Allahabad High Court
Pawan Kumar Tiwari vs State Of U.P. And 4 Others on 22 January, 2021
Bench: Sanjay Yadav, Jayant Banerji
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 9
Case :- WRIT - A No. - 6981 of 2020
Petitioner :- Pawan Kumar Tiwari
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- Virendra Kumar,Santosh Kumar Pandey
Counsel for Respondent :- C.S.C.,Ashish Mishra,M.N. Singh,Rahul Agarwal
Hon'ble Sanjay Yadav,J.
Hon'ble Jayant Banerji,J.
Petitioner, member of Uttar Pradesh Judicial Service, presently posted as Law Officer, Uttar Pradesh, Human Rights Commission, vide present petition under Article 226 of the Constitution for a direction to the respondent to place the petitioner at serial number 44 in the General Category of 1997 batch Civil Judge, Junior Division and to grant all consequential benefits.
Relevant facts briefly are that the Uttar Pradesh Public Service Commission vide advertisement dated 30.12.1997 invited applications for appointment of Civil Judge (Junior Division) under Uttar Pradesh Nyayik Seva Niyamavali, 1951, as amended from time to time. There were 93 posts. Out of these 93 posts, 46 posts were reserved for general category, 26 for the other backward class and 20 were reserved for Scheduled Caste and 1 post for ST. The petitioner was initially placed at serial No. 37 of the merit list. However, after adjusting the candidates from the reserved category the petitioner was placed at serial No.44. That 46 candidates under general category were granted appointment. The petitioner however was kept in the wait list.
Aggrieved, petitioner filed writ petition No. 38940 of 1999 before this Court against the wrong computation of vacancies in favour of the general category. It was contended that since 50 % of the 93 posts comes to 46.50, the same ought to have been rounded upto 47 instead of 46. The contentions found favour with the Court wherein vide order dated 19.08.2003 the respondents were directed "to take steps and ensure to apprise the petitioner within two months of receipt of certified copy of this judgment on the basis of U.P. Nyayik Seva Examination, 1997, provided petitioner files certified copy of this judgment before the concerned authorities within/on or before September 30, 2003. We further provide that the petitioner shall not be entitled to back wages etc., he shall, however, be treated notionally appointed with effect from the date his batch-mates have been given appointment and notional period shall count for the purposes of fixing salary, annual increment etc., and for post retiral benefits in future." The order was unsuccessfully challenged by the State before the Supreme Court [(2005) 2 SCC 10] wherein their Lordships were pleased to hold:
"6. The High Court has found mainly two faults with the process adopted by the State Government. First, the figure of 46.50 should have been rounded off to 47 and not to 46; and secondly, in the category of freedom fighters and ex- servicemen, total 3 posts have been earmarked as horizontally reserved by inserting such reservation into general quota of 46 posts which had the effect of pushing out of selection zone three candidates from merit list of general category.
7. We do not find fault with any of the two reasonings adopted by the High Court. The rule of rounding off based on logic and common sense is: if part is one-half or more, its value shall be increased to one and if part is less than half then its value shall be ignored. 46.50 should have been rounded off to 47 and not to 46 as has been done. If 47 candidates would have been considered for selection in general category, the respondent was sure to find a place in the list of selected meritorious candidates and hence entitled to appointment.
8. It was submitted by the learned counsel for the appellants that if this principle of rounding off is to be applied then the percentage of reservation in scheduled tribe category would come to 2 by rounding off 1.86, to the nearest higher value, and in that case a candidate from scheduled tribe category and not the respondent would be entitled to appointment. We cannot agree. No candidate in scheduled tribe category has chosen to lay challenge to the selection. We are also not aware if there is any scheduled tribe category candidate available and qualified for appointment consequent upon his having participated in the process of selection. This plea of the appellants is without any foundation and hence does not deserve to be taken note of.
9. There is yet another reason why the judgment of the High Court has to be maintained. The total number of vacancies was 93. Consequent upon the allocation of reservation and calculation done by the appellants, the number of reserved seats would be 47, leaving only 46 available for general category candidates. Meaning thereby, the reservation would exceed 50% which would be unconstitutional. The total number of reserved seats could not have been more than 46 out of 93."
