Rajesh Kumar Sharma vs State Of U.P.Thru Secy. And Others
2013 Latest Caselaw 6732 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on 26.09.2013
 
Delivered on 30.10.2013
 
Court No. - 34
 

 
Case :- WRIT - A No. - 25660 of 2012
 

 
Petitioner :- Rajesh Kumar Sharma
 
Respondent :- State Of U.P.Thru Secy. And Others
 
Counsel for Petitioner :- Vijay Gautam
 
Counsel for Respondent :- C.S.C.,Rohan Gupta, S.P. Singh, Yashwant Varma
 

 
Hon'ble Sudhir Agarwal,J.

1. The petitioner has sought a writ of mandamus commanding the respondents to appoint him as a Class-IV employee pursuant to his selection in furtherance of advertisement dated 14.05.2009 and to pay his regular salary etc.

2. The facts, in brief, giving rise to present dispute are as under.

3. The matter relates to selection and appointment of Class-IV staff in District Judgeship, Etah. The advertisement was published on 14.05.2009 seeking applications for recruitment of Class-IV posts. A copy of advertisement published in daily newspaper "Amar Ujala, Agra" dated 24.05.2009 is on record as Annexure-1 to the writ petition. It mentions 10 existing vacancies and three likely to occur of Class-IV, i.e., Aadeshika Vahak/ Chaprasi/Ardali. One existing post of Chowkidar was also mentioned separately in the advertisement. The procedure for recruitment included a written competitive test and interview. The minimum qualification was 5th class pass and cycling.

4. Petitioner offered his candidature and participated in selection. The select list was published on 03.08.2009. 12 candidates were selected for appointment against vacancies, existing and anticipated, of Process Server/Peon/Orderly, wherein petitioner was at Serial No. 12 in the merit. One Sanjeev Kumar Gupta was specifically shown to have been selected for the post of Chowkidar. There was a separate wait list of 13 candidates.

5. The aforesaid select list was published with signature of the then District Judge, Etah, Ramesh Chandra-I. Nine candidates from aforesaid select list were immediately issued appointment letters and they joined their post. Sanjeev Kumar Gupta was also appointed as Chowkidar. Thereafter two more candidates at Serial No. 10 and 11 were appointed, leaving petitioner alone, unappointed. He made several representations requesting concerned District Judge(s) for his appointment, but in vain, and thereafter, has come to this Court.

6. A counter affidavit has been filed on behalf of respondent no. 3, sworn by Chandra Bhan, Special Judge (SC/ST Act), Etah. In para 7 it is admitted that not only candidates at serial Nos. 1 to 9 in the select list dated 03.08.2009 but also those who are at serial No. 10 and 11 were appointed, being higher in merit to petitioner. It is also admitted that Sanjeev Kumar Gupta was appointed but it is clarified that he was selected for the post of 'Chowkidar' which was separately advertised, and, he has been appointed thereagainst as per his selection vide select list dated 03.08.2009. It is said that in August, 2009, 11 vacancies were available and, therefore, all the eleven selectees from serial no. 1 to 11 in the select list dated 03.08.2009 were given appointment. Then proceeding further, in para 19 of the counter affidavit, it has been said that upto 31.01.2010 no vacancy had occurred in Class-IV whereagainst petitioner could be appointed by the then District Judge. Subsequently, when another District Judge came and occupied office from 09.02.2010 to 02.05.2011, despite availability of vacancy, petitioner was not appointed. It is not known as to why and under what circumstances he was not appointed. The exact words stated in para 19 of the counter affidavit would be useful to be reproduced as under:

19. ...... Sri Ramesh Chandra-I was succeeded by Sri Arvind Kumar Mishra as District Judge, who resumed on 09.02.2010 and remained as such till 02.05.2011, but in spite of vacancy, available for the petitioner, as to why and under what circumstances the petitioner was not appointed, Sri Mishra would have known better. Thereafter, Sri Mukhtar Ahmad succeeded Sri Mishra from 02.05.2011 and remained as District Judge, Etah till 05.02.2012 and after him, Sri Yogesh Kumar resumed as District Judge, Etah on 06.02.2012 and remain as such till 23.04.2012, but none of the former District Judges offered appointment to the petitioner. . . . . ." (emphasis added)

7. It is also said that Sri Shyam Vinod assumed office of District Judge on 24.04.2012 but since the petitioner immediately thereafter filed this writ petition in May, 2012, the matter became sub-judice, hence he has not taken any further action.

8. Another supplementary counter affidavit has been filed on behalf of respondent no. 3. The facts relating to appointments are sought to be clarified with improvement. It is said that against nine existing vacancies of Class-IV, the candidates from Serial No. 1 to 9 in the select list dated 03.08.2009 were given appointments in August, 2009 itself. Sri Sanjeev Kumar Gupta, who was selected against separate advertised vacancy of "Chowkidar", was also appointed and he joined in August, 2009. Due to separation of District Kasganj from District Etah, two Class-IV employees were transferred to Kasganj on 23.10.2009, whereupon next candidates at serial No. 10 and 11 were appointed vide order dated 23.10.2009 passed by the then District Judge, Ramesh Chandra-I.

