IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Writ Petition No. 45 of 2004 (S/B) Deepak Kumar & others ………………… Petitioners Versus State of Uttaranchal & others ………………… Respondents Mr. Gopal Narain, learned counsel for the petitioners. Mr. U.K. Uniyal, learned counsel for respondent No. 5. Mr. K.P. Upadhyaya, learned Standing Counsel for the State. Dated: 13th May 2004. Hon’ble P.C. Verma, A.C.J. Hon’ble Rajesh Tandon, J. By the present writ petition the petitioners have prayed for the issue of a writ in the nature of mandamus commanding the respondents to issue the appointment letters to the petitioners in order of merit and preference according to the select list. Brief facts giving rise to the present writ petition are that the Public Service Commission, Uttaranchal (hereinafter referred to as Commission) published / issued an advertisement for holding Combined State Engineering Services Examination 2002 showing the vacancies for the post of Assistant Engineers (civil) in the Public Works Department and Assistant Engineers (Electrical / Mechanical) in Department of Rural Engineering Services and Rural Development & Panchayat Raj Departments. The vacancies were mentioned in the advertisement along with reservation. Petitioners have stated that they have also submitted their applications to the Commission to participate in the examination of Combined State Engineering Services. According to the petitioners written examination was held by the Commission and the candidates who passed the written examination were called for interviews for final selection. Petitioners have further submitted that before holding the interview the Commission called for preferences for appointment in various departments from the successful candidates of combined list. Thereafter, on 17.06.2003, the Commission issued a select list merit wise and on the basis of preferences given by the petitioners and other selected candidates. The same was sent to the Government for approval and thereafter appointment letters were issued to the successful candidates by the concerned departments. The contents of the select list issued by the Commission with respect to the petitioners are quoted below: Yksd lsok vk;ksx mRrjkapy la[;k 017@vfrxksiu@vfHk@2002&2000 fnukad 17 twu 2003 lwpuk vk;ksx }kjk lfEefyr jkT; vfHk;a=.k lsok ijh{kk 2002 fnukad 15 o 16 Qjojh 2003 dks vk;ksftr dh x;h Fkh rFkk mDr ijh{kk esa leLr vH;fFkZ;ksa dk lk{kRdkj fnukad 21 ebZ 2003 ls 24 ebZ 2003 rd vk;ksftr fd;k x;k Fkk vk;ksx }kjk iz'uxr ijh{kkk dk vfUre ijh{kkQy fuEufyf[kr Js"Brkdze esa foHkkxokj ?kksf"kr fd;k tkrk gS& yksd fuekZ.k foHkkx mRrjkapy esa lgk;d vfHk;Urk ¼flfoy½ dz0la0 vuqdzekad vH;FkhZ dk uke 37 58371 eqjyh/kj 85 362 vkuUn izdk'k ¼v0tk0½ 86 363 nhid dqekj ¼v0fi0o0½ 88 944 equh"k oekZ ¼v0tk0½ 89 711 vjfoUn dqekj oeZu ¼v0tk0½ Yksd fuekZ.k foHkkx mRrjkapy esa lgk;d vfHk;Urk ¼fo|qr@;kaf=d½ dz0la0 vuqdzekad vH;FkhZ dk uke 44 2006 iadt dqekj flag 45 762 oSHko flag 47 300 jkts'k dqekj oekZ Learned counsel for the petitioners have made a grievance that on 20.02.2004 the Public Works Department issued letters for appointment according to the list sent by the Commissioner to the successful candidates totaling to 61 from the 92 successful candidates against 92 vacancies. Similarly, on 12.02.2004 Department of Rural Engineering Services and Rural Development & Panchayat Raj Department have also issued appointment letters to the candidates who are lower in merit. The contents of the appointment letter are quoted below: mRrjkapy 'kklu iapk;r ,oa xzkeh.k vfHk;U=.k lsok la[;k 35@ia0xk0v0ls0 vuq0@93¼24½@2003&04 nsgjknwu % fnukad 12 Qjojh 2004 foKfIr @ fu;qfDr “yksd lsok vk;ksx mRrjkapy gfj}kj }kjk vk;ksftr lfEefyr mRrjkapy jkT; ijh{kk 2002 lds la;qDr p;u ,oa rRi'pkr lk{kkRdkj ds vk/kkj ij xzkeh.k vfHk;U=.k lsok foHkkx mRrjkapy esa fu;qfDr gsrq laLrqr fd;s x;s vH;fFkZ;ksa esa ls fuEufyf[kr vH;fFkZ;ksa dks lgk;d vfHk;Urk¼flfoy½@;kfU=d ds in ij osrueku #0 8000&275&13500 esa fuEufyf[kr 'krksZa ds v/khu fu;qfDr fd;s tkus dh Jh jkT;iky egksn; lg"kZ Lohd`fr iznku djrs gSaA” Petitioners have submitted that when they came to know that the appointment letters have been issued to the successful candidates without following the procedure of preference and the candidates who got less marks from the petitioners were shifted to the other departments while the petitioners who are higher in merit according to the merit list issued by the Commission, then the petitioners approached the higher authorities by making their grievance. Petitioners have submitted that the action of the Government, therefore, is wholly unreasonable. A counter affidavit has been filed by the State wherein in paragraph No. 7 of the said counter affidavit it has been stated that the Public Works Department has made requisition to the Commission for conducting the