TaxTMI 
TaxTMI 
2019 (9) TMI 1707
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....nd batch matters passed by the High Court of Judicature at Allahabad in and by which the High Court while upholding the result of written examination for the post of Technical Assistant-Group-C Agriculture Department, quashed selection process subsequent to the written examination and directed the Principal Secretary, State of U.P. to send requisition to the Uttar Pradesh Public Service Commission on the basis of quantifiable data and cadre strength as well as actual persons working in different categories so that the interview may be conducted afresh and complete the selection. 2. Brief facts which led to filing of these appeals are as under: The Uttar Pradesh Public Service Commission issued an advertisement No. A-5, E-1/2013 dated 22.10.2013 inviting applications for 6628 vacancies of Subordinate Agriculture Services, Cadre-III (Technical Assistant Group-C). In the said advertisement for the total requisitioned 6628 vacancies, category-wise vacancies are as under: Advertisement Number Vacancies in Subordinate Agriculture Services, CadreIII (Technical Assistant Group-C) Advt. No. A-5, E-1/2013 dt. 22.10.2013 Total vacancies: 6628 Unreserved 3616 &....
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....14 Total vacancies: 6628 Unreserved 2515 SC 1882 ST 201 OBC 2030 Horizontal reservation in amended requisition is as under: Women Handicapped Dependents of Freedom Fighter Ex-servicemen 1325 252 132 330 Based upon the above revised requisition, on 15.09.2014, UP Public Service Commission declared the result of the written examination wherein, both the Appellants as well as the private Respondents were declared successful. After declaration of the result of written examination, the UP Public Service Commission issued an Office Memorandum dated 12.10.2014 notifying 2515 posts for Unreserved/General category; 1882 posts for SC category; 201 posts for ST category and 2030 posts for OBC category in consonance with the government order dated 20.08.2014. The successful candidates who cleared the written examination appeared for interview held from 27.10.2014 onwards. Finally, when the result of select list candidates was declared on 21.05.2015, the private Respondents did not qualify. 3. Number of writ petitions came to be filed before the High Court by the unsuccessful candidates against Respondents No. 1 to 4 and by impleading ....
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....nd the Rule 15(3) of the Agriculture Service Rules, 1993. On the above findings and other reasonings, the High court allowed the writ petitions by holding that subsequent to the declaration of the result of written examination, the entire selection is vitiated and as such, the same cannot be sustained. Placing reliance upon Union of India and Ors. v. O. Chakradhar (2002) 3 SCC 146, the High Court held that when the court comes to the conclusion that the selection is tainted, there is no necessity to serve individual notices and as such, the entire selection can be cancelled. The High Court issued a direction to the Principal Secretary, Government of U.P. to send a fresh requisition to the UP Public Service Commission on the basis of quantifiable data, existing strength of cadre as well as the actual persons working in different categories forthwith so that interview be conducted at the earliest and that the entire exercise be completed within four months. 5. Being aggrieved by the impugned judgment, the Appellants who are the selected candidates and have already joined their respective posts have filed these appeals before this Court. Vide order dated 03.03.2017, this Court o....
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....re unsuccessful, have filed the writ petitions and they are estopped from challenging the Office Memorandum dated 12.10.2014 and the selection process. 8. Mr. M. Karpaga Vinayagam, Senior Counsel: Learned Senior Counsel submitted that the revised Office Memorandum of UP Public Service Commission dated 12.10.2014 was based upon the revised requisition sent by the Department of Agriculture dated 20.08.2014 and only when the private Respondents found themselves unsuccessful, they chose to challenge the Office Memorandum dated 12.10.2014. Learned Senior Counsel further submitted that the private Respondents have not raised any protest over the change in number of vacancies and the Appellants having been selected and presently working, great prejudice would be caused to them if the entire selection process is set aside. 9. Mr. Guru Krishna Kumar, Senior Counsel: Learned Senior Counsel submitted that the State has filed detailed counter affidavit explaining the reason for revised requisition and that the same was done only to fulfill the constitutional mandate of reservation and the statutory provisions in UP Reservation Act, 1994. The High Court has not considered this aspect in p....
