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CASE NO.: Appeal (civil)  1035 of 2004

PETITIONER: Sheo Shyam and Ors.  

RESPONDENT: State of U.P. and Ors.   

DATE OF JUDGMENT: 16/02/2004

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT: JUDGMENT

(Arising out of SLP (C) No. 6505/2003)

WITH

CIVIL APPEAL NO. 1036/2004 (Arising out of SLP (C)9984/2003)

WITH

CIVIL APPEAL NO. 1037-39/2004 (Arising out of SLP (C) No. 9985-9987/2003

ARIJIT PASAYAT,J

       Leave granted.  

                These appeals are directed against the judgment of  the Allahabad High Court rejecting writ petitions filed by  the appellants. The only question which falls for  consideration in these appeals is the date from which the  period of validity of the waiting list is to be reckoned.  According to the Union Public Service Commission  (hereinafter referred to as the ’Commission’) it is from  the first date on which the recommendation was made by the  Commission. The appellants took the stand that the  recommendations were done piece-meal, and therefore, it  has to be from the date on which the last recommendation  was made. The State of U.P. endorses the stand of the  appellants. It has to be noted that there is no statutory  rule governing the situation.

Background facts are as follows:- The Commission issued an advertisement for filling up  218 posts of Assistant Prosecuting Officer (in short the  ’APO’). The appellants applied for appointment. On the  basis of recommendations made by the Commission,  appointments were made by the State Government in  instalments since the Commission itself appears to have  been sending proposals also in instalments, after due  verification of the credentials and fitness of candidates.  The first batch of appointment orders was issued on  20.8.2001 requiring selected candidates to join by  10.9.2001. Thereafter, appointments were made in two  further batches and the joining dates were indicated to be

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3.10.2001 and 20.4.2002. It is undisputed that about 30  candidates who were selected did not join.  

       On 26.11.2001, the State Government sent  communication to the Commission pointing out that the  candidatures of 7 candidates have been cancelled as they  had refused to join and a request was made for seven  additional names. Grievance of the writ petitioners  (appellants herein) was that when 30 posts were vacant and  the period of currency of the waiting list was not over,  the State Government should have required the Commission  to send 30 names.  

       Response of the Commission to the letter of the State  Government was that the additional names called for were   not to be sent, as two and half years had elapsed from the  date when the first recommendation was sent by the  Commission. Writ petitions were filed questioning the view  taken by the Commission. The High Court by the impugned  judgment held that the period of validity of the waiting  list was over.  

       In support of the appeals, Mr. Rakesh Dwivedi,  learned senior counsel submitted that the stand taken by  the Commission is contrary to the clear stipulations made  by the State Government in several orders. Particular  reference has been made to two Office Memorandums dated  31.1.1994 and 14.1.1999. In the first office memo. It was  indicated that problems arose when names were not  indicated by the Commission within a period of one year  and when the Commission did not make available the names  of the candidates within the prescribed period. The  waiting list in such cases shall be valid even after one  year and if the waiting list is not utilized within the  prescribed period, the left over vacancies shall be  presumed to be carried forward to the next year. The  office memorandum dated 14.1.1999 was categorical to the  effect that period of one year was to be reckoned from the  last date of taking names from the waiting list.  

       In response, learned counsel for the State Government  adopted the stand of the appellants and submitted that the  correct position has been highlighted by the appellants.  But learned counsel for the Commission submitted that if  the plea of the appellants is accepted it will create a  totally chaotic situation. It would lead to uncertainty.  Though in some cases, the Commission has accepted the  stand now presently taken by the appellants to be correct,  yet that cannot act as an estoppel against the Commission  on the facts of the present case. Subsequently, the State  Government itself has requisitioned for 56 posts including  the unfilled posts to which the present disputes relate   and the examinations were held on 9.11.2003. The vacancies  have been carried forward. It was unavoidable on the part  of the Commission even as per the stand taken for it to  send recommendations in batches because verifications of  the antecedents of the selected candidates were to be done  and that took long time.  

       It is accepted by learned counsel for the parties  that there is no statutory rule governing the field. It  appears from the records that the date of receipt  of the  last recommendation by the State Government  is 23.7.2001.  Even though the results were declared on 20.3.1999, the  first batch of appointment orders of the select list was

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issued on 20.8.2001. It is submitted by learned counsel  for the State Government that there was an order of stay  operating pursuant to the order passed by the Lucknow  Bench of Allahabad High Court from 10.5.1999 till  20.5.2001. It is of significance to note that the stay  order granted by the Lucknow Bench was vacated on  19.12.2000. The list of selected candidates was sent in  the following manner:                                                  Date                    Number of candidates                                                 Recommended           1.      10.5.1999               162         2.      24.6.1999                47         3.      6.9.1999                  1         4.      8.9.1999                  4         5.      5.11.1999                 1         6.      28.2.2000                 1         7.      26.7.2001                 1              It also appears that after the stay order was vacated  by the High Court, the verification of the entire select  list was done afresh on account of expiry of six months  period in respect of verifications done earlier. After  afresh verification, the list of selected candidates was  received by the Government on 28.4.2001. Subsequently, on  4.5.2001 and 6.6.2001 verification lists of 24 and 21  selected candidates were received and finally on 25.6.2001  verification report in respect of 18 selected candidates  was received by State Government. Thereafter, various  verifications were received piece-meal.  

In the aforesaid background, in a case of this nature  and in view of the peculiar nature of the fact situation  noted above, it would be inequitable and unjust to compute  the one year period from the date when the first  recommendation was made by the Commission. Undisputedly,  appointments were made till the end of 2001. Therefore, it  would be proper to reckon the period from the last date  when the recommendation was made. But another situation  has developed subsequently. The State Government itself  had requisitioned for 56 posts  including the unfilled  posts of the previous selection and examinations are   stated to have been already held. The fate of present 11  appellants has suffered a set back on account of the  action of both the Commission and the State Government. If  the Commission’s stand is that the validity period of the  waiting list is one year, it should have sought for  clarification from State Government as to why unfilled  posts were included in the requisition, when its specific  stand in the office memorandums referred to above was to  the contrary. At the same time, the State Government  having taken a positive stand all through that the date of  reckoning would be the last date on which the  recommendation was made, it should not have included the  unfilled posts in its requisition. The career of 11  candidates cannot be jeopardized in this battle of  inconsistent and varying stands taken and moves adopted by  the State Government and the Commission at different  stages for different purposes.  

Had the Commission on receipt of the office  memorandum dated 14.1.1999 pointed out to the State  Government that its view was not in line with the  Commission’s view that would have sorted out the areas of  differences. Interestingly, in a particular case referred

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to by the appellants, Commission accepted that the period  was to be from the last date of recommendation. Though  there cannot be any estoppel in law, yet a statutory body  like the Commission cannot blow hot and cold at the same  breath. There has to be consistency in its view. To rule  out unfortunate situations like the present one being  allowed to recur again, both the State Government and the  Commission are required to be more vigilant and  constructive in their approach. When dealing with the  careers of large number of candidates, their stands have  to be consistent and not varying to avoid giving room for  unsavoury suspicions and ensuring the systems to work more  transparently to add to its reputation and strength.  

In the peculiar circumstances noted above, we direct  that the appellants shall be considered by the Commission  and the State Government and they would be appointed if  otherwise found suitable, and eligible after verification  of such credentials, documents and background as are  necessary to be done for appointment.  

The appeals are allowed to the aforesaid extent  without any order as to costs.