examination on 08.02.2002. At that time the entry quota for direct recruits was 58.34% in the prevalent “United Provinces Services of Engineers (building and road branch) class 2 Rules 1936” (as amended). The State has notified new service rules as on 25.04.2003 in which the direct entry quota is 50% of the total Cadre strength. The cadre strength for Assistant Engineer (Civil) is 193 and 19 for Assistant Engineer (E & M). Thus the direct quota for A.E(Civil) is 97 and A.E(E&M) is 10. Only 61 vacancies in Assistant Engineer (Civil) actually exist. Therefore, appointment letters to 61 candidates in order of merit and subject to reservation policy of the State Government have been issued vide order dated 20.02.2004. It is pertinent to state here that 33 optees of Uttaranchal Assistant Engineer(Civil) and three AE(Civil) [permanent resident of Haridwar district are serving in Uttaranchal against the direct entry quota. Likewise 06 Assistant Engineers (E&M) optees of Uttaranchal are serving in Uttaranchal. It was further submitted by the State Government that in AE(E&M) no vacancy exists as on date, resulting no issuance of appointment order of Assistant Engineer(E&M). The Cadre allocation has not been finalized by the Government of India till date. Finally how many officers at Assistant Engineers level out of these optees will be allocated to the State of Uttaranchal by Government of India is not know. The State Government has further submitted that as and when the vacancies anticipated at the time of advertisement are available the candidates from the select list shall be given appointment in order of merit and subject to the reservation policy of the State Government. The respondents have carved out a new case in their counter affidavit against the terms of the advertisement made on 19th August 2002. The petitioners having been selected and their selection having also been approved as will appear from the select list published on 17th June 2003. therefore, as having been approved the same cannot be a matter of change so as to cause injustice to the petitioners. In reply to the contents of the counter affidavit filed by the respondents, the petitioners have filed a rejoinder affidavit and it has been reiterated that single selection list of the Engineers were sent to the Government for approval and there is no reason not to issue appointment letters and the select list has to be accepted in toto. The stand of the Government that the State has modified new service rules as on 25.04.2003 in which direct entry quota is 50% of the total cadre strength and cadre strength of the Assistant Engineer(Civil) in 193 and 19 for Assistant Engineer(E&M) and thus direct quota for the A.E.(Civil) is 97 and A.E(E&M) is 10 and only 61 vacancies in A.E(Civil) actually exists is against the advertisement. Total 89 vacancies towards A.E(Civil) and 03 vacancies towards A.E(E&M) has been shown towards Public Works Department and in other departments the vacancies have been shown as under: dz la foHkkx dk uke in dk uke dqy fjfDr;ka lkekU; vuq0 tkfr v0 t0 tk0 v0 fi0 o0 1 2 3 4 5 6 7 8 1 yksd fuekZ.k foHkkx mRrjkapy ¼d½ lgk;d vfHk;Urk ¼flfoy½ ¼[k½ lgk;d vfHk;Urk ¼fo|qr @;kaf=d½ 89 03 55 02 18 01 03 & 12 & 2 xzkeh.k vfHk;U=.k ou ,oa xzkE; fodkl foHkkx ¼d½ lgk;d vfHk;Urk ¼flfoy½ ¼[k½ lgk;d vfHk;Urk ¼fo|qr½ ¼x½ lgk;d vfHk;Urk ¼;kaf=d½ 11 01 04 7 & & 3 01 01 & & & 1 & & 3 xzkE; fodkl ,oa iapk;r jkt vfHk;Urk ¼flfoy½ 05 04 01 & & We are of the opinion that when the recommendations in accordance with the selection made were accepted by the State Government, the selectees acquire vested right and their appointments have obtained finally. Moreso, part of the list having been accepted, the other candidates therefore have a right to seek writ of mandamus in pursuance of their approval by the Government. In Kumari Shrilekha Vidyarthi etc. Vs State of U.P. and others reported in AIR 1991 S.C. 537, it has been held as under: “It is now too well settled that every State action, in order to survive, must not be susceptible to the vice of arbitrariness which is the crux of Article 14 of the Constitution and basic to the rule of law, the system which governs us. Arbitrariness is the very negation of the rule of law. Satisfaction of this basic test in every State action in sine qua non to its validity and in this respect, the State cannot claim comparison with the private individual even in the field of contract. This distinction between the State and a private individual in the filed of contract has to be borne in the mind.” We, therefore allow the writ petition. A writ of mandamus is issued directing the respondents to issue appointment letters in favour of the petitioners in pursuance of the approved selection list published on 17.06.2003. (Rajesh Tandon, J.) (P.C. Verma, A.C.J.) Dated: 13th May, 2004 HN