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..... S.R. Singh, Senior counsel: Taking us through the detailed counter affidavit filed by the State, learned Senior Counsel has submitted that the High Court was not right in holding that the revised requisition as amounting to changing the Rules of the game during the process of selection. Learned Senior Counsel has submitted that mere rectification of mistake in the calculation of vacancies category-wise before commencement of interview would not amount to changing the Rules of the game during the process of selection. Learned Senior Counsel also made elaborate submissions as to the absorption of diploma holders against the posts meant for "General quota". It was submitted that to keep the appointments within the permissible statutory limits, the appointments were issued only to 6599 candidates and 29 candidates withheld for want of details. It was submitted that 906 candidates were not given appointments as it would be beyond the permissible statutory limit of reservation under the UP Reservation Act, 1994. Contention of the private Respondents 14. Mr. Alok Mishra, learned Counsel: Learned Counsel submitted that changing the number of vacancies category-wise is in violation ....
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....selection process subsequent to the stage of declaration of written examination and the impugned judgment warrants no interference. 16. Mr. Anil Nauriya, learned Counsel submitted that the terms and conditions for the selection were set out in the advertisement and the rights of the candidates for selection to be considered in accordance with the Rules as they existed on the date of the advertisement and not by the subsequent events. In support of his contention, the learned Counsel placed reliance upon N.T. Devin Katti and Ors. v. Karnataka Public Service Commission and Ors. (1990) 3 SCC 157. The learned Counsel further submitted that by the adjustment of diploma holders against the "general quota", the State erred in revising the requisition of the vacancies in different categories which prejudicially affect the interest of the candidates who appeared in the examination and passed in the written examination and the High Court rightly set aside the selection process subsequent to the stage of declaration of the written examination. Reliance was placed upon Government of India through Secretary and Anr. v. Ravi Prakash Gupta and Anr. (2010) 7 SCC 626.17. Mr. Dinesh Kumar T....
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.... 12.10.2014 notifying revised vacancies in different categories-in consonance with the provisions of UP Reservation Act, 1994 and UP Subordinate Agriculture Service Rules, 1993 (UP Service Rules, 1993) 19. The posts of Technical Assistant Grade-III are Class-III Posts which are governed under the Agriculture Service Rules, 1993. The posts were restructured with effect from 25.10.2007. The pay scale of the aforesaid posts was fixed as Rs. 3,200-4,900 and the total number of sanctioned posts of Technical Assistant Grade-III was 10,531. After restructure of the posts, the details of the vacancies were worked out in which it was found that 10,531 posts were sanctioned out of which 5,860 persons were working. On that ground, the total vacancies were determined as 4,671; after making deduction of 2% as per Government Order dated 05.03.2002, the total vacant posts were shown as 4,578 and the requisition was sent to the UP Public Service Commission on 03.10.2012. Subsequently, the number of posts were increased by 2,092 out of which, as per Government Order dated 05.03.2002, 2% had been deducted and vide requisition dated 30.04.2013, a requisition was sent showing the increased vacant p....
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.... since the diploma holder of 1981 to 1987 could not be appointed, the Directorate has sought guidelines from the State Government vide its letter dated 22.01.1998. The State Government vide its letter dated 04.06.1998 granted the relaxation and directed the appointment of Agriculture Diploma Holders who were 1822 in number, out of which 1749 had joined up to 1998. Since at the time of determination of the vacancy, the OBC category persons appointed on the basis of the Agriculture Diploma Holders Certificate were also counted against the vacancy in OBC category while they were not required to be counted against the OBC category, the wrongful calculation had been arrived at. The earlier requisition sent showing only 566 vacancies against the "OBC quota" while in fact it should have been 2030, as all the diploma holders were appointed against the "General quota" and they have not been appointed against the "OBC quota". According to the department, subsequent requisition was merely a rectification of the earlier mistake. On the date of advertisement, the actual vacancies of OBC was 2030 but on account of wrongful calculation by the department, it was advertised as 566. 23. It is thu....
