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PRABHAT KUMAR SHARMA versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Prabhat Kumar Sharma v. State Of U.P. And Others - WRIT - A No. 18081 of 2007 [2007] RD-AH 6348 (6 April 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 39

Civil Misc. Writ Petition No. 18081 of 2007

Prabhat Kumar Sharma

Versus

State of U.P. and others

Hon'ble V.K. Shukla, J.

Petitioner has approached this Court requesting therein for issuing a writ in the nature of mandamus commanding the respondents to appoint the petitioner to function as Assistant Teacher in L.T. Grade in Shri Saraswati Vidyalaya Inter College, Hapur, Ghaziabad and to pay him regular salary monthly, and further for a writ of certiorari for quashing the order dated 05.04.2003 passed by Deputy Director of Education.

Brief background of the case is that In the district of Ghaziabad, there is a recognized institution known as Shri Saraswati Vidyalaya Inter College, Hapur, Ghaziabad. In the said institution there were 16 posts of Assistant Teachers in L.T. Grade. The Committee of Management of the Institution is alleged to have notified the said vacancies to U.P. Secondary Education Service Selection Board, but as no one had been recommended by the Board, the Committee of Management proceeded to advertise the said 16 vacancies of Assistant Teachers in L.T. Grade in Newspaper "Dainik Jagaran" on 03.07.1991. As per the said advertisement applications were to be moved to the Manager by 08.07.1991. Petitioner claims that pursuant to the said advertisement along with others, he faced interview and was selected, he joined the post and papers qua his appointment were transmitted by the Management to the District Inspector of Schools requesting the later to accord approval. On 19.12.1991, District Inspector of Schools asked the Manager to reply as to how many posts have been sanctioned. Necessary information was furnished, but no orders were passed, and in this background, writ petition No.20128 of 1992, Prabhat Kumar Sharma  v. State of U.P. and others was filed before this Court, seeking a writ in the nature of mandamus for ensuring payment of salary. At the point of time when writ petition was taken up, plea of ban by State Government was taken up, however, writ petition was allowed by quashing the ban. Special Appeal was filed and the said judgment was upheld. Thereafter, appeal was filed  before the Hon'ble Apex Court and therein the matter was remanded back. After remand elaborate judgment was delivered by this Court on 27.02.1996, and writ petition was dismissed with observations made in the said judgment.  Against the said judgment too Special Appeal was dismissed. Thereafter Special leave to appeal was preferred before the Hon'ble Apex Court, same was also dismissed on 10.07.1996. Thereafter vacancies in question were advertised on 02.06.1997 in Daily "Dainik Jagaran" and selection proceedings were undertaken. Petitioner also applied, but was not selected. One of the candidates, who had not been selected preferred writ petition No.41388 of 1997, Manoj Kumar Sharma v. State of U.P. and others. As far as petitioner is concerned, he claims that he represented the matter on 23.11.1997and 24.05.1998, but there was no response, in this background,Civil Misc. Writ Petition No.54487 of 1999 had been filed, wherein directives were given, for deciding the representation, on 23.11.1999. Petitioner has stated that representation was considered by Joint Director of Education,and claim of petitioner was rejected on 05.04.2003. Said order has not been challenged, however, petitioner has stated that representations have been made. Writ petition of Manoj Kumar Sharma has been disposed of by  this Court, and this Court  passed following order, relevant extract of which is being quoted below:

"In view of the aforesaid fact, the petitioner is entitled for relief claimed in the writ petition. Though the petitioner has claimed in the writ petition  regarding cancellation  of the appointment of respondent no. 6, but it has further been submitted and admitted by the respondents that there are various vacancies existing in the the institution as yet in the L.T. Grade in General Subject, therefore, if the petitioner is accommodated in one of the vacant posts, he will not claim for cancellation of the appointment of respondent No. 6.

I have considered the submission raised on  behalf of the petitioner though respondent No. 6 has wrongly been given appointment by respondent No. 3 as she was not having the qualification on the date when she was considered on the basis of advertisement and admittedly the petitioner was having better qualification and had obtained better quality point marks. As it has been informed that there are various vacancies in the institution, therefore, in my view it will be in the interest of justice that a mandamus be issued to respondent No.3 to accommodate the petitioner in any existing vacancy in L.T. Grade in General subject in the institution. The appropriate order considering the case of the petitioner regarding the appointment will be passed by respondent No. 2 within a period of two months from the date of production of certified copy of the order.

With these observations the writ petition is disposed of."  

Petitioner claims  that he is also entitled to similar relief as has been accorded to Manoj Kumar Sharma.  

Ms. Afshan Shafaut, learned counsel appearing for petitioner, contended with vehemence that as petitioner's claim is similarly situated, as such  similar treatment is liable to be extended to her client as well, and in this background she submits that writ petition deserves to be allowed.  

