Smt. Nisha Rani vs State Of U.P. And Others
2017 Latest Caselaw 4063 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 

 
Court No. - 18
 

 
Case :- WRIT - A No. - 13541 of 2011
 

 
Petitioner :- Smt. Nisha Rani
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- Bhawna Verma,S.R. Verma
 
Counsel for Respondent :- C. S. C.
 

 
Hon'ble Mrs. Sangeeta Chandra,J.

1. This petition has been filed for the following prayers.

" (i) issue a writ order or direction in the nature of mandamus directing the concerned respondents authorities to appoint the petitioner forthwith in view of the decision dated 15.04.1988 passed by Hon'ble Court from select list in question as similarity situated other candidates have been appointed in compliance of order dated 18.05.2006 passed in writ petition No. 2416(SS) of 2008; Ravi Kumar Srivastava Vs. State of U.P. & others passed by Hon'ble Mr. Justice Sri Narian Shukla J. and order dated 03.03.2009 passed in Writ Petition No. 56855 of 2006; Rajnath and 3 others Vs. State of U.P. & others passed by Hon'ble Mr. Justice B.K. Narian J. on suitable post with the State Department and pay her salary and other service benefits as admissible in the eye of law.

(ii)issue a writ order or directing in the nature of mandamus directing the respondent No. 1 Chief Secretary, Govt. of U.P. Labour Section-3, Secretariat, Lucknow to appoint the petitioner as similarly situated employees from the select list in question by keeping away aside the order dated 27.05.2005 passed by Joint Director, Sports Directorate, U.P. Khel Bhawan, Lucknow, who was not the competent authority and himself stated that he is incompetent to appoint the petitioner.

(iii) issue any other writ, order or direction which this Court may deem fit and proper in the facts and circumstances of the case."

2. It is the case of the petitioner that the select list was prepared for the recruitment year 1985-86 by the State respondents in which the name of the petitioner was also mentioned. This select list was published on 30th November, 1985 and was effective till 29.11.1986 as per the State respondents. Soon after the said select list was published, a Radiogram dated 24.06.1986 was sent by the State Government putting on hold all appointments on the ground that earlier the State Government had issued a notification that selection of Class III post was to be dealt with by Departmental Selection Committee of the respective departments and not by the District Selection Committee as per the UP Ministerial Employees Service Rules of 1985.

3. This Radiogram was challenged by the selected candidates by filing Writ Petition No. 17017 of 1988 (Ramesh Chandra Vs. State of U.P. and others). Another writ petition was filed by A.K. Awasthi and 14 others, namely, Writ Petition No. 11185 of 1988 on similar grounds with similar prayers. The petitioner filed Writ Petition No. 7833 of 1986 challenging the said Radiogram dated 24.06.1986 also.

4. On the first hearing of writ petition No. 11185 of 1988 (A.K. Awasthi and 14 others Vs. State of U.P. and others) this court was pleased to stay the effect and operation of the Radiogram dated 24.06.1986.

5. The aforesaid writ petition along with the writ petition of Ramesh Chandra and two others, and the writ petition filed by the petitioner were heard and finally decided by Hon'ble Division Bench on 15.04.1988. A direction was issued to the District Magistrate to make appointments in pursuance of the select list published on 30.11.1985 by ignoring the Radiogram.

6. The Division Bench of this Court in its order dated 15.04.1988, relied upon the order passed by this Court in Writ Petition No. 11017 of 1986 (Hari lal & others Vs. State of U.P.) which was decided on 24.02.1987, to the effect that a Government Order cannot supersede the Service Rules as the Service Rules for recruitment are framed by the Government under proviso to Article 309 of the Constitution and the Radiogram has no such sanctity or authenticity.

7. In pursuance of the direction issued by this Court, petitioner made representations before the authority concerned and she also made a representation to the Chief Metropoliton Magistrate, Kanpur Nagar, who on 27.11.1990 wrote a letter to Director Sports U.P. Khel Bhawan, Lucknow to give appointment to the petitioner. The Joint Director, Sports U.P. Lucknow on 29.12.1990 however, showed inability to give appointment to the petitioner. A Contempt Petition No. 652 of 1988 filed by petitioner was dismissed in default. Thereafter it was restored on 04.04.1991, but again it was dismissed on the ground of limitation.

8. Other candidates also who had filed similar cases again filed writ petition no. 13922 of 1991 (A.K. Awasthi And 11 others) along with several other petitioners. The petitioner also filed writ petition no. 16524 of 1991 (Km. Nisha Rani Vs. State of U.P.) alleging that the authorities have adopted pick and choose method in appointing some candidates out of the select list dated 30.11.1985. It was alleged that Ramesh K. Gaur, Rajnath, Brij Rani Devi, Prem Kumar, Girish Chandra Srivastava, Narendra Kumar Saxena, Guru Prasad, Gyan. Prasad Saini etc. were appointed on the the basis of the same select list. While the case of the petitioners were not considered.

