State of U.P. and Others vs Deepak Kumar Upadhyaya and Another

Tarun Chatterjee, C.J. and Vineet Saran, J.—The present appeal is directed against the judgment and order dated 17.8.1999 passed by a learned Judge of this Court in Civil Misc. Writ Petition No. 27991 of 1998, whereby the writ petition stands allowed and direction has been issued to the appellants herein to issue appointment letters to the petitioners as Excise Constable on the basis of the select list dated 29.8.1997.

Brief facts of this case that in pursuance of the advertisement issued by the appellants for selection of Excise Constable, the writ-petitioners-respondents, after having gone through the selection process, were duly recommended for appointment as per the select list dated 29.8.1997. Since no counter-affidavit had been filed to the writ petition controverting the averments made therein, treating the averments in the writ petition to be correct the learned Judge allowed the writ petition.

It is not disputed by the appellants that the named of the writ -petitioners had been recommended for appointment and it is also not disputed that in other districts/regions those candidates who had been selected in pursuance of the same advertisement against which the writ-petitioners had been selected, have already been permitted to join their duties and are working in the department. The main ground taken by the appellants in this appeal is that merely because the petitioners'' name had been shown in the select list they do not acquire right for being appointed. The other ground raised, is that since there was ban imposed by the State Government vide Government Order dated 4.11.1997, the appointment of the writ-petitioners had been stayed. In another appeal decided by us today being Special Appeal No. 280 of 2003, Excise Commissioner and Others Vs. Sanjay Kumar Yadav and Another, in similar set of facts where appointment had been denied to the candidates duly named in the select list only for the reasons that ban had been imposed although similarly situated persons of other district/regions had been given appointments, this Court has directed that such candidate would be entitled for being given appointment after the imposition of ban/stay on such appointment had been withdrawn.

In the present case, also admittedly the advertisement for fresh appointment on the same post had been issued, which clearly goes to show that vacancies on the post on which the writ-petitioners had been selected till exist.

For the reasons given in the judgment in Special Appeal No. 280 of 2003, Excise Commissioner and Others Vs. Sanjay Kumar Yadav and Another, we direct that the writ-petitioners would be entitled for appointment in pursuance of the aforesaid selection. However, although they shall be entitled to the seniority and other consequential benefits but they shall be entitled for payment of salary only from the date of their appointment pursuant to this order. The appellants shall give appointment to the writ-petitioners within a period of three months and in case if such appointment is not given, they shall be entitled for payment of salary immediately after expiry of three months from today.

With the aforesaid observations, this special appeal is dismissed without any order as to costs.