Allahabad High Court
Mamta Gupta vs State Of U.P. And Others on 21 March, 2025
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:41803-DB
Court No. - 29
Case :- WRIT - A No. - 73207 of 2010
Petitioner :- Mamta Gupta
Respondent :- State of U.P. and Others
Counsel for Petitioner :- Durga Singh,Shri Ashok Khare
Counsel for Respondent :- Arvind Srivastava,Ashish Mishra,Indrajeet Singh Yadav,Nisheeth Yadav,P.P.Singh,Pushpendra Singh,Yashvant Verma
Hon'ble Ashwani Kumar Mishra,J.
Hon'ble Donadi Ramesh,J.
1. Petitioner applied for appointment to the post of Civil Judge (Junior Division), pursuant to Advertisement No. A-5/E-1/99, published in newspaper Rashtriya Sahara, dated 31.7.1999 (Annexure 1 to the writ petition). 100 posts were to be filled. A Note was appended to Clause 2 of the Advertisement, according to which, the vacancies could be increased or decreased. Reservation was also provided for Scheduled Caste; Scheduled Tribes and Other Backward Caste category candidates. The advertisement also provided for 20% reservation for the women, pursuant to the Government Order, dated 26.2.1999. In the advertisement there existed no reference to any reservation for physically handicapped candidates in accordance with the provisions of the Uttar Pradesh Public Services (Reservation for Physically Handicapped, Dependents of Freedom Fighters and Ex-Servicemen) Act, 1993.
2. While the selection proceedings were still going on, two candidates belonging to physically challenged category, namely Vinod Kumar Rai and Brijesh Kumar Shukla approached this Court for issuing appropriate directions to provide for reservation to physically challenged candidates. In the aforesaid two petitions, an interim protection was granted, as a result of which, two vacancies were kept reserved for the physically challenged category candidates. The selection proceedings ultimately concluded and 98 candidates were appointed as Civil Judge (Junior Division). This list of selected candidates consisted of persons belonging to unreserved; scheduled castes; scheduled tribes; OBC; Women, category, only, as per the advertisement issued for recruitment.
3. It transpires that another writ petition came to be filed by certain male candidates questioning the reservation of 20% vacancy for women candidates on the ground that there existed no provision in the relevant service rules providing for such reservation. The Division Bench of this Court on 27.7.2001 held that there could be no reservation for women as no consultation was made with the High Court providing for such reservation. A direction was also issued for rearranging the list of finally selected candidates in order of merit without benefit of 20 per cent reservation for women to the women candidates. The consequence was that women candidates already selected and appointed pursuant to the advertisement were denied selection and appointment.
4. We may note that apart from the writ petitioner, 11 other women candidates were appointed, 9 of whom belong to unreserved category; while 3 belong to OBC category against 20% reservation provided to women. However, the Division Bench Judgement of this Court was challenged in Civil Appeal No. 6429 of 2002 before the Supreme Court alongwith other connected appeals. The Supreme Court vide Their Lordships' judgment dated 13th September, 2007, protected the appointment already offered to the women candidate by exercising jurisdiction under Article 142 of the Constitution of India. Operative portion of the judgment dated 13.9.2007 of the Court, reads as under:-
"In the facts and circumstances of the case, we feel that this is an appropriate case where this Court should exercise its jurisdiction under Article 142 of the Constitution of India for doing complete justice between the parties and thus upholding the order of the High Court holding that the benefit of 20 per cent reservation for women is not available to the women candidates for appointment to the post in pursuance of the advertisement dated 1.8.1999, we set aside the direction given by the High Court for revising and re-arranging the select list so far as women candidates are concerned and to exclude them if they do not fall within the merit, and instead thereof we direct that the appointments given to the appellant-women candidates shall not be disturbed and their services shall not be terminated, but for the purposes of the seniority they shall be placed just below the 12 selected men candidates, referred in the interim order dated 27.9.2002 passed by this Court, according to the inter se merit between the appellant-women candidates.
