Allahabad High Court
Gaurav Vats vs State Of U.P. And Others on 12 April, 2022
Bench: Rajesh Bindal, Chief Justice, J.J. Munir
HIGH COURT OF JUDICATURE AT ALLAHABAD
HIGH COURT OF JUDICATURE AT ALLAHABAD
***
(1) SPECIAL APPEAL No. 229 of 2021 (O & M)
(Arising out of Writ-A No. 43064 of 2014)
(Pronounced on : April 12, 2022)
Gaurav Vats ..... Appellant
v/s
State of U.P. and others ...... Respondents
With
(2) SPECIAL APPEAL No. 320 of 2021
(Arising out of Writ-A No. 17572 of 2015)
Ratnesh Yadav ..... Appellant
v/s
State of U.P. and others ...... Respondents
With
(3) SPECIAL APPEAL DEFECTIVE No. 428 of 2021
(Arising out of Writ-A No. 46503 of 2017)
Mukesh Goswami and others ..... Appellants
v/s
State of U.P. and others ...... Respondents
With
(4) SPECIAL APPEAL DEFECTIVE No. 496 of 2021
(Arising out of Writ-A No. 17641 of 2015)
Rohit Gautam ..... Appellant
v/s
State of U.P. and others ...... Respondents
With
(5) SPECIAL APPEAL DEFECTIVE No. 497 of 2021
(Arising out of Writ-A No. 3551 of 2016)
Smt. Beena ..... Appellant
v/s
State of U.P. and others ...... Respondents
With
(6) SPECIAL APPEAL DEFECTIVE No. 498 of 2021
(Arising out of Writ-A No. 21609 of 2015)
Navneet Kumar ..... Appellant
v/s
State of U.P. and others ...... Respondents
With
(7) SPECIAL APPEAL DEFECTIVE No. 499 of 2021
(Arising out of Writ-A No. 26319 of 2015)
Amit Kumar ..... Appellant
v/s
State of U.P. and others ...... Respondents
With
(8) SPECIAL APPEAL DEFECTIVE No. 502 of 2021
(Arising out of Writ-A No. 19862 of 2015)
Ravindra Kumar ..... Appellant
v/s
State of U.P. and others ...... Respondents
With
(9) SPECIAL APPEAL DEFECTIVE No. 503 of 2021
(Arising out of Writ-A No. 24147 of 2015)
Ravindra Kumar ..... Appellant
v/s
State of U.P. and others ...... Respondents
With
(10) SPECIAL APPEAL DEFECTIVE No. 505 of 2021
(Arising out of Writ-A No. 2994 of 2020)
Dharmendra Pal Singh Chauhan and others ..... Appellants
v/s
State of U.P. and others ...... Respondents
With
(11) SPECIAL APPEAL DEFECTIVE No. 509 of 2021
(Arising out of Writ-A No. 20284 of 2015)
Mukesh Kumar ..... Appellant
v/s
State of U.P. and others ...... Respondents
With
(12) SPECIAL APPEAL DEFECTIVE No. 533 of 2021
(Arising out of Writ-A No. 41924 of 2017)
Basant Kumar and others ..... Appellants
v/s
State of U.P. and others ...... Respondents
With
(13) SPECIAL APPEAL DEFECTIVE No. 535 of 2021
(Arising out of Writ-A No. 3262 of 2020)
Yogendra Singh and others ..... Appellants
v/s
State of U.P. and others ...... Respondents
With
(14) SPECIAL APPEAL DEFECTIVE No. 579 of 2021
(Arising out of Writ-A No. 15108 of 2017)
Jail Singh Yadav and others ..... Appellants
v/s
State of U.P. and others ...... Respondents
With
(15) SPECIAL APPEAL DEFECTIVE No. 580 of 2021
(Arising out of Writ-A No. 15108 of 2017)
Akhilesh Singh and others ..... Appellants
v/s
State of U.P. and others ...... Respondents
With
(16) SPECIAL APPEAL DEFECTIVE No. 582 of 2021
(Arising out of Writ-A No. 2981 of 2020)
Dilaver Singh and others ..... Appellants
v/s
State of U.P. and others ...... Respondents
With
(17) SPECIAL APPEAL DEFECTIVE No. 926 of 2021
(Arising out of Writ-A No. 20039 of 2015)
Mahesh Chandra Yadav ..... Appellant
v/s
State of U.P. and others ...... Respondents
Appearance :
For the Appellants : Mr. Anoop Trivedi, Senior Advocate with Mr. Vibhu Rai, Advocate
Mr. Hari Om, Advocate
Mr. Akash Khare, Advocate
For the Respondents : Mr. Manish Goyal, Additional Advocate General with Ms. Akansha Sharma, Standing Counsel
CORAM : HON'BLE RAJESH BINDAL, CHIEF JUSTICE
HON'BLE J.J. MUNIR, JUDGE
ORDER
RAJESH BINDAL, C.J.
