Shyam Babu vs State Of U.P. And Others
2014 Latest Caselaw 6503 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 32
 

 
Case :- WRIT - A No. - 57952 of 2007
 

 
Petitioner :- Shyam Babu
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- G.K. Singh,V.K. Singh
 
Counsel for Respondent :- C.S.C.,A.K. Goyal,Ritesh Upadhyay
 

 
Hon'ble Attau Rahman Masoodi,J.

Heard Shri H.P. Sahi holding brief of Shri V.K. Singh, learned counsel for the petitioner, Shri Ritesh Upadhyay learned counsel appearing for respondent no.4 and learned standing counsel appearing for respondent no.1& 2.

At the outset learned counsel appearing for respondent no.4 has raised a preliminary objection as to the maintainability of writ petition on the ground that the petitioner is neither holding the post in question nor has he participated in the selection process for appointment on the post in question. It is further argued that a writ of certiorari would not be maintainable at the instance of a person who is not aggrieved. The preliminary objection raised by the learned counsel for respondent no.4 deserve to be looked into in the background of factual position as follows:

There are three clerical posts in the institution, i.e. 1 Head Clerk and 2 Assistant Clerks. One post of Assistant Clerk fell vacant in the year 2000 due to retirement of one Shri Ram Nath Prasad on 31.1.2000. The vacancy which arose due to retirement of Shri Ram Nath Prasad was initially proposed to be filled up by promotion in the month of June 2000 and thereafter the same vacancy was advertised for being filled up through direct recruitment. The District Inspector of Schools is said to have granted approval for advertising the vacancy, consequently the advertisement was issued in response to which respondent no.4 participated in the selection and was selected. Before the said selection was finalised and acted upon, one Shri Johdi Prasad was promoted who started working on the post against which the process of selection by direct recruitment was also commenced simultaneously. The respondent no.4 being a selected candidate in response to the advertisement made in the month of August 2000, on being denied the right of appointment in preference to Shri Johdi Prasad who was promoted, approached this Court by means of Civil Misc. Writ Petition No.41704 of 2001 which was disposed of by order dated 22.1.2007. The relevant extract of the order is reproduced below :-

"Learned counsel for the respondents submits that the post in question falls within the quota of promotion, hence, petitioner could not have been appointed. Once, the District Inspector of Schools, Mau has granted approval to fill up the vacancy in question and after due selection, the Committee of Management has forwarded petitioner's name for appointment and for approval, then while passing the subsequent order, it was incumbent on the District Inspector of Schools, Mau to pass a speaking and reasoned order after considering petitioner's claim also on the basis of the selection held by duly constituted committee. The impugned order dated 30th of October, 2001 passed by the District Inspector of Schools, Mau does not disclose reason for grant of any approval in favour of the private respondent who is a promotee. While passing the impugned order, it was incumbent on the District Inspector of Schools, Mau to pass a speaking and reasoned order after considering the entire facts and circumstances as well as provisions of law keeping in view the selection held through the direct recruitment. But the District Inspector of Schools, Mau kept the matter pending for more than one year. Non grant of approval to the direct recruitment creates a reasonable doubt over the conduct of the District Inspector of Schools, Mau. However, since, the private respondent is discharging duty, it shall not appropriate to set aside the impugned order at this stage. It shall be appropriate that the District Inspector of Schools, Mau may pass speaking and reasoned order after providing the opportunity of hearing to the parties. Accordingly, the matter is relegated back to the District Inspector of Schools, Mau. Petitioner's counsel may submit a representation along with the copy of the present order to the District Inspector of Schools, Mau within a period one month. After receipt of the representation along with the copy of the present order, the District Inspector of Schools, Mau shall decide the same, after providing the opportunity of hearing to the parties keeping in view the provisions contained in U.P. Intermediate Education Act and the regulations framed thereunder expeditiously and preferably within a period of four months from the date of receipt of certified copy of this order and communicate the decision to the petitioner.

Subject to above, the writ petition is disposed of finally. No order as to costs."

