Rachna Misra D/O K.N. Misra vs State Of U.P. Thru Prin. Secy. ...
2015 Latest Caselaw 81 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Reserved
 
Court No. 3
 
SERVICE BENCH NO. - 347 (S/B) of 2009
 
Rachna Misra 					...... 	Petitioner
 
Versus
 
State of U.P. & others			...... 	Respondents
 
AND
 
SERVICE BENCH NO. - 574 (S/B) of 2009
 
Neelam Tyagi					......	Petitioner
 
Versus
 
State of U.P.& others			...... 	Respondents
 
***
 
Hon'ble Shri Narayan Shukla,J.

Hon'ble Rajan Roy,J.

(Delivered by Hon'ble Shri Narayan Shukla,J.)

Heard Mr. Y.S. Lohit, learned counsel for the petitioners, learned Additional Chief Standing Counsel for respondent nos. 1 and 2, Shri Rajnish Kumar for respondent no. 3 and Shri Gaurav Mehrotra for respondent no. 4.

Through the instant writ petition, the petitioners have sought the following reliefs:

Prayers of writ petition no. 347 (S/B) of 2009:

"i) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 4.12.2008 as contained in Annexure No. 1 to the writ petition.

ii) Issue a writ, order or direction in the nature of mandamus commanding the opposite parties by directing them to reconsider the matter afresh for the purposes appointment of the petitioner on the post of Civil Judge (Junior Division) in the letter and spirit of the judgment and order dated 17.01.2006 in her writ petition no 24479 of 2004 as contained in Annexure No. 3 to the writ petition against the posts which were occupied by the private respondents in the name of U.P. Nyayik Sewa Examination 2000 till the rejection of their respective representations vide State Government's order dated 12.03.2008 as mentioned in the letter dated 17.03.2008 sent to the U.P. Public Service Commission as contained in Annexure No. 8 to the writ petition followed by consequential benefits of the same.

iii) Issue a writ, order or direction in the nature of mandamus commanding the opposite parties by directing the U.P. Public Service Commission to send the recommendation for the purposes appointment of the petitioner on the post of Civil Judge (Junior Division) at the earliest in the letter and spirit of the judgment & order dated 17.01.2006 in her writ petition No. 24479 of 2004 as contained in Annexure No. 3 to the writ petition against the posts which were occupied by the private respondents in the name of U.P. Nyayik Sewa Examination 2000 till the rejection of their respective representations vide State Government's order dated 12.03.2008 as mentioned in the letter dated 17.03.2008 sent to the U.P. Public Service Commission itself.

Prayers of writ petition no. 574 (S/B) of 2009:

i) Issue a writ, direction or order in the nature of certiorari quashing the impugned order dated 04.12.2008 passed by the opposite party no. 1, contained as Annexure No.1 to this writ petition.

ii) Issue a writ, direction or order in the nature of mandamus commanding the opposite parties to reconsider the matter of the petitioner afresh for the purposes of appointment on the post of Civil Judge (Junior Division) in the letter and spirit of judgment and order dated 17.01.2006 passed in writ petition No. 46858 of 2004 in favour of the petitioner, against the vacancies which have been accrued or become vacant due to the appointment of 03 women candidates in the selection of the year 1999 in place of Examination-2000.

iii) Issue a writ, director or order in the nature of mandamus commanding the opposite parties to direct the U.P. Public Service Commission to send the recommendation for the purposes appointment of the petitioner on the post of Civil Judge (Junior Division) at the earliest in the letter and spirit of the judgment and order dated 17.01.2006 in her writ petition no. 46858 of 2004 as contained in Annexure No.5 to the writ petition against the posts which were occupied by the private respondents in the name of U.P. Nyayik Sewa Examination-2000 till the rejection of their respective representations vide State Government's order dated 12.03.2008 as mentioned in the letter dated 17.03.2008 sent to the U.P. Public Service Commission itself."

The dispute relates to the selection of the Uttar Pradesh Judicial Service, Civil Judge (Junior Division), Examination-2000.