1. This order will dispose of a bunch of 17 Special Appeals bearing Special Appeal Nos. 229 and 320 of 2021, Special Appeal Defective Nos. 428, 496, 497, 498, 499, 502, 503, 505, 509, 533, 535, 579, 580, 582 and 926 of 2021.
2. Vide common judgment passed by learned Single Judge dated March 24, 2021, a bunch of 189 writ petitions led by Writ-A No. 43064 of 2014, titled as Gaurav Vats Vs. State of U.P. and others, was decided. The appeals have been filed only in 17 cases.
3. The brief facts of the case are that the process for recruitment of 35,000 Police Constables was initiated in the year 2009. The result was declared on May 17, 2010. There was certain issue regarding horizontal reservation. Writ petition bearing Writ-A No. 38299 of 2010, titled as Rajeev Kumar Vs. State of U.P. and others, was filed in this Court which was dismissed vide order dated July 5, 2010. Against the aforesaid order, Special Appeal No. 1120 of 2010 was filed which was disposed of by judgment dated August 3, 2010. Finding error in providing horizontal reservation, the matter was referred to the State for fresh calculation of vacancies and appointment of the candidates. Against the aforesaid order, the State filed Special Leave Petition No. 32344 of 2010 which was dismissed by the Hon'ble Supreme Court vide order dated July 12, 2013. Thereafter, an order was passed by the State on February 24, 2014, admitting that there was error in appointment of 856 women candidates in the process of providing horizontal reservation. Though the candidates who were entitled to get benefit were given the same, however, it was directed that the women candidates already appointed be adjusted against the available vacancies.
4. The aforesaid order was impugned in the writ petitions, giving rise to the present appeals.
5. The arguments raised are that the vacancies for the year 2009 having been increased from 35,000 to 35,844, the reservation for each of the category is required to be provided in terms thereof and all women candidates could not be appointed against the increased vacancies, as the same will defeat the very principle for providing reservation and as a result of which the percentage of reservation and especially the quota in women category will cross the maximum limit.
6. On the other hand, learned counsel for the State submitted that after the judgment of this Court in the first round, the issue had to be resolved. The women candidates, who were appointed in excess on account of wrong calculation of vacancies while providing for horizontal reservation had, in fact, been provided training and were serving the Department. Hence, instead of shunting them out, they were adjusted against the available vacancies. Over all, there is no disturbance to the quota. While making adjustments of these candidates, the principle for reservation may not be applicable strictly. There was no fault of the women candidates, who were given appointment on account of error committed by the recruiting agency.
7. After hearing learned counsel for the parties and considering the peculiar facts and circumstances of the case, in our view, the order passed by the learned Single Judge does not call for interference by this Court in the present appeals. It is not in dispute that on account of error committed by the recruiting agency, there was some miscalculation of vacancies while providing horizontal reservation, which resulted in excess appointment of women candidates. The advertisement for recruitment of Police Constables was issued in the year 2009. The result was declared on May 17, 2010 and thereafter the selected candidates were sent for training.
8. After the challenge to the selection process attained finality before the Hon'ble Supreme Court when Special Leave Petition filed by the State was dismissed on July 12, 2013, corrective steps were taken by the State. Entire vacancy position and horizontal reservation were recalculated, as a result of which 856 male candidates, who were entitled to be appointed, were given appointments. As against that, the 856 female candidates, who were wrongly given appointment not on account of any omission or commission by them, were directed to be adjusted against the available vacancies. It was in terms of law laid down by the Hon'ble Supreme Court in Vikas Pratap Singh and others Vs. State of Chhattisgarh and others, (2013) 14 SCC 494, which now stands reiterated in Anmol Kumar Tiwari and others Vs. State of Jharkhand and others, (2021) 5 SCC 424. In the aforesaid judgment, the Hon'ble Supreme Court observed that in case appointment of the candidates in excess was on account of error committed by the State authorities and no fault on part of the candidates, and they have served the department for sometime, then selection be not set aside. They be put at the bottom of the list. It is the undisputed case that the selected women candidates were not responsible for the error in wrong calculation of horizontal reservation. They were not responsible for the irregularities so committed. They had undergone the training and had worked for some time. There were no allegations of fraud or misrepresentation against women candidates who were appointed in excess of the quota while calculating horizontal reservation. Hence, they were allowed to continue.