9. After retirement of Sri Ramesh Chandra-I on 31.01.2010, Sri Arvind Kumar Mishra succeeded as District Judge Etah and occupied office from 09.02.2010 to 02.05.2011. During this period, despite vacancy in Class-IV, the petitioner was not appointed and why and under what circumstances he was not appointed, is better known to Sri Mishra. Para 8 of supplementary counter affidavit, reads as under:

"8. That, after retirement of Sri Ramesh Chandra-I, the then District Judge, Etah, Sri Arvind Kumar Mishra succeeded him as District Judge, Etah w.e.f. on 09.02.2010 till 02.05.2011 and vacancies in Class-IV establishment had fallen during his tenure but as to why and under what circumstances, Sri Mishra did not offer appointment to the petitioner, he would have known it better." (emphasis added)

10. In para 10 it is also said that subsequently also, the District Judges who came to office, from time to time, did not take any action for appointment of petitioner, for the reasons best known to them. The present District Judge, V.K. Srivastava-III assumed office on 06.09.2013.

11. The facts not in dispute, are, that nine existing vacancies and three likely to occur, i.e., 12 Class-IV vacancies and one of Chowkidar, were advertised. Thereagainst a select list of 12+1 was prepared. All except one, i.e., petitioner have been appointed. Within one year of the publication of select list, a vacancy for appointment of petitioner became available, is also not in dispute but reason for his non-appointment has not been disclosed. A blame game has come on the pleadings with an imputation against District Judges held office from 09.02.2010 and onwards, for non-appointment of petitioner without any lawful reason. The exact phrase used in the counter affidavit as well as supplementary counter affidavit filed on behalf of respondent no. 3 is that, "for the reasons best known to the then District Judges". Another phrase is, "why and in what circumstances not appointed is best known to them". This is a very strange kind of pleadings and defence taken on behalf of respondent no. 3. If the officer concerned during whose tenure of office, counter affidavit and supplementary counter affidavit were filed, was of the view that there is a discriminatory treatment met to a person i.e. the petitioner and he has been denied his lawful rights, nothing prevented new occupier of office i.e. the District Judge from rectification of defect and redressal of grievance of petitioner by setting the things right. But no such attempt was/has been made on the pretext that matter is sub-judice. There is no interim order restraining competent authority from passing appropriate order for redressal of grievance but nothing has been done. For this also no satisfactory reason has come forward.

12. Respondent no. 3, or whosoever individual held the office, the fact remains that he is/was a senior official/Member of Higher Judicial Service. He is an officer in the rank and position who just comes in the pipeline to become a High Court Judge. If such a senior judicial officer cannot understand and appreciate his own duties, responsibilities and functions, which he can and he must discharge, what can be said about the executive authorities who are not supposed to be well versed in the matter of redressal of grievance. Error on the part of executive authorities in such matters can be appreciated but knowing it well that a person has been wronged, yet, there is no attempt or action on the part of respondent no. 3, for doing away such wrong is beyond comprehension of this Court. In fact the learned counsel appearing for respondents himself was speechless except of reading and placing the two affidavits, i.e., counter affidavit and supplementary counter affidavit.

13. The petitioner is a selected candidate. The number of vacancies advertised were 12. Therefore, it cannot be said that petitioner's selection was not against a vacancy, not advertised. The vacancy is also available since last more than three years but petitioner has been denied appointment thereon, and that too, without any excuse, whatsoever. It is patently arbitrary, discriminatory, illegal and amounts to flagrant infringement of petitioner's fundamental right of equal opportunity of employment and right to earn livelihood, vide Articles 16(1) and 21 of the Constitution of India.

14. Now the question would be, what relief should be granted to petitioner.

15. In normal circumstances a direction issued to appointing authority for appointment of selected candidate, without any further delay would have been sufficient but in the present case, petitioner has suffered, having been denied right to earn livelihood, despite availability of vacancy and his selection and also a corresponding excuseless arbitrary inaction on the part of respondent no. 3. Should the petitioner be allowed to suffer for such illegal, unconstitutional and arbitrary inaction on the part of respondent no. 3, so as to cause a permanent deprivation to him, or, this Court would be justified to do complete justice to petitioner so that respondents may not have the benefit of enjoining fruits of their inaction, i.e., advantage to have flouted law and depriving a person's fundamental right of earning livelihood.

16. In my view, it is the obligation of this Court not to allow any authority to take advantage of its own wrong. Therefore, petitioner is entitled for a remedy which will give him, his due, from due date, else this Court will be failing in its constitutional obligation of protecting fundamental right of an individual.

17. In the above facts and circumstances, I direct, respondent no. 3 to forthwith appoint petitioner, on a Class-IV post. This appointment shall relate back to a date after one month from the date of occurrence of vacancy in 2010. The petitioner shall also be entitled for all consequential benefits including arrears of salary, fixation of pay, increments and seniority accordingly.

18. It is also made clear that the amount of salary paid to petitioner under orders of this Court, from retrospective date of appointment till actual joining, may be recovered from the concerned respective District Judge(s) who held the office but without any reason deprived petitioner's appointment, after making such inquiry as permissible in law, against them.

19. The petitioner shall also be entitled to costs, which I quantify to Rs. 10,000/- against respondent no. 3.

20. The writ petition is allowed with the aforesaid direction and in the manner as above.

Order Date :-30.10.2013

AK