Sanjay Kumar Yadava and another vs Excise Commissioner, U.P., Allahabad and others

A.K. Yog, J.—Heard Sri R.K. Ojha, Advocate, on behalf of the petitioners and the learned Standing Counsel Sri M.S. Pipersenia, Advocate on behalf of the respondents.

Facts of the case, in brief, are that an advertisement No. 17701 was issued by the Excise Department, published in ''Amar Ujala'' on 5th August, 1995 for making appointment of Excise Constable in various districts including Mirzapur. The details of the districts have been given in Para 2 of the Writ Petition. Sanjay Kumar Yadava and Yaduvendra Singh (two petitioners) who possessed requisite qualification and eligible for being considered in the appointment on the advertised posts applied and both the petitioners went through the process of selection which included physical test, interview/personality test (held on 27th August, 1997 and 28th August, 1997). Selection process having been completed and a merit list was prepared indicating names often persons wherein names of the petitioner Nos. 2 and 1 were shown at Serial Nos. 3 and 5 respectively (Annexure1 to the writ petition).

In Paragraphs 11 and 12 of the writ petition it is pleaded that similar selection process was initiated on the basis of the same advertisement for other districts/regions and some of the candidates in that region were issued appointment letters and given appointment but the. petitioners have been denied appointment without disclosing reasons.

Petitioners, being aggrieved, approached this Court by filing present writ petition under Article 226, Constitution of India alleging, inter alia, that once selection process was started same should have been brought to its logical end and same should not have been shed in midway arbitrarily on the basis of this very advertisement, particularly when in other districts some of the candidates who were identically situated, as petitioners, having employed on the basis of the selection held in pursuance to the common advertisement. Petitioners cannot be denied appointment arbitrarily, more so when respondents failed to point out any irregularity/illegality being committed in the selection process and select list was never rejected or cancelled.

In Para 27 of the writ petition, petitioner referred to Writ Petition No. 27991 of 1998, Deepak Kumar Upadhaya v. Excise Commissioner of U.P., which is based on same and identical facts raising identical question of law and prayed that the said petition should be connected with this petition.

Sri R.K. Ojha, Advocate, appearing on behalf of the petitioner, made a statement in Court that aforementioned writ petition was allowed by learned Single Judge wherein intra Court appeal was preferred, which is still pending and judgment and order dated 17.8.1998 passed by learned Single Judge has been stayed and hence said Deepak Kumar Upadhaya who was issued appointment letter has not yet been allowed to join on the post though selected on the basis of same advertisement and selection held in pursuance thereto.

Respondent Nos. 1, 2 and 3 have filed Counter Affidavit.

In Para 3 (II) of the Counter Affidavit, it is stated that Secretary, Uttar Pradesh Shasan issued general direction dated 3rd November, 1997 addressed to all the Principal Secretary/Secretaries, Government of Uttar Pradesh, all Head of Departments and Principal Head of Department, U.P. Shasan, Lucknow informing policy decision of the Government not to proceed with selection process and make new appointments on that basis. Copy of which has been filed as AnnexureC.A.1 to the Counter Affidavit.

Perusal of the AnnexureC.A.1 to the Counter Affidavit shows that selection process and appointment based thereon were neither revoked nor cancelled and on the other hand by means of the Government Order proceedings for new appointment were got stayed. It appears that on the basis of the said Government Order, the Excise Commissioner, U.P. at Allahabad issued memorandum dated 5.11.1997 (AnnexureC.A.II to the Counter Affidavit) for information to all Joint Excise Commissioners and Deputy Excise Commissioners (with reference to above Government Order dated 3.11.1997 AnnexureC.A.1 to the Counter Affidavit.)

The said departmental memorandum dated 5th November, 1997 affirms that selection process etc. for making appointment on various posts of Excise Constables were merely kept in abeyance and same were not cancelled.

While matter came up for hearing learned Single Judge passed order dated 8th September, 1999, wherein Court took notice of the contention of the petitioner to the effect that candidates at Serial Nos. 1 and 9 in the select list in question were given appointment under orders of the Court dated 17.8.1999. Court took also note of the fact that State had not filed Counter Affidavit at the stage the aforesaid order dated 17.8.1999 was passed exparte.

Learned Counsel for the petitioner was directed to inform the Court whether the candidates, at Serial Nos. 2 and 4 in the select list, were given appointment by the departmental authority or not.

12A. In Para 12 of the Counter Affidavit respondents while submitting reply against Para 12 of the writ petition, referred to above, regarding candidates finally selected and joined duties in other districts is concerned states that "the appointment was not cancelled in those regions, where the joining report and selection process had already been completed before 4.11.1997. But in those regions where the selection process was not completed, the selection proceeding/interview and appointment of the candidates and joining of the incumbents was stayed in compliance of the Government Order No. 2910E1/XIII97dated 4.11.1997." Copy of said Government order has, however, not been annexed with the Counter Affidavit for perusal.