Consequently, the order of the High Court is upheld with the aforesaid modification of continuity of service of the women candidates and placing them just below the 12 selected men candidates. The appeals are, accordingly, disposed of.
There shall be no order as to costs."
5. It is admitted that all 12 women, whose appointment was protected by the Supreme Court under Article 142 of the Constitution of India, were placed at the bottom of the select list. Accordingly, 98 candidates appointed earlier alongwith 12 women candidates finally stood selected and appointed. The writ petitioner was also appointed in compliance of the directions issued by the Supreme Court under Article 142 of the Constitution of India. In the writ petition it is asserted that the petitioner had scored 613 marks and, therefore, in the select list she was just below candidate No. 5983 Jaitendra Kumar, who had scored 614 marks.
6. So far as two vacancies which were kept reserved on account of pending litigation in writ petition no. 7530 of 1998, alongwith another petition, although the Division Bench vide judgment dated 11.3.2002 held that the Reservation Act of 1993 was applicable in respect of the advertisement in question, yet such view stood reversed by a Full Bench of this Court in the case of Sarika Vs. State of Uttar Pradesh and another, decided on 24.2.2005 in Writ Petition No. 55266 of 2003. As a consequence, two vacancies, which were reserved under the interim directions of this Court on a claim instituted by two candidates of physically challenged category, were not filled. After the Full Bench Judgment of this Court in Sarika (supra), the State Government issued a notification dated 7th December, 2006; whereby the provisions of the Act of 1993 were held inapplicable upon the High Court.
7. Petitioner contends that in view of the Full Bench Judgment of this Court in the case of Sarika (supra), since the two posts kept reserved for physically challenged category remained vacant as such the respondents were required to redetermine the seniority and fill up all 100 posts, instead of 98. Petitioner further argues that she scored highest marks in the merit of the General Women Category Candidates and if the remaining two posts were to be filled, she would be placed just below Jaitendra Kumar and her seniority at the bottom of the select list is required to be accordingly modified. It is submitted that if claim of the petitioner is accepted, she would be placed at Sl. No. 49 of the select list; whereas the respondents have placed her at the bottom of the seniority at Sl. No. 74A.
8. Respondents have placed on record an administrative decision of the High Court taken vide resolution of the Administrative Committee dated 7.10.2010, which is reproduced hereinafter:-
"Resolved that two vacancies belonging to the batch 1999 of Civil Judge (Junior Division) be treated to have been consumed because three subsequent examinations have already been done and the Government be informed accordingly to vary the vacancies of batch 1999 from 100 to 98."
9. It is in the context of the above decision of the Administrative Committee that the petitioner has approached this Court challenging the decision of the Administrative Committee dated 23.10.2010 and thereby retaining the petitioner at Sl. No. 74A, vide Annexure 11 to the writ petition. A further prayer is made to declare the results of two remaining unfilled seats of Civil Judge (Junior Division) of 1999, within the time to be fixed by this Court. The petitioner also submits that if these two posts are filled, the seniority of the petitioner would have to be notionally modified such that none would be adversely affected.
10. A counter affidavit has been filed by the respondents stating that the advertisement clearly left a discretion with the respondents to either increase or decrease the vacancies. It is submitted that this clause clearly permitted the Court to reduce the advertised vacancy from 100 to 98. It is also submitted that there existed justifiable reason for the respondents to consume two posts inasmuch as on account of the interim protection granted in the writ petition filed by Vinod Kumar Rai the two posts could not have been filled then and occasion to do so could have arisen only after 2005, by when several subsequent recruitments were held.
