Over 2 lakh Indian cases. Search powered by Google!

Case Details

AJIT KUMAR SINGH & OTHERS versus STATE OF U.P. THRU' SECY. KARMIK ANUBHAG

High Court of Judicature at Allahabad

Case Law Search

Indian Supreme Court Cases / Judgements / Legislation

Judgement


Ajit Kumar Singh & Others v. State Of U.P. Thru' Secy. Karmik Anubhag-Ii & Ors. - WRIT - A No. 31852 of 2002 [2002] RD-AH 44 (4 October 2002)

 

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

Judgment reserved on 23.9.2002.

                                                               Judgment delivered on 4-10-2002.

Civil Misc. Writ Petition No. 31852 of 2002.

Ajit Kumar Singh & others                        ...                              Petitioners

                                                   Versus

State of U.P. & others                              ...                              Respondents.

                                          CONNECTED WITH

Writ Petition Nos. 31645 of 2002, 31822 of 2002, 31825 of 2002, 31828 of 2002, 31831 of 2002, 31841 of 2002, 31861 of 2002, 31869 of 2002 31872 of 2002, 31876 of 2002 31879 of 2002, 31881 of 2002, 32538 of 2002, 3007 of 2002,33008 of 2002, 33010 of 2002, 33011 of 2002, 33013, of 2002, 33015 of 2002 33055 of 2002, 33510 of 2002, 33514 of 2002, 33739 of 2002, 34530 of 2002, 34732 of 2002 34762 of 2002 35567 of 2002, 36043 of 2002, 36046 of 2002 36210 of 2002, 36258 of 2002 36557 of 2002, 36939 of 2002, 36847 of 2002, 36849 of 2002, 37987 of 2002, 38182 of 2002, 38358 of 2002.

HON'BLE SUNIL AMBWANI,J.

Reservations to Scheduled Caste, Scheduled Tribes and Other Backward Class under Article 16(4) of the Constitution of India, as a positive action, to bring about  quality of opportunity in employment, has been used in the present case as a political instrument to cause uncertainty and oppression to thousands of young and unemployed in the State waiting for appointments to Group 'C' posts in various department under State, which was frozen for years due to financial stringency and for which selections were ultimately held in the year 2001.  Brief facts which have led to the filing of the aforesaid batch of writ petitions as follows:

2. The State Government by its notification No. 20(4)/2001 dated 20.8.2001  decided to hold written examination for recruitment to Group 'C' posts outside the purview of U.P. Public Service Commission, to be held under the U.P. Procedure for direct recruitment for Group 'C' posts (Outside the Purview of U.P. Public Service Commission) Rules, 2001 notified on 20.8.2001 made in exercise of the powers conferred

2

by the proviso to Article 309 of the Constitution of India and in  supercession of all existing rules and orders on the subject (these rules hereinafter called as Rules, 2001), excluding  U.P. Secondary Education Services Board, U.P. Higher Education Services Commission, High Court and Subordinate Courts, Police Department including Provincial Armed Constabulary   and Force Service, and posts which have the prescribed minimum academic qualification lower than the Intermediate Examination Certificate and which are excluded the application of these rules by government by notified orders as well as posts which are of technical nature or for which technical qualifications are prescribed.  Rule 4 provided for determination of vacancies and Rule 5  for constitution of Selection Committee. Rules provided for a written test, type test where-ever required and interview.  In writ petition No. 31852 of 2002: Ajit Kumar Singh and others Versus State of U.P. which is made leading case, an advertisement to fill up the posts by written examination to be conducted by District Selection Committee was issued on 23.8.2001,  for 145 clerical posts in 18 different departments specified in the advertisement in the district of Kanpur Nagar.  By a corrigendum  the posts of Junior Accountants were excluded.   Selection Committee was to be chaired by  Additional District Magistrate(Civil Supply).  The written examination was held on 7.10.2001 in which all petitioners participated,  result was  published on 6.11.2001 in which petitioners were shown to have qualified.  Type test for the post of Stenographer were held on 21.11.2001 and 25.11.2001 of which the result was published on 6.12.2001 in which all the petitioners except petitioner nos. 10 and 15 were declared successful.  Petitioner Nos. 10 and 15 were included amongst selected candidates in the selection list dated 12.12.2001.  A third type test was held  after 12.12.2001 on which result was declared on 31.12.2001.  However, no appointment orders were issued.  In some of the connected writ petitions, for example writ petition No. 31852 of 2002 between Rajendra Prasad and another Vs. State of U.P. and others, all the selected candidates in respect of State of Mathura except two who have filed writ petition were issued appointment letters and had joined.  In some of the petitions, examinations were held but the results were not declared.  