In Para 14 of the Counter Affidavit, it is alleged that Deputy Excise Commissioner, Mirzapur, who was the Chairman of the Selection Committee, had referred the matter to the Excise Commissioner, U.P., Allahabad for seeking his concurrence to the list of selected candidates but meanwhile entire selection process was brought to halt under order of the Excise Commissioner dated 5th November, 1997.

Para 17 of the Counter Affidavit is also to the said effect.

In Para 18 of the Counter Affidavit, it is stated that unless the results are declared, the petitioners cannot make any claim themselves to be either selected or legally entitled to be appointed on the post in question.

Learned Counsel for the Respondent, at one stage, attempted to justify action of the respondents on the ground that there were large irregularities and bungling in the selection process in question and also selection and appointment in other district/region, though initiated on the basis of same advertisement, as in the case of petitioners, was completed and also letter issued before Government Order dated 3.11.1997 communicated to the concerned authorities in those districts and regions and however, said candidates had even joined their post.

Leaned Counsel for the respondent, however, immediately withdrew his statement regarding bungling as there is not even a whisper in the Counter Affidavit or in any of the order issued by the Government/department. Case of bungling and irregularity is, thus, not borne out from the record and it is altogether a new defence. In view of the above, learned Standing Counsel does not press the same.

As far as question of candidates selected in other districts on the basis of same advertisement and having been given appointment in spite of aforementioned Government Order dated 3.11.1997 is concerned, this Court fails to appreciate the argument made on behalf of the respondents that the simple reason that the averments made in this respect in the Counter Affidavit are vague and evasive inasmuch as the respondents were supposed to give, exact date of communication of the Government Order with respect to other districts wherein appointment were made as also other relevant dates like issuing letters and respective dates of the candidates who were given appointment. Such details having not been brought on record, contention of the respondents cannot be appreciated and on that basis they cannot be allowed to counter the claim of the petitioner.

Learned Counsel for the petitioner has strenuously argued that selection process having been initiated, even though it has been disputed that no candidate has a vested right of compelling authority on the basis of selection only but it does not give rider to the concerned authority to stop selection process in between arbitrarily and on that score petitioners have a legitimate claim enforceable by Court.

Selection process having been initiated normally this Court expects that process of selection brought to its logical end. Clock must complete its round and same cannot be allowed to be stayed arbitrarily. The said submission of the petitioner become more so conspicuous in the back ground that candidates who had undergone selection process on the basis of that very advertisement in other districts have been given appointment and there is nothing on record of this case before this Court that appointment of those candidates have been revoked.

Moreover, Government Order dated 3.11.1997 (AnnexureC.A.1 to the Counter Affidavit) nowhere mentions that selection/merit list prepared before issuance of such Government Order was cancelled or revoked. The said Government Order clearly mentioned that selection process/merit/appointment in pursuance thereto bringing on record material to show selection process/merit list having been subsequently cancelled/revoked by State by any Independent order. On the other hand petitioners have filed an Application No. 162988 of 2002 along with affidavit (copy of which has been served on the learned Standing Counsel on 19th September, 2002) bringing on record that copy of advertisement dated 28th August, 2002 published in ''Amar Ujala'' (Annexure1 to the said affidavit) and prayed before this Court through this application to keep at least two posts vacant, the posts now advertised by the aforementioned advertisement dated 28th August, 2002.

The very fact that respondents have issued advertisement for making appointment on the post of Excise Constable shows that as far as respondentdepartment is concerned, they treated the earlier embargo placed by the Government for not making appointment vide its order dated 3rd November, 1997 as having been lifted/withdrawn and as otherwise the department would not have issued advertisement for making selection on the post in question either by pleading as fact in the Counter Affidavit or otherwise merit list which contains the names of the petitioners (Annexure1 to the writ petition) has not revoked or cancelled as yet.

In view of the above, it does not stand to reason as to why the merit list dated 29th August, 1997 prepared (Annexure1 to the writ petition) be not given effect to and also keeping in mind that candidates in other districts have been appointment.

In the result, petitioners are entitled to relief praying for issuing a writ in the nature of mandamus directing the respondents to declare the result of selection and issue appointment letters in favour of the petitioners and to enable them to join the post of Excise Constable on the basis of said selection list dated 29th August, 1997 and pay their salary as may be admissible in law.

In view of the above, respondents are directed to declare the list of merit prepared on the basis of selection held under advertisement and make appointment in accordance with law.

Writ Petition stands allowed.

No order as to costs.