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CASE NO.: Appeal (civil)  1433 of 2006

PETITIONER: State of U.P. & Ors

RESPONDENT: Rajkumar Sharma & Ors

DATE OF JUDGMENT: 03/03/2006

BENCH: ARIJIT PASAYAT & TARUN CHATTERJEE

JUDGMENT: J U D G M E N T CIVIL APPEAL NO.   1433              OF 2006 (Arising out of S.L.P (C) No. 5296 of 2005)  

ARIJIT PASAYAT, J.

       Leave granted.  

       Challenge in this appeal is to the judgment rendered by a Division  Bench of the Allahabad High Court in a Letters Patent Appeal.  This is  practically the second journey of the parties to this Court. Earlier in  State of Uttaranchal and Ors. v. Sidharth Srivastava and Ors. (2003 (9)  SCC 336) connected issues were considered.

       The factual background in a nutshell is as follows:-

Uttar Pradesh Public Service Commission (in short ’UPPSC’)  published advertisement inviting applications for 544 posts of J.E.  Civil/Technical (507 Civil + 37 Technical). The result of selection was  published on 7-1-2000. The UPPSC sent its recommendations to the U.P.  Government on 30-10-2000. The U.P. Government forwarded the  recommendations on 31-10-2000 to the Chief Engineer’s Office, Hill  Cadre, Almora. The separate State of Uttaranchal came into existence on  9-11-2000. U.P. Government forwarded the UPPSC recommendations in  respect of posts in Hill Cadre to the Government of Uttaranchal. On 29- 8-2001, Government of Uttaranchal issued the order not to appoint the  selected candidates mentioning two reasons that - (1) the new  reservation policy of the State of Uttaranchal is different from that of U.P.  and (2) practical and legal difficulties "in such a situation" in giving  appointments to the candidates recommended by the UPPSC. The  selected candidates, aggrieved by the same, filed a batch of writ petitions  assailing the said order, impleading State of Uttaranchal and its officers,  State of Uttar Pradesh and its officers and UPPSC. A Division Bench of  the High Court, by a common judgment allowed the writ petitions and  issued direction to the State of Uttaranchal to give appointments to the  writ petitioners. The High Court took the view that the recommendations  made by the UPPSC of the erstwhile State of U.P. were binding on new  State of Uttaranchal.  High Court’s judgment was assailed before this  Court by the State of Uttaranchal.  

       After noticing various provisions contained in Articles 320 and  323(2) of the Constitution of India, 1950 (in short the ’Constitution’), as  well as Section 178 of the U.P. Reorganisation Act, 2000 it was held that  the decision of the High Court was not correct.  It was, inter alia,  observed as follows:

"27.    The High Court misread the Government order  dated 29-8-2001 and drew wrong inference in saying

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that the Government of Uttaranchal denied acceptance  of the recommendations but did not say that no  appointment shall be given on the basis of the  recommendations of UPPSC. If the Government of  Uttaranchal has denied to accept the  recommendations of UPPSC, essentially it follows that  no appointment could be given. This apart in the very  order in paragraph 2 it is specifically stated that  "therefore, in this regard after thorough consideration  it has been decided that the candidates recommended  by the UPPSC may not be appointed in various  Departments of the Government of Uttaranchal." Thus,  the reason given by the High Court that the  Government of Uttaranchal though denied to accept  the recommendations of UPPSC but did not deny to  give appointment and as such the said Government  order could be ignored, does not stand to reason and it  is untenable.          The interpretation placed by the High Court on  S. 78 of the Act is also wrong. Merely because the  recommendations received by the erstwhile State of  Uttar Pradesh had been sent to State of Uttaranchal  and they were not reversed by the Governor for being  placed with the reasons before the Assembly of State of  Uttar Pradesh under S. 78 of the Act, it cannot be held  that the recommendations made by the UPPSC were  binding on Government of Uttaranchal. In this regard  we have already made the legal position clear. Hence it  is unnecessary to deal with the same any further. In  our view, looking to the reasons recorded by the High  Court in the impugned judgment, which are neither  tenable nor acceptable, the impugned judgment  cannot be allowed to stand."

Para 31 of the judgment is also significant as the case of the non- official respondents had its foundation on the said paragraph which  reads as follows: "31. It was also urged in the alternative that the State  of Uttar Pradesh may be directed to give appointments  to the non-official respondents. This aspect was  neither raised before the High Court nor it was  considered. Hence, we do not wish to deal with the  same. All that we can say is that this order shall not  come in the way of the State of Uttar Pradesh, if so  advised, to consider the claims of the non-official  respondents for appointments based on the selection  made by UPPSC. Having regard to the peculiar  situation in which the non-official respondents are  placed, we would like to say that in case the non- official respondents apply as and when the  applications are invited for selection either by UPPSC  or by the Uttaranchal State Public Service Commission  in future within a period of three years, the UPPSC or  the Uttaranchal State Public Service Commission shall  consider them for selection subject to their satisfying  all other eligibility requirements but relaxing the upper  age-limit.  

