance with law.
Mr. Kalia submits that in compliance of the judgment and order dated 9.5.1989, the Commission withdrew the recommendation made in favour of the petitioner for appointed on the post of Deputy Collector and recommended the name of Ajay Shanker Pandey for being appointed on the post of Deputy Collector. Thereafter, the State of U.P. appointed Sri Ajai Shanker Pandey on the post of Deputy Collector vide order dated 11.10.1989 and also preferred S.L.P., bearing No. 513 (C)/1990 before the Hon'ble Supreme Court. During the pendency of the S.L.P., the Ordinance, referred to above, was replaced by Act No. 21 of 1989 known as "U.P. Public Service Reservation for Backward Classes Act, 1989", which came into force w.e.f. 20.8.1977.
Mr. Kalia submits that U.P. Act No. 21 of 1989 came into force with retrospective effect. In the judgment and order dated 9.5.1989, Hon'ble Supreme Court observed that by coming into force of Act No. 21 of 1989, the judgment and order dated 9.5.1989 passed in Writ Petition No. 22966 of 1988 stands wiped out, meaning thereby no action could have been taken on the ground of the judgment passed in writ petition No. 22966 of 1988. Accordingly, both the S.L.Ps. i.e. filed by the petitioner as well as by the State Government were decided vide judgment and order dated 9.5.1989. Despite the aforesaid facts, the opposite party No.1, while deciding the petitioner's representation, did not consider this aspect of the matter and wrongly rejected the petitioner's representation vide order dated 13.10.1996. Therefore, it is crystal clear that the appointment of the opposite party No.3-Ajay Shanker Pandey was made by the authorities on the basis of the judgment, which was annulled by the Hon'ble Supreme Court and as such, the appointment on that basis is ab intio void.
Elaborating his submission, Mr. Kalia submits that the Government Order dated 20.8.1977, making reservation in favour of the backward class and on the basis of which selection for the appointment to various State Services through Combined State Service Examination, 1985, was challenged before this Court in Civil Misc. Writ Petition No. 2637 of 1978 :Chhotey Lal Pandey Vs. State of U.P. and others. This Court, vide judgment and order dated 2.2.1979, declared the same as ultra vires. Against the said judgment and order dated 2.2.1979, the State Government approached the Hon'ble Supreme Court by filing S.L.P. Hon'ble Supreme Court, vide order dated 5.3.1979, stayed the aforesaid judgment and order dated 2.2.1979. Later on, the aforesaid appeal was dismissed by the Hon'ble Supreme Court, vide judgment and order dated 11.8.1987.
Mr. Kalia submits that the petitioner earlier filed a writ petition, bearing No. 13410 of 1989, before this Court, which was dismissed vide order dated 19.10.1995 on the submission made by the Counsel for the opposite parties i.e. Counsel for the opposite party No.3 that in respect of the same matter, the petition is pending before the Apex Court and as such, the petition is not maintainable and the same was, therefore, dismissed as non maintainable besides being dismissed in default. He submits that on the said date i.e. 19.10.1995, no matter was pending before the Hon'ble Supreme Court as the Hon'ble Supreme Court had already disposed of the SLP vide its order dated 21.9.1995.
Lastly Mr. Kalia submits that surprisingly the State Government has taken different stand on different times in the instant writ petition, though the Supreme Court has clearly wiped out the judgment and order passed by this Court on the basis of which opposite party No.3-Ajay Shanker Pandey was appointed but even then the State did not comply the judgment and order dated 21.9.1995 passed by the Hon'ble Supreme Court. Now, the ground for not considering the claim of the petitioner for appointment on the post of Deputy Collector retrospectively has been taken on behalf of the State that in an identical matters, one Vivek Raj Singh, who was appointed as the Trade Tax Officer and claimed to be appointed as Deputy Collector retrospectively from the year 2001-2002 in Handicapped quota, approached this Court by filing writ petition No. 8334 of 2004, which was dismissed vide order dated 10.5.2013, against which, SLP has been preferred and the same is pending disposal and as such, the petitioner cannot be appointed as Deputy Collector with retrospective effect until the decision of the Hon'ble Supreme Court. These assertions on behalf of the State is erroneous and contrary to the record insofar as the case of Vivek Kumar Singh is not applicable to the present facts and circumstances of case as in the case of the Vivek Kumar Singh, an advertisement was issued in 2001 and Vivek Kumar Singh applied for being appointed as Deputy Collector under physically handicapped category and out of posts which were advertised, 09 post were allocated for Deputy Collator and the writ petitioner filed the writ petition on the ground that no post of Deputy Collector was reserved for physically handicapped category and accordingly he having succeeded in the examination should have been appointed as Deputy Collector against the post meant for physically handicapped candidates. During the course of argument it was contended by the Counsel for the petitioner that in 2012 while implementing a judgment of this court it came to the light that the post of Deputy Collector ought to have reserved for the physically handicapped candidates for the recruitment year 2001-2002. Therefore, Sri Vivek Kumar Singh modified his prayer seeking a direction to appoint him against the post of Deputy Collector which could not be reserved for physically handicapped candidates for the recruitment year 2001-2002. Further, in the aforesaid selection, no reservation was made for the physically handicapped candidates even though there was a provision.