Learned Standing Counsel, on the other hand, contended that petitioner had applied, he was not selected and his claim had been rejected on 05.04.2003, then merely because writ petition of other incumbent has been allowed, no relief can be accorded to her client, and further against unadvertised vacancies no directives can be issued, as such writ petition deserves to be dismissed.

After respective arguments have been advanced, factual position which emerges is to the effect that pursuant to earlier round of litigation, which has been finally summed up by Hon'ble Apex Court, selection proceedings were undertaken, wherein petitioner could not be selected. Petitioner challenged the said selection proceedings by approaching this Court, wherein directives were issued to decide claim, and claim had been rejected by Additional Director of education on 05.04.2003. Said order has not been assailed at the said point of time, and it has been stated that Review application had been filed. There is no provision of review   under U,P. Act No. 21 of 1921, and the circumstances speak that after judgment has been delivered in the case of Manoj Kumar Sharma, then petitioner has again stood to question the validity of said selection. Such belated challenge is not at all acceptable.

Entire emphasis of argument, has been that various posts of Assistant Teacher, L.T. Grade are lying vacant, as such direction  as issued in the case of Manoj Kumar Sharma be issued. The question which arises for consideration is, can directives be given by this Court, to accommodate/ adjust petitioner against vacancies, which are lying vacant, in the institution, and which were, not subject matter of Advertisement.

Hon'ble Apex Court in the case of State of Bihar and others vs. Madan Mohan Singh, AIR, 1994 SC 765, took the view that when advertisement contained number of vacancies as 32, then any vacancy which had occurred subsequent to the same cannot be included, as the said process of selection was confined to 32 vacancies only and the same exhausted and came to an end, the moment appointments had been made, and if the same list has to be kept subsisting for the purposes of filling other vacancies also that would amount to deprivation of rights of other candidates who would have become eligible subsequent to the said advertisement and selection process. Paragraph 7 of the judgment being relevant is being quoted below:

"7. Having carefully considered the advertisement and the various averments in the affidavits and the counter-affidavits, we are of the view that the crucial question is whether in fact the advertisement and the initial decision of the High Court were meant to fill up only 32 vacancies and whether accordingly the High Court called for only 129 candidates from the list, who appeared for the written test in the ratio of 1 : 4 and whether consequently the whole selection process was confined to fill up only those, 32 vacancies? If the answer is in the affirmative then the question of the same list subsisting for one more year for filling up the subsequent vacancies did not arise in spite of the resolution of the High Court dated 24-11-90. As noted above in the reply affidavit, the Registrar of the High Court categorically stated that 32 vacancies were available and to fill up the same, 129 candidates were called for interview namely four times of the number of vacancies and that the rest of the vacancies arose later on. To satisfy ourselves, we have also called for the relevant records from the High Court and the same is placed before us in a sealed cover. A perusal of the records shows that in the Full Court meeting on 5-5-90 it was resolved that on the basis of the result of the preliminary screening test, four times of number of candidates to be selected for appointment be called for interview. From the proceedings of another Full Court meeting held on 15-9-90 it is clear that it was resolved that 128 candidates alone in order of merit should be called for interview. The proceedings of the Full Court meeting dated  24-11-90 would show that the Full Court finalised the selection for filling up 32 vacancies only and sent a list of 32 candidates in order of merit. However, a further resolution was passed that if any further vacancy in the quota of the direct recruits        was required to be filled up within a period of one year the same be filled up by recommending the candidates in order of merit from amongst the remaining candidates in the merit list. It is therefore crystal clear that the advertisement and the whole selection process that ensued were meant only to fill up 32 vacancies. Learned counsel for the respondents relying on the decisions of this Court in Kailash Chandra Sharma v. State of Haryana. 1989 Suppl (2) SCC 696 : (AIR 1990 SC 454) and OP. Garg v. State of U.P., AIR 1991 SC 1202. contended that when there are temporary vacancies, the direct recruits should have their share of quota in respect of temporary vacancies also. As noted above, the temporary vacancies arose subsequently but even otherwise in the view we are taking namely that the particular advertisement and the consequent selection process were meant only to fill up 32 vacancies and not to fill up the other vacancies, the merit list prepared on the basis of the written test as well as the viva voce will hold good only for the purpose of filling up those 32 vacancies and no further because the said process of selection for those 32 vacancies got exhausted and came to an end. If the same list has to be kept subsisting for the purpose of filling up other vacancies also that would naturally amount to deprivation of rights of other candidates who would have became eligible subsequent to the said advertisement and selection process."

