{"id":141826,"date":"2006-03-03T00:00:00","date_gmt":"2006-03-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-u-p-ors-vs-rajkumar-sharma-ors-on-3-march-2006"},"modified":"2019-01-24T08:40:33","modified_gmt":"2019-01-24T03:10:33","slug":"state-of-u-p-ors-vs-rajkumar-sharma-ors-on-3-march-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-u-p-ors-vs-rajkumar-sharma-ors-on-3-march-2006","title":{"rendered":"State Of U.P. & Ors vs Rajkumar Sharma & Ors on 3 March, 2006"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Of U.P. & Ors vs Rajkumar Sharma & Ors on 3 March, 2006<\/div>\n
Author: A Pasayat<\/div>\n
Bench: Arijit Pasayat, Tarun Chatterjee<\/div>\n
           CASE NO.:\nAppeal (civil)  1433 of 2006\n\nPETITIONER:\nState of U.P. & Ors\n\nRESPONDENT:\nRajkumar Sharma & Ors\n\nDATE OF JUDGMENT: 03\/03\/2006\n\nBENCH:\nARIJIT PASAYAT & TARUN CHATTERJEE\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T
\nCIVIL APPEAL NO.   1433              OF 2006
\n(Arising out of S.L.P (C) No. 5296 of 2005) <\/p>\n
ARIJIT PASAYAT, J.\n<\/p>\n
\tLeave granted.\n<\/p>\n
\tChallenge in this appeal is to the judgment rendered by a Division
\nBench of the Allahabad High Court in a Letters Patent Appeal.  This is
\npractically the second journey of the parties to this Court. Earlier in
\nState of Uttaranchal and Ors. v. Sidharth Srivastava and Ors. (2003 (9)
\nSCC 336) connected issues were considered.\n<\/p>\n
\tThe factual background in a nutshell is as follows:-\n<\/p>\n
Uttar Pradesh Public Service Commission (in short ‘UPPSC’)
\npublished advertisement inviting applications for 544 posts of J.E.
\nCivil\/Technical (507 Civil + 37 Technical). The result of selection was
\npublished on 7-1-2000. The UPPSC sent its recommendations to the U.P.
\nGovernment on 30-10-2000. The U.P. Government forwarded the
\nrecommendations on 31-10-2000 to the Chief Engineer’s Office, Hill
\nCadre, Almora. The separate State of Uttaranchal came into existence on
\n9-11-2000. U.P. Government forwarded the UPPSC recommendations in
\nrespect of posts in Hill Cadre to the Government of Uttaranchal. On 29-
\n8-2001, Government of Uttaranchal issued the order not to appoint the
\nselected candidates mentioning two reasons that – (1) the new
\nreservation policy of the State of Uttaranchal is different from that of U.P.
\nand (2) practical and legal difficulties “in such a situation” in giving
\nappointments to the candidates recommended by the UPPSC. The
\nselected candidates, aggrieved by the same, filed a batch of writ petitions
\nassailing the said order, impleading State of Uttaranchal and its officers,
\nState of Uttar Pradesh and its officers and UPPSC. A Division Bench of
\nthe High Court, by a common judgment allowed the writ petitions and
\nissued direction to the State of Uttaranchal to give appointments to the
\nwrit petitioners. The High Court took the view that the recommendations
\nmade by the UPPSC of the erstwhile State of U.P. were binding on new
\nState of Uttaranchal.  High Court’s judgment was assailed before this
\nCourt by the State of Uttaranchal.\n<\/p>\n
\tAfter noticing various provisions contained in Articles 320 and
\n323(2) of the Constitution of India, 1950 (in short the ‘Constitution’), as
\nwell as Section 178 of the U.P. Reorganisation Act, 2000 it was held that
\nthe decision of the High Court was not correct.  It was, inter alia,
\nobserved as follows:\n<\/p>\n
“27.\tThe High Court misread the Government order
\ndated 29-8-2001 and drew wrong inference in saying
\nthat the Government of Uttaranchal denied acceptance
\nof the recommendations but did not say that no
\nappointment shall be given on the basis of the
\nrecommendations of UPPSC. If the Government of
\nUttaranchal has denied to accept the
\nrecommendations of UPPSC, essentially it follows that
\nno appointment could be given. This apart in the very
\norder in paragraph 2 it is specifically stated that
\n“therefore, in this regard after thorough consideration
\nit has been decided that the candidates recommended
\nby the UPPSC may not be appointed in various
\nDepartments of the Government of Uttaranchal.” Thus,
\nthe reason given by the High Court that the
\nGovernment of Uttaranchal though denied to accept