3. Reservations for Scheduled Castes, Scheduled Tribes and Other Backward Classes in different services in the State are specified under the provisions of U.P. Public Servant(Reservation for Scheduled Castes,

3

Scheduled Tribes and Other Backward Classes) Act, 1994, (U.P. Act No. 4 of 1994).  It provides for reservations in Public Service and posts at the stage of direct recruitment, twenty one percent in case of Scheduled Caste, ten percent in case of Scheduled Tribes, and twenty seven percent in case of Other Backward Classes of citizens except those who are specified in Schedule-II. On 20.9.2001, Act No. 4 of 1994 was amended by U.P. Public Service (Reservation for Scheduled Caste, Scheduled Tribes and Other Backward Classes) (Amendment), Rules, 2001 (U.P. Act No. 21 of 2001).  These amendments provides for further categories amongst "Scheduled Castes" and "Backward Classes" of citizens.  Whereas Scheduled Cases were sub divided into Part-A and Part-B in Schedule-III appended to the Act, the Backward Classes of citizens were sub divided into "Backward Class" of citizens specified in Part A of Schedule-I,  "More Backward Class" of citizens specified in Part B of Schedule-I, and "Most Backward Class" of  citizens specified in Part-C of Schedule-I.  Under amended section 3  ten percent reservations were provided for Scheduled Castes in Part -A of Schedule-III, Eleven percent for  Scheduled Casts specified in Part B of Schedule-III, one percent for  Scheduled Tribes, five percent for "Backwards Class of citizens", nine percent for "more backward class of citizens" and fifteen percent for "most backward class of citizens".  Whereas reservations for Scheduled Castes, was maintained at twenty one percent, the percentage of reservations for Scheduled Tribes was reduced to one percent, and for other backward class of citizens it was increased to twenty eight percent.  Sub Clause (5) of Section C provided for issuance of notified orders by the State Government for a roster comprising of the total cadre strength of the Public Service for posts indicated therein, the reservation points and the roster so issued was provided to be implemented in form of running account from year to year until the reservation for various categories of persons mentioned in sub section of the Schedule I after which the operation of the roster as running amount was required to come to an end and thereafter as and when the vacancies arises, the same was required to be filled from amongst the persons belonging to the category to which the posts belongs in the roster. Section 6 of the Amended Act provided that the provisions of the Principal Act as amended shall also apply in respect of such recruitment to public

4

service and posts as are pending on the date of commencement of the Amended Act.   Explanation A to Section 6 of the Amendment Act, provided that a recruitment shall be deemed to be pending, if in pursuance of that recruitment, no appointment has been made before such commencement. The Amending Act , as such, was made applicable to the selections initiated vide advertisement issued in the year 2001, either before the commencement of the Act i.e. before 15.9.2001, or after the said date.

4. Amending Act was challenged before Supreme Court in Writ Petition(Civil) No. 488 of 2001 between Akhil Bhartiya Chhatra Yuva Berojgar Front Vs. State of U.P.   On 14.12.2001, Hon'ble Supreme Court, passed the following orders:

"The learned Solicitor General States no further Executive Orders, in pursuance of the Uttar  Pradesh Public Services (Reservation of Scheduled Castes, Scheduled Tries and Other Backward Classes)(Amendment) Act, 2001 shall be passed pending further orders.  The Statement is made an order of the Court.

The writ petition is adjourned to 14th January, 2002. Counter be filed on or before 7th January, 2002.  Liberty to the petitioner, to put in a Rejoinder, there to."

On 21.1.2002 when the writ petition came up next before Hon'ble Supreme Court, while allowing the exemption application, dismissing intervention, issuing rules and expediting the matters following order was passed.

"Exemption allowed.

Application for intervention is dismissed.

Rule. Expedited.

Pending the disposal of the writ petition, no further executive orders in pursuance of the Uttar Pradesh Public Services (Reservation of Scheduled Castes, Scheduled Tribes and Other Backward Classes)(Amendment) Act, 2001 shall be made pending the disposal of the writ petition.

W.P. (C) Nos. 626/2001,657/2001 and 2002.

Tag with Writ Petition No. (C) No. 488 of 2001."

5. In pursuant to, and in compliance with the aforesaid orders passed by Hon'ble Supreme Court, the Secretary, Department of Personnel, Government of U.P. Lucknow issued following orders to  all Commissioners, District Magistrates, Principal Secretaries/Secretaries and All Head of Departments in U.P.:

5

From

Secretary,

Department of Personnel,

Govt. of U.P., Lucknow.

No. 1641/Ka-2/2001 Lucknow: dated December 21, 2001.

Hon'ble Supreme Court in writ petition No. 488 of 2001, Akhil Bhartiya Chhatra Yuva Berojgar Front. Vs. Govt.  of Uttar Pradesh vide order dated 14.12.2001 has directed that on further executive orders in pursuance of Uttar Pradesh public services (Reservation for scheduled castes, Scheduled Tribes and other Backwards castes)(Amendment) Act 2001/ shall be passed pending further orders of the Court ( ) in compliance of there's orders.  The Government has been advised to go for process of selection on group 'C' posts but no order declaring the result will be issued tile further order of supreme court similarly  no appointments or promotions will be made or advertise advertisement issued ( )  please ensure strict compliance at once.