Hon'ble Apex Court in the case of Prem Singh vs. Haryana State electricity Board, (1996) 4 SCC 319 has taken the view that selection process by way of requisition and advertisement can be started for clear vacancies and also for anticipated vacancies but not for future vacancies, and if requisition and advertisement are for a certain number of posts only the State cannot make more appointment than the number of posts advertised, even though it might have prepared  a select list of more candidates. The State can deviate from the advertisement and make appointments on the posts falling vacant thereafter in exceptional circumstances only or in emergent situation and that too by taking a policy decision in that behalf. Paragraphs 25 and 26 of the said judgment being relevant are being quoted below:

"25. From the above discussion of the case law it becomes clear that the selection process by way of requisition and advertisement can be started for clear vacancies and also for anticipated vacancies but not for future vacancies, and if requisition and advertisement are for a certain number of posts only the State cannot make more appointment than the number of posts advertised, even though it might have prepared a select list of more candidates. The State can deviate from the advertisement and make appointments on the posts falling vacant thereafter in exceptional circumstances only or in emergent situation and that too by taking a policy decision in that behalf. Even when filling up of more posts than advertised is challenged the court may not, while exercising its extraordinary jurisdiction, invalidate the excess appointments and may mould the relief in such a manner as to strike a just balance between the interest of the State and the interest of the persons seeking public employment. What relief should be granted in cases would depend upon the facts and circumstances of each case.

Hon'ble Apex Court in the case of Surendra Singh vs. State of Punjab, AIR 1998 SC 18, took the view that only in exceptional and emergent situation deviation can be made from the principle of limiting the number or appointments so advertised. Appointments beyond the number of advertised vacancies were held to be unsustainable. Said judgment was delivered after considering the judgment in case of Prem Singh vs. Haryana State Electricity  Board (1996) 4 SCC 319. Relevant paragraphs 13 to 16 of the said judgment are being quoted below:  

"13.  The factual position in this case, as disclosed by the record, is that on 15.10.1990 the Board decided to fill up 62 vacant posts of Junior Engineers by direct recruitment. In 2.11.1990 the Board advertised those 62 vacant posts and invited applications by 4.12.1990. In the notification of vacancies required to be issued under the Employment exchange Act and the Rules also the vacancies notified were 62. After the posts were advertised and published but before appointments could be made 13 more posts became vacant because of retirement and 12 because of deaths. Meanwhile, the Board also created 60 new posts of Junior Engineers. The stand taken by the respondent-Board before the High Court was that by April 1993, 85 more posts had become vacant. Even when 62 posts were advertised there was a backlog of 62 posts of Junior Engineers and that was through oversight not taken into consideration. Out of the said backlog of 62 posts 36 posts were of direct recruitment quota and this had come to the notice of the Board in December, 1991 there was a backlog of 24 posts belonging to reserved category. It was for these reasons that on 2.4.1993 the Secretary of the Board had written to the Chief Engineer who was the appointing authority that as the list of 212 candidates selected by the Selection Committee was received and as 147 post were vacant as on 11.2.1993 he should fill  up all those vacant posts as directed therein. Out of the said list the Board was able to appoint 138 candidates.

14. It was submitted by the learned counsel for the appellants that the selection process which had started on 2.11.1991 was completed in April, 1993 when the selection Committee forwarded the list of selected candidates to the Secretary of the Boar. In view of this long space of time and large number of posts remaining vacant it was permissible to the board to make appointments in excess of the number of posts advertised. If the Board had not filled up these posts the its work would have suffered adversely. It was submitted that bearing in mind these realities the High Court should have adopted a pragmatic approach and refrained from quashing the selection and appointments made by the Board. In support of these contentions the learned counsel relied upon one decision of the Punjab and Haryana High court.

15. In Subhash Chander Sharma v. State of Haryana, (1984) 1 SLR 165 the facts were that against 50 advertised posts the Public Service commission had recommended almost double the number and more than 60 candidates were appointed on the basis of that selection . Relying upon the earlier decision of the same High Court in Sachida Nand Sharma v.  Subordinate Services Selection Board, CPW No.285 of 1983 decided on 1.6.1983 it was contended that all appointments beyond 60 should be invalidated. The High Court distinguished its earlier decision in Sachida Nand Sharma case and held that if the State adopted a pragmatic approach by taking into consideration the existing vacancies in relation to the process of selection which some times takes a couple of years and make appointments in excess of the posts advertised then such an action cannot be regarded as unconstitutional.