       After this Court’s judgment, the candidates whose names had been  included in the select list approached the State of Uttar Pradesh to  appoint them. However, their requests were turned down. Challenging  order of the State Government, the writ application was filed which was  allowed by learned Single Judge. The State of Uttar Pradesh and its  functionaries filed Letters Patent Appeal before the Division Bench which  affirmed the order of the learned Single Judge.

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       The stand of the appellant-State before the High Court was that  considering the peculiar circumstances the only relief granted by this  Court was relaxation in age for a period of 3 years whenever the selection  is held.  The Uttar Pradesh Hill Sub-cadre Rules, 1992 (in short ’1992  Rules’) were enacted for certain hill areas of the State of Uttar Pradesh as  it is stood before the re-organisation, and the Rules were applicable in all  districts of hills, namely, Almora, Chamoli, Dehradun, Nainital, Pauri  Garhwal, Pithoragarh, Tehri Garhwal, Uttarkashi and Udham Singh  Nagar. All the said districts now stand included in the State of  Uttaranchal. Therefore, the vacancies which were advertised for the hills  could not be filled up as the said cadre stood abolished.  Reliance has  been placed by the High Court on Office Memorandums issued on  31.1.1994 and 15.12.1999 which did not have any application  whatsoever.   

Stand of the non-official respondent, however, was that the note  appended to the advertisement made it clear that there was one  application to be made for all the posts in different departments.  It was  only indicated that the screening shall be made at the time of final  selection regarding posting in plain or hill areas. It was pointed out that  in similar circumstances those candidates who had not been appointed  by the State of Uttaranchal, were appointed by of State of U.P. as sub- registrar and Passengers Goods Officers in the Transport Department.   There could not be differential treatment so far as the writ-petitioners are  concerned.  No fresh advertisement has been issued since 1998 though  period of more than 6 yeas has lapsed.   

The High Court accepted that Hill sub-cadre stood abolished.  But  held that currency of select list had not expired and the vacancies could  be filled up. High Court noted that appointments beyond number  advertised would amount to filling up future vacancies which is  impermissible.  It also noted that mere inclusion in the select list did not  confer any enforceable right to be selected even if some of the vacancies  remain unfilled.  Though it was noted that even if a mistake has been  committed in some case that cannot be a ground to perpetuate the  mistake, on the logic of negative equality yet this is a case, according to  the High Court, which was not based on any mistake. The select list was  operative and its validity had not expired. If the State Government had  given effect to the Office Memorandums while making appointment in  other departments, there could be no justification to deprive the writ  petitioners of some benefit particularly when the select list was in force  and no vacancies had been advertised since 1998.  It was held that this  Court left the matter to be determined by the State Government.  The  discretion had not been exercised objectively.  Accordingly, the special  appeal was dismissed, upholding similar views expressed by learned  Single Judge.  

       In support of the appeal, Mr. R.G. Padia, learned senior counsel  appearing for the State of U.P. and its functionaries submitted that the  High Court’s judgment is unsupportable on more than one counts.  First,  all the posts which were advertised for the plain areas cadre have been  filled up.  After having accepted that the appointments cannot be made  beyond the number of post advertised, should not have directed  appointment.    

       The High Court having noticed that even if by mistake some  appointments have been made that cannot confer a right on others,  therefore erroneously held that this was not a case of mistake and/or  that  the select list was in force.  Even Uttar Pradesh Cadre Rules, 1992  clearly stipulates that the list was valid only for one year.  The High  Court erroneously placed reliance on the Office Memorandum dated  31.1.1994 and 15.12.1999.    

       The Office Memorandums had no application to the facts of the

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case. Even otherwise, the Office Memorandums clearly indicated that the  select list is valid only for one year.  It is of relevance to note that the  U.P. PSC had prepared two lists one for the plan and the other for the  hill cadre.  Further, in the earlier case at para 23 grievance had been  made that Uttranchal Government had made appointments by picking  up some candidates selected by U.P. PCS.  This Court observed that  there was no evidence of any mala fides and similar is the position in the  case at hand.  It is pointed out by Mr. Padia that only 11 persons in total  were appointed in the two departments.  Rules 12 and 16 of the Uttar  Pradesh Public Works Department Subordinate Engineering Rules, 1951  (in short the ’Engineering Rules’) substantiate the stand of learned  counsel for the appellants that the select list is valid only for one year.