                                                                                       Sd/-

                                                                                 (Hari Krishna)

                                                                                     Secretary."

6. The aforesaid order was followed by a further Government Order dated 29.4.2002 restraining all appointments/promotions except against single cadre post where reservations are not made applicable.

7. On 6.6.2002, after new Government took over after  Vidhan Sabha Election,  U.P. Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes)(Amendment) Ordinance, 2002 (U.P. Ordinance 2 of 2002) was promulgated with effect from 15.9.2001 i.e. when the first amendment was issued.  This Ordinance was issued to do away with the amendments made by the U.P. Act No. 21 of 2001, and, to  restore the definitions of Other Backward Classes of citizens, the special classification of Scheduled Caste and to restore the percentage of reservation as provided under U.P. Act No. 4 of 1994 i.e. the reservation for Scheduled Castes without any sub classification  at  twenty one percent for  Scheduled Castes,

6

two percent for Scheduled Tribes and twenty seven percent for Other Backward Classes.   Section 2(b),(B1),(b2) and (b3) were  deleted and that sub section (1)(2)(3)(3a)(3b) (4) and (5) of section 3 were substituted by amendment made vide section 3 of U.P. Ordinance 2 of 2002.   In effect the position anterior to 15.9.2001 with regard to reservation was restored.

8. Having issued the aforesaid U.P. Ordinance No. 2 of 2002, the State Government lifted the restrictions on the appointments and promotions in public services.  In  Para 3 of  Government Order dated 17.2.2000 lifting the restriction stated that since U.P. Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 has became operative again in its original form,  reservations in public service be accordingly enforced.  Para 4 of the Government Order provided that the administrative restrictions imposed on the appointments vide Radiogram No. 1641/Ka-2/2001 dated 21.12.2001, and Government Order No. 073/Ka-29/writ/2001 T.C. dated 29.4.2002 are removed.

On 29.6.2002 a further notification was issued by the State Government notifying U.P. Procedure for direct recruitment for Group 'C' posts (Outside the Purview of U.P. Public Service Commission) Rules, 2002.  These rules made under Article 309 of the Constitution of India superseded existing rules excluding Rules of 2001.  It brought about a significant change in the procedure for recruitment, namely, the objective type written examination provided was given away, and that the selections were confined to allotment of marks on the basis of educational qualifications, marks to be awarded to retrenched employees, and for performance in sports and interview,  where any post for which a type and shorthand and typing  has been prescribed as essential qualification, a typing or short-hand typing has been prescribed in Rule 5(3) and interview by selection committee constituted under Rule 6 for which the candidates  are required to be call in four times, the number of vacancies. Out of 100 marks, 30 marks are allocated for interview.

10. With the aforesaid amendments in the reservation Act and notified new set of rules for appointments to Group 'C' posts, the State Government proceeded to make fresh selections for the vacancies which were determined and advertised in the year 2001 and in respect of which selection

7

proceedings were either in progress or were finalized.  At some places namely in Azamgrh, Allahabad, Kanpur Dehat, Fatehpur, Kannauj, Banda,. Bijnor, Gorakhpur, Mirzapur, Bahraich, the appointment orders were issued to the candidates selected in pursuance of the process issued in the year 2001.  At other places fresh advertisements were issued, bringing in resentment amongst the candidates who were awaiting appointment.    The leading writ petition of this bunch was filed praying for a writ of mandamus commanding the respondents to grant appointment on the basis of select list finalised for clerical posts in pursuance of advertisement issued by Additional District Magistrate (Civil Supplies)/Chairman, District Selection Committee, Kanpur Nagar as published on 30.8.2001 and further for a direction to declare  section 1(2) of the U.P. Ordinance 2 of 2002 as ultra virus and inoperative.

11. On 14.12.2001, while granting three weeks time to the respondents to file counter affidavit and one weeks for rejoinder affidavit and directing the matter to be listed for admission/hearing on 2.9.2002, an interim order was issued restraining the respondents to initiate or to proceed with fresh selection proceedings to fill up the same vacancies of Group 'C' posts for which selections were held but appointment could not be made due to orders passed by Apex Court on 15.12.2001.  The mater thereafter came up on 2.9.2002 on which date, the Court was informed that the Lucknow Bench of this Court in writ petition Nos. 4340(SS) of 2002 and 4342(SS) of 2002 has issued interim mandamus directing respondents to revive selection process which had started on the basis of the notification so that selection process would  be completed within four weeks.  A prayer was made on behalf of the State to grant further time to file reply.  The matter was adjourned  to file a counter affidavit and to make the stand clear.  The matter was thereafter directed to be listed on 9.9.2001. By this time a number of writ petitions were  filed and connected to the leading writ petition.

