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DR. SMT. SUSHILA DEVI versus DIRECTOR OF HIGHER EDUCATION & ANOTHER

High Court of Judicature at Allahabad

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Dr. Smt. Sushila Devi v. Director Of Higher Education & Another - WRIT - A No. 23161 of 2002 [2003] RD-AH 128 (2 May 2003)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

A.F.R.

COURT NO. 34

CIVIL MISC. WRIT PETITION NO 23161 Of 2002

Smt Sushila Devi        -----                     Petitioner

Vs.

The Director of Higher Education, U.P.

Allahabad & ors. -----            Respondents.  

             --------------

Hon'ble Dr.B.S.Chauhan,J.

Hon'ble Ghanshyam Dass, J.

(By Hon'ble Dr. B.S.Chauhan, J.)

This is a unique case where the petitioner without any hesitation considers it to be her vested right to waste the time of the statutory functionaries and courts by improving her case bit by bit and approaching the courts successively.

Facts and circumstances giving rise to this case are that the U.P. Higher Education Commission (hereinafter called Commission) respondent no.2 advertised 87 vacancies to be filled up in various Degree Colleges in Hindi by Advertisement No. 26, dated 13th August 98, advertised in Local News papers on 20th August. 1998. Result of the selection was declared on 13th March 2000. Petitioner's name was found at Serial No.5 in the Waiting List. As the petitioner was not appointed she filed Writ Petition No. 36859 of 2001 before this court on 17.7.2001 contending as under:

"That being the selected candidate of waiting list of O.B.C. against the Advertisement No.26,the petitioner submitted a representation before the Director of Higher Education, Respondent no.1 stating therein that the candidates Dr. Mansa Devi Singh who is at Serial No.1, in waiting list and Sri Surendra Pratap Yadav who is at Serial No.2 and Dr. Rubina who is at Serial No.3 were provided selection order for appointment to the posts of Lecturer of Hindi and as such the petitioner is also entitled to be placed for appointment to the posts of Lecturer in Hindi against waiting list of Advertisement No. 26."

The said writ petition was disposed of by this Court vide order dated 9.11.2001 (Annexure ''3') directing the respondent no. 1 to decide the petitioner's representation within the stipulated period. It appears that petitioner filed another representation along with the copy of the order of this Court, which has been decided vide order dated 28.1.2002 holding that the relief claimed by the petitioner could not be given for the reason that the ground taken by her in representation was totally misconceived. Petitioner had contended in her representation that one Dr. Mamta Verma who was at Sl. No. 5 in the Waiting List of the O.B.C. candidates had been offered appointment against the vacancy of Advertisement No. 26 ignoring the claim of the petitioner who was over and above Dr. Mamta Verma. The representation was rejected on the ground that Dr. Mamta Verma had been appointed against the vacancy of Advertisement No. 29 and not against that of Advertisement No. 26.

Petitioner preferred this writ petition entirely on different grounds as it has been contended here that three persons of the O.B.C. category, who had been offered appointment against the vacancies in Advertisement No. 26, have not joined the post, therefore, this Court should issue direction to the respondents to offer the appointment to the petitioner against the vacancies of the said advertisement.

Shri Khare, learned counsel for the petitioner has contended that whatever may be the case of the petitioner earlier, some of the vacancies of Advertisement No. 26 for the post of Lecturer in Hindi remained vacant. Therefore, petitioner is entitled to be appointed against one of the said vacancies.

On the contrary, Shri C.K.Roy, learned Standing Counsel and Shri Pushpender Singh, learned counsel for the Commission have submitted that Advertisement No. 26 was published on 20.8.1998. Result had been declared on 3rd March, 2000. Subsequent thereto, several advertisements had been made and selection process in pursuance thereof stood completed. Select List made on 3.3.2000 had expired. Petitioner cannot improve her case and approached the Court entirely on different grounds from those which had been taken earlier, and therefore, petition is liable to be dismissed.

We have considered the rival submissions made by the learned counsel for the parties and perused the record.

Petitioner's name stood included in the Waiting List at Sl. No. 5. It is not petitioner's case that any person below her in the waiting list has been offered appointment.

A person has a right only to be considered being eligible as per the Rules for employment. He can raise the grievance provided a person having lesser merit in the same category is offered appointment.