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....ssion acted on the revised requisition of the Government dated 20.08.2014. Before the candidates were called for interview, Office Memorandum dated 12.10.2014 was issued by the UP Public Service Commission revising the number of vacancies for different categories. The UP Public Service Commission has thus not travelled beyond the requisition sent by the Government. 26. By the revised requisition, the State endeavoured to achieve the object of reservation as per Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994. The original advertisement was for '3616' posts against "Unreserved (UR) quota" and only '566' against "OBC quota" which was far less than the requisite percentage for OBC. As per Section 3(1) of UP Reservation Act, 1994, specific percentage of vacancies have been reserved for different categories. Section 3 of the UP Reservation Act, 1994 reads as under: 3. Reservation in favour of Scheduled Castes, Scheduled Tribes and Other Backward Classes: (1) In public services and posts, there shall be reservation at the stage of direct recruitment, the following percentage of va....
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....der Section 4(1) who wilfully acts in a manner intended to contravene or defeat the purposes of the Act, shall, on conviction, be punishable with imprisonment which may extend to three months or with fine.....". As per Section 2(a) of the UP Reservation Act, 1994, "appointing authority" in relation to public services and posts means the authority empowered to make appointment to such services or posts. 29. As pointed out earlier, the post of Technical Assistant Grade-III is governed under the Agriculture Services Rules, 1993. As per Rule 15 of Agriculture Service Rules, 1993, the recruitment authority would determine the number of vacancies to be filled during the year for Scheduled Castes, Scheduled Tribes and other Backward Class candidates Under Rule 6. Rule 15 reads as under: 15. Determination of vacancies The Recruitment Authority would determine the number of vacancies to be filled during the year and would also determine the number of vacancies for Scheduled Castes, Scheduled Tribes and other categories candidates Under Rule 6. The vacancies for direct recruitment, would be informed to the Commission according to the prevalent Rules and orders at that ti....
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....tion for 1,882 posts against the Scheduled Caste quota has come to 18.18% which was sent. Likewise, against 2% Scheduled Tribe, total posts carved out were 211 posts out of 10,559 posts and the working strength of the employees is 6 which comes to 0.05%. Out of the rest of the 205 posts which comes to 1.94%, after deduction of 2% as per government order, 201 posts of Scheduled Castes were sent in the revised requisition. So far as 27% posts of Other Backward Classes, the total number of posts are 2,851 out of 10,599 and the working employees of OBC is 780 which come to 7.38% and the rest of the 2,071 posts come to 19.61%. In the same way, 2,713 employees are working against the General quota which comes to 25.69% and rest of the posts required to complete 50% quota is 2,567 i.e. 24.31%. This can be well clarified by the following chart: Total number of sanctioned posts 50% General Category 21% Scheduled Caste 2% Scheduled Tribe 27% Other Backward Classes 10559 5280 2217 211 2851 Employees working - 3796 2713 (25.69%) 297 (2.81%) 6 (0.05%) 780 (7.38%) Vacant - 6763 2567 (24.31%) 1920 (18.18%) 205 (1.94%) 2071 (19.61%) Af....
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....other hand, it is only to rectify the calculation of vacancies in different categories and to comply with the requisite quota of reservation in different categories as per UP Reservation Act, 1994. This aspect was not properly appreciated by the High Court. 35. In para (68) of the impugned judgment, though the High Court held that the Government has to apply the cadre strength as a unit in the operation of the roster in order to ascertain whether a given group or category is adequately represented. The revised requisition dated 20.08.2014 and the Office Memorandum dated 12.10.2014 of the UP Public Service Commission was only to ensure the compliance of the provisions of the UP Reservation Act, 1994 and to ensure that the category-wise reservation is not violated which was not kept in view by the High Court. Absorption of the Diploma Holders 36. In para (64) of the judgment, the High Court observed that the entire maneuvering has taken place in the garb of diploma holders wherein, 1749 diploma holders in the department were adjusted/regularized in the year 1998 and there was no occasion for putting all the diploma holders against open category and under the garb of adjustme....