12. When the matter was taken on 9.9.2002, once again a requests were made to adjourn the matters to file counter affidavits.  The prayer was strongly opposed and an application was filed with an affidavit complaining  that whereas the time is being sought to seek instruction in Court, the State Government is proceeding to fill the vacancies in various departments by

8

issuing advertisements, inviting applications.  Some of the advertisements related to fill the back log vacancies of Scheduled Castes and Scheduled Tribes.  The Court was informed that tearing hurry in which the vacancies are being filled up, inasmuch as, in one of the  advertisement relating to Junior Clerk in Trade Tax Department, type test was scheduled to be held on 14.9.2002, results on 17/18.9.2002, interview to be held on 21.9.2002 and final results, issuance of appointment and joining was scheduled on 23.9.2002.  In the circumstances this Court stayed the appointment of all Group 'C' posts which have been advertised or likely to be advertised  with regard to Group 'C' vacancies.

13. On the next date fixed on 23.9.2002, the Advocate General appeared in the matter and filed an affidavit of Sri P.N. Yadav, Joint Secretary (Personnel), U.P. Government, Lucknow annexing therewith an order issued by the Principal Secretary(Personnel) Government of U.P. dated 13.9.2002 reflecting the stand of the State Government in the matter.  The order referred to the examinations held for recruitment to Group 'C' posts in the year 2001, the writ petition no. 488 of 2001 filed before  Supreme Court challenging the existing provisions of reservation at the time of the examinations in 2001 and the order of Supreme Court dated 14.1.2001 by which Supreme Court had restrained the State Government from issuing any executive orders in pursuance of the Reservation Act, 2001, on account of which the selections/appointments are stayed and the fact that the said writ petition is still pending before Hon'ble Supreme Court.  Para 2 of the order states that the current provisions of reservation is different than the reservation provided at the time of examination for Group 'C' posts in 2001, and after consideration, the State Government has taken a decision to maintain status quo with regards to Group 'C' examinations, 2001 and for not taking any steps afresh towards the process of the recruitment.  It provides that the further decision with regard to examination shall be taken after decisions of the Hon'ble Supreme Court.  Paras 5,6,7,8,9 & 10 of the affidavit of Sri P.N. Yadav, are quoted as below:

"5.   That since there was some confusion because of information gap, as such a large number of writ petitions like the above writ petition were filed.  In order to give effect to the order of the Hon'ble

9

Court and in order to make the clear stand of the State Government necessary directions have been issued to all the relevant authorities by issuance of Government Order dated September 13, 2002.  A true copy of the Government order dated September 13, 2002 is being filed herewith and the same is marked as Annexure-1 to this affidavit.

6. That a perusal of Government order dated 13.9.2002, aforesaid, makes it apparent that State Government, in view of the order dated 14.12.2001 passed by Hon'ble passed by Hon'ble Supreme Court, does not propose to fill up those vacancies which were advertised in 2001 and regarding which selections were held in 2001 until any further order is passed by Hon'ble Supreme Court, as the matter is pending before it and the status-quo with regards to the same has been decided to be maintained by the State Government.

7. That in these circumstances there is no occasion for the State Government to proceed with the selection regarding the posts which were subject mater of 2001 examination.  However, it is only in respect of the vacancies other than those advertised in the year 2001.  That efforts are being made to fill in the reserved categories posts only so that the shortfall of reserved categories candidates may be filled in as backlog vacancies in that category only.  It is relevant to point out here that the selection process of 2001 was of general nature.  It was not a special derive to fill up backlog.  The State Government  is under obligation to recruit candidates belonging to reserved category on the reserved unfilled posts under the "U.P. Public Services (Reservation of Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994, as amended"  The State Government intends to fill up backlog of reserved categories only by leading the vacancies which were advertised in the year 2001.

8. That as the matter relating to the applicability of reservation in 2001 is still subjudiced before Hon'ble Supreme Court.  The examination held in the year 2001 in accordance with the reservation policy existing in that year is not intended to be finalized till the decision of Hon'ble Supreme Court, in order to avoid any further complications specially when the finalization of the entire selection procedure of Group 'C' examination held in the year 2001 in

10

accordance with new reservation policy prevailing in 2002, would not be tenable in law.

9. That the authority concern in the present writ petition has also been informed of the order of the Hon'ble High Court dated 6.8.2002 and 9.9.2002 by radiogram dated 11,9.2002 and 12.9.2002.  A true copy of the radiogram dated 11.9.2002 and 12.9.2002 are enclosed herewith and marked as Annexures A-2 and A-3 to this affidavit.

10. That in the circumstances of the case, it is expedient, in the interest of justice that the present affidavit be accepted on record and the interim order dated 6.8.2002 and 9.9.2002 be vacated  and the State Government may be permitted to proceed with the filling up of vacancies of reserved categories posts, referred above, otherwise the applicant shall suffer."

