JUDGMENT
Aloke Chakrabarti, J.
1. This writ petition was filed challenging the termination order a copy whereof has been annexed as Annexure-3 to the supplementary affidavit.
2. The contention of the petitioners is that the respondent No. 1 directed making selection and appointment of candidates belonging to Scheduled Castes and Scheduled tribes on the posts of drivers in Uttar Pradesh State Road Transport Corporation (hereinafter referred to as Corporation] and pursuant thereto, advertisement was published in two newspapers inviting applications from suitable candidates belonging to Scheduled Castes and Scheduled Tribes. Petitioners made applications and all formalities were completed and were selected by a selection committee for appointment. Upon receiving appointment letters, petitioners joined their respective posts in the month of September, 1997 and continued to discharge duties. Show-cause notices were issued to the petitioners to which petitioners submitted replies. Originally the writ petition was filed apprehending termination order. Thereafter a supplementary affidavit was filed stating that termination orders had been issued and the same were also challenged.
3. Respondents filed counter-affidavit stating that although very small number of vacancies were available but large number of appointments were made in the posts of drivers. Contention has also been made against such appointments stating that they are in violation of the provisions of Regulation 19 of the U. P. State Road Transport Corporation Employees (other than Officers) Service Regulations. 1981 inasmuch as such recruitments could not be made without notifying the Employment Exchange. It has been contended that there were no posts against which petitioners were appointed and there was no budget to pay salary to them. It has been contended that in the above factual background the termination orders were rightly passed.
4. The petitioners filed rejoinder-affidavit.
5. Heard Mr. V. M. Zaidi, learned counsel for the petitioners and Mr. V. M. Sahai, learned counsel for the respondents.
6. The learned counsel for the petitioners contended that petitioners were appointed against existing vacancies as it was decided by the Corporation that requisite number of reserved candidates had not been appointed in the posts of drivers and after the change of the Government, on change of policy it has been found that there were no sufficient vacancies and in such background termination orders had been issued. Reliance was placed on the facts disclosed in the counter-affidavit for showing that on a changed circumstance impugned orders had been passed.
7. Learned counsel for the respondents contended that no change of policy took place and the strength of drivers for ‘on road bus’ remained the same and only on detection of a wrong calculation as regards vacancies for reserved candidates, termination orders had to be issued in respect of such appointments against non-existing posts. Learned counsel for the respondents also relied on Regulation 19 and contended that petitioners’ appointments were in violation of the said Regulation as Employment Exchange had not been notified.
8. Reliance was placed on the law decided in the case of Ashwani Kumar and others v. State of Bihar and others, JT 1997 (1) SC 243. as also on the judgment of this Court in the case of Tarkeshwar Mishra and others v. Rajya Krishi Utpadan Mandi Parishad and others in Civil Misc. Writ Petition No. 40550 of 1997 decided on 3.2.1998. a copy whereof has been annexed at Annexure-5 to the counter-affidavit. Further, reference was made to the cases of State of Rajasthan v. Rajendra Kumar Rawat and others, 1989 Suppl. (2) SCC 268 ; Union of India and others v. K. V. Vijeesh, (1996) 3 SCC 139 and Commissioner, Corporation of Madras v. Madras Corporation Teachers’ Mandram and others, (1997) 1 SCC 253. for the purpose of contention that the petitioners rightly could be denied appointments as in fact posts were not available and budget was not sanctioned and that Court is not to give direction to create post.
9. After considering respective contentions, 1 find that the petitioners have claimed that as against existing vacancies for reserved categories. petitioners had been appointed and they could not be thrown out in the manner it has been done on a change of policy. The respondents have contended that the appointment of the petitioners was in violation of statutory provision and so they have no right to continue to hold the post. It has also been contended on behalf of the respondents that there was no change of policy and appointments were made on a wrongful calculation of vacancies and in fact such posts were not vacant and, therefore, those candidates employed had been terminated to the extent posts were not existing as were detected subsequently.
10. With regard to the first contention of the respondents that in the facts involved herein, selection itself was in violation of the regulations, I find that admittedly all appointments in course of the said selection process have not been terminated. Therefore, apparently termination of the petitioners was not on the ground of illegality in selection process. Had it been so, all appointments through the same selection process would have been cancelled. It is categorical case of the respondents that only those appointments were terminated which were made against no posts although on earlier calculation posts were thought to be existing vacant. Therefore, this contention of the respondents as regards illegality of the selection need not be gone into.
11. The other contention of the respondents is that selection and appointments were made on calculation of existing vacancies and subsequently, it has been detected that calculation was made wrongly and vacancies were existing much, less in number in some regions and there was no vacancy in some other regions. It appears that on the aforesaid ground of appointment against no vacancy, the decision was taken for cancellation of appointments. Though the petitioners strongly disputed the said contention, but they have not been able to show producing any acceptable material that posts really existed vacant in reserved quota. The other contention of the petitioners that termination has been effected on change of policy is not factually acceptable. In the facts and circumstances, 1 have no reason to disbelieve the contention of the respondents that upon detection of correct position as regards availability of vacancies for reserved candidates termination had been effected in respect of those candidates who were appointed against vacancies which were subsequently found to be non-existent. It apparently resulted in appointment against no post. The respondents are entitled to take such step for cancelling appointment or terminating service on detection of mistake as regards availability of posts. No case of mala fide has been made out by the petitioners.
12. Law in this connection has been made clear in the case of Ashwani Kumar and others (supra) wherein similar consideration was involved and employees therein appointed by appointing authority were not granted any relief by the Apex Court on the ground that appointments were made in excess of available vacancies and such recruitments were not supported by any budgetary grants although they were appointed long back. In so holding, the Apex Court considered the fact that “there would have to be recruitment to the sanctioned vacancies necessarily backed up by the financial budget support.” It has been further held therein that “there cannot be an employee without a vacancy or post available on which he can work and can be paid as per the budgetary sanction”.
13. In the aforesaid position of law. In the present facts, it appears that when appointments were made on a mistaken calculation of vacancies for reserved candidates and in fact such vacancies were not there, impugned orders cannot be interfered. But, as some selected candidates have been already appointed and petitioners’ services have been terminated after their appointment under aforesaid circumstances, the respondents are required to give appointment to such selected candidates whose names have been included in the said select list against vacancies for reserved quota if found existing during or arising during the period the select list remains alive.
14. With the aforesaid direction, the writ petition is disposed of finally. There will be no order as to costs.