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....he year 1998, there was no provision for reservation for Backward Class category in the concerned department; only by U.P. Reservation (Amendment) Act, 2002, the reservation was extended to the concerned department and therefore, the appointees/diploma holders have to be considered only against the "general quota" candidates. As seen from the above affidavit filed by the Deputy Director, Agriculture (Training), the diploma holders were not required to be counted against OBC quota; by a wrongful calculation, they have been adjusted against the OBC quota which is not permissible in law as reservation cannot be granted retrospectively. By the revised requisition, the Government sought to rectify this mistake which resulted in alteration in number of vacancies available against certain categories. Such rectification of mistake by Government cannot be faulted nor can this be a ground for recalling the advertisement in question and issuing a fresh one. The High Court, in our view, should have adopted a pragmatic approach of the matter in hand and considered the fact that the variation in number of vacancies against "General quota" was only because of the absorption of the diploma holders....
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....nt of cut-off marks for the interview after the entire selection process was completed amounted to changing the Rules of the game after the selection process was almost complete which is impermissible. 41. In Hemani Malhotra, the result of the written examination of the Delhi Higher Judicial Service was not announced by the High Court of Delhi, and individual communication was sent to the Petitioners therein, informing them of their selection for the interview. Five candidates were called for interview on various dates and were informed of its postponement i.e. the interview first scheduled for 20-09-2006 was later deferred to 29-11-2006, 07-12-2006, 23-01-2007, 05-02-2007 and was finally conducted on 27-02-2007. Meanwhile on 13-12-2006, by a Full Court Resolution, minimum qualifying marks for the viva voce was prescribed (55% for general candidates and 50% for SC and ST candidates). In such facts and circumstances, prescribing minimum marks for the interview was struck down as changing the Rules of the game during selection process. Initially, there was prescription of minimum marks for written test only and not for viva voce. The minimum marks for viva voce were prescribed aft....
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....Court. We, therefore, order that the matter be placed before the Hon'ble Chief Justice of India for appropriate orders in this regard. 44. As discussed earlier, the case in hand is clearly distinguishable from K. Manjusree (supra) and Hemani Malhotra (supra). The diploma holders were wrongly counted against the vacancies in OBC category; while they could not have been counted against OBC category and while doing so, a wrongful calculation had been arrived and the same has to be corrected by counting the diploma holders against the general category. 45. It is to be pointed out that instruction No. 7 in the advertisement dated 22.10.2013 stipulates that the number of vacancies may increase or decrease. Agriculture Service Rules, 1993 clearly stipulate that it is the prerogative of the government to determine the number of vacancies in accordance with the rules. As per Rule 15 of the Agriculture Service Rules, 1993, "the recruitment authority would determine the number of vacancies for Scheduled Castes, Scheduled Tribes and other category candidates Under Rule 6." Rule 6 stipulates that "reservation for Scheduled Castes, Scheduled Tribes and other Backward Class candidates w....
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....of OBC in the zone of consideration for the selection, amounts to changing the Rule of the game during the process of selection...... 48. By careful consideration, we are unable to countenance the above view taken by the High Court that the change in number of vacancies has illegally deprived 3303 candidates in General category from appearing in the interview and had benefitted the OBC category candidates. Be it noted that the writ petitions were filed by the candidates who appeared for interview and were unsuccessful. It is not known that what were the marks secured by the writ Petitioners/candidates in the written examination and what were their position in the merit list. The writ Petitioners who are unsuccessful candidates have not demonstrated as to how they were prejudicially affected by the change in number of vacancies against "General category" and "OBC category". The High Court was not right in making a generalised observation that decrease in the number of vacancies against "General category" has illegally deprived 3303 candidates from appearing in the interview. 49. Notification by the UP Public Service Commission dated 12.10.2014 is based upon the revised requisi....