14. On being pointed out that inspite of time granted  counter affidavits have been filed, learned Advocate General informed the Court that the stand of the State Government has been made clear in the affidavit of Sri P.N. Yadav and that no further reply or affidavit is proposed to be filed.  He submitted that the writ petition is still pending in Supreme Court.  Orders have been passed on the application for expedited hearing and that the State Government wants to maintain status quo with regard to the vacancies for which  selections were held in 2001, and to proceed with the backlog vacancies of Scheduled Castes and Schedules Tribes for which specific directions have been given to determine the backlog vacancies.  The matter was heard at length and all the counsels appearing in the matter were given opportunity to make their submissions.

15. I have heard Sri Ashok Khare, Senior Advocate, Sri U.N. Sharma and Sri V.K. Shukla for petitioners and learned Advocate General for the State.

16. Before proceeding to consider the submission made on behalf of the parties, it is relevant to find out the status of the proceedings before Supreme Court for which Advocate General was granted time and that the Additional Chief Standing Counsel has produced the record of interim applications filed before Supreme Court and I.A(Civil) 13 of 2002 was filed in writ petition

11

(Civil) No. 488 of 2001 in Supreme Court by the State of U.P. for urgent directions with affidavit.  It was stated in the affidavit as follows:

" It may be stated that since the Amendment Act of 2001 is not stayed by this Hon'ble Court, but the aforesaid interim order dated 21.2.2002 has been precluded the State Government from issuing further executive orders under the said Amendment Act, which has amended the parent Reservation Act of 1994 providing for reservation in public services and posts, hence the Government cannot even act under its parent Reservation Act, which is to the grave detriment of those entitled to the benefit of reservation on public posts and services, and as such Government is not in a position to send requisitions to the State Public Service Commission for selection to direct and promotional posts in the State, in favour of those entitled to the benefit of the reservation policy of the State Government.

It may further be stated that the aforesaid position has understandably resulted in an alarmingly large number of vacancies in the State of Uttar Pradesh on public services and posts, which are to be filled by direct recruitment and promotion, after applying the Reservation Act of 1994.  It is submitted that this has led to a piquant and alarming situation for the State Government, which is unable to discharge its Constitutional obligation of providing reservation to the beneficiaries under its parent Reservation Act of 1994, owing to the fact that the Uttar Pradesh Public Services (Reservation of Scheduled Castes, Scheduled Tribes and Other Backward Classes)(Amendment) Act of 2001, although not stayed by this Hon'ble Court, but under which the Government cannot issue executive orders, pending decision in the present case.

It is thus apparent that the State Government of Uttar Pradesh is unable to proceed under its parent Act of 1994, which has constitutional sanction, and which provides for reservation in the State of Uttar Pradesh on public posts and services, since the amending Act of 2001 which has substituted certain sections of the parent law, but pursuant to which amendment Act, the Government is restrained from  making any executive orders, pending disposal of the present writ

12

petition.  Hence, the pendency of the present case, wherein the vires of the Amending Act of 2001 is under challenge, and the consequent aforesaid inability of the State Government to fill direct and promotional posts in the State by applying the parent reservation law of 1994, is defeating the constitutional rights of the affected persons entitled to reservation and is causing large scale resentment and uneasiness among such persons, and on account of which the Government is unable to discharge is avowed objective and responsibility of extending the benefit of reservation under the 1994 Act.

That it may be submitted that the State Government, faced with the aforesaid piquant situation whereby the constitutional rights of its people are being negated owing to inability of the Government to extend the benefit of reservation, an application for early hearing of the case had been filed in this Hon'ble Court, which by order dated 12.4.2002 has been directed to be listed after four weeks, in effect after the summer vacations of this Hon'ble Court.  It is thus imperative and essential in the interest of justice that, during pendency  and final disposal of the present writ petition, this Hon'ble Court be pleased to issue appropriate directions, enabling the State Government to apply its Reservation Act of 1994 and extend the benefit thereunder to those entitled to the same, thereby fulfilling its constitutional duty and social responsibility

That, the magnitude of the problem being faced by the State Government in the matter of current and mounting vacancies in public services and posts, and the inability of the State Government to fill the same, owing to the interim restraint on making of further executive orders in pursuance of the U.P. Public Services (Reservation of Scheduled Castes, Scheduled Tribes and Other Backward Classes)(Amendment) Act, 2001, and the inability of the State Government to proceed under its parent Reservation Act of 1994, it illustrated as under for the kind consideration of this Hon'ble Court. A prayer was made to issue appropriate direction which are quoted as below:

13

1. Issue appropriate directions enabling the State Government to proceed under its parent reservation law, the U.P. Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994; and

2. Pass such other order and further orders as may be deemed fit and proper in the facts and circumstances of the case."

17. Before I.A. (Civil) 13 of 2002 came up for hearing the State Government filed I.A.(Civil) 15 of 2002 stating in paragraph 3 that owing to promulgation of U.P. Ordinance no. 2 of 2002 on 6.6.2002, the application no. 13 of 2002 filed by the State Government for urgent directions on 7.5.2002, which  is listed before this Hon'ble Court on 17.6.2002, has lost its efficacy.  As such, the same is liable to be dismissed as having been rendered infructuous.  On 17.6.2002 Hon'ble Supreme Court passed the following orders.