The respondent thereto thereafter issued the order of appointment on 21.05.2002, which is reproduced for ready reference:
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laa[;k&[email protected]&4 2005&45¼39½@99
y[kuÅ fnukad 21] ebZ 2005
fu;qfDr foKfIr
fjV ;kfpdk la[;k&[email protected] iou dqekj frokjh cuke ek0 mPp U;k;ky;] bykgkckn rFkk vU; esa ek0 mPp U;k;ky;] bykgkckn }kjk fnukad 19-8-2003 dks fn;s fu.kZ;@funsZ'k ds vuqikyu esa yksd lsok vk;ksx m0iz0 bykgkckn }kjk vk;ksftr m0iz0 U;kf;d lsok esa HkrhZ gsrq izfr;ksfxrkRed ijh{kk&1997 ds vk/kkj ij fu;qfDr gsrq laLrqr fd;s x;s vHkFkhZ Jh iou dqekj frokjh dks Jh jkT;iky }kjk m0iz0 'kklu ds U;k; vuqHkkx&2 ¼v/khuLFk U;k;ky; ds i= ;w0vks0&[email protected]&U;k;&2005&45¼39½@99 Vh-lh- fnukad 20 ebZ 2005 esa m0iz0 U;kf;d lsok esa l`ftr fd;s flfoy tt ¼tw0fM0½ ds vf/kla[; in ij bl izfrcU/k ds lkFk vLFkk;h :i ls fu;qDr fd;k tkrk gS fd mudh fu;qfDr bl ijh{[email protected];qfDr;ksa ds lEcU/k esa ek0 U;k;ky; esa nk;j ;kfpdkvksa esa ikfjr vfUre fu.kZ;ksa ds v/khu gksxh ,oa Jh frokjh dh muds cSpesV ds fu;qDr vf/kdkfj;ksa ds lkFk mudh ijLifjd T;s"Brk ckn esaa fu/kkZfjr dh tk;sxhA
2& Jh frokjh vius cSpesV dh fu;qfDr dh frfFk ls uks'kuyh fu;qDr fd;s x;s ekus tk;sxsa rFkk uks'kuy fu;qfDr dh frfFk ,oa okLrfod dk;ZHkkj xzg.k djus dh frfFk rd dh vof/k dk dksbZ vo'ks"k osru ,oa HkRrk mUgsa ns; ugha gksxk fdUrq uks'kuy fu;qfDr dh vof/k osru] fu/kkZj.k] okf"kZd osru vkfn vkfn rFkk lsokfuo`fRrd ykHk ds fy, vkxf.kr dh tk;sxhA
3& Jh frokjh dh fjDr U;k;ky;@ tuin esa rSukrh ds fy, egkfucU/kd] mPp U;k;ky;] bykgkckn] }kjk 'kklu ls vkns'k fuxZr fd;s tk;sxsA
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Apparently by stating that the seniority will later be decided, the Sate of U.P. lost sight of the direction in Writ Petition i.e. CMWP No. 38940 of 1999 that the petitioner's appointment be treated as notionally appointed with effect from the date his batch-mates have been given appointment and notional period shall count for the purposes of fixing salary, annual increment etc., and for post retiral benefits in future.
The respondent despite repeated representations by the petitioner and the requisition from the High Court having failed to abide by the direction in the writ petition has preferred this petition for the direction noted supra.
It is contended that because of the apathy on the part of the State, the petitioner has miserably suffered in advancement of his career. It is urged that not only the petitioner is denied the benefit of Assured Career Progression, but his GPF account has also not been opened. On these contentions, the petitioner seeks relief as adverted supra.
The State of U.P. has chosen not to file counter affidavit. Whereas the respondent no.4 i.e. the Registrar General has filed its counter affidavit; wherefrom, it is borne out that on receiving representation from the petitioner, the State Government has been apprised and repeated reminders are sent for determination of the petitioner's seniority, however, no action is taken by the State.
It is further borne out from the pleadings that in furtherance to the order passed in CMWP No. 38940 of 1999, the petitioner was given the appointment by order dated 21.05.2002 and was posted at the bottom of the list of 1997 i.e. at serial No. 94.
The question is whether the petitioner being the selectee against the post of general category is entitled to be placed below the candidate who was at 46th position in the merit list of the general category or whether the respondents are justified in keeping at the bottom of the list at serial No. 94.
Evident it is from the order passed in the CMWP No. 38940 of 1999 that the petitioner who was kept at serial No.1 in the waiting list was directed to be notionally appointed with effect from the date his batch-mates were given the appointment. The batch-mates of the petitioner were evidently not the candidates / selectees belonging to SC/ST/OBC categories but were selectees in general category. The petitioner, therefore, is entitled to be grouped with the general category candidates and not below the last candidate i.e. 93rd.
We do not perceive any justification on the part of the State to keep the petitioner at 94th in the list, nor in the inaction on its part in taking right decision of placing the petitioner below 46th selectee belonging to general category.
In view whereof, we are of the considered opinion that the petitioner is entitled to be placed just below the 46th selectee belonging to general category, we accordingly direct the respondent-State to take appropriate steps and pass suitable orders expeditiously. The petitioner shall be entitled for consequential benefit which may be ensured to him after his placement in the seniority list subject to direction in CMWP No. 38940 of 1999.
The petition is disposed of finally in above terms.
No costs.
Order Date :- 22.1.2021
Madhurima
(Jayant Banerji, J.) (Sanjay Yadav, J.)