The facts of the case as undraped are that the State Government vide letter dated 28.06.1999 sent a requisition of 100 posts of Civil Judge (Junior Division) for emergency recruitment in the year 1999 to the Uttar Pradesh Public Service Commission, Allahabad (in short 'the Commission'). Further vide letter dated 26.11.1999 it sent a requisition of 147 posts of Civil Judge (Junior Division) for further recruitment, which was termed a recruitment year 2000. Against the recruitment of Civil Judge (Junior Division) in 1999, twelve women candidates including Manjula Sircar, Preeti Srivastava, Shiwani Jaiswal were selected under the reservation quota provided for women to the extent of 20% of the total vacancies.

Being aggrieved with the aforesaid reservation policy, some male candidates filed a writ petition before this Court being writ petition no. 1051 (S/B) of 2000 for issuing a writ of certiorari to quash the Government Order dated 26.02.1999, which had provided the 20% reservation out of the total vacancies for the women candidates. This Court allowed the writ petition on 27.07.2001 and quashed the Government Order dated 26.02.1999 with the direction to the Commission to modify the select list without giving any benefit of reservation to the women.

Being aggrieved with the judgment and order dated 27.07.2001 passed by this Court, the women candidates as well as State Government filed different Special Leave Petitions before the Hon'ble Supreme Court, which are described as under:

"(i) Special Leave Petition (Civil) No. 15768 of 2001, Ms. Manjula Sircar v. Harendra Bahadur Singh.

(ii) Special Leave Petition (Civil) No. 18824 of 2001, State of U.P. v. Harendra Bahadur Singh.

(iii) Special Leave Petition (Civil) No. 18822 of 2001, State of U.P. v. Harendra Bahadur Singh.

(iv) Special Leave Petition (Civil) No. 18 of 2001, Km. Shiwani Jaiswal v. Harendra Bahadur Singh.

(v) Special Leave Petition (Civil) No. 628 of 2001, Km. Shiwani Jaiswal v. Harendra Bahadur Singh."

In Ms. Manjula Sircar's case (supra), the Hon'ble Supreme Court passed the following interim order on 12.09.2001:

"Till further order operation of the impugned order shall remain stayed."

The Hon'ble Supreme Court allowed the Special Leave Petition of Ms. Manjula Sircar.

In Civil Appeal No. 6429 of 2002, Manjula Sircar and others v. Harendra Bahadur Singh and others, the Hon'ble Supreme Court, on 27.09.2002, passed further interim order, which is quoted hereunder:

"Considering the question involved and the fact that appellants who were appointed on the basis of reservation policy and the effect of the order passed by the Hon'ble Court, pending hearing and the disposal of these appeals, interim order passed by this Court shall continue and it is directed that respondent no. 1 and other similarly selected candidates who are twelve in all and who are eligible as per the direction given by the High Court be appointed to the post of Civil Judge (Junior Division), if otherwise qualified. Their appointment would be subject to further directions and the result of these appeals."

Pursuant to the aforesaid interim order, twelve male candidates were appointed as Civil Judge (Junior Division) under the Government Notification dated 1342/II-4-2001-32(32)/98 TC dated 11.04.2003 subject to final decision of different Civil Appeals/Special Leave Petitions.

On 04.03.2000, the Commission had further, advertised 147 posts of Civil Judge (Junior Division) for the recruitment year 2000. After holding the examination, the Commission recommended the names of 145 candidates for appointment as Civil Judge (Junior Division). Out of the 145 candidates, six candidates namely, Km. Majula Sircar, Smt. Jaya Pathak, Smt. Priti Srivastava, Sri Ahsanullah Khan, Shri Istiaqu Ali Khan and Sri Chandra Shekhar had been working as Civil Judge (Junior Division) pursuant to their selections made in the recruitment year 1999. In compliance of interim orders dated 12.09.2001 and 27.09.2002 passed by the Hon'ble Supreme Court, their names were deleted from the select list. One Shri Pradeep Kumar Srivastava had communicated his unwillingness to join service, therefore, his name was also deleted from the select list vide order dated 22.11.2003. Accordingly, 138 candidates of the Civil Judge (Junior Division) were recommended to the Government vide letter dated 10.12.2003 for appointment. Thereafter, two candidates of examination 2000 filed writ petitions being writ petition no. 24479 of 2004, Smt. Alka Tripathi & others v. State of U.P. and writ petition no. 46858 of 2004, Neelam Tyagi & others v. State of U.P., in which this Court on 17.01.2006 passed the following orders:

"The petitioners, admittedly, have not been recommended by the Commission. In these circumstances, their claim could only be considered by the State Government should the Commission choose to recommend their names. In view of the aforesaid position, the petitioners cannot claim any right unless and until their names are recommended by the Commission. In view of the aforesaid position, in case the selections of the year 2000 have to be reshuffled in the circumstances indicated herein above, the same would require a decision by the State Government on the applications of the private respondents, referred to herein above. Thereafter, the discretion shall lie with the Commission for considering the claim of the petitioners in case the same is available in law. Accordingly, the writ petition stands disposed of with the observation that it shall be open to the Commission to take such decision in the matter as may be permissible in law keeping in view the ratio of the decision in the case of Rafiquddin (supra). The State Government is directed to dispose of the applications of the private respondents herein which is stated to be pending in respect of their request referred to in the body of the judgment at the earliest and as expeditiously as possible preferably within a period of three months from the date of production of a certified copy of this order before the respondent no. 1. No costs."

Section 21 (1) of Uttar Pradesh Judicial Service Regulation, 1951 provides the procedure for preparation of the select list, which is extracted below:

"Subject to the provisions of Rule 20, the Governor shall on receipt of the list prepared by the Commission consult the High Court and shall, after taking into consideration the view of the High Court, select candidates for appointment from amongst those who stand highest in order of merit in such list, provided that he is satisfied that they are duly qualified in other respects."

Another Government Order dated 15.11.1999 provides that there shall be no provision of wait list and the vacancies arising due to the non-joining of the candidates shall be carry forwarded to the next selection years.

In Civil Appeal No. 6429 of 2002, Manjula Sircar & others v. Harendra Bahadur Singh & others, the Hon'ble Supreme Court passed the following order:

"In the facts and circumstances of the case, we feel that this is an appropriate case where this Court should exercise its jurisdiction under Article 142 of the Constitution of India for doing complete justice between the parties and thus upholding the order of the High Court holding that the benefit of 20 percent reservation for women is not available to the women candidates for appointment to the post in pursuance of the advertisement dated 1.8.1999, we set aside the direction given by the High Court for revising and re-arranging the select list so far as women candidates are concerned and to exclude them if they do not fall within the merit, and instead thereof we direct that that appointments given to the appellant-women candidates shall not be disturbed and their services shall not be terminated, but for the purposes of the seniority they shall be placed just below the 12 selected men candidates, referred in the interim order dated 27.9.2002 passed by this Court, according to the inter se merit between the appellant-women candidates. Consequently, the order of the High Court is upheld with the aforesaid modification of continuity of service of the women candidates and placing them just below the 12 selected men candidates."

Against 100 posts advertised for the recruitment year 1999, 98 candidates were selected and two vacancies remained unfilled. In the recruitment year 2000, against 147 posts, 135 candidates joined and 12 vacancies remained unfilled. Pursuant to the judgment dated 13.09.2007 passed by the Hon'ble Supreme Court, Smt. Jaya Pathak, Mr. Priti Srivastava and Ms. Manjula Sircar had been given appointment against the vacancies of the selection year 1999. Consequently their candidatures for selection year 2000 were cancelled and pursuant to the same very judgment of the Hon'be Supreme Court, 12 vacancies of the selection year 2000 had been adjusted by the female candidates of the selection year 1999 pursuant to the direction of the Hon'ble Supreme Court.

