Rakesh Kumar Dayal vs State of U.P. and Others

This special appeal has been filed against the judgment and order dated 30.09.2010 passed by learned Single Judge dismissing the writ petition filed by the Appellant. The brief facts necessary for deciding this appeal are: -

The Appellant in pursuance of Advertisement No. 2/1998 by which 118 Class IV posts were advertised to fill up the reserved category vacancies had applied. The result was not declared due to certain orders issued by U.P. Backward Commission, which Commission received several complaints against the selection conducted by the corporation. Ultimately, the result was declared on 23.08.2003 in which the name of the Appellant was included as successful candidate belonging to Scheduled Caste Category. Two other candidates, namely Raghuvar Dayal Raman and one Baba Din filed WP Nos. 2488/2004 and 2489/2004 before the Lucknow Bench of this Court where the court issued an interim order in pursuance of which those candidates who were issued appointment letters were allowed to continue. The corporation by a subsequent order dated 04.07.2005 decided to cancel the entire selection declared in the year 2003 for Class IV post of Peon/Runner/Ferroboy. The writ petition was filed by the Appellant challenging the cancellation of the selection dated 04.07.2005. In the writ petition, the learned Single Judge issued orders dated 18.08.2010 and 01.09.2010 directing the corporation to file supplementary affidavit bringing on record the entire materials to demonstrate as to what reasons compelled the corporation and the Board of Director to resolve to cancel the selection. Supplementary affidavit was filed by the corporation in pursuance of the order dated 18.08.2010. The learned Single Judge after considering the relevant materials on record has dismissed the writ petition by judgment and order dated 30.09.2010 which has been assailed in this special appeal.

Sri Ashok Khare appearing for the Appellants contended that two persons, namely Raghuvar Dayal Raman and Baba Din who were lower in merit in the select list dated 22.08.2003 are still working in pursuance of the interim orders issued by the Lucknow Bench of this Court in the writ petition filed by them, the Appellant could not have been denied the appointment. He submits that the persons lower in merit being working on their post, the denial of the same benefit to the Appellant is arbitrary. Reliance has been placed on a Division Bench judgment of this Court in Special Appeal No. 139/2001 (Ashok Kumar Singh v. State of U.P.) decided on 21.04.2008. It is further submitted that the cancellation of the entire selection by the corporation is without any valid reason and in spite of the orders issued by learned Single Judge, no relevant materials have been brought on record disclosing the reasons for cancellation.

Sri Pankaj Kumar Shukla, learned Counsel for the Respondent submitted that there were valid reasons for cancellation of the entire selection. He has referred to the supplemenary affidavit filed by one Rajjan Lal, Additional Secretary (NG), posted in U.P. Power Corporation along with which the decision of the U.P. Backward Commission dated 19.11.2001 and another decision dated 12.11.2001 has been brought on record.

We have considered the submission of learned Counsel for the parties and perused the record.

The writ petition was filed challenging the decision of the corporation dated 04.07.2005 cancelling the entire selection. The copy of the order passed by the corporation cancelling the entire selection has been brought on record at Page 94 of the Paper Book. The said decision refers to the decision taken by U.P. Backward Commission and certain interim orders issued by the Lucknow Bench of this Court from time to time. It has been notied in the order that with regard to selection in pursuance of the advertisement against 118 vacancies, complaints were filed before U.P. Backward Commission in which several orders have been passed. The corporation in pursuance of the said directions decided to cancel the entire selection. The supplementary affidavit filed by the corporation which has been relied by learned Counsel for the Respondent has been filed as Annexure 6 to the Special Appeal along with which the detailed decision of the U.P. Backward Commission dated 19.11.2001 has been brought on record.

We have perused the decision taken by the U.P. Backward Commission dated 19.11.2001. After detailed consideration of various complaints, it was opined by the U.P. Backward Commission that the entire selection be cancelled, several irregularities in the selection were pointed out by the U.P. Backward Commission. In earlier decision dated 12.11.2001, the corporation took the view that several persons who were eligible were not called and the procedure adopted by the corporation was not in accordance with law. The said decision of the U.P. Backward Commission has been relied by the corporation while taking the decision to cancel the entire selection.

In view of the aforesaid reasons and materials brought on record by the supplementary affidavit filed by the corporation, we are of the view that there was sufficient materials for the corporation to cancel the entire selection and the submission of the Appellant''s counsel that there was no valid reason for cancellation cannot be accepted.

Now the second submission made by learned Counsel for the Appellants that two persons who were lower in merit in the same selection are still working, namely Raghuvar Dayal Raman and Baba Din. With regard to the aforesaid, it is on record that after the result was declared on 24.08.2003, they were issued appointment letters by the Regional Authorities in the year 2004 which were subsequently cancelled by the corporation. In the aforesaid background, writ petitions were filed by the aforesaid two persons in the Lucknow Bench of this Court in which interim orders were issued by the Lucknow Bench of this Court and thereafter, a contempt petition was filed. The appointments of those persons were allowed to continue in pursuance of the interim orders by the court. It is relevant to note that the interim orders were pased in their favour before the selection was cancelled on 04.7.2005. Those two persons are working on the strength of the interim orders passed by the Lucknow Bench of this Court. The appointment which was given to those two persons were cancelled by the corporation and the matter is under consideration before the Lucknow Bench in the aforesaid writ petition Nos. 2488/2004 and 2489/2004. The mere fact that interim orders were passed in those two writ petitions before the entire selection was cancelled is not sufficient reason to issue any direction to the corporation to give appointment to the Appellants also. The Division Bench judgment which has been relied by learned Counsel for the Appellants in Ashok Kumar Singh''s case (supra), was a case where two Appellants who had secured higher marks than the persons who were given appointment were directed to be given appointment. In the Division Bench case of Ashok Kumar Singh (supra), the entire selection was not cancelled as in the present case, although results were not finally declared and in pursuance of the directions issued by the court, those two persons were directed to be given appointment, but in Ashok Kuamr Singh''s case, there were no such decision to cancel the entire selection as in the present case by order dated 04.07.2005.

It is true that if a selection is implemented, the person who is higher in merit is entitled for appointment in preference to the persons who are lower in merit. Thus, in so far as the ratio laid down in the aforesaid case is concerned, there cannot be any dispute, but the said judgment does not help the Appellants in the present case since in the present case, the entire selection has been cancelled. Thus, the submission of learned Counsel for the Appellants that the Appellants were entitled for appointment because two persons who were lower in merit are working under the interim order passed by the Lucknow Bench of this Court, does not appeal to us. It is also relevant to note that the order cancelling the selection was challenged in WP No. 5024/2005 (Chandra Pal Singh v. State of U.P. and Ors.) which writ petition has been dismissed by learned Single Judge of this Court vide judgment and order dated 06.03.2006 upholding the cancellation of the selection.

We are of the view that no error has been committed by the learned Single Judge in dismissing the writ petition. it is further relevant to note that after the cancellation of the selection, fresh appointments have been made on 11.08.2009 in pursuance of subsequent selection as stated by learned Counsel for the Respondent.

In view of the aforesaid, we do not find any error in the order of the learned Single Judge which may warrant interference by this Court in exercise of its appellate jurisdiction.

The special appeal is dismissed with the aforesaid observations.