Anil Kumar vs State Of U.P. And Others
2013 Latest Caselaw 5912 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 21
 

 
Case :- WRIT - A No. - 13626 of 2006
 
Petitioner :- Anil Kumar
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- Aditya Kumar Singh,Ashok Khare
 
Counsel for Respondent :- C.S.C.,M.A. Qadeer
 

 
Hon'ble Rakesh Tiwari,J.

Hon'ble Bharat Bhushan,J.

(By Hon'ble Bharat Bhushan,J.)

(1) Heard learned counsel for the petitioner Sri A.K. Singh, Sri M.A. Qadeer and learned standing counsel for respondents.

(2) By means of this writ petition, the petitioner has prayed for the following reliefs:-

(i) Issue a writ, order or direction in the nature of certiorari quashing the order dated 30.10.2003 issued by the State Government (Annexure-13 to the writ petition)

(ii) Issue a writ, order or direction of suitable nature commanding the respondents to forthwith grant appointment to the petitioner as Deputy Superintendent of Police within a period to be specified by this Hon'ble Court.

(ii) Issue a writ and/or to pass such other and further order as this Hon'ble Court may deem fit and proper.

(3) Petitioner was selected for the post of Treasury Officer/Accounts Officer in scheduled caste category pursuant to the Combined State/Upper Subordinate Services 'examination 1998' advertised on 1.1.1998 (hereinafter referred as 'examination 1998'). The said combined test contemplated filling-up-of 23 posts of Deputy Collector(including three posts required to be filled up from amongst scheduled tribe candidates (under Special Recruitment Drive), 12 posts of Deputy Superintendent of Police, 8 posts of Assistant Regional Transport Officer, 10 posts of Trade Tax Officer, 11 posts of Additional District Development Officer (Social Welfare), 13 posts of Associate District Inspector of Schools/Basic Shiksha Adhikari and equivalent Administrative posts included in U.P. Educational Service General Education Cadre, 49 posts of Treasury Officer/Accounts Officer, 7 posts of Executive Officer Grade-I/Assistant Nagar Vikas Adhikari covered by U.P. Palika Centralized Service (as a Special Recruitment Drive for filling up backlog of scheduled caste and other backward class), 10 posts of District Social Welfare Officer, 13 posts of District Audit Officer, one post of District Savings Officer, 3 posts of Assistant Accounts Officer, 10 posts of Deputy Regional Marketing Officer and 18 posts of Trade Tax Officer Grade-II.

(4) The final result of aforesaid competitive examination was published in newspaper and Secretary, Karmik forwarded the list of selected candidates on 30.3.1999 to different departments for appointment.

(5) Meanwhile, the petitioner was selected for the post of Assistant Engineer (Civil) in Public Works Department conducted by Uttar Pradesh Public Service Commission (UPSC) in June 1999. The petitioner pursuant to his selection in this examination joined as Assistant Engineer (Civil) in January 2000 and since then is continuously working in the said department.

(6) Petitioner moved an application dated 10.2.2000 seeking two months time to enable him to join the post of Treasury Officer/Accounts Officer on account of his personal difficulties and thereafter kept moving repeated applications for enabling him to join on the post of Treasury Officer/Accounts Officer in U.P. Finance and Accounts Services. The State Government asked the petitioner several times to join services as Treasury Officer/Accounts Officer but he did not act upon it, therefore, the State Government cancelled his appointment order dated 20.1.2001 vide Letter No.18.6.2001(Annexure-11 to the writ petition).

(7) In the mean time, petitioner again appeared in the Combined State Service in the year 2001 conducted by U.P.S.C. and was selected for the post of Deputy Superintendent of Police but the grievance of petitioner is not related to this selection. He has grievance with regard to non grant of appointment as Deputy Superintendent of Police in pursuance of the result of U.P.SC pertaining to the Combined State/Upper Subordinate Services 'examination 1998'. He claims that one Nitish Kumar recommended for the post of Deputy Superintendent of Police under scheduled caste category, did not join the post. Similarly one Avanind Kumar Singh recommended under scheduled caste category for the post of Assistant Regional Transport Officer, failed to join the said post. Another candidate Vivek Sagar selected and recommended under the scheduled caste category for the post of Trade Tax Officer also refrained from joining the post.

(8) The petitioner claims that on account of non joining of selected candidates reshuffling has been conducted earlier and reshuffling needs to be conducted again in order to provide him the post of Deputy Superintendent of Police. But the respondent authorities have not undertaken any exercise for filling the said posts by resorting to reshuffling amongst the selected candidates. It is stated that he submitted a representation before the respondents for being recommended for appointment as Deputy Superintendent of Police which was rejected by the order dated 30.10.2003 on the ground that select list had become time barred. In support of his claim the petitioner has relied upon the judgment of the Apex Court reported in 1995 AWC 1169 in Neelkant Tripathi Vs. State of U.P. and others.

