Vijay Kumar and Anr. vs State of U.P.& Ors.

V. K. Shukla, J.—Petitioners, who are two in number have approached this Court with the prayer that a writ in the nature of mandamus be issued commanding the respondents to appoint the petitioners on the post of Tubewell operator in the Department of Irrigation, District Gonda on the basis of the selection held on 711994 and further for quashing of the order dated 1942001 passed by the EngineerinChief, Irrigation Department, U.P., Lucknow rejecting the claim of the petitioners.

Brief background of the case is that selection proceedings were undertaken for making selection and appointment on the post of Tubewell operator on 711994. Result of the said selection was declared on 991994. In the said select list, which was published, name of both the petitioners figured as successful candidatures. Qua the same selection in the District Bahraich and Barabanki appointment letter had been issued to selected persons and it has been mentioned that said incumbents are continuing even as on date. Petitioners were denied appointment on the strength of the order dated 4101994 issued by the EngineerinChief, Irrigation Department, U.P. Lucknow directing therein that no further appointment shall be made on the post of Tubewell operator. Other candidates, who were similarly situated, approached this Court by preferring Civil Misc. Writ Petition No. 1939 (S/S) of 1998 and this Court in the said writ petition directed that EngineerinChief, Irrigation Department, U.P. Lucknow shall nominate any Chief Engineer (LevelI or LevelII) to look into as to why petitioners of the aforementioned writ petition have been discriminated. In the said order it was also mentioned that if sufficiently good reasons do not exist for not appointing the petitioners of the aforementioned writ petition, then they shall be offered appointments. Thereafter, another writ petition No. 1453 (S/S) of 1998 Surya Prakash Tiwari & Ors. v. State of U.P. & Ors., had been filed.

Said writ petition alongwith Writ Petition No. 3144 (S/S) of 1995 was finally decided on 2212000, with following direction, relevant extract of which is being quoted below:

�It is settled law that life of the select list is only one year and if the select list stands in existence and in case any vacancy occurs in that year, the members of the select list are entitled for appointments since the petitioners have filed the writ petition within a year of the select list.

In view of the aforesaid reasons, the Engineerin Chief, Irrigation Department, U.P. Lucknow is directed to authorize the Chief Engineer (LevelI or LevelII) this order and the Chief Engineer so nominated shall submit his report to the EngineerinChief within two months from the date of receipt of the said nomination. It is further directed that if sufficiently good reasons do not exist for not appointing the petitioners, they shall also be offered appointments.

In view of the aforesaid reasons, the Engineerin Chief, Irrigation Department, U.P. Lucknow is directed to authorize any Chief Engineer (LevelI or LevelII) other than the Chief Engineer of the said Area, to look into the matter as to why the petitioners have been deprived the appointment for the vacancies published for appointments for which the selection was held. In case the Chief Engineer finds that they were illegally deprived of the appointments, then the appointment letters shall be offered to the petitioners of the above mentioned writ petitions, if the vacancies exist.�

Petitioners also in their turn preferred writ petition No. 7485 (S/S) of 2000 and this Court on the presentation of aforementioned writ petition on 20122000 asked the Engineerin Chief, Irrigation Department, U.P. Lucknow to consider the matter with reasoned order and further also look as to what was the reason for not appointing the petitioner while other selected persons have been given appointment in the District. Pursuant to this directive issued, EngineerinChief, Irrigation Department, U.P. Lucknow on 1912001 proceeded to consider the claim of the petitioners and rejected the same. At this juncture present writ petition has been filed.

