Tameshwar Prasad Rana vs State Of U.P. Thru Secy. Revenue & 4 ...
2021 Latest Caselaw 6684 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 5
 

 
Case :- SERVICE SINGLE No. - 5261 of 2008
 

 
Petitioner :- Tameshwar Prasad Rana
 
Respondent :- State Of U.P. Thru Secy. Revenue & 4 Ors.
 
Counsel for Petitioner :- Bhanu Pratap Singh, Ajai Kumar Jaiswal
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Mrs. Sangeeta Chandra,J.

Oral

(1) Heard Shri Asit Chaturvedi assisted by Shri Ajai Kumar Jaiswal, learned counsel for the petitioner and Sri Shatrughan Chaudhary, learned Standing counsel for the State through Video Conferencing.

(2) This writ petition has been filed by the petitioner challenging the orders dated 3.6.2008, 27.6.2008 and 10.7.2008 passed by the Board of Revenue, U.P. Lucknow (hereinafter referred as opposite party no.2), Sub-Divisional Officer Kayamganj, Farrukhabad (hereinafter referred as opposite party no. 4) and the Principal, Mandaliya Rajasva Prashikshan Vidyalaya, Lucknow (hereinafter referred as opposite party no.5).

(3) It has been submitted by Sri Ajai Kumar Jaiswal, learned counsel for the petitioner that four posts of Lekhpal belonging to Scheduled Castes and Scheduled Tribes had fallen vacant under the ADM, (F/R), Farrukhabad and were advertised. In pursuance of the advertisement the petitioner applied and appeared in the written examination as well as interview. Four candidates were declared as selected namely Ram Dev, Horesh Singh, Sanjay Kumar and Adarsh Kumar. The Selection Committee in its discretion prepared a waiting list also and the petitioner having secured the next highest marks was put in the waiting list. The petitioner was appointed vide appointment order dated 10.4.2008 by opposite party no.4. He joined on the post of Lekhpal on the same day and letter was delivered to join training on 11.4.2008 by the order passed by Tehsildar, Kayamganj, Farrukhabad. The petitioner appeared before opposite party no.5 on 29.6.2008 and started training for the post of Lekhpal. On 03.06.2008 the opposite party no.2 issued an order addressed to the District Magistrate, Farrukhabad in which it was mentioned that it was not possible for a waiting list candidate to be sent for training. A copy of the order dated 03.06.2008 has been filed as Annexure no.7 to the petition. In compliance of this order, the opposite party no.4 passed an order on 27.6.2008 (Annexure No.8) cancelling the appointment of the petitioner without giving any opportunity of hearing to him only on the ground that there is no rule providing constituency of any waiting list. The opposite party no.5 issued the consequential order on 10.7.2008 (Annexure no.9) relieving the petitioner from training and cancelling his admission for the year 2008-09.

(4) It has been submitted by learned counsel for the petitioner that the impugned orders are vitiated on the ground of arbitrariness and also on the ground of violation of principles of natural justice. He has pointed out that there were four clear vacancies in the backlog of Reserved vacancies and advertisement was issued for such vacancies. Four candidates were declared successful on the basis of marks secured by them. One of the selected candidates namely Horesh Singh did not join and in the vacancy so left because of non-joining of Horesh Singh, the petitioner was appointed. He has also argued that the Lekhpal Service Rules that have been referred in the order impugned, do not prohibit the making of a waiting list. The Rules being silent, there could be no restriction on the power exercised by the Selection Committee in selecting one more candidate and putting him on the waiting list. The petitioner was given regular appointment and has been paid salary for the months of April, 2008, May, 2008, and June, 2008. He had also been sent for training by the competent Officer. There was no reason for the Board of Revenue suddenly to issue order dated 03.06.2008 suddenly saying that in the Lekhpal Services Rules, 2006 there was no provision for making a waiting list and therefore, the appointment of the petitioner could not have been made.