11. Sri Ashish Mishra for the respondents submits that in between three new recruitment exercise were undertakenin the year 2000 in which 147 posts were advertised; recruitment exercise of the year 2003 in which 347 posts were advertised and of the year 2006 in which 339 vacancies were advertised. Respondents, therefore, submit that the decision of the Court to reduce the vacancy from 100 to 98 on account of pendency of dispute in respect of physically challenged candidate was a bona fide exercise of power under Clause 2 which cannot be said to be arbitrary. Reliance is also placed upon Rule 21(2) of the Uttar Pradesh Judicial Service Rules, 2001, wherein also a discretion is left with the employer to vary the vacancy. It is further submitted that in the event any direction is now issued to fill up the two remaining vacancies, it may create innumerable complications, not only for the candidates selected and appointed subsequently in the batches of 2000, 2003 and 2006, but two other persons from the initial select list of 1999 would have to be appointed now. It is submitted that this exercise was though found to be imprudent and, therefore, the administrative committee rightly took a decision to subsume the two vacancies and reduced the advertised posts from 100 to 98.
12. We have heard Sri Ashok Khare, learned Senior Counsel assisted by Sri Durga Singh for the petitioner; Smt. Kritika Singh, learned Standing Counsel for the State; Sri Ashish Mishra, learned counsel for the High Court and Sri Nishith Yadav for the Public Service Commission and have carefully perused the records of this case.
13. From the facts, as have been placed on record, it is apparent that though the initial advertisement was in respect of 100 vacancies, but due to pendency of two writs and grant of interim protection, therein, two vacancies could not be filled. This was on account of the claim instituted by candidates belonging to physically challenged category who raised objection to the inapplicability of the provisions of the Act of 1993, in respect of advertisement in question. Whether or not such provisions will be applicable upon the advertisement in question came to be finally settled in the year 2005, with the decision of the Full Bench of this Court in the case of Sarika (supra). A consequential notification was also issued by the State Government on 7th December, 2006. It is, therefore, apparent that the action of the respondents in not filling up of the vacancy of two posts upto the year 2005 was necessitated on account of interim orders passed by this Court.
14. So far as the decision taken by the Administrative Committee on 7.10.2010 is concerned, we find that the decision of the Court to reduce the vacancy of 1999 batch from 100 to 98 was required on account of exigency that two posts could not be filled. The decision to reduce the number of vacancy from 100 to 98 was otherwise in accordance with the note appended to clause 2 of the advertisement, as per which, the vacancies could be increased or decreased. We also find substance in the contention of the respondents that Rule 21(2) of the Service Rules permitted the Court to vary the vacancy. The decision of the Administrative Committee of this Court in subsuming two vacancy and thereby reduce it from 100 to 98 cannot be questioned.
15. At this stage, we may refer to the argument of Sri Ashok Khare, learned Senior Counsel for the petitioner that the decision of the Court in reducing the vacancy from 100 to 98 suffers from non-application of mind. This argument of Sri Khare proceeds on the factual premise that in fact 12 women candidates had also been appointed under the orders of the Supreme Court and, therefore, the number of candidates selected in 1999 recruitment was 110 and the decision to reduce the vacancy from 100 to 98 is irrational.
16. Learned Senior Counsel, therefore, argues that the decision of the Court in reducing the vacancy from 100 to 98 is an erroneous decision, unmindful of the fact that in fact the actual recruitment was of 110 persons.
17. The submission of Sri Khare is noticed by us only to be rejected. The reason for it simple. The appointment of 12 candidates was in fact on account of a specific order passed by the Supreme Court in exercise of their lordships' jurisdiction under Article 142 of the Constitution of India. The appointment of these 12 women candidates was not a part of the recruitment exercise undertaken by the respondents, but was necessitated merely to comply with the directions of the Supreme Court. Once the Supreme Court has observed that these 12 women candidates would be placed at the bottom of the seniority, we cannot appreciate the argument of the petitioner that any further variation is either warranted or permissible. It is undisputed that petitioner has already been selected and has been placed at the bottom of seniority list. The question, in essence, is as to whether merely on account of non-filing up of two vacancies, or reduction of such vacancy by the Court, the petitioner is entitled to issuance of a writ of mandamus commanding the respondents to fill up these two vacancies also.