(9) Disputing the claim of the petitioner, U.P. S.C. has filed counter affidavit stating therein that petitioner was selected for the post of Treasury Officer in terms of his merit in the examination. The Commission has specifically denied that there was any post of Deputy Superintendent of Police shown vacant in the reshuffling proposal sent by the Government. In any event the petitioner stood below several candidates in the respective merit list.

(10) The counsel further submitted that the recommendations of finally selected candidates in respect to the 'examination 1998' was made available to the government by the Commission vide its Letter No. 46/8/E-2/1998-99 dated 9.3.1999. Subsequently, Government sent recommendations to the various departments vide its letter dated 30.3.1999 for the purpose of offering appointments against the post a candidate was selected. Thus the last date for execution of reshuffling in order to fill the vacancies occurred on account of non joining of candidates was 29.3.2000 as provided in Government Order Uttar Pradesh Shashan Karmik Anubhag-4, Sankhya-1700 (x) Aa/47-Ka-4-93.28.5-1980 Lucknow: dated 31.1.1994. Meanwhile the Government vide another G.O. issued by Uttar Pradesh Shashan Karmik Anubhag-4, Sankhya-28/5/80 Pha-4-1999 Lucknow: dated 15.11.1999 completely stopped the process of reshuffling to fill any unfilled vacancies by non joining of candidates.

(11) It is averred in the counter affidavit of the Commission that in compliance of the order of this Court in Writ Petition No. 54131/1991 Devesh Kumar Tiwari Vs. State of U.P. and others, the Government undertook reshuffling process in order to fill up existing vacancies as per G.O. dated 31.1.1994, above, in respect of the said examination and sent reshuffling proposal to the Commission on 2.5.2000. The proposal included 8 unfilled vacancies for different posts. The Commission, in these circumstances and under the orders of the Court, sent revised recommendation to the Government on 17.1.2000 after completing the reshuffling process in which no post of Deputy Superintendent of police was shown as vacant. In any case, petitioner stood below several candidates in respective merit list from the last selected candidate of Deputy Superintend of Police, as such, there was no question of recommending petitioner's name for the said post. The Commission has specifically stated no reshuffling is conducted unless specifically requested by the Government for specific posts remaining vacant due to non joining of candidates. Therefore, in the light of G.O. dated 31.1.1994, the select list had lapsed as no request was sent by the Government within stipulated period of one year.

(12) After hearing the counsel for the parties and on perusal of record, it is apparent that matter hinges on G.O. dated 31.1.1994 which reads thus:-

mRrj izns'k 'kklu

dkfeZd vuqHkkx&4

la[;k&1700{x} [email protected]&dk&4&93-28-5&1980

y[kuÅ% fnukad 31 tuojh] 1984

dk;kZy; &Kki

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{1} foHkkxksa }kjk miyC/k inksa dh lgh x.kuk lqfuf'pr djus ds mijkUr gh vk;ksx dks vf/k;kpu Hkstk tk;A vf/k;kpu Hksts tkus ds mijkUr vf/k;kfpr fjfDr;ksa ds fo:) tks p;fur vH;FkhZ lfEefyr ijh{kk ds vk/kkj ij foHkkx dks miyC/k djk;s tk;sxsa] foHkkx dks mUgsa fu;qfDr iznku djuh gh gksxhA flok; mu ekeyksa ds tgka lacaf/kr [email protected][;[email protected] dks iw.kZ :i ls lekIr dj fn;k x;k gks ;k tgka ,dy in ds fy;s vk;ksftr p;u ds vk/kkj ij p;fur vH;FkhZ vk;ksx us laLrqr fd;k gks ogka vf/k;kfpu in gh lekIr dj fn;k x;k gksA lacaf/kr [email protected]@laxBu dks lekIr fd;s tkus vFkok vf/k;kfpr inksa dks gh lekIr fd;s tkus dk fu.kZ; 'kklu }kjk fy;s tkus dh fn'kk esa vf/k;kfpr inksa ij p;u dh dk;Zokgh rRdky jksdus gsrq foHkkxksa }kjk vk;ksx ls lEidZ fd;k tk;sxk vkSj ;fn p;fur vH;FkhZ dh laLrqfr foHkkx esa izkIr dh xbZ gks] rks rRdky vk;skx dks lwfpr fd;k tk;sxk] rkfd ;fn lfEefyr - - - - - ijh{kk ds vk/kkj ij p;u gqvk gks rks vk;ksx }kjk lacaf/kr vH;FkhZ ds fo"k; ds le; ls fj'kQfyx dh dk;Zokgh - - - la'kksf/kr [email protected];ks dh tk ldsaA ijUrq tgka U;k;ky; ds vkns'kksa ds vk/kkj ij vf/k;kfpr inksa dks vU;Fkk Hkj fy;k x;k gks ogk vk;ksx }kjk laLrqr vH;fFkZ;ksa dks fu;qfDr iznku fd;s tkus dh ck/;rk u gksxhA

