Ashutosh Tripathi And Another vs State Of U.P. And Another
2021 Latest Caselaw 7254 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 36
 

 
Case :- WRIT - A No. - 1485 of 2021
 

 
Petitioner :- Ashutosh Tripathi And Another
 
Respondent :- State of U.P. and Another
 
Counsel for Petitioner :- Mujib Ahmad Siddiqui
 
Counsel for Respondent :- C.S.C.,Prabhakar Awasthi
 

 
Hon'ble Mahesh Chandra Tripathi,J.

Present writ petition has been preferred for a direction to respondent authorities to forthwith fill up unfilled vacancies of Junior Assistant covered by Advertisement no.04-Examination/2016 by utilizing the remaining merit list prepared by the Uttar Pradesh Subordinate Service Selection Commission, Lucknow within stipulated period; for a direction to the respondents to treat the remaining merit list of Junior Assistants prepared by the U.P. Subordinate Service Selection Commission as the waiting list for utilization for filling up the remaining vacancies of Junior Assistant and for a further direction to the respondents to forthwith grant appointment to the petitioners against vacant post of Junior Assistants.

On the matter being taken up on 5.2.2021, an objection has been taken by learned counsel for the respondents that controversy in hand has already been settled by this Court in Writ-A No.16817 of 2018 (Dheeraj Kumar Singh & Ors. v. State of U.P. & Anr.) and the said writ petition was dismissed vide order dated 8.8.2018 and as such it is contended that present petition is also liable to be dismissed. On 5.2.2021 the matter was adjourned on the request of learned counsel for the petitioners. Similar request was made by learned counsel for the petitioners on 17.2.2021. Lastly the matter was listed on 1.7.2021 and despite a link for video conferencing having been sent to counsel to enable him to make his submissions, no response had been received. Today also despite a link for video conferencing having been sent to the counsel for the petitioners to enable him to make his submissions, no response has been received.

The Court has proceeded to examine the record in question as well as respectfully considered the judgment dated 8.8.2018 passed in Dheeraj Kumar Singh (Supra). For ready reference, the order dated 8.8.2018 is quoted as under:-

"This petition has been filed for a direction upon the respondents to prepare waiting list pursuant to the advertisement issued for appointment to the post of Gram Vikas Adhikari.

Advertisement No. 3 was issued in the year 2016, initiating process of recruitment. Clause-12 of the advertisement provides that the recruitment would be undertaken in accordance with the provisions contained under the 'Uttar Pradesh Direct Recruitment to Group-C Post ( Mode and Procedure) Rules 2015'. There is no provision of preparing a waiting list. Submission, however, is that it would be desirable that waiting list be prepared inasmuch as many of the candidates may not be appointed and such posts be got filled from the persons placed in the waiting list. Reliance is placed upon a judgment delivered in Writ Petition No. 40495 of 1996 (Ravindra Nath Rai and others Vs. State of U.P. and others) reported in 1997 (3)UPLBEC, 1640. A Special Appeal No. 313 of 1998 ( State of U.P. Vs. Ravindra Nath Rai), filed by the State challenging the said order of learned Single judge, was dismissed by the Division Bench on 3.2.1999.

Sri K.S. Kushwaha, Learned Counsel appearing for the respondents points out that certain Government Orders were in existence, which provided for preparation of waiting list in every selection undertaken by the State Government. It is stated that in 1999 all such provisions have been withdrawn/ omitted and thereafter no waiting list is being prepared. It is also stated that recruitment in the present case is to be made in accordance with Rules of 2015, which does not contemplate any provision of waiting list.

I have heard learned counsel for the parties and have perused the materials on record.

It is not in dispute that the recruitment in the present case is to be undertaken in accordance with Rules of 2015. There is no provision for preparation of waiting list under the Rules. No applicable Government Order has been shown to the Court where under preparation of waiting list is contemplated. Whether or not a waiting list is to be prepared is a matter of policy and in the absence of any provision under the applicable rules or the Executive instruction, no direction can be issued to the respondents to consider preparation of waiting list.

So far as the judgment of this Court in Ravindra Nath Rai (supra) is concerned, the same related to the recruitment to be made in the police department of the State. This Court took note of an order/ communication of the DIG (Karmik) U.P. dated 2.12.1996 which provided for preparation of a waiting list. It was pursuant to this order/ communication that this Court proceeded to issue a direction for preparation of waiting list. No such applicable instructions are shown to exist in the facts of the present case.

Law laid down by this Court in Ravindra Nath Rai (supra), therefore, is clearly distinguishable. So far as the judgment of the Division Bench of this Court passed in Special Appeal, filed by the State Government is concerned, this Court has taken note of the fact that a comparative merit list had already been prepared of the persons found eligible and qualified for appointment which included persons in excess of persons selected. Relying upon such factual exigency, the Division Bench refused to interfere with the order of the learned Single Judge passed in Ravindra Nath Rai (supra). It is pertinent to keep in mind that the directions of the learned Single Judge is in consonance with the circular of the department dated 2.12.1996, which has no applicability in the facts of the present case. In the absence of any applicable provision, no direction can be issued to prepare a waiting list.

Writ petition fails and is accordingly dismissed."

Considering the above judgment, this Court is of the view that the issue in hand is already settled by way of judgment dated 8.8.2018 and there is no reason or occasion to take a different view in the present matter.

In the case of Brijendra Kumar Gupta and others Vs. State of U.P. and others, 2000 (18) LCD 886, it is held as under:-

"8.6. We remind ourselves of the following observations made by a 5 Judges Constitution Bench of the Supreme Court in Sub-Committee of Judicial Accountability v. Union of India and others : AIR 1992 SC 63 :

".....Indeed, no coordinate bench of this Court can even comment upon, let one sit in judgment over, the discretion exercised or judgment rendered in a cause or matter before another co-ordinate bench..... Judicial propriety and discipline as well as what flows from the circumstances that each Division Bench of this Court functions as the Court itself renders any interference by one bench with a Judicial matter before another lacking as much in propriety as in jurisdiction."

The principle enunciated aforementioned equally applies to a High Court as it exercises its judicial functions through its different Benches--Single or Division Bench or Full Bench or Special Bench and while doing so each Bench constitutes the High Court itself.

8.8 The principle laid down by the Apex Court was also held to be applicable to the High Courts as well as by the Apex Court itself in Sri Venkateswara Rice, Ginning and Groundnut Oil Mill Contractors Co. etc. v. State of Andhra Pradesh and others, : AIR 1972 SC 51. in following words :

"It is strange that a coordinate Bench of the same High Court should have tried to sit on judgment over a decision of another Bench of that Court. It is regrettable that the learned Judges who decided the latter case overlooked the fact that they were bound by the earlier decision. If they wanted that the earlier decision should be reconsidered, they should have referred to the question in issue to a larger Bench and not to ignore the earlier decision."

In the case of Sant Lal Gupta and others Vs. Modern Co-operative Group Housing Society Ltd. and others, 2010 (28) LCD 1688, it is held as under:-

"Para 19- The earlier decision of the coordinate bench is binding upon any latter coordinate bench deciding the same or similar issues. If the latter bench wants to take a different view than that taken by the earlier bench, the proper course is for it to refer the matter to a larger bench.

In the aforesaid facts and circumstances, the Court is not inclined to interfere in the matter. The writ petition sans merit and is accordingly dismissed.

Present order has been passed with due assistance of learned Standing Counsel.

The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the petitioner alongwith a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked.

The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

Order Date :- 8.7.2021

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