Mere inclusion of the name of a candidate in the select list does not confer any right of appointment (vide Shanker Sen Das Vs. Union of India & ors., AIR 1991 SC 1612; Asha Kaul Vs. State of Jammu and Kashmir (1993) 2 SCC 573; Union of India & ors Vs. S.S. Uppal, AIR 1996 SC 2340; Hanuman Prasad Vs. Union of India & ors., (1996) 10 SCC 742; Bihar Public Service Commission Vs. State of Bihar AIR 1998 SC 2280; Syndicate Bank & ors. Vs. Shankar Paul & ors., AIR 1977 sc 3091; and Vice Chancellor University of Allahabad Vs. Dr. Anand Prakash Mishra & ors. (1997) 10 SCC 264.

As there is no enforceable right to appointment, mandamus cannot be issued to the respondents to appoint petitioner (vide Punjab S.E.B. Vs. Seema 1999 SCC (S/S) 629).

The Hon'ble Apex Court in Union of India & ors. Vs. Ishwar Singh Khatri & ors., 1992 Suppl. (3) SCC 84, wherein it was held that selected candidates have right to appointment only against "vacancies notified" and that too during the life of the select list as the panel of selected candidates cannot be valid for indefinite period. Moreover, impaneled candidates "in any event cannot have a right against future vacancies". In State of Bihar Vs. Secretariat, Assistant S.E. Union, 1986 & ors, AIR 1994 SC 736, the Apex Court held that "a person who is selected does not, on account of being empanelled alone, acquire any indefeasible right of appointment." Empanelment is at the best a condition of eligibility for purposes of appointment, and by itself does not amount to selection or create a vested right to be appointed unless relevant service rules provides to the contrary.

In Surinder Singh Vs. State of Punjab, 1997 (8) SCC 488, the Apex Court observed as under:-

"--------------If the waiting list in one examination was to operate as infinite stock for power, there is danger that the State may resort to the device of not holding the examination for years together and pick-up candidates from the waiting list as and when required. The Constitutional discipline requires that improper exercise of power which may result in creating a vested interest and perpetuating the 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 ..... Exercise of such power (to requisition the post) has to be tested on the touch-stone of reasonableness.-------------"

As per the statutory provisions under Section 13 of the Act 1980 the Select List was valid for a period of one year from the date of its declaration. The Act was amended w.e.f. 22.11.1991, provided that Select List prepared by the Commission shall be valid till the receipt of a new list from the Commission. It is not in dispute that subsequent to 3.3.2000 Select List prepared in pursuance of subsequent advertisement had been made available by the Commission and appointments had been made in pursuance thereof.

The select list expired long back and all the vacancies had been filled up prior to filing of the writ petition. It is settled legal proposition that no relief can be granted to the candidate if he approaches the Court after expiry of the Select List. (Vide J Ashok Kumar Vs. State of Andhra Pradesh & ors., JT (1996) 3 SCC 320; State of Bihar & ors. V. Mohd. Kalimuddin, AIR 1996 SC 1145; State of Uttar Pradesh V. Harish chandra, AIR 1996 SC 2173; and State of U.P. & ors Vs. Ram Swarup Saroj, (2000) 3 SCC 699). It has been held therein that if the selection process is over, select list had expired and appointments had been made, no relief can be granted by the court at a belated stage.

However, in Purshottam Vs. Chairman, Maharashtra State Electricity Board & Anr., (1999) 6 SCC 49, the Hon'ble Supreme Court has held as under:-

"The right of the appellant to be appointed against the post to which he has been selected, cannot be taken away on the pretext that the said panel, in the meanwhile, expired and the posts had already been filled up by somebody else. usurpation of post by somebody else is not on account of any fault on the part of the appellant but on the erroneous decision of the employer himself. In that view of the matter, appellant's right to be appointed on the post has been illegally taken away by the employer".

The Hon'ble Supreme Court held that in such a situation the party should be given the relief. The aforesaid judgment had been delivered by a Bench consisting of two Hon'ble judges of the Supreme Court and that too without taking note of the judgments referred to hereinabove.

A Bench of Three Hon'ble Judges of the Supreme Court, in Sushma Suri V. Government of National Capital of Delhi,(1999) 1 SCC 330, dealing with a case wherein the Court had been approached at the stage when the process of selection had started but by the time the matter was decided, the selection process stood concluded and the appointments had been made, observed as under:-

"However, we are not in a position to give any relief to the appellant before us now because when she commenced the litigation, the recruitment process was still going on and it had gone too far ahead. In fact, the same has been completed and selected candidates had already been appointed and they had reported for duty in different places and they are not impleaded as parties in these proceedings, it would not be proper to upset such appointment."