{2} foHkkx vkaoVu izkIr gksus ds rhu ekg ds vUnj fu;qfDr vkns'k tkjh djuk lqfu'pr djsxsa rFkk vH;FkhZ dks dk;ZHkkj xzg.k djus gsrq ,d ekg dk le; fn;k tk;sxk tks vifjgk;Z ifjfLFkfr;ksa esa ,d ekg rd vkSj c<+k;k tk ldrk gSa rRri'pkr vH;FkhZ dk vH;FkZu fujLr djus dk vkns'k djrs gq, vH;FkZu fujLr djus lacaf/kr vkns'k dh ,d izfr vk;ksx dks vH;FkZu fujLr fd;s x;s vH;[email protected];FkhZ;ksa ds LFkku ij izfr{kk lwph ds uke 'kh?kz miyC/k djkus ds vuqjks/k ds lkFk izsf"kr dh tk;sxhA mDr vkns'k dh ,d izfr dkfeZd vuqHkkx&4 dks Hkh miyC/k djk;h tk;sxhA

{3} LokLF; ijh{k.k rFkk iqfyl osjhfQds'ku lekukUrj :i ls fd;k tk;sxk] ftlls blesa foyEc u gksA

{4} izrh{kk lwph izdkf'kr ugha dh tk;sxh rFkk cUn fyQkQksa esa vk;skx esa miyC/k jgsxhA vko';drkuqlkj vk;ksx }kjk ijh{kk lwph es ls vH;fFkZ;ksa ds uke 'kklu dks ;Fkkle; miyC/k djk;s tk;sxsaA

{5} izrh{kk lwph dsoy ,d o"kZ ds fy, oS/k gksxh pkgs izfr o"kZ gksus okys izfr;ksfxrkRed ijh{kk ls lacaf/kr gks vFkok fdlh p;u fo'ks"k lsA dfri; ekeyksa esa ;g ns[kk x;k gS fd foHkkxksa }kjk fu/kkZfjr vof/k ds vk/kkj vk;ksx ls izfr{kk lwph ds uke Hkkx fy;s tkus ij Hkh vk;ksx }kjk fu/kkZfjr ,d o"kZ dh vof/k esa izrh{kk lwph ls uke miyC/k ugha djk;s tkus gSA vr% mDr leL;k ds lek/kku gsrq ftu ekeyksa esa foHkkx }kjk fu/kkZfjr ,d o"kZ dh vof/k ds vUnj ;fn vk;ksx ls izrh{kk lwph ls uke ekax fy;s x;s gks] fdUrq vk;ksx us fu/kkZfjr vof/k esa uke miyC/k u djk;k gks] ,sls ekekyksa esa izrh{kk lwph ,d o"kZ ds ckn Hkh oS/k gksxhA

{6} ;fn fu/kkZfjr vof/k esa izrh{kk lwph dk mi;ksx ugha gksuk gS] vFkok fu/kkZfjr vof/k esa foHkkxksa }kjk vk;ksx ls ugha ekax fy;k tkrk gS rks tks Hkh fjfDr;ka jg tk;sxh og vxys o"kZ ds fy, vxzsf"kr ekuh tk;sxhA

d`i;k mi;qZDrkuqlkj dk;Zokgh izR;sd Lrj ij lqfuf'pr djk;h tk;sA mDr vkns'k rkRdkfyd izHkko ls ykxw gksxsa rFkk bl laca/k esa

iwoZ esa lHkh 'kklukns'k fujLr le>s tk;sxsaA

vk0 ch0 Hkk"dj

lfpo

(13) A bare perusal of G.O. Dated 31.1.1994 reveals that it was within the domain of State Government to ask for reshuffling of candidates on account of non joining of selected candidates. The Government Order dated 31.1.1994 contemplates that all departments would ensure the correct calculation of available post for selection and were also required to send their respective recommendation in this regard to the Commission. This G.O. provides that once candidates are selected against recommended vacancies, then the department will have to give appointments to such candidates except where the whole department has been abolished or the single post for which selection was conducted has been abolished. It is only in such a situation that reshuffling would be permitted to accommodate the selected candidates, provided the selection of such candidates is the out come of combined examination. According to the provisions of said G.O., waiting list was valid only for the period of one year provided that if the department sought any more names from the waiting list within the year and the Commission could not provide those names within time then in such circumstances, the waiting list would survive beyond one year for that specific request of the Government only.