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....end that the provision of a minimum mark for the interview was not proper........ 53. In Union of India and Ors. v. S. Vinodh Kumar and Ors. (2007) 8 SCC 100, it was held as under: 19. In Chandra Prakash Tiwari v. Shakuntala Shukla (2002) 6 SCC 127, it was further observed: 34. There is thus no doubt that while question of any estoppel by conduct would not arise in the contextual facts but the law seem to be well settled that in the event a candidate appears at the interview and participates therein, only because the result of the interview is not 'palatable' to him, he cannot turn round and subsequently contend that the process of interview was unfair or there was some lacuna in the process. Same principle was reiterated in Sadananda Halo and Ors. v. Momtaz Ali Sheikh and Ors. (2008) 4 SCC 619 wherein, it was held as under: 59. It is also a settled position that the unsuccessful candidates cannot turn back and assail the selection process. There are of course the exceptions carved out by this Court to this general rule. This position was reiterated by this Court in its latest judgment in Union of India v. S. Vinodh Kumar (2007) 8 SCC 100....
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....tion dated 12.10.2014, the number of vacancies of different categories have been changed and knowing the same, they participated in the interview and have taken a chance and opportunity thereon without any protest. Having participated in the interview and having failed in the final selection, it is not open to the private Respondents to turn around and challenge the revised notification dated 12.10.2014 and the revised requisition of the number of vacancies in different categories. Having regard to the consistent view taken by the Supreme Court, the High Court should not have granted any relief to the private Respondents/intervenors. Unfilled vacancies of Horizontal Reservation filled by candidates of vertical reservation 56. Contention of the private Respondents is that as per the statutory requirement, the horizontal reserved vacancies were unfilled and those unfilled vacancies of horizontal category were filled by vertical reservation candidates/other category candidates, which is in violation of the statutory provisions vitiating the selection process. On behalf of the UP Public Service Commission, Mr. Shrish Kumar Misra, learned Counsel has furnished the details as to th....
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....ed reliance upon Sri Gangai Vinayagar Temple wherein, the Supreme Court held that when the common judgment was passed in two or more suits and the judgment and decree passed in two or more of the suits have not been challenged, the decree not assailed there upon, meta morphoses into the character of a "former suit" and the same operates as res judicata. It was therefore, contended that in the instant proceedings, the principle of res judicata would arise since the Appellants have not chosen to challenge the common judgment rendered in number of other writ petitions. 58. The above contention does not merit acceptance. In Sri Gangai Vinayagar Temple, three separate decrees were passed in OS No. 5 of 1978 (a suit for injunction simpliciter); OS No. 6 of 1978 (monetary part of the suit claim); and OS No. 7 of 1978 (monetary part of the suit claim and also the issue of ownership). The tenants thereon challenged only the decree passed in respect of OS No. 6 of 1978; but have not challenged the decree passed in OS No. 5 of 1978 and OS No. 7 of 1978. It was in that context, the Supreme Court held that non-challenge to two of the decrees would amount to res judicata. In Sri Gangai Vinaya....
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....all those writ petitions were grouped together, heard together and were disposed of by the High Court by a common judgment. No Petitioner advanced any contention peculiar or individual to his petition, not common to others. To be precise, the dispute in the cause or controversy between the State and each Petitioner had no personal or individual element in it or anything personal or peculiar to each Petitioner. The challenge to the constitutional validity of 1979 Act proceeded on identical grounds common to all Petitioners. This challenge was accepted by the High Court by a common judgment and it was this common judgment that was the subject-matter of appeal before this Court in State of Karnataka v. Hansa Corporation case (1980) 4 SCC 697. When the Supreme Court repelled the challenge and held the Act constitutionally valid, it in terms disposed of not the appeal in Hansa Corporation case alone, but petitions in which the High Court issued mandamus on the non-existent ground that the 1979 Act was constitutionally invalid. It is, therefore, idle to contend that the law laid down by this Court in that judgment would bind only the Hansa Corporation and not the other Petitioners agains....
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....common judgment. Thus, the contentious issues raised by the parties stood determined on the same set of facts and on the same reasonings. There is no merit in the contention that the judgment passed by this Court would bind only the parties in Writ-C No. 34196 of 2015 and that the other judgments passed by the High Court would stand and operate as res judicata. As held in M/s. Shenoy and Co. and other judgments, to do so is to ignore the binding nature of a judgment of this Court Under Article 141 of the Constitution of India. Non-impleading of successful candidates in the writ petition 64. On behalf of the Appellants, repeated arguments were advanced that the non-impleadment of successful parties will affect the right of the selected candidates who have been selected and given appointments. In this regard, the High Court relied upon Union of India and Ors. v. O. Chakradhar (2002) 3 SCC 146 to hold that it is not necessary to implead all the successful candidates in the writ petition and therefore, non-impleadment of the successful candidates would not affect the maintainability of the writ petition. The learned Senior Counsel appearing for the Appellants submitted that in O.....