\nthe recommendations of UPPSC but did not deny to
\ngive appointment and as such the said Government
\norder could be ignored, does not stand to reason and it
\nis untenable.\n<\/p>\n
\tThe interpretation placed by the High Court on
\nS. 78 of the Act is also wrong. Merely because the
\nrecommendations received by the erstwhile State of
\nUttar Pradesh had been sent to State of Uttaranchal
\nand they were not reversed by the Governor for being
\nplaced with the reasons before the Assembly of State of
\nUttar Pradesh under S. 78 of the Act, it cannot be held
\nthat the recommendations made by the UPPSC were
\nbinding on Government of Uttaranchal. In this regard
\nwe have already made the legal position clear. Hence it
\nis unnecessary to deal with the same any further. In
\nour view, looking to the reasons recorded by the High
\nCourt in the impugned judgment, which are neither
\ntenable nor acceptable, the impugned judgment
\ncannot be allowed to stand.”\n<\/p>\n
Para 31 of the judgment is also significant as the case of the non-
\nofficial respondents had its foundation on the said paragraph which
\nreads as follows:\n<\/p>\n
“31. It was also urged in the alternative that the State
\nof Uttar Pradesh may be directed to give appointments
\nto the non-official respondents. This aspect was
\nneither raised before the High Court nor it was
\nconsidered. Hence, we do not wish to deal with the
\nsame. All that we can say is that this order shall not
\ncome in the way of the State of Uttar Pradesh, if so
\nadvised, to consider the claims of the non-official
\nrespondents for appointments based on the selection
\nmade by UPPSC. Having regard to the peculiar
\nsituation in which the non-official respondents are
\nplaced, we would like to say that in case the non-
\nofficial respondents apply as and when the
\napplications are invited for selection either by UPPSC
\nor by the Uttaranchal State Public Service Commission
\nin future within a period of three years, the UPPSC or
\nthe Uttaranchal State Public Service Commission shall
\nconsider them for selection subject to their satisfying
\nall other eligibility requirements but relaxing the upper
\nage-limit.\n<\/p>\n
\tAfter this Court’s judgment, the candidates whose names had been
\nincluded in the select list approached the State of Uttar Pradesh to
\nappoint them. However, their requests were turned down. Challenging
\norder of the State Government, the writ application was filed which was
\nallowed by learned Single Judge. The State of Uttar Pradesh and its
\nfunctionaries filed Letters Patent Appeal before the Division Bench which
\naffirmed the order of the learned Single Judge.\n<\/p>\n
\tThe stand of the appellant-State before the High Court was that
\nconsidering the peculiar circumstances the only relief granted by this
\nCourt was relaxation in age for a period of 3 years whenever the selection
\nis held.  The Uttar Pradesh Hill Sub-cadre Rules, 1992 (in short ‘1992
\nRules’) were enacted for certain hill areas of the State of Uttar Pradesh as
\nit is stood before the re-organisation, and the Rules were applicable in all
\ndistricts of hills, namely, Almora, Chamoli, Dehradun, Nainital, Pauri
\nGarhwal, Pithoragarh, Tehri Garhwal, Uttarkashi and Udham Singh
\nNagar. All the said districts now stand included in the State of
\nUttaranchal. Therefore, the vacancies which were advertised for the hills
\ncould not be filled up as the said cadre stood abolished.  Reliance has
\nbeen placed by the High Court on Office Memorandums issued on
\n31.1.1994 and 15.12.1999 which did not have any application
\nwhatsoever.\n<\/p>\n
Stand of the non-official respondent, however, was that the note
\nappended to the advertisement made it clear that there was one
\napplication to be made for all the posts in different departments.  It was
\nonly indicated that the screening shall be made at the time of final
\nselection regarding posting in plain or hill areas. It was pointed out that
\nin similar circumstances those candidates who had not been appointed
\nby the State of Uttaranchal, were appointed by of State of U.P. as sub-
\nregistrar and Passengers Goods Officers in the Transport Department.