There can be no dispute that wherever there is a conflict in two judgments of the Court, the judgment of the larger Bench would prevail. (Vide Rameshwar Shaw Vs. Distt Magistrate Burdwan & Anr., AIR 1964 SC 334; State of U.P. & ors. Vs. Ram Chandra Trivedi, AIR 1976 SC 2547; N. Meera Rani Vs. Govt of Tamil Nadu & Anr, AIR 1989 SC 2027; N.S. Giri Vs. Corporation of City of Manglore & ors., (1999) 4 SCC 697; Coir Board Ernakulam & Anr. Vs. Indira Devai P.S. & ors., (2000) 1 SCC 224; Sub Inspector Roop Lal & Anr. Vs. Lt. Governor Delhi & ors., (2000) 1 SCC 644; Lily Thomas & ors. Vs. Union of India & ors, (2000) 6 SCC 224; and S.H. Rangappa Vs. State of Karnataka & ors., (2002) 1 SCC 538).

Thus, in view of the above we are of the considered opinion that in view of the larger Bench judgments no appointment can be made after expiry of the Select List.

In view of the provisions of Section 13 of the Act 1980 no appointment can be made after expiry of the Select List, thus it is beyond our imagination as to how the relief can be granted to the petitioner.

The Court has no competence to issue a direction contrary to law.  (vide Union of India & Anr.  v.  Kirloskar Pneumatic Co.  Ltd.  (1996) 4 SCC 453;   State  of U.P.  & ors.   v.   Harish Chandra &  ors.,  (1996)  9 SCC  309;   and  Vice Chancellor,  University  of Allahabad & ors.,  v. Dr.  Anand  Prakash Mishra & ors., (1997) 10  SCC 264).

In State  of Punjab & ors. Vs.   Renuka  Singla &  ors.  (1994) 1 SCC 175, dealing with a similar situation, the  Hon'ble    Apex   Court observed as under:-

"We fail to appreciate as to how the High Court or this Court can be generous or liberal in issuing such directions which in substance amount to directing the authorities concerned to violate their own statutory rules and regulations."    

Similarly, in Karnataka State Road Transport Corporation v. Ashrafulla Khan & ors., JT 2002 (2)  SC  113, the Hon'ble Apex Court  has held as under:-

"The High Court under Article 226 of the Constitution is required to enforce rule of law and not pass order or direction which is contrary to   what has been injected by law."

Thus, it is neither desirable nor permissible for this Court to issue the direction of appointment of the petitioner after expiry of the Select List.

Mr. Khare has placed much reliance upon the judgment of this Court in an identical case wherein direction was issued to fill up the vacancies in respect of different category of candidates in respect of the same advertisement and it has been submitted by him that this Court is bound to pass a similar order. The judgment and order passed by this Court in Writ Petition No. 42231 of 2001 Apurva Sen Raj & Anr. Vs. Director of Higher Education dated 20.3.2002 is worth quoting in toto:-

"Heard. The petitioners applied for appointment as Lecturers in Hindi in a Degree College. They faced the selection committee of the U.P. Higher Education Commission and were placed on the waiting list. It is stated in paragraph 9 of the petition that some of the selected candidates did not join the posts.

We, therefore, direct that the vacant posts shall be filled in forthwith from the waiting list in respect of the Advertisement No. 26 of 1998.

The petition is disposed of accordingly."

It is apparent from the aforesaid judgment that no reason had been given for issuing the direction of appointment nor the court has considered the provisions of Section 13 of the Act, 1980, thus the said judgment remains "Per Incurium.

In view of the above, the judgment referred to by the Learned Counsel for the petitioner, does not lay down any law nor it gives any reason nor the scope and application of the statutory provisions had been considered. It does not have a binding effect as it remain per-incurium.