Subsequent to the same, as directed in Civil Misc. Writ Petition No. 3144 (S/S) of 1995, Vijay Kumar Upadhyaya & Ors. v. State of U.P. & Ors., and Civil Misc. Writ Petition No. 1453 (S/S) of 1998, Surya Prakash Tiwari & Ors. v. State of U.P. & Ors. the EngineerinChief, Irrigation Department, U.P. Lucknow made inquiry and proceeded to cancel the order passed by the Chief Engineer (Mechanical) and mentioned therein that 12 petitioners of aforementioned writ petition be offered appointment after requisite approval is obtained by the Secretary, Irrigation Department, U.P. Lucknow. In this report claim of the petitioners has also been dealt with and therein it has been mentioned that there is no fault on the part of the petitioners and in case result would have been declared in time, then petitioners would have been offered appointment. It has also been mentioned that delay in declaration of the result was on account of department concerned and petitioners have been illegally deprived. The other persons, thereafter have been offered appointment by the Executive Engineer, Irrigation Department, Gonda on 1242005 copy of the said order has been appended alongwith supplementary affidavit as SAI. Pursuant to same placement has also been accorded on 288 2005. It has also been informed, that subsequently Government order dated 1972005 and 882005 has been issued providing therein that Tubewells and Tubewell Operators/Part Time Tube well operators be returned back to Irrigation Department.

Counter affidavit has been filed in the present case and therein it has been contended that pursuant to the order issued by Hon''ble Apex Court, order dated 4101994 had been issued and claim of the petitioners has been rightly rejected, as same was unsustainable. Order passed by the EngineerinChief, Irrigation Department, U.P. Lucknow has been sought to be substantiated.

To this counteraffidavit, rejoinder affidavit has been filed and therein statement of fact mentioned in the counteraffidavit has been rebutted and that of writ petition has been sought to be reiterated. Supplementary affidavit has been filed to show, that other persons have been appointed.

After pleadings mentioned above, have been exchanged, present writ petition has been taken up for final disposal with the consent of the parties.

Sri Ramesh Pandey, Advocate, learned Counsel for the petitioner submitted with vehemence that in the present case, petitioners candidature has been grossly discriminated, inasmuch as, similarly situated persons, who were selected alongwith petitioners have been last offered appointment on 1242005 and as such there is no reason to discriminate the petitioners and in all eventuality, petitioners are entitled to be offered appointment as Tubewell operator and as such impugned order in question, as on date is liable to be quashed and requisite relief is liable to be accorded to the petitioners.

Learned Standing Counsel on the other hand submitted that selection was made way back in the year 1994 and valid reasons have been given by the EngineerinChief, Irrigation Department, U.P. Lucknow for refusing to accord appointment to the petitioners and as such no interference is warranted by this Court, as mere selection does not confer any right, whatsoever, to claim appointment.

After respective arguments have been advanced, undisputed factual position, which is emerging, is that for various district selection proceedings were undertaken for making selection and appointment for the post of Tubewell operators. Petitioners had also undertaken process of selection on 711994. As for as District Bahraich and Barabanki are concerned, result was prepared in time and appointments were offered to selected candidates. As far as District Gonda is concerned, result was declared late i.e. on 1991994 and before same could be implemented, communication dated 4 101994 had been issued and further selection and appointment were stayed. Said matter has now been finally settled by Hon''ble Apex Court on 2821995 and Special Leave Petition has been dismissed by observing as follows:

�On the basis of the evidence led before the Labour Court, the said Court come to the conclusion that the duties, qualifications and hours of working of the part time Tubewell Operators and the regularly working Tubewell operators were identical. On the basis of the principle of `equal pay for equal work'', the Labour Court directed that the part time Tubewell operators be paid the same salary (prospectively) as was being drawn by the regular Tubewell operators. The High Court re appreciated the evidence and the material before it and concurred with the Labour Court. We see no ground to interfere with the concurrent findings of the two Courts below. These Special Leave petitions are dismissed.�

After the aforementioned judgment had been delivered, policy decision has been taken on 171999 transferring all the Tube wells to Gram Panchayat and further not to make any appointment on the post of Tubewell operator. During subsistence of aforementioned policy decision as directed by this Court vide judgment dated 2112000 inquiries have been made and EngineerinChief, Irrigation Department, U.P. Lucknow on 173 2005 made recommendation for offering appointment to 12 incumbents of two writ petitions No. 3144 (S/S) of 1995, Vijay Kumar Upadhyaya & Ors. v. State of U.P. & Ors. and Civil Misc. Writ Petition No. 1453 (S/S) of 1998, Surya Prakash Tiwari & Ors. v. State of U.P. & Ors.. Pursuant thereof appointments have been offered. Thus in this background on date by no stretch of imagination order passed by the EngineerinChief, Irrigation Department, U.P. Lucknow dated 1942001 can be sustained in view of subsequent order dated 1732005 of the EngineerinChief, Irrigation Department, Lucknow. Once incumbents, who have been selected in the same selection, are being offered appointment, then to deprive the petitioners of appointment would be totally arbitrary and un reasonable. It is true that selected candidates do not have indefeasible right to claim appointment, but it is also equally true that if vacancies are to be filled up, then State is bound to act in fair manner and no discrimination can be permitted. In this context para 7 of the judgment of Hon''ble Apex Court in the case of Shankarsan Dash v. Union of India, (1991)3 SCC 47, is being quoted below:

�It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subhash Chander Marwaha; Neelima Shangla v. State of Haryana, or Jatendra Kumar v. State of Punjab.�

Here selection had been made way back in the year 1994 and on account of the order dated 4101994, appointment had not been offered. The life of select list has been mentioned to be one year. In the present case, it has been sought to be contended that said life ought to be computed from the date when the last recommendation has been made i.e. on 1242005 vide AnnexureSAI to the supplementary affidavit. It is true that in normal circumstances when the life span of select list is provided for, same could not be extended or enlarged by Court, but in peculiar circumstances, peculiar characteristic of the case can be seen qua the conduct of the respondents, specially when respondents have themselves made appointment and made recommendation, then in that event said rider will not come into play as has been observed by Hon''ble Apex Court in the case of Sheo Shyam & Ors. v. State of U.P. & Ors., 2004(2) LBESR 50 (SC) : JT 2004 (2) SC 67. Therein Hon''ble Apex Court mentioned that said period be computed from the date of receipt of last recommendation and career of 11 candidates cannot be jeopardized in this battle of inconsistent and varying stands taken and moves adopted by the State Government and the Commission at different stages for different purposes. Relevant para 10 of aforementioned judgment is quoted below:

�10. In the aforesaid background, in a case of fact situation noted above, it would be inequitable and unjust to compute the one year period from the date when the first recommendation was made by the Commission. Undisputedly, appointments were made till the end of 2001, therefore, it would be proper to reckon the period from the last date when the recommendation was made. But another situation has developed subsequently. The State Government itself had requisition to add the post including the unfilled posts of the previous selection and examinations are stated to have been already held then fate of present 11 appellants have suffered a set back on account of the action of both the Commission and the State Government. If the Commission''s stand is that the validity of period is one year, it should have sought for clarification from State Government as to why unfilled posts were included in the requisition, when its specific stand in the office memorandums referred to above was to the contrary. At the same time the State Government having taken a positive stand all through that the date of reckoning would be the last date on which the recommendation was made, it should not have included the unfilled posts in its requisition. The career of 11 candidates cannot be jeopardized in this battle of inconsistent and varying stands taken and moves adopted by the State Government and the Commission at different stages for different purposes�.

This particular judgment has been followed by learned Single Judge in Civil Misc. Writ Petition No. 160 (S/S) of 2004, Gopal Mishra & Ors. v. State of U.P. through Principal Secretary, Department of Rural Development, Government of U.P., Civil Secretariat, Lucknow & Ors., decided on 1252005. Relevant extract of said judgment is quoted below:

�Now, as regards the period of limitation of one year as prescribed in Government Order dated 31st January, 1994, it may be observed that the Supreme Court has ruled in Sheo Shyam & Ors. v. State of U.P. & Ors., 2004(2) LBESR 50 (SC) : JT 2004 (2) SC 67, that the date of reckoning one year period should be from the last appointment letters issued. The Hon''ble Supreme Court has laid down in this decision that the entitlement of the candidates on the waiting list is to be considered from the last date of appointment. The relevant stipulation made in the said judgment may be quoted as below:

�......... it would be inequitable and unjust to compute the one year period from the date when the first recommendation was made by the Commission. Undisputedly, appointments were made till the end of 2001. Therefore, it would be proper to reckon the period from the last date when the recommendation was made�.

