Krishna Kumar Singh and another vs Collector, Lakhimpur Kheri and others

Devi Prasad Singh, J.

The present writ petition has been filed under Article 226 of the Constitution of India for issuance of writ of mandamus to direct the opposite parties to appoint the petitioner against Class IV post in pursuance to select list, a copy of which has been filed as Annexure1 to the writ petition.

The submission of the learned Counsel for the petitioner is that from the same select list several persons including Shri Ram Nath Verma, Shri Surendra Pal and Nasrat Ali were appointed but petitioner has not been appointed by the respondents.

Attention has been invited towards communication dated 30.9.1986, a copy of which has been filed as Annexure2 to the writ petition by which District Selection Committee had requested District Panchayat Raj Officer, Lakhimpur Kheri to appoint the petitioner against regular vacancy keeping in view the merit in pursuance to the select list. It has been stated that in spite of the fact that a decision was taken to appoint the petitioner but for extraneous reasons the appointment was not given effect.

Learned Counsel for the petitioner had relied upon the judgments reported in 2006 (24) LCD 128, Vijay Kumar and another v. State of U.P. and others; 1993 LCD 524, Rama Kant Ram v. State of U.P. and others and a Division Bench judgment of this Court reported in 2008 (26) LCD 894, Ajit Kumar Singh v. Union of India and others. The Division Bench in the case of Ajit Kumar Singh (supra) relying upon the Apex Court judgment reported in 2000(3) SCC 699, State of U.P. v. Ram Swarup Saroj, held that in case a person is selected for appointment and vacancy exists and he is denied appointment arbitrarily then it shall be an instance of arbitrary exercise of power. It has been held by the Division Bench that because of pendency of writ petition a person should not be put to suffer. For convenience relevant portion from the judgment of Ajit Kumar Singh''s case is reproduced as under :

"8. It is admitted case of the parties that in the written examination as held for appointment on the post of Postal Assistant, the name of the petitioner, was in the select list prepared by the Department. It is also admitted case of the parties that on 27.9.2001 when the Original Application preferred by the petitioner and three others was allowed in respect to the three applicants there were three vacancies available in the Department. It is also admitted case of the parties that Shri Rishi Saran Jaiswal who was applicant No. 3 in Original Application No. 168 of 1996 is working in the Collector, Sitapur since 22.7.1996 in pursuance of the order dated 21.7.1996. The Central Administrative Tribunal has not granted any relief to the petitioner for want of any vacancy. Admittedly a vacancy was there as Sri Rishi Saran Jaiswal who was working in the Collector, Sitapur never submitted his joining in compliance of the judgment and order dated 27.9.2001 passed by the Central Administrative Tribunal. The Central Administrative Tribunal ought to have allowed the Review Petition preferred by the petitioner as at that time also a vacancy was there. In the case of State of U.P. v. Ram Swarup Saroj, reported in 2000 (3) SCC 669, Hon''ble the Supreme Court has held that the list of selected candidates for appointment remains valid during the pendency to the litigation."

Relying upon the case of Ajit Kumar Singh the submission of the learned Counsel for the petitioner is that mere pendency of writ petition shall not effect the petitioner''s right to seek appointment.

Mere selection does not extend any right to an employee to seek appointment. It is for the employer to fill up the vacancy in order of merit. It is always open to the employee to keep the post vacant in case the exigencies of services does not require. However, in the present case since a decision was taken and recommendation was sent to appoint the petitioner on the vacant post arising on account of retirement of an employee it appears to be arbitrary exercise of power by the respondents in not appointing the petitioner on the existing vacancy which was existing on the relevant time.

In view of above, once a decision was taken to appoint the petitioner in pursuance to select list then it is no justified to keep the matter pending. The writ petition was filed in the year 1992 and since then it could not be disposed of finally. Right to livelihood is a fundamental right guaranteed under Article 226 of the Constitution of India, and mere pendency of petition petitioner''s fundamental right should not be infringed.

In view of above, writ petition is allowed. A writ in the nature of mandamus is issued commanding the opposite parties to consider the petitioner''s case for appointment keeping in view recommendation dated 30.9.1986, a copy of which has been filed as Annexure2 to the writ petition. Respondent shall also consider for grant of relaxation in age. Let an order be passed within three months from the date of receipt of a certified copy of this order.

There shall be no order as to costs. Petition allowed.