(14) The conditions mentioned in G.O. dated 31.1.1994 for reshuffling needed to be fulfilled before such recommendation could be made by the Commission. In any event, the Commission was not authorized to make such recommendation of its own. It was only on the request of Government for filling up the vacant posts in particular department and in a specified category, the Commission could have conducted reshuffling in the light of G.O. dated 31.1.1994 which was later on discontinued by G.O. dated 15.11.1999. The Commission has already submitted that in reshuffling proposal sent by the Government, no post of Deputy Superintendent of Police was shown as vacant and no recommendation was sought from the Commission. In addition to that, it is apparent that petitioner stood below several candidates in merit from the last selected candidate for the post of Deputy Superintendent of Police.

(15) The petitioner was selected in the 'examination 1998'. He was repeatedly asked by the Government to join the post of Treasury Officer/Accounts Officer pursuant to the aforesaid selection but he did not join the said post and ultimately the Government had no option but to cancel his appointment dated 20.1.2001 vide order dated 18.6.2001. Once his original appointment was cancelled, he lost all rights and his claim for reshuffling pursuant to the 'examination 1998' on this score was untenable. The claim for reshuffling flowed from his original appointment as Treasury Officer/Accounts Officer pursuant to the 'examination 1998'. Once his appointment was cancelled, the petitioner cannot claim any subsequent rights on the strength of his selection on the basis of 'examination 1998'.

(16) The Government Order dated 31.1.1994 created a time limit of one year for undertaking the process of reshuffling because the waiting list could only survive for one year in view of Clause-5 of the said G.O. It is pertinent to point out that petitioner had moved his representation on 9.7.2003 claiming reshuffling on the basis of 'examination 1998.' The Government Order dated 31.1.1994 prohibited the use of waiting list after one year which expired prior to the representation dated 9.7.2003 submitted by him. In fact another competitive examination called Combined State/Upper Subordinate Services Examination had been conducted in 2001 in which petitioner was admittedly declared selected for the post of Deputy Superintendent of Police. Therefore, petitioner's representation dated 9.7.2003 claiming reshuffling on the strength of his success in 'examination 1998, after two years of another examination in 2001, was not sustainable in view of limitation of one year for use of waiting list provided in G.O. dated 31.1.1994.

(17) We have also noticed that on 15.11.1999, the Government of Uttar Pradesh had issued another G.O. which completely prevented the preparation of waiting list and the process of reshuffling, though the learned counsel for the petitioner has argued that this G.O. was issued subsequent to the 'examination 1998,' therefore, the G.O. could only be used prospectively. Ordinarily, all Government orders have a prospective effect unless otherwise directed but in the present instance, the applicability of G.O. dated 15.11.1999 cannot be questioned for several reasons. The first being that the G.O. itself provides that all earlier G.Os. prior to 15.11.1999 in that regard were cancelled. Apart from that, the appointment letter of petitioner was also issued on 20.1.2001 subsequent to the promulgation of G.O. dated 15.11.1999. Similarly, petitioner also moved his representation on 9.7.2003 i.e. close to four years after promulgation of subsequent G.O. of 15.11.1999. Therefore, in our view his claim that G.O. dated 15.11.1999 would have no effect on his perceived right for reshuffling, is not sustainable.

(18) Learned counsel for the petitioner has drawn our attention to the judgment of this Court in Neelkant Tripathi (Supra) case. We have carefully examined this judgment. Facts of both cases are entirely different. In Neelkant Tripathi (supra), petitioner claimed certain rights on the basis of G.O. 1989 in which there was no time limit for survival of select list. Similarly, in that case Government had been repeatedly requesting the Commission for forwarding the name of petitioner and it was the Commission which failed to forward the name of the petitioner within time limits. The facts of this case are significantly different from the present case as detailed above.

(19) In the light of aforesaid discussion, petitioner cannot be given any relief on the basis of the judgment of Neelkant Tripathi(supra). In our opinion, the present petition is legally not sustainable and is liable to be dismissed. Therefore, writ petition is dismissed.

Order Date :- 19.9.2013

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