The concept of "per incurium" are those decisions given in ignorance or forgetfulness of some inconsistent statutory provisions or of some authority binding on the Court concerned. (Vide Mamleshwar Prasad & Anr Vs. Kanhaiya Lal, (1975) 2 SCC 232;A.R. Antule Vs.R.S.Nayak, (1988) 2 SCC 602; State of West Bengal Vs.Synthetics and Chemicals Ltd., (1991) 1 SCC 139; B.Skhyama Rao Vs. Union territory of Pondichery, AIR 1967 SC 1480; Municipal Corporation of Delhi Vs. Gurnam Kaur, (1989) 1 SCC 101; Ram Gopal Baheti Vs. Girdhari Lal Soni & ors, (1999) 3 SCC 112; Sarnam Singh Vs. Dy. Director of Consolidation & ors., (1999) 5 SCC 638; Godrej Andhra Pradesh Vs. B. Satyanarayana Rao, AIR 2000 SC 1229; Forest Day Lawson Ltd. Vs. Jindal Exports Ltd., (2001) 6 SCC 356; Suganthi Suresh Kumar Vs. Jagdeeshan, (2002) 2 SCC 420; and Director of Settlements A.P. & ors. Vs M.R.Apparao & Anr., AIR 2002 SCW 1504).

Thus, the petitioner is not entitled to seek any relief placing reliance upon the said judgment in Apurva Sen Raj (Supra).

In the earlier writ petition petitioner's grievance had been that 3 OBC candidates from the waiting list i.e. Dr. Mansha Devi Singh, Surendra Pratap Yadav and Dr. Rubina had been offered the appointment and therefore the petitioner was also entitled to be appointed against the vacancy of Advertisement No. 26. In her representation which has been decided vide order dated 28.1.2002 it is evident that the petitioner has raised the issue that one Dr. Mamta Verma who was at Serial No. 4 in the waiting list prepared in pursuance of Advertisement No. 26 had been offered appointment ignoring her claim. The respondent no.2 rejected her representation clearly stating that Dr. Mamta Verma had been appointed as her name appeared in the select list prepared in pursuance of the Advertisement No. 29, no other point has been raised before the respondent no.2 In this petition fresh issues have been agitated, which had neither been raised in the earlier writ petition nor before the respondent no.2 in her representation.

We fail to understand how the petitioner can take liberty to seek the relief changing the grounds and raising the new factual issues.

Filing successive petitions taking different grounds amounts to abuse of process of the court. Petitioner ought to have filed a proper representation before the respondent no.2 ventilating all her grievances so that the statutory functionary would have examines her case thoroughly. She had approached different forums on different grounds. It gives an impression that the petition has been filed for setting aside the order oif the respondent no.2, but no such relief has been claimed. Paragraph 1 oif the Writ Petition reads as under: -

"That this is the first writ petition in respect of the matter in dispute. No other writ petition, whatsoever has been filed for the same before this Hon'ble Court by the petitioner".

Therefore, it is evident that the petitioner has filed this petition first time raising the new issues which she had neither agitated before the respondent no.2 nor in her writ petition filed by her earlier.

It is settled proposition of law that a pure question of law, which does not require any investigation of fact, can be raised first time in writ jurisdiction. An issue which requires investigation of facts, cannot be allowed to be agitated. (Vide St. Arunchallai Pillai Vs. Southern Roadways Ltd., AIR 1960 SC 1191; A.M. Allison Vs. State of Assam, AIR 1957 SC 227; Cantonment, Ambala Vs. Pyare Lal,AIR 1966 SC 108; State of U.P. Vs. Dr. Anupam Gupta, AIR 1992 SC 932;Bhanwar Lal  Vs. T.K.A. Abdul Karim , AIR 1992 SC 2166; Ratan Lal Sharma Vs. Managing Committee, (1993) 4 SCC 10; Rajeshwari Amma Vs. Joseph, AIR 1995 SC 719;Commissioner of Income Tax   Vs.  U.P.. Forest Corporation, AIR 1998 SC 1125; P.R..Deshpande Vs.  Maruti Balaram Haiabatti, (1998) 6 SCC 507; State of Punjab  Vs.  R.N.Bhatnagar, (1999) 2 SCC 330; Oil & Natural Gas Commission  Vs.  M.C.Chelland Engineers S.A., (1999) 4 SCC 327; Rajasthan Agriculture University Vs. Ram Krishna Vyas, (1999) 4 SCC 720;Warner Hindustan Ltd. Vs Collector of Central Excise ,(1999) 6 SCC 762;Atlas Export Industries vs. Kotak & Co., (1999 ) 7 SCC 61; and Ram Kumar Agrawal vs. Thawar Das, (1999) 7 SCC 303).