       Filling up of vacancies over and above the number of vacancies  advertised would be violative of the fundamental rights granted under  Articles 14 and 16 of the Constitution.  (See: Union of India & Ors. v.  Ishwar Singh Khatri & Ors. (1992 Supp (3) SCC 84), Gujrat State Dy.  Executive Engineers, Association v. State of Gujarat & Ors. (1994 Supp  (2) SCC 591); State of Bihar & Ors. v. the Secretariat Assistant S.E.  Union, 1986 & Ors. (AIR 1994 SC 736); Prem Singh & Ors. v. Haryana  State Electricity Board & Ors. (1996 (4) SCC 319); Surendra Singh &  Ors. v. State of Punjab & Anr. (AIR 1998 SC 18), and Kamlesh Kumar  Sharma v. Yogesh Kumar Gupta & Ors. (AIR 1998 SC 1021).

       Selectees cannot claim the appointment as a matter of right.  Mere  inclusion of candidates’ name in the list does not confer any right to be  selected, even if some of the vacancies remained unfilled and the  concerned candidates cannot claim that they have been given a hostile  discrimination.  (See: Shankarsan Dash v. Union of India, (AIR 1991 SC  1612), Smt. Asha Kaul and Another v. State of Jammu & Kashmir and  another (1993 (2) SCC 573), Union of India v. S.S. Uppal (AIR 1996 SC  2346), Hanman Prasad v. Union of India (1996 (10) SCC 742), Bihar  Public Service Commission & Ors. v. State of Bihar & Ors. (AIR 1997 SC  2280), Syndicate Bank & Ors. v. Shankar Paul & Ors. (AIR 1997 SC  3091), Vice Chancellor, University of Allahabad v. Dr. Anand Prakash  Mishra and Ors. (1997 (10) SCC 264), Punjab State Electricity Board v.  Seema  (1999 SCC (L&S) 629); All India SC & ST Employees Association  v. A Arthur Jeen, (AIR 2001 SC 1851), Vinodan T. v. University of  Kalikut, (2002 (4) SCC 726), S. Renuka v. State of Andhra Pradesh and  Ors. (AIR 2002 SC 1523), and Baitariani Gramiya Bank v. Pallab Kumar  & Ors. (AIR 2000 SC 4248).

       Even if in some cases appointments have been made by mistake or  wrongly that does not confer any right on another person. Article 14 of  the Constitution does not envisage negative equality, and if the State  committed the mistake it cannot be forced to perpetuate the same  mistake.  (See: Snehprabha v. State of U.P. & Ors. (AIR 1996 SC 540),  Secretary, Jaipur Development Authority, Jaipur, v. Daulat Mal Jain &  Ors. (1997 (1) SCC 35), State of Haryana and Ors. v. Ram Kumar Mann  (1997 (3) SCC 321), Faridabad C.T. Scan Centre v. D.G. Health Services  & Ors. (1997 (7) SCC 752), Jalandhar Improvement Trust, V. Sampuran  Singh (AIR 1999 SC 1347), State of Punjab and Others v. Dr. Rajeev  Sarwal (1999 (9) SCC 240), Yogesh Kumar and Ors. v. Govt. of NCT,  Delhi and Ors. (2003 (3) SCC 548), Union of India and Anr. v.  International Trading Co. and Anr. (2003 (5) SCC 437) and Kastha  Niwarak G.S.S. Maryadit, Indore v. President, Indore Development  Authority (JT 2006 (2) SC 259).   

       In view of the aforesaid, the High Court after having correctly  indicated the legal position has failed to apply the same to the factual  scenario in its proper perspective. The basic fallacy in the judgment of  the learned Single Judge and the Division Bench is that they proceeded  under the presumption that the select list was in force. The view is  clearly wrong.  In paragraph 31 of the earlier judgment it was made clear  that it was upto the State to take a decision as to whether any relief can

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be granted to the persons who were selected in respect of the hill cadre.   All the posts advertised for the plain cadre have been filled up. Therefore,  the State has rightly taken the stand that there was no scope for  appointing non-official respondents. Relaxation was given for a period of  three years for applicants, when applications are invited for selection by  the U.P. PSC or the Uttaranchal State Public Service Commission.  Obviously, relaxation is to be granted when fresh applications are  invited.  That is not the case here.  Therefore, the judgments of the  learned Single Judge as well as Division Bench affirming the same  cannot be maintained and are set aside.  The appeal is allowed but  without any order as to costs.