It has been submitted that after selection year 2000, another selection of Civil Judge (Junior Division) has been held pursuant to the examination year 2003. The selected candidates had been given appointments on the post of Civil Judge (Junior Division) further the examination held in 2006 and the selected candidates had been given appointments, therefore, it has been submitted that the petitioner's have no continuous claim against the subsequent vacancies.

Mr. Y.S. Lohit, learned counsel for the petitioners has given much emphasis over the judgment dated 17.01.2006 of this Court rendered in the Alka Tripathi & others v. State of U.P. & others, writ petition no. 24479 of 2004. He drew attention of this Court towards the relevant observations of the Court, which are quoted below:

"However, in spite of the aforesaid hurdles in the way of the petitioners, there is a ray of hope which is clearly dependent upon the fate of the contesting respondents whose petitions in respect of 1999 selections are pending before the Apex Court and who are still awaiting a decision on their application before the State Government for postponement of their placement and posting against the 2000 selections. In the event the State Government rejects the applications of the private respondents for postponement and they do not opt to join against the 2000 selections or are otherwise found by the State Government not entitled for their claim of postponement, then, in that event, the petitioners stand a chance of getting considered and placed in the list of 2000 selections against the posts of the private respondents. The private respondents cannot be permitted to withhold selections by raising their plea that they should be allowed options at their choice for any length of time. The State Government is not deprived of its powers in dealing with their applications moved for postponement and thereby defeating the minimal rights of the petitioners which they can reasonably claim to be available to the extent and in the events indicated herein above. The State Government should take an early decision on the request of the private respondents. In the event the private respondents are successful in retaining their selections of 1999 then in that case they would obviously not claim any rights with regard to their 2000 selections. However, from a perusal of the decision in Rafiquddin's case (supra), it is evident that there cannot be any appointment by the State Government without there being a recommendation of the Uttar Pradesh Public Service Commission. The petitioners, admittedly, have not been recommended by the Commission. In these circumstances, their claim could only be considered by the State Government should the Commission choose to recommend their names. In view of the aforesaid position, the petitioners cannot claim any right unless and until their names are recommended by the Commission.

In view of the aforesaid position, in case the selections of the year 2000 have to be reshuffled in the circumstances indicated herein above, the same would require a decision by the State Government on the applications of the private respondents, referred to herein above. Thereafter, the discretion shall lie with the Commission for considering the claim of the petitioners in case the same is available in law. Accordingly, the writ petitions stands disposed of with the observation that it shall be open to the Commission to take such decision in the matter as may be permissible in law keeping in view the ratio of the decision in the case of Rafiqudddin (supra). The State Government is directed to dispose of the applications of the private respondents herein which is stated to be pending in respect of their request referred to in the body of the judgment at the earliest and as expeditiously as possible preferably within a period of three months from the date of production of a certified copy of this order before the respondent no. 1. No costs."

He has further submitted that the Joint Registrar (Services) of the High Court put a note dated 09.09.2008 mentioning therein that in the year 1999, recruitment process of 100 posts of Civil Judge (Junior Division) was held, in which 98 candidates were selected and appointed and two vacancies were not filled up, which shows that the High Court had accepted the two vacancies unfilled in the recruitment year 1999. Whereas, subsequently, through its resolution dated 07.10.2010, the Hon'ble High Court has observed that two vacancies have been consumed, which is wholly illegal.

In the aforesaid factual backdrop, learned counsel for the petitioners has submitted that a direction be issued to the respondents to reconsider the petitioners' appointment on the post of Civil Judge (Junior Division) pursuant to the order dated 17.01.2006 passed by this Court in writ petition 24479 of 2004.