"I.A. 15 is allowed.  I.A. 13 is dismissed as infructuous."

Another application namely I.A. 9 of 2002 was filed on behalf of the State of U.P. for early hearing of the case and directions.  In this application it was stated in paragraph 5 as follows:

"5. That, the magnitude of the problem being faced by the State Government in the matter of current and mounting vacancies in public services and posts, and the inability of the State Government to fill the same, owing to the interim restraint on making of further executive orders in pursuance of the U.P. Public Services (Reservation of Scgheduled Castes, Scheduled Tribes and Other Backward Classes)(Amendment) Act, 2001, is illustrated as under for the kind consideration of this Hon'ble Court:

A. That direct recruitment and promotion to public services and posts under the State, which covers class IV category in group "D" till the gazetted cadre comprising group "A" services, is to be governed by applying, the reservation law under Article 16(4) of the Constitution, and hence it is not possible for the State Government to effect recruitment/promotions on any posts in groups "A" to "D", till the passing of executive orders

14

pursuant to the Amendment Act of 2001 is stayed by this Hon'ble Court.

B. That on the basis of examinations held in the year 2000 for the provincial Civil Service and allied services, the State Government has received the recommendations of the Public Service Commission, however, since the reservation law cannot be applied at present by passing of executive orders thereunder, hence no appointments could be made by Government.  Thus, no appointments have been made on 552 vacant posts in 26 service cadres of various departments.

C. That pursuant to the Uttar Pradesh Rules of 2001 framed in October, 2001, which provided for direct recruitment on group 'C' posts outside the purview of the State  Public Service Commission, written examinations were conducted to fill various vacant posts in the clerical cadre and of technical nature in group 'C'.  The result of the said examination was to be declared by selection committees in every district, after applying the reservation law.  Thus, in view of the restraint on passing of executive orders under the reservation law, the results of examinations for group ' C ' could not be declared , and resultantly, about 8064 posts in Group 'C' in various departments are lying vacant.

D. The process for appointment of about 20,000 primary teachers in primary schools under the Education Department had been initiated, but on account of the said interim stay dated 21.1.2002 on passing of executive orders under the reservation law, the appointment process has been deferred.

E. That various vacancies in different Universities under the High Education Department, cannot be filled on account of the State Government not being in a position to apply the reservation policy under the reservation law and pass any executive orders thereunder.

F. That in respect of various posts (to be filled by direct recruitment and promotion), which are vacant and under the

15

purview of the State Public Service Commission, the State Government could not send requisition for selection of personnel on the same, to the public Service Commission.

G. That various departments apply the reservation policy at the time of entrance to various technical, educational and medical related courses, however, in the present situation, with the restraint on passing of executive orders under the present reservation law, there would be difficulty at the time of admission process for the new academic session beginning July, 2002.

H. That the various schemes being run by the State Government and departments, for the benefit of the weak and reserved sections, which are given the benefit of reservation under the Act, are suffering a setback since  the benefit of the reservation law cannot be extended to such sections at present.

19. Before the aforesaid application came up for orders I.A. No. 16 of 2002 ws filed stating that owing to promulgation of U.P. Act No. 2 of 2002 on 6.6.2002, which has, vide order dated 17.6.2002, been taken on record of this Court, the present application No. 9 of 2002 filed by the State Government for early hearing of the case, which is listed  on 12.7.2002 has lost its efficacy and as such the same is liable to be dismissed and have been rendered infructuous.  On the aforesaid application Hon'ble Supreme Court on 12.7.2002 passed the following orders:

"I.A. 9 is dismissed as withdrawn.  I.A. 16 is disposed of."

20. The aforesaid record of proceedings demonstrates without any doubt that State Government has taken a conscious decisions not to press the I.A's. No. 9 and 13 of 2002 for directions enabling the State Government to proceed under parent reservation law and for expeditious hearing and was of a  clear legal opinion that after the promulgation of U.P. Act No. 2 of 2002 on 6.6.2002, the applications have lost their efficacy. The State Government was thus in a position to conclude the selection process.  Learned Chief Standing Counsel has also placed before the Court an application for interventions by Pal Mahasabha, Uttar Pradesh and another and an

16

intervention application on behalf of Anjani Jaiswal and another filed on 17.6.2002.