18. The status of the petitioner in the present case at best is that of a selected candidate. In Shankarsan Das v. Union of India and others, AIR 1991 SC 1612, the Hon'ble Supreme Court has clearly held that no selected person gets an indefeasible right to claim appointment or claim the filling up of vacancies. The only exception to this position is that the employer must not act arbitrary. The legal position, in this regard, has been reiterated in a recent decision of the Supreme Court in Commissioner of Police and another Vs. Umesh Kumar, (2020) 10 SCC 448, wherein the Court observed as under in para 19 and 20 of the report:-
"19. The real issue, however, is whether the respondents were entitled to a writ of mandamus. This would depend on whether they have a vested right of appointment. Clearly the answer to this must be in the negative. In Punjab SEB v. Malkiat Singh [Punjab SEB v. Malkiat Singh, (2005) 9 SCC 22 : 2006 SCC (L&S) 235], this Court held that the mere inclusion of candidates in a selection list does not confer upon them a vested right to appointment. The Court held : (SCC p. 26, para 4)
"4. ... the High Court [Malkiat Singh v. Punjab SEB, 1999 SCC OnLine P&H 75 : ILR (1999) 2 P&H 329] committed an error in proceeding on the basis that the respondent had got a vested right for appointment and that could not have been taken away by the subsequent change in the policy. It is settled law that mere inclusion of name of a candidate in the select list does not confer on such candidate any vested right to get an order of appointment. This position is made clear in para 7 of the Constitution Bench judgment of this Court in Shankarsan Dash v. Union of India [Shankarsan Dash v. Union of India, (1991) 3 SCC 47 : 1991 SCC (L&S) 800] which reads : (SCC pp. 50-51)
'7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subash Chander Marwaha [State of Haryana v. Subash Chander Marwaha, (1974) 3 SCC 220 : 1973 SCC (L&S) 488] , Neelima Shangla v. State of Haryana [Neelima Shangla v. State of Haryana, (1986) 4 SCC 268 : 1986 SCC (L&S) 759] or Jatinder Kumar v. State of Punjab [Jatinder Kumar v. State of Punjab, (1985) 1 SCC 122:1985SCC(L&S)174].'" (emphasis in original)
20. In the present case, after the name of the respondents appeared in the results declared on 17-7-2015, the process of recruitment was put in abeyance since the results were challenged before the Tribunal. The process of revising the results during the course of the recruitment was necessitated to align it in accordance with law. An Expert Committee was specifically appointed following the institution of proceedings before the Tribunal. The report of the Expert Committee established errors in the answer-key, and thereafter a conscious decision was taken, after evaluating the report, to revise the results on 1-2-2016. In the fresh list which was drawn up, both the respondents have admittedly failed to fulfil the cut-off for the OBC category to which they belong. As the learned ASG submitted before the Court, as many as 228 candidates are ranked above Umesh Kumar on merit while 265 candidates stand above Satyendra Singh. The submission of Mr Khurshid that these are the only two candidates before this Court would not entitle them to a direction contrary to law since they had no vested right to appointment."
19. We have already examined the facts of the case and have come to a definite conclusion that action of respondents in not filling up of the two vacancies on account of pendency of the writ petition and interim protection granted therein is not arbitrary. Once that be so, we find that the petitioner would not be entitled to issuance of a writ of mandamus commanding the respondents to fill up the remaining two vacancies, as is prayed for. The additional reason for not considering such plea of the petitioner is the fact that in between subsequent recruitments have already intervened of the years 2000, 2003 and 2006. Large number of candidates have been appointed and if we issue any direction to fill up the remaining two vacancies it would have the effect of unsettling long standing seniority of the candidates. We are thus of the view that grant of relief to the petitioner in the facts and circumstances of the case, at this stage, would not be a prudent exercise of discretion on our part. Once that be so, we hold that the petitioner is not entitled to the relief prayed for the in present writ petition, which consequently fails and is dismissed. Parties to bear their own costs.
Order Date:- 21.3.2025
Ranjeet Sahu
(Donadi Ramesh, J.) (Ashwani Kumar Mishra, J.)