16. In Ashok Kumar Yadva v. State of Haryana, (1985) 4 SCC 417 what had happened was that Haryana Public Service Commission had invited applications for recruitment of 61 posts in Haryana Civil Service and other allied services. The number of vacancies rose during the time taken  u[ in the written examination and the viva voce test and thus in all 119 posts became available for being filled.  The Haryana Public Service Commission, therefore, selected and recommended 119 candidates to the Government. Writ petitions were filed in the High Court of Punjab and Haryana challenging the validity of selections on various grounds. The High Court set aside the selection as it was of the view that the selection process was vitiated for more than one reason. On appeal, this Court also found substance in the contention that the Haryana Public Service Commission was not justified in calling for interview candidates representing representing more than 20 times the number of available vacancies and that the percentage of marks  allocated for the viva voce test was unduly excessive. Yet this Court did not think it just and proper  to set aside the selections made by the Haryana Public Service Commission as by that time    two years had passed and the candidates selected were already appointed to various posts and were working on those posts since about two years."  

26. In the present case, as against the 62 advertised posts the Board made appointments on 138 posts. The selection process was started for 62 clear vacancies and at that time of anticipated vacancies were not taken into account. Therefore, strictly speaking, the Board was not justified in making more than 62 appointments pursuant to the advertisement published on 2.11.1991 and the selection process which followed thereafter. But as the Board could have taken into account not only the actual vacancies but also the vacancies which were likely to arise because of retirement etc. by the time the selection process was completed it would not be just and equitable to invalidate all the appointments made on the posts in excess of 62. However, the appointments which were made against future vacancies - in this case on posts which newly created - must be regarded as invalid. As stated earlier, after the selection process had started 13 posts had become vacant because of retirement and 12 because of deaths. The vacancies which were likely to arise as a result of retirement could have been reasonably considered by the Board. The Board through oversight had not taken into consideration while requisition was being made for filling 62 posts. Even with respect to the appointments made against vacancies which arose because of deaths, a lenient view can be taken and on consideration of expediency and equity they need not be quashed. Therefore, in view of the special facts and circumstances of this case we do not think it proper to invalidate the appointments made on those 25 additional posts. But the appointments made by the Board on posts beyond 87 posts are held invalid. Thought he High Court was right in the view it has taken, we modify its order to the aforesaid extent. These appeals are allowed accordingly,. No order as to costs."

Hon'ble Apex Court in the case of Benny T.D. and others vs. Registrar, Cooperative Societies and another (1998) 5 SCC 269 has taken the view that it is well known that during the time when an advertisement is issued and by the time when process of selection starts and ultimately appointment orders are issued, on account of several factors the number of posts may increase. In such contingencies when appointments are made depending upon the vacancies available and in excess of vacancies advertised, it cannot be said that appointment has been made in excess of the strength of the cadre approved. Relevant extract of the judgment is being quoted below:

"...............It is well known that during the time when an advertisement is issued and by the time when process of selection starts and ultimately appointment orders are issued, on account of several factors the number of posts may be increased, the factors being retirement of persons on attaining superannuation, death of several employees, promotion of the employees to higher posts and for variety of other grounds. In such contingencies when appointments are made depending upon the vacancies available and in excess of vacancies advertised, it cannot be said that appointment has been made in excess of the strength of the cadre approved. There is neither any allegation nor any material to sustain the finding of the Registrar that in fact appointment has been made in excess of the posts approved by the Registrar. The said conclusion, therefore, must be held to be a conclusion based on no evidence and accordingly cannot be sustained."

Hon'ble Apex Court in the case of State of J & K. v. Sanjeev Kumar, 2005 (4) SCC 148, has taken note of principle laid down in paragraphs 25 ad 26 of  Prem Singh's case qua existing vacancies, notified vacancies and future vacancies,and in paragraph 8 has mentioned as follows:  

"8.  As is clearly spelt from the quoted portion, the Government can by a policy decision appoint people from the waiting list. It has been laid down that on the facts of Prem Singh case (1996) 4 SCC 319, while issuing advertisement the Government could have taken into account likely vacancies. The principle in Prem Singh was followed in Virender S. Hooda v. State of Haryana, (1999) 3 SCC 696."

On the parameters settled by Hon'ble apex Court in aforementioned judgments, no directives can be issued to accommodate any one against unadvertised vacancies, as the same would be in violation of Articles 14 and 16 of the constitution of India.  Judgment in the case of Manoj Kumar Sharma, is in the teeth of pronouncement of Hon'ble Apex Court, as such same cannot be accepted as binding precedent. Moreover, under U. P. Secondary Education Service Selection Board Act, 1982, there is no provision for making ad hoc appointment, as provisions of Removal of Difficulties Order, has been rescinded w.e.f. 25.01.1999 by way of introduction of Section 33-E by Act No. 13 of 1999, and in this background, qua unadvertised vacancies, no directives can be given, as same would tantamount to giving direction, for flouting the law.        

Consequently, writ petition lacks substance and the same is dismissed.  

06.04.2007

SRY


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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