21. Sri Ashok Khare, Senior Advocate, leading the arguments, submits that there is no impediment in the way of State Government to complete the process of selection and issue appointment in pursuance of the Group 'C' posts commenced in the year 2001.  U.P. Ordinance No. 2 of 2002 has virtually repealed all the amendments vide U.P. Act No. 21 of 2002 to the parent Act and has restored the original position prevailing before 15.9.2001. The selections have been held, and that issuing appointment letters in pursuance of the roster as prevailing before 15.9.2001 is only an ministerial act.  According to him, the interim order passed by Hon'ble Supreme Court  is applicable only to the actions to be taken in pursuance of U.P. Public Service (Reservation of Scheduled Castes, Scheduled Tribes and Other Backward Classes) (Amendment) Act, 2001. Firstly, the amendments made vide the aforesaid Amendment Act, 2001  have been done away with by U.P. Ordinance No. 2 of 2002 and secondly, the directions with regard to executive action amounts to executive orders to be issued  under sub sections (5) of Section 3 which provides for issuing a roster, sub section (1) and (2) of Section 4 which provides for notifying the appointing authority or any officer with the authority to ensure compliance of the provisions of the Act, and by issuing any orders under section 10 of the Act. These executive actions have been enumerated under section 14 of the U.P. Act No. 4 of 1994.  The application of roster to the selectees and their appointments is an administrative act.  The State Government had clearly understood into the import of the order of the Supreme Court in issuing Government Order dated 17.6.2002 removing all administrative restrictions on appointments.  It appears that due to some political motives, the State Government is not prepared to proceed with the matter.  This clarity in legal position was also obtained in making I.A. Nos. 15 and 16 of 2002, withdrawing I.A. No. 13 and I.A. No. 9 pending before Supreme Court for making appointment in accordance with the present Act and for expeditious hearing.  However, it appears that for consideration which are not known to petitioners and which have no relation to the object of making appointments, the State Government has decided to maintain status quo while proceeding to fill the so call backlog

17

vacancies for Scheduled Castes and Scheduled Tribes on war footing.  According to him, as admitted by the State Government, in I.A. No. 9 of 2002, filed before  Supreme Court , 8064 posts in Group 'C', 20,000 posts in Primary Teachers in Education Department, 552 posts in 26 Service Cadres for which examinations were held in 2002 by Public Service Commission and recommendations have been received are lying vacant  for which selections have been held.  According to him, the State Government cannot be permitted to plead against the apparent legal position and the statement given by it before Supreme Court  in which it was more than conscious and eager to the constitutional rights  of candidates by extending the benefit of reservation.  The  constitutional duty and constitutional responsibility pleaded has now taken back seat for political expediency.  In the alternative he submits that there is no impediment in completing the selection process and issuing appointment letters to the general category which constitute fifty percent of the posts.  Sri Umesh Sharma, appearing  in writ petition No. 31645 of 2002 submits that in his case all the selectees were given appointment except petitioner for Group 'C' in the district of Mathura.  The State Government cannot, on one hand issue appointment letters to  some of  the candidates and discriminate petitioners violating their rights under Article 14 and 16 of the Constitution of India.

22. In reply learned Advocate General submits that the State Government has adopted a cautious approach.  It does not want to violate the orders passed by Supreme Court.  According to him, executive instructions means all steps in pursuance  to selection process ending in issuing appointment letters.  He submits that applications for expeditious hearing filed before Hon'ble Supreme Court were dismissed by the Supreme Court.  The backlog vacancies of Scheduled Castes, Scheduled Tribes and Other Backward Classes have been determined with careful exercise and that these vacancies are not covered by the earlier selection process.  He has prayed for lifting the restrictions for filling up these vacancies and has justified the decision of the State Government taken vide Government Order dated 13.9.2002 to await decision of the Supreme Court in the mater of writ petition No. 488 of 2001.

18

23.  In writ petition No. 488 of 2001 pending before Supreme Court, petitioner has prayed to declare the Amending Act 2001 as violative of Article 14 and 16 and as such ultra vires to constitution and to strike down the same as unconstitutional. The prayer for intervention was rejected by Supreme Court on 21.1.2002.  The interim order is with regard to issuing executive orders pursuant to the Amendment Act, 200.  By U.P. Ordinance 2 of 2002, the amendments made vide Amending Act, 2001 have been done away.  The State Government has after issuance of U.P. Ordinance No. 2 of 2002 issued Government Order dated 17.6.2002 removing the restriction on recruitment and appointments. These orders were followed, and in same districts select lists were declared and appointment letters were issued. The State Government got the I.As. for giving appointments under the parent Act, and for expeditious disposal of the writ petition, dismissed as infructuous by moving an application supported by affidavit of Sri P.N. Yadav.  Thereafter it proceeded to issue appointment letters whereas  in some districts it initiated the fresh process of recruitment.   The Rules of  recruitment on Group 'C' posts was amended on 6.6.2002 giving away the written examinations.   On its own showing the State Government was keen to fulfill its constitutional obligation in making appointment.  Thereafter no change has taken place nor any subsequent events intervened to make a decision, and to proceed with making appointment of only reserved categories to fill up backlog vacancies with tearing hurry and take decision of maintaining status quo with regard to selection process initiated in the year 2001 till the decision of Supreme Court in writ petition No. 488 of 2001.  It is apparent from the record that these was no change in  legal position  after issuance of the U.P. Ordinance 2 of 2002.  The amendments  made by U.P. Act No. 21 of 2001 are no longer in force, and that no executive instructions were  issued either way to implement  those amendments which have been withdrawn.