(5) Learned counsel for the petitioner has referred to a letter dated 16.9.2008 sent by the District Magistrate, Farrukhabad to the Commissioner Kanpur Division, Kanpur (Annexure No. CA-3 to the counter affidavit) which refers to a letter dated 23.8.2008 sent by the Commissioner perhaps asking for an explanation. The District Magistrate in his letter has mentioned that on the basis of a letter dated 21.8.2007 sent from the office of the Commissioner in pursuance of an order passed by the Board of Revenue dated 20.8.2007, proceedings were initiated for holding selection for filling up backlog vacancies as per Rules. The Selection Committee was constituted, the District Magistrate being nominated as Chairman, the Senior Treasury Officer being nominated as Member of OBC category and the Deputy Director Agriculture, Farrukhabad being nominated as Member. The Selection Committee shortlisted the candidates on the basis of applications made by them and selected four persons on 02.11.2007 on the basis of a written examination and interview in which one candidate namely the petitioner was to be in the waiting list. The decision taken by the Selection Committee was communicated to the Board of Revenue through a letter dated 06.11.2007 and a request was made that the selected candidates be sent for training. In pursuance of this letter dated 06.11.2007, the Board of Revenue took no exception to the wait listed candidate being sent for training as one of the selected candidates, Horesh Singh, had not joined the training. The Board of Revenue suddenly on 03.06.2008 communicated that there was no provision in the Rules for a waiting list to be prepared and hence the waitlisted candidate cannot be allowed to join training. The S.D.M. Kayamganj, issued a consequential order dated 27.06.2008 which was complied with by the Principal of Lekhpal Training College, who issued the order dated 10.07.2008 cancelling the admission of the petitioner in the Lekhpal Training College.

(6) In this Writ Petition No.5261 (S/S) of 2008, initially, this Court had passed an order staying the operation of the impugned order dated 03.06.2008, 27.06.2008 and 10.07.2008 and directing the respondents to allow the petitioner to complete his training.

(7) In response to explanation called by the Divisional Commissioner, the District Magistrate, in his letter dated 16.09.2008 says that the responsibility for framing select list as also the waiting list lay with the members of the Selection Committee and none-else.

(8) Learned Standing Counsel Shri Shatrughan Chaudhary, has pointed out the contents of the counter affidavit wherein it has been stated that the petitioner was issued an appointment order dated 10.04.2008 engaging him on purely temporary basis on probation. The Board of Revenue in its order dated 03.06.2008 communicated the inadmissibility of framing a waiting list as there was no provision in the Lekhpal Service Rules for the same. Hence, the consequential orders were issued by the S.D.M. and the Principal.

(9) However, in response to a specific query of the Court as to whether any action was taken against member of the Selection Committee it has been pointed out that it is not stated in the counter affidavit as to what or whether any action was taken against the Selection Committee for framing a waiting list as there was no provision for framing the same in the Service Rules.

(10) Shri Asit Chaturvedi, in rejoinder has submitted that there were four clear backlog vacancies and four persons had to be appointed, one of the four selected candidates failed to join, therefore the Selection Committee recommended the appointment of the petitioner and the petitioner was eventually also appointed on 10.04.2008 in the vacant post. There is no averment in the counter affidavit filed by the respondents that there was no vacancy. If there was a vacancy which belongs to backlog quota for the (Scheduled Castes and Scheduled Tribes) and one reserved candidate was also duly selected by the Selection Committee, he was rightly given appointment. It has also been submitted that there is no prohibition in the Service Rules either. It was left to the discretion of the Selection Commission whether waiting list was to be constituted or not. Since there was no specific provision, there cannot be said that there was any specific prohibition. That which is not prohibited is permissible in law. The Selection Committee in its discretion had selected one additional candidate, that is, the petitioner and rightly so, because one of the candidates in the select list failed to join. Shri Chaturvedi, has also relied upon a judgment of Hon'ble the Supreme Court rendered in the case of Jai Narain Ram Vs. State of U.P. and Others reported in (1996) 1 SCC 332 and has placed reliance upon Paragraphs 6 & 7 of the said judgment which has been quoted hereinbelow:-

"(6) It is not in dispute that the appellant is a reserved candidate belonging to Scheduled Castes. In view of the admitted position that four posts were reserved in the Finance Department in category 1 given to appoint him as Accounts Officer in Accounts Service.

In the counter-affidavit filed by the P.S.C., it was stated that since four posts were reserved for the Scheduled Castes and the last candidate Anil Kumar Rai was already selected and recommended for appointment, and as there was no request by the State Government for preparation of waiting list for the vacant posts reserved for the Scheduled Castes, the names of the appellant and the aforestated three persons could not be recommended for appointment. It is stated in the counter-affidavit filed by Behari Lal, Special Secretary, Karmik Anubhag Secretariat, U.P. that since the appellant was not recommended nor found qualified for appointment, he could not claim any appointment.