\nThere could not be differential treatment so far as the writ-petitioners are
\nconcerned.  No fresh advertisement has been issued since 1998 though
\nperiod of more than 6 yeas has lapsed.\n<\/p>\n
The High Court accepted that Hill sub-cadre stood abolished.  But
\nheld that currency of select list had not expired and the vacancies could
\nbe filled up. High Court noted that appointments beyond number
\nadvertised would amount to filling up future vacancies which is
\nimpermissible.  It also noted that mere inclusion in the select list did not
\nconfer any enforceable right to be selected even if some of the vacancies
\nremain unfilled.  Though it was noted that even if a mistake has been
\ncommitted in some case that cannot be a ground to perpetuate the
\nmistake, on the logic of negative equality yet this is a case, according to
\nthe High Court, which was not based on any mistake. The select list was
\noperative and its validity had not expired. If the State Government had
\ngiven effect to the Office Memorandums while making appointment in
\nother departments, there could be no justification to deprive the writ
\npetitioners of some benefit particularly when the select list was in force
\nand no vacancies had been advertised since 1998.  It was held that this
\nCourt left the matter to be determined by the State Government.  The
\ndiscretion had not been exercised objectively.  Accordingly, the special
\nappeal was dismissed, upholding similar views expressed by learned
\nSingle Judge.\n<\/p>\n
\tIn support of the appeal, Mr. R.G. Padia, learned senior counsel
\nappearing for the State of U.P. and its functionaries submitted that the
\nHigh Court’s judgment is unsupportable on more than one counts.  First,
\nall the posts which were advertised for the plain areas cadre have been
\nfilled up.  After having accepted that the appointments cannot be made
\nbeyond the number of post advertised, should not have directed
\nappointment.\n<\/p>\n
\tThe High Court having noticed that even if by mistake some
\nappointments have been made that cannot confer a right on others,
\ntherefore erroneously held that this was not a case of mistake and\/or
\nthat  the select list was in force.  Even Uttar Pradesh Cadre Rules, 1992
\nclearly stipulates that the list was valid only for one year.  The High
\nCourt erroneously placed reliance on the Office Memorandum dated
\n31.1.1994 and 15.12.1999.\n<\/p>\n
\tThe Office Memorandums had no application to the facts of the
\ncase. Even otherwise, the Office Memorandums clearly indicated that the
\nselect list is valid only for one year.  It is of relevance to note that the
\nU.P. PSC had prepared two lists one for the plan and the other for the
\nhill cadre.  Further, in the earlier case at para 23 grievance had been
\nmade that Uttranchal Government had made appointments by picking
\nup some candidates selected by U.P. PCS.  This Court observed that
\nthere was no evidence of any mala fides and similar is the position in the
\ncase at hand.  It is pointed out by Mr. Padia that only 11 persons in total
\nwere appointed in the two departments.  Rules 12 and 16 of the Uttar
\nPradesh Public Works Department Subordinate Engineering Rules, 1951
\n(in short the ‘Engineering Rules’) substantiate the stand of learned
\ncounsel for the appellants that the select list is valid only for one year.\n<\/p>\n
\tFilling up of vacancies over and above the number of vacancies
\nadvertised would be violative of the fundamental rights granted under
\nArticles 14 and 16 of the Constitution.  (See: Union of India & Ors. v.
\nIshwar Singh Khatri & Ors.<\/a> (1992 Supp (3) SCC 84), Gujrat State Dy.
\nExecutive Engineers, Association v. State of Gujarat & Ors. (1994 Supp
\n(2) SCC 591); State of Bihar & Ors. v. the Secretariat Assistant S.E.
\nUnion, 1986 & Ors. (AIR 1994 SC 736); Prem Singh & Ors. v. Haryana
\nState Electricity Board & Ors.<\/a> (1996 (4) SCC 319); Surendra Singh &
\nOrs. v. State of Punjab & Anr. (AIR 1998 SC 18), and Kamlesh Kumar
\nSharma v. Yogesh Kumar Gupta & Ors. (AIR<\/a> 1998 SC 1021).\n<\/p>\n
\tSelectees cannot claim the appointment as a matter of right.  Mere
\ninclusion of candidates’ name in the list does not confer any right to be
\nselected, even if some of the vacancies remained unfilled and the
\nconcerned candidates cannot claim that they have been given a hostile
\ndiscrimination.  (See: Shankarsan Dash v. Union of India, (AIR<\/a> 1991 SC
\n1612), Smt. Asha Kaul and Another v. State of Jammu & Kashmir and<\/a>
\nanother (1993 (2) SCC 573), Union of India v. S.S. Uppal (AIR<\/a> 1996 SC
\n2346), Hanman Prasad v. Union of India (1996 (10) SCC 742), Bihar
\nPublic Service Commission & Ors. v. State of Bihar & Ors. (AIR 1997 SC
\n2280), Syndicate Bank & Ors. v. Shankar Paul & Ors. (AIR<\/a> 1997 SC
\n3091), Vice Chancellor, University of Allahabad v. Dr. Anand Prakash
\nMishra and Ors.<\/a> (1997 (10) SCC 264), Punjab State Electricity Board v.