24. The substance of the amendment reduced by the U.P. Act No. 21 of 2001 was sub categorization of Scheduled Caste and Other Backward Classes and the percentage of reserved posts allocated to these sub categorization.  Whereas reservation of Scheduled Tribes was reduced to one percent, reservation of Other Backward Classes was increased to twenty eight percent.  After the amendment of section 3, of the parent Act  U.P.

19

Ordinance 2 of 2002, both these sub categorization as well as the reduction of percentage for Scheduled Tribes and increase for Other Backward Classes was done away and that the Parent Act came into its old form.  The direction of Supreme Court restrained the State Government from issuing further executive orders  in pursuance of U.P. Act No. 21 of 2001.    Once the entire substance of the amendment was done away no executive order could be issued under the Amending Act of 2001.  The submission of Advocate General that with the completion of selection process publication of select list and issuing appointment letters amounts to issuing executive orders cannot be sustained.  These are purely administrative acts.  The selection process had been initiated after which the preparation of select list, application of roster and issuing appointment orders cannot amount to issue executive orders as contemplated by Hon'ble Supreme Court.  

25. The argument of Sri Ashok Khare, that the back log of vacancies for Scheduled Caste and Scheduled Tribes cannot be worked out without taking into account the previous selection is also worthy of consideration.  Sub section (2) of Section 3 of U.P. Act No. 4 of 1994  provides that even if, even in respect of any order of recruitment, any vacancy reserved for any category of persons, under sub section (1) remains unfilled, special recruitment shall be made for such number of time, not exceeding three as may be considered necessary to fill such vacancy from amongst the persons belonging to that category.  These special recruitment drives for filling back log vacancies cannot be undertaken unless the selection has been made, in which vacancies reserved for any category of persons have remained unfilled.  Prior to 2001, selections were not made for a long period of time.  The 2001 selections have not been completed.  In the circumstances I am unable to comprehend as to how the respondents could proceed to fill the backlog of vacancies.  In any case, it is a matter of determination which  will certainly require the last selection to be taken into consideration.

26. The Advocate General could not demonstrate as to how the selections initiated in the year 2001 will be effected in any manner by change in reservation laws introduced  as above.  Ordinance 2 of 2002 has restored the reservation provided for in the parent Act.  This position was admitted to the State Government before I.As. were filed to withdraw the applications to

20

permit to complete the selection process in accordance with old Act and for expeditious disposal of the writ petition.  In the circumstances there is absolutely no obstacle muchless legal obstacle,  in completing the selection process.

27. It was submitted on behalf of petitioners that the present Government is discriminating the persons selected or likely to be selected in the recruitment drive initiated in 2001.  As it considers these candidates to be selected by the old Government.  There is nothing on record to justify this apprehension.  The fact, however, remains that good Governance  requires  public confidence.   After about a decades the recruitment was initiated to fill up long standing vacancies on account of which work in all the departments were suffering.  Having undergone a process for recruitment against which  no doubts have been raised  the fairness in selection process, it is necessary in public interest to bring the process to its logical end.  Lacs of persons had appeared in the massive exercise of selections all over the State, in which crores of rupees were spent for  Eight thousand and sixty four vacancies.  The candidates are awaiting Government's decision which  fortunately brought to an end  the controversy created by sub categorizing the reserved classes. In the circumstances  petitioners are justified in making a prayer to complete the selection process.

28. The decision of the State Government taken by its order dated 13.9.2002 is thus clearly violative of legal position, as obtained, and of the Constitutional rights of thousands of aspirants who have appeared in the examination of 2001, and are awaiting the completion of process.

29. In the result all the writ petitions are allowed.  The respondents are directed to complete the selection process initiated for Group 'C' posts in the State in the year 2001. Where the select list were published, the respondents shall issue appointment letters to the selected candidates applying  the roster for reservation in accordance with law.  Where the select list have not been published, these shall be published in accordance with the merits and appointment offered in accordance with law.  

30. In the facts and circumstances of the case there shall be no order as to costs.

Dt. 4.10.2002.

BM/-.


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

Advertisement

dwi Attorney | dui attorney | dwi | dui | austin attorney | san diego attorney | houston attorney | california attorney | washington attorney | minnesota attorney | dallas attorney | alaska attorney | los angeles attorney | dwi | dui | colorado attorney | new york attorney | new jersey attorney | san francisco attorney | seattle attorney | florida attorney | attorney | london lawyer | lawyer michigan | law firm |

Tip:
Double Click on any word for its dictionary meaning or to get reference material on it.