In pursuance of the order passed by this Court, the matter came to be decided by the District Inspector of Schools. The matter instead of being decided between the two contesting parties against the disputed vacancy was given all together a new dimension when respondent no.4 under the garb of the Court's order adjusted respondent no.4 against the new vacancy which fell vacant in the year 2007. As a matter of fact, in the year 2007 one Shri Prakash Ram, Head Clerk retired from service and against this vacancy one Shri Ramji Singh was promoted therefore, one more vacancy of Assistant Clerk arose due to the promotion of Shri Ramji Singh. There is no dispute to the fact that the vacancy which occurred in the year 2007 in the manner above was never advertised.

Learned counsel for the petitioner states that a vacancy against which respondent no.4 was never considered for appointment in absence of the same being advertised, the adjustment of respondent no.4 against the vacancy of a subsequent year is illegal and violative of Article 14 of the Constitution of India. For both the reasons, viz. that the vacancy falling vacant in the year 2007 not being advertised and the said vacancy being beyond the reach of reservation, the petitioner claims to have a locus for being a prospective aspirant. The petitioner further states that he is a prospective candidate eligible for making an application and whose right of consideration has suffered for the reason that the vacancy in question was prevented to be advertised by making adjustment of respondent no.4 who did not have a valid claim.

Normally, this Court does not entertain a writ petition under Article 226 of the Constitution of India unless a person is an aggrieved person. A petition in public interest is also not entertained so far as the service matters are concerned. In the instant case, it cannot be safely deduced that the petitioner is not an aggrieved person particularly when he being eligible is prevented to participate in the process of selection, which is bound to be adopted as per rules. Once eligibility of the petitioner is found satisfied as per Rules, it cannot be said that the petitioner is not an aggrieved person in respect of a cause of action which arises due to an illegal adjustment of respondent no.4 against the vacancy pertaining to the year 2007 which ought to have been advertised.

Article 14 of the Constitution of India envisages equality before law and in the matter of recruitment, the mandate of law is to equalize opportunity of consideration amongst the equals. It is pointed out that the petitioner is a graduate and is possessed with necessary qualification. The vacancy in question is bound to be filled up only by advertisement. Once the requirement of advertisement as per rules exists, the grievance of the petitioner though prospective is well founded and can not be ruled out. There is yet another aspect of the matter, that the vacancy being beyond the reach of reservation also does not preclude the petitioner from raising such a grievance.

In view of above, the preliminary objection is hereby rejected.

Learned counsel for the petitioner in order to make out his point has drawn my attention to the Judgment reported in 2010 Vol.1 ESC 250 Alld. in which it is laid down that a selected candidate in pursuance of an earlier advertisement cannot be adjusted against any vacancy which is subject matter of subsequent advertisement. It is true that the vacancy which occurred in the year 2007 has not been advertised but the fact remains that there is a deliberate attempt on the part of respondent no.3 not to allow the said vacancy to be advertised. Even preventing a legal course as per the process prescribed under law is a sufficient cause giving rise to a grievance to the petitioner. Therefore, the impugned order seeking to adjust respondent no.4 against a vacancy of 2007 is legally untenable and beyond the scope of order rendered in Civil Misc. Writ Petition No.41704 of 2001 on 12.1.2007. The appointment order issued in favour of respondent no.4 is clearly hit by Article 14 of the Constitution of India. Any action coming to the notice of this Court which stands in violation of Article 14 of the Constitution of India cannot be upheld irrespective of the fact whether the petitioner is entitled to a positive relief or not.

In the result, the adjustment of respondent no.4 against the vacancy having occurred in the year 2007 is hereby quashed and it is open to the District Inspector of Schools to advertise the vacancy in accordance with law. The petitioner as well as respondent no.4 are free to participate in the selection process as and when the vacancy is advertised. This Court has no hesitation to record that the District Inspector of Schools in order to extend a wrongful advantage to respondent no.4 has passed the impugned order under the garb of this Court's order dated 22.1.2007. Such an approach on the part of authorities being a clear abuse of the process of law should not go unnoticed by this Court. A cost of Rs.25,000/- is imposed to be recoverable from the salary of concerned respondent no.2 who passed the order which shall be deposited before the Registrar General of this Court, who shall remit the same to the legal cell of this Court.

The writ petition is accordingly allowed.

Order Date :- 16.9.2014

Hasnain

( Attau Rahman Masoodi, J.)