Allahabad High Court
Devendra Yadav vs State Of U.P.Through Principal ... on 7 April, 2023
Bench: Irshad Ali
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Court No. - 6 [Reserved]
Case :- WRIT - A No. - 4859 of 2000
Petitioner :- Devendra Yadav
Respondent :- State Of U.P.Through Principal Secy.
Counsel for Petitioner :- P.K.Nigam,Saryu Prasad Tiwari,Vijay Lakshmi Singh
Counsel for Respondent :- C.S.C.,Gaurav Mehrotra,Satish Chandra
Hon'ble Irshad Ali,J.
1. Heard Shri S.P. Tiwari, learned counsel for the petitioner, Shri Gaurav Mehrotra, learned counsel for the respondent no.2 and learned Standing Counsel for the respondents-State.
2. By means of the present writ petition, the petitioner has prayed for the following reliefs:
"(a) issue a writ, order or direction in the nature of Mandamus commanding the opposite party no.2 to appoint the petitioner on the post of Peon/ Group 'D'/ Class IV with effect from the date of appointments, together with all other consequential service benefits retrospectively.
(b) issue or pass any other writ, order or direction in the nature and manner, which may be deemed just and expedient in the circumstances of the case; and
(c) allow the writ petition with costs."
3. Brief facts of the case are that an advertisement for appointment on the post of Peon which is Group 'D'/ Class IV post, was published by the District Judge, Gonda (opposite party no.2) in the newpapers on 1.9.1996 and the last date for submission of applications was fixed as 17.9.1996 and the date of examination and interview was fixed for 30.9.1996. The academic qualification of the petitioner is Highschool, passed by him in academic session 1985-96 from Rashtriya Inter College, Bali, Gorakhpur privately. The minimum educational qualification was required to be of Junior High School or equivalent thereto for the above mentioned posts of Class IV (Group 'D'). The age limit was stipulated between 18 to 32 years as on 1.8.1996 as was published for the aforesaid post.
Pursuant to the advertisement dated 1.9.1996, the petitioner applied for and appeared in the test for the appointment on the Class IV post and was declared as successful. The select list of 40 candidates was issued by the opposite party no.2 on 21.12.1996. In the said select list the name of the petitioner finds place at serial number 23. It is germane to submit that all the selected candidates from serial number 1 to 19 have been appointed except the petitioner who stood at serial no.23 in the select list and another one, who stood at serial number 28 thereof.
The petitioner has illegally been deprived of his sacrosanct right of appointment on the post of Peon despite he did fulfill all the requisite conditions, requirements and formalities. The petitioner is will within the range of age limit too either as on 1.8.1996 and also thereafter till this date. 11 posts fell vacant on 30.10.1999 in Civil Court, Gonda and in the said appointment list of 11 posts, the name of the petitioner was at serial number 4.
Albeit the name of the petitioner stood at serial no.4 in the appointment list, he has not been appointed in an arbitrary and discriminatory manner, while other similarly situated colleagues of the petitioner have been given appointment, excluding one Shri Suresh Kumar Sriavastava, who stood at serial no.28 in the select list and whose candidature was rejected on the ground of over-age.
Feeling aggrieved with the illegal deprivation, aforesaid Shri Suresh Kumar Srivastava approached this Hon'ble Court by filing a Writ Petition No.2613 (SS) of 2000 in which this Court was kind enough to pass an interim order on 19.5.2000 directing the opposite parties that in case the petitioner was between the age of 18-32 years on 1.8.1996 the petitioner shall not be denied to his appointment on the ground that on 30.8.1999 he was over-age. The District Judge shall look into the matter and shall issue appointment order accordingly subject to further orders of this Court.
In compliance of the above mentioned interim order dated 19.5.2000 passed by this Court, the District Judge, Gonda issued an appointment order on 2.6.2000 to the aforesaid Shri Suresh Kumar Srivastava. The case of the petitioner is not at all akin Shri Suresh Kumar Srivastava. The petitioner is still within the range of 18-32 age limit, but he has been deprived of his valuable right of appointment on the post of Peon without assigning any reason, what to say cogent too.
The petitioner submitted a detailed representation against his deprivation of his right of appointment on the post of Peon addressed to the District Judge, Gonda on 17.1.2000 requesting therein to appoint the petitioner on the post, applied for, but no order whatsoever has so far been passed thereon as yet.
4. Learned counsel for the petitioner submitted that the impugned act on the part of opposite party no.2 of not appointing the petitioner and on the other hand appointing other similarly situated colleague of the petitioner candidly transgresses the provisions contained under Articles 14, 16, 19 and 21 of the Constitution of India and directly hits the fundamental rights, guaranteed by the Constitution of India.
5. Learned counsel for the petitioner next submitted that the impugned action of the opposite party no.2 also is in utter disregard of the well settled principles of natural justice.
6. Learned counsel for the petitioner next submitted that the petitioner is claiming his appointment on the post of Peon Group 'D'/ Class IV on the grounds that several persons being lower in senioritylist and several persons in selection list have been appointed but due to discriminatory action of the respondents, petitioner could not be appointed.
7. On the other hand, Shri Gaurav Melhotra,learned counsel for the respondents submitted that the petitioner being placed at serial no.23 of the list dated 21.2.1996 has got no claim of appointment on the post in question as ll the vacancies notified vide advertisement dated 1.9.1996 were already got filled prior to filing the writ petition by the petitioner. In regard to Shri Suresh Kumar Srivastava, he submitted that vide order dated 6.3.2020 the services of Sri Suresh Kumar Srivastava were terminated by the then District Gonda with effect from 19.2.2018 and a process of recovery of amount paid after the said date was also directed to be initiated.