9. The writ petitions filed by other candidates were allowed by this Court on 24.01.2005 with a direction to the respondent therein to consider the case of the petitioner, in view of the observations made in the judgement. The case of the petitioner was also decided on the same date by separate order.

10. In pursuance of order dated 24.01.2005 passed by this Court, petitioner moved representation before the authority concerned and other candidates of writ petition no. 13922 of 1991 also moved representations. Representation of petitioner was rejected by order dated 27.05.2005 and the case of petitioners of writ petition No. 13922 of 1991 was also rejected by order dated 10.03.2006 by Chief Secretary U.P.

11. A.K. Awasthi and others filed a writ petition No. 2416(S/S) of 2006 which was allowed. The order dated 10.03.2006 was quashed on 18.05.2006 and they were issued appointment letters on the basis of select list prepared in the year 1985-86. They have joined their services.

12. I have gone through the order of the Deputy Director, Sports dated 27.05.2005, which says that one Sri K.K. Gaur was issued appointment letter on the basis of select list dated 30.11.1985 in April 1986, but he resigned on 31.08.1986 from the post of Junior Clerk/typist, thus the post of Junior Clerk/Typist fell vacant in Green Park Stadium, Kanpur. The Deputy Director, Sports, Stadium Green Park Stadium Kanpur, had not sent any requisition to the District Selection Committee, thereafter. Therefore, the select list published on the basis of selection headed by the District Selection Committee dated 30.11.1985 was valid only upto appointment of K.K. Gaur and was not applicable to the vacancy of typist/clerk at Green Park Stadium, Kanpur created on 01.09.1986 after his resignation. .

13. It has also been pointed out by the learned Standing Counsel that in view of amendment in the Rules the Departmental Selection Committee was made competent to select candidates for a vacancy on Class-III Posts and selection was held by the Departmental Selection Committee for the vacancy arising out of the resignation of Sri K.K. Gaur and the post was filled up much earlier to the decision in all writ petitions filed by the petitioner. This appointment was made on the basis of amended Service Rules notified on 08.09.1986.

14. Coming back to the case of the petitioner it is evident that the petitioner had earlier filed writ petition for issuance of a direction for making appointment and direction was also issued by this Court on 24.01.2005 to the Joint Director, the respondent no. 2, in writ petition No. 16524 of 1991 to decide the case.

15. It is admitted by the counsel for the petitioner that no modification application was made in the earlier writ petition and the order was specifically to the Joint Director Sports, U.P., Lucknow to decide the case. Hence, the Joint Director U.P., after stating all the facts mentioned in the representation as well as the facts regarding filling up of vacancy arising out of resignation of one K.K. Gaur, Typist at Green Park Stadium, Kanpur has in the order impugned dated 27.05.2005 made it clear that he was not the competent authority to make any appointment.

16. In the order impugned the Joint Director, Sports, has also mentioned that earlier the petitioner had filed a Contempt Petition No. 252 of 1995 which was dismissed on 10.07.1995 by this Court.

17. It has been argued by learned counsel for the petitioner that the petitioner's name was part of the select list that was published on 30.11.1985 and therefore, she was entitled to be given similar treatment. It is not the case of the authorities that she did not come to this Court in time, there was no laxity on the part of the petitioner. In so far as this argument is concerned this Court finds that earlier by filing a writ petition no. 7835 of 1986 the petitioner challenged the Radiogram and thereafter, she filed a writ petition no. 16524 of 1991. Other candidates have been given appointment in the light of the orders passed by this Court by the State respondents. Hence the petitioner is also entitled to be given parity and to be appointed in the same manner.

18. This Court is aware that the Hon'ble Supreme Court in the case of State of U.P. and others vs Arvind Kumar Srivastava and others 2015 (1) SCC 347, has determined the legal principles after referring to several judgments with regard to extension of benefit of a previous judgment, which had attained finality on being affirmed by the Supreme Court, similarly situated litigant.

19. The Supreme Court has observed that normal rule is that when a particular set of employees is given relief by the Court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by the Supreme Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently.

20. However, there may be two exceptions to this principle in the form of laches or acquiescence.

21. This Court is also aware that the petitioner has challenged the order dated 27.05.2005 by filing this writ petition only in February, 2011. At the time of filing of the said writ petition, the petitioner was aged about 50 years as per the affidavit filed in support of the writ petition. At the current point in time, the petitioner would be about 57 years of age. At this point in time, this Court therefore, cannot issue a mandamus to the State respondents to appoint the petitioner as regular Grade Clerk/Typist/Accounts Clerk in view of her name finding place in the select list dated 30.11.1985. True it is that from the same select list due to various orders passed by this Court in writ petitions filed by the selected candidates, appointments have been made of 26 persons in various Departments of the State Government till 2009.

22. The petitioner has suffered no doubt, but hard cases make bad law. No mandamus can therefore be issued by this Court.

23. The writ petition is therefore liable to be dismissed and is dismissed.

Order Date :- 07.09.2017

Sazia