9. Another issue which was considered in the aforesaid judgment was the claim of certain candidates who submitted that they had secured marks more than the candidates who were adjusted. The argument raised by them was not found to be meritorious, for the reason that all the advertised vacancies stood filled up as in recalculation, 844 women candidates were found to be appointed in excess of their quota by wrongly calculating the horizontal reservations. As against those, male candidates were given appointments. The women candidates, who were initially given the benefit of horizontal reservation, though erroneously, were adjusted against available/future vacancies. It was in the peculiar facts of the case that the selection process in the case before the Hon'ble Supreme Court was initiated in the year 2008 and subsequent thereto, during the intervening period, there had been large scale selection and appointments.
10. Relevant paragraphs 11 and 12 of the judgment in Anmol Kumar Tiwari's case (supra) are extracted below:-
"11. Two issues arise for our consideration. The first relates to the correctness of the direction given by the High Court to reinstate the writ petitioners. The High Court directed reinstatement of the writ petitioners after taking into account the fact that they were beneficiaries of the select list that was prepared in an irregular manner. However, the High Court found that the writ petitioners were not responsible for the irregularities committed by the authorities in preparation of the select list. Moreover, the writ petitioners were appointed after completion of training and worked for some time. The High Court was of the opinion that the writ petitioners ought to be considered for reinstatement without affecting the rights of other candidates who were already selected. A similar situation arose in Vikas Pratap Singh's case, where this Court considered that the appellants therein were appointed due to an error committed by the respondents in the matter of valuation of answer scripts. As there was no allegation of fraud or misrepresentation committed by the appellants therein, the termination of their services was set aside as it would adversely affect their careers. That the appellants therein had successfully undergone training and were serving the State for more than 3 years was another reason that was given by this Court for setting aside the orders passed by the High Court. As the writ petitioners are similarly situated to the appellants in Vikas Pratap Singh case, we are in agreement with the High Court that the writ petitioners are entitled to the relief granted. Moreover, though on pain of contempt, the writ petitioners have been reinstated and are working at present.
12. The second issue relates to the claim of the intervenors in the writ petitions for appointment. There is no doubt that selections to public employment should be on the basis of merit. Appointment of persons with lesser merit ignoring those who have secured more marks would be in violation of the Articles 14 and 16 of the Constitution of India. The intervenors in the writ petitions admittedly have secured more marks than the writ petitioners. After cancellation of the appointments of the writ petitioners, 43 persons have been appointed from the revised select list. Those 43 persons have secured more marks than the intervenors. By the appointment of 43 persons, the number of posts that were advertised i.e. 384 have been filled up. The intervenors have no right for appointment to posts beyond those advertised. The contention on behalf of the intervenors in the writ petitions is that they cannot be ignored when relief is granted to the writ petitioners who were less meritorious than them. We are unable to agree. Relief granted to writ petitioners is mainly on the ground that they have already been appointed and have served the State for some time and they cannot be punished for no fault of theirs. The intervenors are not similarly situated to them and they cannot seek the same relief. The other ground taken by the intervenors in the writ petitions before us is that relief was denied to them only on the basis of a wrong statement made on behalf of the State Government that there were no vacancies. No doubt, the intervenors have placed on record material to show that there was no shortage of vacancies for their appointment. One of the reasons given by the High Court for not granting relief to the intervenors is lack of vacancies. However, we are not inclined to direct appointment of the intervenors as selections in issue pertain to an advertisement issued in 2008. Subsequently, selections to posts of Sub-Inspectors have been held and a large number of persons were appointed. The number of posts advertised in 2008 is 384 and the intervenors have no right for appointment for posts beyond those advertised. They cannot claim any parity with the writ petitioners."
11. In view of the aforesaid authoritative pronouncement of the law on the subject and finding that the women candidates who were granted appointments on account of error committed by recruiting agency while calculating the horizontal reservation, had undergone training and were working for quite some time before the error was corrected in terms of the order passed by this Court, it was in special facts and circumstances of the case. The claim of the appellants to appoint them while taking the vacancies as 35,844 as against 35,000 advertised and providing the reservation and appointment in terms thereof, cannot be accepted at this stage, as the selection and appointment pertain to the year 2009-10 and the vacancies advertised were 35,000, which stood filled up. More than a decade has passed since then and during the intervening period, number of other selections have been made.
12. For the reasons mentioned above, we do not find any merit in the present appeals. The same are, accordingly, dismissed.
Allahabad
April 12, 2022
AHA
(J.J. Munir, J.) (Rajesh Bindal, C.J.)
Whether the order is speaking : Yes/No
Whether the order is reportable : Yes√/No