It may be stated that the select list prepared and notified on 19th March, 1999 went in doldrums on account of Scheduled Caste and Backward Class candidates having filed a writ petition before this Court on the strength of allegation that they should have been included in the general category as they had secured equal marks to that of the candidates of the General Category. The orders passed by this Court in favour of those writ petitions were challenged by way of a Special Leave Petition filed before the Supreme Court. The Supreme Court issued certain instructions and directed this Court to decide the petition within six months. This Court pronounced its judgment on 11th February, 2002. Obviously thus, a period of nearly three years elapsed by the time, the said judgment was pronounced. A writ of Mandamus was eventually issued directing the Government to accommodate those nine candidates on the posts, which had fallen vacant after the result was declared. Thereafter, the Government and its authorities took one more year to take a decision in compliance of the writ of mandamus and issued fifty six appointment letters to those selectees whose names figured in the select list. Thus, a total period of four years elapsed upto the time the appointment letters were issued.�

Apart from this Division Bench of this Court in the case of Excise Commissioner, U.P., Allahabad & Ors. v. Sanjay Kumar Yadav & Anr., 2004(1) LBESR 869 (All) : 2004(1) ESC 438, has taken view that it is true that a successful candidate does not acquire indefeasible right to be appointed on the basis of select list, however, if the State Government has accepted the select list and offered appointment to other candidate, then it cannot be permitted to discriminate. Relevant para 5 of aforementioned judgment is being quoted below:

�5. In the case of State of U.P. v. Rakesh Kumar, 2003 (1) LBESR 88 (All), a Division Bench of this Court while considering as to whether after the ban was lifted, the respondentswritpetitioners would be entitled for being appointed on the post or not, relying on two decisions of the Apex Court rendered in S. Govindaraju v. Karnataka S.R.T.C., (1986) 3 SCC 273 and Bhim Singh v. State of Haryana, (1981) 2 SCC 673, held that the respondentswrit petitioners would be entitled for appointment as soon as the State Government lifts the ban. It is not denied by the State that the candidates similarly situated had already been given appointments on the basis of the same advertisement in different districts/regions which is being denied to the writpetitioners respondents merely because they were not issued appointment letters and permitted to join the post before the issuance of the Government Order dated 4111997.�

Similar view has been taken in yet another judgment in the case of State of U.P. & Ors. v. Deepak Kumar Upadhyaya & Anr., (2004)1 UPLBEC 698. Relevant extract of para 3 of said judgment is quoted below:

It is not disputed by the appellants that the name 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 writpetitioners 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 4111997, the appointment of the writpetitioners had been stayed. In another appeal decided by us today being Special Appeal No. 280 of 2003, Excise Commissioner, U.P. Allahabad & Ors. v. Sanjay Kumar Yadav & Anr., 2004(1) LBESR 869 (All) : 2004(1) ESC 438, 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�.

On the touchstone of the principles noted above, here in the present case also, respondent EngineerinChief, Irrigation Department, U.P. Lucknow cannot be permitted to act arbitrarily, inasmuch as, claim of the petitioner has been rejected in the past on various ground and on other hand on subsequent occasion similarly situated claim has been accepted and appointments have been offered. As candidates from the same selection have been offered appointment by means of the order dated 1242005, it would be unfair to discriminate the petitioners and deprive them from being offered appointment.

Consequently, order dated 1942001 passed by the Engineer inChief, Irrigation Department, U.P. Lucknow is hereby quashed and set aside. Respondents are directed to ensure appointment of petitioners also as Tubewell Operators within three months in the same way and manner, as appointments have been offered to other similarly situated candidate vide order dated 124 2005.

With these observations, writ petition is allowed.

No orders as to cost.