\nSeema  (1999 SCC (L&S) 629); All India SC & ST Employees Association
\nv. A Arthur Jeen, (AIR<\/a> 2001 SC 1851), Vinodan T. v. University of
\nKalikut,<\/a> (2002 (4) SCC 726), S. Renuka v. State of Andhra Pradesh and
\nOrs. (AIR 2002 SC 1523), and Baitariani Gramiya Bank v. Pallab Kumar
\n& Ors. (AIR<\/a> 2000 SC 4248).\n<\/p>\n
\tEven if in some cases appointments have been made by mistake or
\nwrongly that does not confer any right on another person. Article 14 of
\nthe Constitution does not envisage negative equality, and if the State
\ncommitted the mistake it cannot be forced to perpetuate the same
\nmistake.  (See: Snehprabha v. State of U.P. & Ors. (AIR 1996 SC 540),
\nSecretary, Jaipur Development Authority, Jaipur, v. Daulat Mal Jain &
\nOrs.<\/a> (1997 (1) SCC 35), State of Haryana and Ors. v. Ram Kumar Mann<\/a>
\n(1997 (3) SCC 321), Faridabad C.T. Scan Centre v. D.G. Health Services
\n& Ors.<\/a> (1997 (7) SCC 752), Jalandhar Improvement Trust, V. Sampuran
\nSingh (AIR<\/a> 1999 SC 1347), State of Punjab and Others v. Dr. Rajeev
\nSarwal<\/a> (1999 (9) SCC 240), Yogesh Kumar and Ors. v. Govt. of NCT,
\nDelhi and Ors. (2003 (3) SCC 548), Union of India and Anr. v.
\nInternational Trading Co. and Anr.<\/a> (2003 (5) SCC 437) and Kastha
\nNiwarak G.S.S. Maryadit, Indore v. President, Indore Development
\nAuthority (JT<\/a> 2006 (2) SC 259).\n<\/p>\n
\tIn view of the aforesaid, the High Court after having correctly
\nindicated the legal position has failed to apply the same to the factual
\nscenario in its proper perspective. The basic fallacy in the judgment of
\nthe learned Single Judge and the Division Bench is that they proceeded
\nunder the presumption that the select list was in force. The view is
\nclearly wrong.  In paragraph 31 of the earlier judgment it was made clear
\nthat it was upto the State to take a decision as to whether any relief can
\nbe granted to the persons who were selected in respect of the hill cadre.
\nAll the posts advertised for the plain cadre have been filled up. Therefore,
\nthe State has rightly taken the stand that there was no scope for
\nappointing non-official respondents. Relaxation was given for a period of
\nthree years for applicants, when applications are invited for selection by
\nthe U.P. PSC or the Uttaranchal State Public Service Commission.
\nObviously, relaxation is to be granted when fresh applications are
\ninvited.  That is not the case here.  Therefore, the judgments of the
\nlearned Single Judge as well as Division Bench affirming the same
\ncannot be maintained and are set aside.  The appeal is allowed but
\nwithout any order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Of U.P. & Ors vs Rajkumar Sharma & Ors on 3 March, 2006 Author: A Pasayat Bench: Arijit Pasayat, Tarun Chatterjee CASE NO.: Appeal (civil) 1433 of 2006 PETITIONER: State of U.P. & Ors RESPONDENT: Rajkumar Sharma & Ors DATE OF JUDGMENT: 03\/03\/2006 BENCH: ARIJIT PASAYAT & TARUN CHATTERJEE JUDGMENT: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-141826","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Of U.P. & Ors vs Rajkumar Sharma & Ors on 3 March, 2006 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-of-u-p-ors-vs-rajkumar-sharma-ors-on-3-march-2006\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Of U.P. & Ors vs Rajkumar Sharma & Ors on 3 March, 2006 - 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