So far as the contention of the petitioner for compliance of the judgment and order dated 21.9.1995 passed by the Hon'ble Supreme Court, Ms Bulbul Godiyal, learned Additional Advocate General submits that in a similar case one Mr. Vivek Kumar Singh, who was appointed as the Trade Tax Officer, has also filed a writ petition No. 8334 of 2004 before this Court at Allahabad, praying therein to appoint him on the post of Deputy Collector retrospectively from the year 2001-2002 in Handicapped quota. This writ petition was dismissed vide judgment and order dated 10.5.2013. Feeling aggrieved, Mr. Vivek Kumar Singh approached the Hon'ble Supreme Court by filing Special Leave Petition No. 27412 of 2013, which is pending disposal. However, in compliance of the order dated 7.10.2013 passed in the instant writ petition, the Public Service Commission has recommended the name of the petitioner by the letter dated 15.10.2013 for appointment of Shri Chunni Lal on the post of Deputy Collector, subject to final order of the present writ petition. The stand of the State is that appointment of petitioner to the post of Deputy Collector retrospectively, on the basis of Combined State Public Service Examinations, 1985, may adversely affect the seniority of P.C.S. Officers appointed after 1985 examination and induction in I.A.S. Cadre. Therefore, the petitioner cannot be appointed as Deputy Collector with retrospective effect.
Ms Godiyal submits that in compliance of the order dated 7.10.2013 passed by this Court, petitioner-Chunni Lal was recommended to be appointed on the post of Deputy Collector subject to the final decision of the present writ petition vide letter/recommendation dated 15.10.2013 issued by the Public Service Commission. She submits that if, the petitioner is appointed on the post of Deputy Collector on the basis of examination of 1985, then, there is every likelihood that the dispute may arise on account of induction of some incumbent in IAS Cadre.
It is necessary to clarify here that on 7.10.2013, during the course of arguments, it was informed by the State that after considering the matter of the petitioner at the highest level, a request was made to the U.P. Public Service Commission, who, did not accede to the request of the State Government inter alia on the grounds that neither there is any post, on which the petitioner can be accommodated is sanctioned nor a supernumerary post has been created. Later on this Court was informed that the Commission has sent necessary recommendation to the State Government.
A perusal of the record reveals that after the recommendation of the Commission dated 15.10.2013 for appointment of the petitioner on the post of Deputy Collector, the State Government has filed a supplementary affidavit dated 25.11.2013, indicating therein that it is very difficult to give appointment to the petitioner on the post of Deputy Collector on the basis of examination of 1985 as it would create further dispute relating to seniority and induction of some incumbents in I.A.S. Cadre.
Having considered the submissions of the parties, we are of the view that the petitioner cannot be denied his legitimate and bona fide claim for appointment on the post of Deputy Collector merely on the ground that the appointment would result in disturbance of settled seniority. It would also be relevant to clarify here that U.P. Act No. 21 of 1989 was given retrospective effect. It is for this reason the Apex Court in its judgment and order dated 9.5.1989 observed that by coming into force of Act No. 21 of 1989, the judgment and order dated 9.5.1989 passed in Writ Petition No. 22966 of 1988 stands wiped out, meaning thereby no action could have been taken on the ground of the judgment passed in the aforesaid writ petition. Therefore, there was no occasion for the State Government to deny the legitimate right of appointment of the petitioner on the post of Deputy Collector and wrongly rejected the petitioner's representation vide impugned order dated 13.10.1996. It may be added that the case of Vivek Kumar Singh (supra) is on different footing and is not applicable to the present facts and circumstances of the case. The case of Vivek Kumar Singh (supra) relates to advertisement issued in the year 2001 for appointment as Deputy Collector under Physically Handicapped category. In that selection, no reservation was made for the Physically Handicapped candidates, even though there was a provision. Whereas in the instant case, there was a reservation made with respect to OBC Category candidates and on account of non-joining of incumbent, name of the petitioner was sent for appointment under OBC quota.
It is well settled that where recruitment to service is regulated by statutory rules, their recruitment must be made in accordance with Rules, and any appointment made in breach of the Rules would be illegal. In the instant case, the opposite party No.3 continued in service even after the annulment of High Court's judgment by the Apex Court and the petitioner was denied benefit due to whimsical and arbitrary attitude of the authorities. We would like to observe that many a time, process of formalities and slow pace of working causes delay in the making of actual appointment with the result that sometimes persons selected on the basis of subsequent examination are appointed before the successful candidate of the earlier batch.
It is also well settled that writ jurisdiction is equity jurisdiction. In a writ petition, the petitioner has not only to show violation of law, but he must also to show that equity is in favour of the petitioner. Unless both these considerations are in the petitioner's favour, no writ can be issued in his favour. At this juncture, we would like to refer the decision of the Apex Court in the State of U.P. Vs. Rafiquddin : SCC 1987 (Supp) 400. In this case, the Apex Court found the appointment of several candidates of 1970 examinations (Munsif Examinations) illegal being contrary to the Rules. However, considering the facts that the candidates have continued in service around twelve years and some of them even had been promoted on higher posts, the Apex Court refrained from striking their appointments. In the backdrop of the aforesaid facts, the appointment of opposite party No.3 is protected.
Considering the facts in its entirety, the impugned order dated 13.10.1996 cannot be sustained and is liable to be quashed, which is hereby quashed. The State Government is directed to re-consider the matter of the petitioner for appointment on the post of Deputy Collector in the light of the aforesaid facts and the latest recommendation made by the U.P. Public Service Commission in favour of the petitioner. Necessary order shall be passed within a maximum period of eight weeks from the date of receipt a certified copy of this order. It is made clear that the appointment of opposite party No.3-Ajay Shanker Pandey shall not be disturbed in any manner.
The writ petition is allowed, accordingly.
Order Date : 16th July, 2014 Ajit/-