In para 11 of the Special Leave Petition, a specific stand has been taken that the four candidates selected by the P.S.C., namely, Ram Bodh, Roll No.22142, Serial No.13, Lolark Ram Roll No.442, Sl.NO. 24, and Raja Ram, Roll No.1787, Sl. No.30, though selected and recommended for appointment in the mentioned earlier and 4 selected candidates appeared to have not joined in the service. As asserted in para 11 of the S.L.P. and not specifically denied by the respondents in the counter- affidavit in para 6 as referred to earlier, it is clear that the appellant also is the 4th candidate in the order of merit and would have been selected, had there been a requisition by the State Government for appointment of the reserved candidates.

(7) Right to seek appointment to a post under Article 14 read with Articles 16(1) and (4) is a constitutional right to equality. The State failed to perform its constitutional duty to requisition the P.S.C. to recommend the next qualified persons to the posts reserved for scheduled castes. Under these circumstances, the denial of appointment to the appellant and three others above him is unconstitutional, Therefore, the respondents are not justified in denying the claim of the appellant for the appointment to the above post."

(11) This Court has perused the judgment cited by the learned counsel for the petitioner which has made observations with regard to the Constitutional obligation of the State for giving appointment to reserved category candidates. The facts of the case cited by the learned counsel for the petitioner are that the Hon'ble Supreme Court was dealing with an appeal where the State of U.P. had sent a requisition for 15 posts of Treasury Officers/Accounts Officers in U.P. Finance and Accounts Service to the Public Service Commission. Four posts were reserved for the members of the Scheduled Castes, and as a result of the competitive examination conducted by the PSC, the last candidate selected for these four posts was one Anil Kumar Rai. The Public Service Commission had recommended only the names of four candidates for the reserved posts. The name of the appellant and three other candidates could not be recommended although they stood immediately below the last selected candidates in terms of the marks secured by them as there was no request by the Government for additional candidates in the waiting list. The appellant approached the High Court for a writ of mandamus to the Public Service Commission to recommend his name for appointment. The High Court dismissed the writ petition on the ground that there was no intimation given to him by the Public Service Commission that he was put in the select list. Without him being selected, no direction could be given to appoint him.

(12) In the counter affidavit filed by the Public Service Commission it was stated that since four posts were reserved only four recommendations made, and as there was no request by the State Government for preparation of waiting list for vacant post reserved for Scheduled Castes, the name of the appellant could not be recommended. Before the Supreme Court it was argued that some of the selected candidates did not join in service, as a consequence, four posts were left vacant, required to be filled up by the other reserved candidates. The appellant being one of the candidates standing in the order of merit, the rejection of his claim for appointment was arbitrary. It was in this context that the Supreme Court made the observations quoted hereinabove in Paragraphs 6 & 7. The Supreme Court observed that since the posts were already reserved for Scheduled Castes candidates, denial of appointment to the appellant and to three others alongwith him who stood in order of merit below the select listed candidates was unconstitutional.

(13) In the instant case, there is no denial by the State respondents that the selection was held for filling up backlog vacancies for Scheduled Castes and Scheduled Tribes, and that one of the selected candidates had not joined and there was one vacancy left. The petitioner's name was immediately below four selected candidates in order of merit. No doubt the facts of the case as cited by the learned counsel for the petitioner are slightly different from the facts as mentioned hereinabove with regard to the writ petitioner. However, the ratio of the judgment would still be applicable.

(14) Moreover, this Court finds from the counter affidavit filed by the respondents that it is not the case of the respondents that there was no vacancy at all. It is also not the case of the State respondents that any action was taken by the Selection Committee. It is also not the case of the respondents that in response to the Selection Committee having sent a letter dated 06.11.2007 informing the respondent Board of Revenue of the Selection Committee also recommending one wait listed candidate, any action was taken against the Board of Revenue expeditiously to stop the appointment of such candidate. The letter dated 06.11.2007 having been sent from the office of the District Magistrate, Farrukhabad, the Board of Revenue sat over it. Eventually, the appointment order was issued on 10.04.2008. Two months later, the Board of Revenue woke up and sent the order dated 03.06.2008.

(15) This Court finds that the petitioner has continued to work in terms of the interim order passed by this Court although no increment and other consequential service benefits have been given to him and he has been retained only on his basic pay because of him working on the basis of the interim order and the writ petition remaining pending.

(16) This Court finds the order passed by the Board of Revenue dated 03.06.2008 arbitrary in nature and hence liable to be set aside. The order dated 03.06.2008 is set aside as also the consequential order dated 27.06.2008 passed by the Opposite party no.4 and the order dated 10.07.2008 passed by the Opposite party no.5 are set aside. The petitioner shall be entitled to get all consequential service benefits.

(17) In view of the above, the writ petition stands allowed.

Order Date :- 28.6.2021

PAL