It has been contended that it is now well settled by a catena of decisions of this Court that a binding judicial pronouncement between the parties cannot be made ineffective with the aid of any legislative power by enacting a provision which in substance overrules such judgment and is not in the realm of a legislative enactment which displaces the basis or foundation of the judgment. In support of his submission, he has cited number of decisions, however, we hereby consider few of them which are more relevant without overburdening this judgment:

1. S.R. Bhagwat & others v. State of Mysore, (1995) 6 SCC 16.

2. Union of India v. S.P. Sharma, (2014) 6 SCC 444.

He also cited the case of Subrata Roy Sahara v. Union of India & others, (2014) 8 SCC 470. The relevant part of the Hon'ble Supreme Court's conclusion on the point is extracted below:

"185.2. Disobedience of orders of a court strikes at the very root of the rule of law on which the judicial system rest. Judicial orders are bound to be obeyed at all costs. Howsoever grave the effect may be, is no answer for non-compliance with a judicial order. Judicial orders cannot be permitted to be circumvented. In exercise of the contempt jurisdiction, court have the power to enforce compliance with judicial orders, and also, the power to punish for contempt."

Per contra Mr. Gaurav Mehrotra, learned counsel for the respondent no. 4 has submitted that by means of judgment and order dated 17.01.2006 which disposed of the writ petition no. 24479 of 2004 filed by the petitioners, this Court had issued directions to the State Government and further observed (for the commission) that the discretion shall lie with the Commission for considering the claim of the petitioners in case the same is available in law. The Principal Secretary (Appointment) of the State Government disposed of the petitioner's representations by means of order impugned dated 04.12.2008. In the meanwhile, the petitioners preferred a contempt petition, which was dismissed by this Court. The Principal Secretary, in his decision, has referred the letter dated 27.11.2008 issued by the Registrar General of this Court, whereby had he intimated that no vacancy remained regarding PCS(J) Examination-2000.

Since against 147 vacancies advertised, only 135 posts had been fulfilled and thus, 12 vacancies remained unfilled, therefore, the Joint Registrar (Services), in view of the directions of the Hon'ble Supreme Court dated 13.09.2007, put up a note that 12 women candidates can be adjusted against the aforesaid 12 vacancies. The matter of two vacancies in the selection year 1999, which were initially reserved for Physically Handicapped Quota was placed before the Administrative Committee in its meeting dated 07.10.2010 in which a decision was taken to treat these vacancies as consumed because three subsequent examinations had already been done. Thus, this fact is very clear that pursuant to the order dated 13.09.2007 passed by the Hon'ble Supreme Court, 12 women candidates selected in the year 1999 had been adjusted in the selection year 2000. Against 12 unfilled vacancies and two vacancies of the same in the very year had been treated as consumed because of the three examinations held subsequently.

He has further submitted that the petitioners' name did not find place in the select list, thus, it is obvious that she was never selected nor recommended by the Commission for appointment inasmuch as there was no provision for preparation of any wait list in the Uttar Pradesh Judicial Service Regulation, 1951 rather the Government order dated 15.12.1999 had prohibited so. He has further submitted that the petitioners, whose names do not appear in the select list, have got no indefeasible right for appointment on the post of Civil Judge (Junior Division) in the examination year 2000. Moreover even after selection, they do not acquire any right to the post as has been settled by the Hon'ble Supreme Court.

He further contended that this Court in the case of Alka Tripathi & another (supra) has held that the petitioners cannot claim any right unless and until their names are recommended by the Commission. This Court disposed of the writ petition with the observation that it shall be open to the Commission to take such decision in the matter as may be permissible in law keeping in view the ratio of the decision in the case of Rafiquddin (supra).

It has been vehemently argued that the Commission has not been recommended the petitioners' name. According to the Uttar Pradesh Judicial Service Regulation, 1951 and Government Order dated 15.11.1999, there was no provision to prepare wait list.

As per direction of the Hon'ble Supreme Court issued in Manjula Sircar's case (supra), the remaining twelve vacancies of the selection year 2000 have been fulfilled from amongst the women candidates of the selection year 1999. Thus, total 145 posts as were advertised in the selection year 2000 have been fulfilled. So far as the two unfilled vacancies of the selection year 1999 are concerned, they have been treated as consumed as after 1999, the recruitment of Civil Judge (Junior Division) have been held more than three times.