In Ramesh Chandra Sharma vs. Udham Singh Kamal  & Ors., (1999) 8 SCC 304, the Hon'ble supreme court has held that a plea, for which no factual foundation has been laid before the trial court or tribunal, cannot be entertained in writ jurisdiction. In Vasantha Viswanathan & ors.  Vs.  V.K. Elayalwar & ors.,  (2001) 8 SCC 133. While dealing with an issue under the Motor Vehicles Act, 1988 where the question arose as to whether the plaintiff had been trafficking  in permits and the said issue had not been raised in the court /Tribunal below, the Hon'ble Supreme Court held that even if as there had been no pleadings before the authority below, nor any evidence was laid before the said authority, it was not possible to allow the parties to raise such a plea  first time before the Writ  Court.

In Dr.T.V.Jose. vs Chacko P.M. alias Thankachan & ors, (2001) 8 SCC 748 while dealing with an issue under the same Act, i.e., Motor Vehicles Act, the Hon'ble Supreme Court rejected the plea as not permissible to be entertained as it had not been raised in the court below. In A.P. State Electricity Board & ors (Supra) the Hon'ble Supreme Court dealt with a case wherein a writ petition has been filed by the petitioner and it was disposed of giving directions to the authority to decide the case in accordance with law. When subsequent writ petition was filed as the petitioner was aggrieved by the order passed by the Statutory Authority certain new grounds had been taken. The Court held that if an issue had not been raised in the earlier writ petition nor it had been raised before the statutory authority, petitioner could not be permitted to raise such a plea in the subsequent petition. The Court held as under:-

"It was sought to be urged before us on behalf of the appellants that after the issuance of the first memorandum dated 26.8.1985 the vacancies were sought to be filled up and by the year 1991 a large number of ex-casual labourers were actually appointed . Unfortunately, the respondents herein did not turn up for selection and therefore they were not appointed. This submission cannot be entertained by us at this stage because it does not appear that when the first writ petition was filed and disposed of, such a plea was taken by the appellant Board. The question being a pure question of fact, we refuse to entertain the same at this stage."  

As the petitioner had not raised the issue involved herein in the earlier writ petition not before the Commission and the issue raised is purely factual. We are not inclined to entertain the petition at all for the reason that the case stands squarely covered by the Judgement of the Hon'ble Supreme Court in A.P. Electricity Board & Ors . Vs. J. Venkateswara & ors. (Supra).

In Dr. Buddi Kota Subbarao Vs.K. Parasaran, AIR 1996 SC2687, the Hon'ble Supreme Court has observed as under:-

"No litigant has a right to unlimited drought on the court time and public money in order to get his affairs settled in the manner he wishes. However, access to justice should not be miscued as a license to file misconceived and frivolous petitions."

Similar view has been reiterated by the supreme Court in K.K Modi Vs.K.N.Modi,(1998) 3 SCC 573.

In Tamil Nadu electricity board & Anr. Vs. N. Rajureddiar & Anr. AIR 1997 SC 1005 the Hon'ble supreme Court held that filing successive misconceived and frivolous applications for clarification, modification or for seeking a review of the order interferes with the purity of the administration of law and salutary and healthy .practice. such a litigant must be dealt with a very heavy hand.

In Sabia Khan & ors Vs. State of U.P. & Ors.,(1999) 1 SCC 271, the Hon'ble Apex Court held that filing totally misconceived petition amounts to abuse of the process of the Court and such litigant is not required to be dealt with lightly.

In Abdul Rahman Vs. Prasoni Bai & Anr., 2003 AIR SCW 14, the Hon'ble Supreme court held that wherever the Court comes to the conclusion that the process of the Court is being abused, the Court  would be justified in refusing to proceed further and refuse the party from pursuing the remedy in law.

Thus in view of the above, the case can be summed up that petitioner had been approaching the Court and the authorities successively on different grounds, which is not permissible in law rather it amounts to abuse of process of the Court. Select List had expired long ago. Court is not competent to grant any relief to the petitioner subsequent to expiry of the Select List prepared in pursuance of Advertisement No. 26. Several advertisements in the same subject have been issued and after completion of the selection process appointments have been made. No relief can be granted to the petitioner at such a belated stage. The conduct of the petitioner behaving in such an irresponsible manner is liable to be deprecated.

Petition is devoid of any merit and accordingly dismissed.

There shall be no order as to costs.

2.5.2003

SB/AKSI


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