8. Shri Melhotra, learned counsel for the respondent next submitted that representation of the petitioner for seeking joining on the post of Peon in Gonda judgeship was rejected by the Hon'ble Administrative Judge and the decision of the aforesaid rejection was communicated to the answering respondents and thereafter, the petitioner was informed of the same.
9. Learned counsel for the respondents next submitted that rejection order passed by the Hon'ble Administrative Judge, Gonda has not been assailed by the petitioner in the present writ petition or in any other subsequent writ petition and thus, the same has attained finality. He next submitted that the list dated 21.12.1996 was valid for three years and thereafter the life of the aforesaid list dated 21.12.1996 expired on 20.12.1999. The fact remains that the petitioner during the aforesaid period i.e. from 20.12.1999 till date has not worked at District Judgeship, Gonda.
10. In support of his submissions, learned counsel for the respondents has placed reliance upon judgment passed by coordinate Bench of this Court vide order dated 28.5.2019 passed in Case:- SERVICE SINGLE No.4403 of 2014 (V.K. Gupta & 3 Ors. v. State of U.P. and others) in which the Court while considering all the aspects of the matter viz. preparation of waiting list, validity of waiting list and right of a person whose name finds place in the waiting list seeking his appointment against subsequent vacancies; and with the appointment of selected persons the waiting list gets exhausted has dismissed the writ petition while observing that upon appointment on all 21 vacancies as had been advertised, the select list stood exhausted and as such there was no occasion for the respondents to operate the waiting list for future vacancies.
11. I have considered the submissions advanced by learned counsel for the parties and perused the material available on record as well as law-report cited by learned counsel for the respondents.
12. Perusal of the records reveals that an advertisement for appointment on the post of Peon (Group 'D'/ Class IV) post was published by the District Judge, Gonda (opposite party no.2) in the newspaper on 1.9.1996, pursuant to which the petitioner applied and was declared successful. A select list of 40 candidates was issued in which name of the petitioner of the petitioner finds place at serial no.23. Serial nos.1 to 19 have been appointed.
13. One of the selected candidates namely Shri Suresh Kumar Srivastava whose name finds place at serial no.28 in the select list filed Writ Petition No.2613 (SS) of 2000 in which the Court passed an interim order directing the opposite parties that in case the petitioner of that writ petition was between the age of 18-32 years on 1.8.1996 the petitioner shall not be denied to his appointment on the ground that on 30.8.1999 he was over-age. In compliance of the interim order dated 19.5.2000, District Judge, Gonda issued an appointment order on 2.6.2000.
14. In regard to the aforesaid, Shri Gaurav Melhotra contended that vide order dated 6.3.2020 the services of Sri Suresh Kumar Srivastava were terminated by the then District Judge, Gonda from 19.2.2018 and a process of recovery of amount paid after the said date was also directed to be initiated.
15. Perusal of the material also shows that the representation of the petitioner seeking joining on the post Peon in Gonda Judgeship was rejected by the Hon'ble Administrative Judge and the decision of the aforesaid rejection was communicated to the respondents as well as to the petitioner.
16. It is not in dispute that rejection order passed by the Hon'ble Administrative Judge, Gonda has not been assailed by the petitioner in the present writ petition or in any other subsequent writ petition and the same has attained finality.
17. It is well settled legal proposition that vacancies cannot be filled up over and above the number of vacancies advertised as "the recruitment of the candidates in excess of the notified is a denial and deprivation of the constitutional right under Article 14 read with Article 16 (1) of the Constitution", of those persons who acquired eligibility for the post in question in accordance with the statutory rules subsequent to the date of notification of vacancies. Filling up the vacancies over the notified vacancies is neither permissible nor desirable for the reason that it amounts to improper exercise of power and only in a rare and exceptional circumstances and in emergent situation, such a rule can be deviated from and such a deviation is permissible only after adopting policy decision based on some rational, otherwise the exercise would be arbitrary. Filling up of vacancies over the notified vacancies amounts to filling up of future vacancies and thus is not permissible in law.
18. It is operative only for the contingency that if any of the selected candidates does not join then the person from the waiting list may be pushed up and be appointed in the vacancy so caused or if there is some extreme exigency the Government may as a matter of policy decision pick up persons in order of merit from the waiting list. Since the vacancies have not been worked out properly, therefore, the candidates from the waiting list were liable to be appointed does not appear to be sound. This practice, may result in depriving those candidates who become eligible for completing for the vacancies available in future. If the waiting list in one examination was to operate as on infinite stock for appointments, there is a danger that the State Government may resort to the advice of not holding an examination for years together and pick up candidates from the waiting list as and when required.
19. The constitutional discipline requires that this Court should not permit such improper exercise of power which may result in creating a vested interested and perpetrate waiting list for the candidates of one examination at the cost of entire set of fresh candidates either from the open or even from service.
20. The judgment in the case of V.K. Gupta (supra) relied upon by learned counsel for the respondents is fully applicable to the facts and circumstances of the case.
21. Considering the facts and circumstances of the case as also the fact that upon appointment on all the vacancies as had been advertised, the select list stood exhausted and as such there was no occasion for the respondents to operate the waiting list for future vacancies.
22. Accordingly, this writ petition is dismissed.
Order Date :- 7/4/2023
GK Sinha [Irshad Ali, J.]