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....assail the select list. In the counter filed by the Principal Secretary, Personnel, Government of UP, it is stated that change in the category-wise vacancies was further scrutinised in terms of Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994. It was found that a harmonious construction of its various Sections was needed to be taken. In the counter affidavit filed by the Principal Secretary, Personnel, it is stated that the total of 6628 vacancies was exceeding the demarcated percentage and the relevant portion of the said affidavit reads as under: Hence, a further revision in category-wise vacancy position was made and subject to the orders of the Hon'ble High Court, the total 6628 vacancies have been sub-divided based on the reservation percentage as the result which was declared by UPPSC was exceeding the demarcated percentage in the following manner: Available posts after 2% reduction General (50%) Scheduled Castes (21%) Scheduled Tribes (2%) OBC (27%) 6628 3316 1391 132 1789 Thereafter, the application of horizontal reservation for dependents of Freedom Fi....
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....h the impugned office memorandum was issued itself was a case of excessive requisition, that is, beyond the permissible limits set out by the UP Reservation Act, 1994. As a result of this excessive requisition, 906 extra candidates recommended could not be issued appointment orders after the revision. 70. As pointed out earlier, the revised requisition dated 20.08.2014 and the revised notification of the UP Public Service Commission itself were in excess of the permissible limits of reservation as per UP Reservation Act, 1994. We cannot pass direction to accommodate the surplus candidates as that would be in excess of the permissible limit as prescribed by the Act and would be in violation of prescribed limits of reservation as per the statutory provisions of UP Reservation Act, 1994. In exercise of power Under Article 142 of the Constitution of India, if we are to issue direction to appoint 906 candidates, it will be crossing the limits of 50% reservation which would be violation of the constitutional provisions and the UP Reservation Act, 1994. Even assuming that the Respondent State was not diligent in carrying out the proper quantifiable data of existing working strength in ....
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....General SC/ST OBC 2059 1031 473 555 After filing the aforesaid vacant posts, the vacancies of the said post as per cadre strength is as follows: 2779 1761 534 484 74. Mr. Mehul Gupta, learned Counsel on behalf of some of the Appellants has prayed that power Under Article 142 of the Constitution of India be exercised for extending the benefit of a beneficial provision to overcome injustice caused to 906 candidates who were not issued the appointment orders. It was submitted that the technical flaw in the revised requisition was in excess of the prescribed limit of reservation being in excess of the permissible limits under the UP Reservation Act, 1994 and the same can be rectified by exercising power Under Article 142 of the Constitution of India. Learned Counsel further submitted that 906 candidates in three different categories i.e. SC, ST and OBCs have successfully completed the written examination and the interview and these successful candidates have nothing to do with these technical flaws and therefore, prayed that in order to do complete justice, the power Under Article 142 of the Constitution of India be exercised. In support of his conte....
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.... power Under Article 142 of the Constitution of India cannot be exercised to supplant the statutory provision under the UP Reservation Act, 1994. In our view, in exercise of power Under Article 142 of the Constitution of India, no direction can be issued to the State of UP to issue appointment orders to the 906 candidates. 77. Summary of Conclusion: (i) The Office Memorandum dated 12.10.2014 issued by the UP Public Service Commission revising the number of vacancies is based upon the revised requisition of the Government dated 20.08.2014. The revised requisition of the Government dated 20.08.2014 was only to rectify the wrongful calculation of the number of vacancies in different categories and to comply with the requisite percentage of quota of reservation in different categories as per Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994; (ii) In view of Rule 15 and Rule 6 of UP Subordinate Agriculture Services Rules, 1993 (Agriculture Service Rules, 1993), the Recruitment Authority is empowered to rectify the wrongful calculation and make a revised requisition of number of vacancies in differ....