In the case of Sankarsan Dash v. Union of India, (1991) 3 SCC 47, the Hon'ble Supreme Court has held that "it is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subhash Chander Marwaha and others, [1974] 1 SCR 165; Miss Neelim Shngla v. State of Haryana and others, [1986] 4 SCC 268 and Jitendra Kumar and Others v. State of Punjab and Others, [1985] 1 SCR 899."

In the case of State of Punjab v. Raghbir Chand Sharma, (2002) 1 SCC 113, the Hon'ble Supreme Court has held that "with the appointment of the first candidate for the only post in respect of which the consideration came to be made and select panel prepared, the panel ceased to exist and has outlived its utility and, at any rate, no one else in the panel can legitimately contend that he should have been offered appointment either in the vacancy arising on account of the subsequent resignation of the person appointed from the panel or any other vacancies arising subsequently."

The Hon'ble Supreme Court in the case of Union of India v. B. Valluvan, (2006) 8 SCC 686 has held as under:

"17. The life of a panel ordinarily is one year. The same can be extended only by the State and that too if the statutory rule permits it to do it. The High Court ordinarily would not extend the life of a panel. Once a panel stands exhausted upon filling up of all the posts, the question of enforcing a future panel would not arise. It was for the State to accept the said recommendations of the Selection Committee or reject the same. As has been noticed hereinbefore, all notified vacancies as also the vacancy which arose in 2000 had also been filled up. As the future vacancy had already been filled up in the year 2000, the question of referring back to the panel prepared in the year 1999 did not arise. The impugned judgment, therefore, cannot be sustained."

The judgment of this Court given in Alka Tripathi's case (supra) provides that it shall be open to the Commission to take decision for recommendation of the petitioners' name as is permissible in the law keeping in view the decision of Rafiquddin's case (supra). In Rafiquddin's case (supra), the Hon'ble Supreme Court has held that there cannot be any appointment by the State Government without there being a recommendation of the Commission.

The Hon'ble Supreme Court in Rafiquddin's case has further held as under:

"In normal course, 85 vacancies could be filled on the basis of the result of the competitive examination of 1970 but if all the vacancies could not be filed up on account of non-availability of suitable candidates, the appointment to the remaining vacancies could be made on the basis of the result of the subsequent competitive examination. The unfilled vacancies of 1970 examination could not be filled after 5 years as subsequent competitive examinations of the year 1972 and of the year 1973 had taken place and the results had been declared. The list prepared by the Commission on the basis of the competitive examination of a particular year could be utilized by the Government for making appointment to the service before the declaration of the result of the subsequent examination. If selected candidates are available for appointment on the basis of the competitive examinations of subsequent years, it wold be unreasonable and unjust to revise the list of earlier examination by changing norms to fill up the vacancies as that would adversely affect the right of those selected at the subsequent examination......"

This Court in Alka Tripathi's case (supra) has also observed that "the petitioners, admittedly, have not been recommended by the Commission. In these circumstances, their claim could only be considered by the State Government should the Commission choose to recommend their names. In view of the aforesaid position, the petitioners cannot claim any right unless and until their names are recommended by the Commission."

The role of the Commission comes into way for recommendation of the names of the candidates for their appointment only when there is a requisition sent by the State Government to make selection on the post in question. Since no vacancy either in the selection year 1999 or in 2000 existed, there was no occasion for the State Government to send the requisition.

In view of the elaborated consideration on the basis of the arguments advanced and the material placed, we are of the considered opinion that the petitioners' claim of appointment on the post of Civil Judge (Junior Division) does not stand on the strength of the judgment of this Court given in Alka Tripathi's case.

The writ petition lacks merit and is dismissed. There is no order as to costs.

Order Date :-23.04.2015

Anupam S/-

(Rajan Roy, J.) (Shri Narayan Shukla, J.)