State Of U.P. & Anr vs Om Prakash & Ors

Pursuant to the advertisement dated 22.3.1986 and a corrigendum dated 14.11.1987, 390 posts were advertised to be filled up by the Homeopathic Medical Officers through UPPSC. Alongwith others respondents also applied for the posts for which the interview was held on 23.10.1990. The appointments were to be made on the basis of oral interview and also the marks to be awarded on the qualifications of each candidate.

For total seats of 390, 716 degree holders applied, out of which 565 were found eligible for interview and out of them 109 have been recommended and appointed. The total number of diploma holders who had applied for the posts were 4239, out of which 1989 were called for interview and 302 were recommended. The diploma holders in general category who had secured 49% marks were called for interview whereas in the case of backward class candidates those who had secured 48.7% marks were called for interview. In the batch of writ petitions the main judgment was delivered by the Division Bench of the High Court in Civil Misc.Writ Petition No.10175 of 1994 disposed of on 19.7.1996. The judgment of the Division Bench dated 19.7.1996 passed in Civil Misc. Writ Petition has not been assailed by the appellants and therefore it has attained finality. What has been appealed against in this bunch of appeals is the subsequent order of the High Court following the decision dated 19.7.1996 rendered in Civil Misc.Writ Petition No.10175 and batches of 1994.

Undisputedly, the respondents were degree holders with requisite qualification as prescribed in the advertisement. The apple of discord centers around the proviso. The respondents/writ petitioners contended before the High Court that such preference has not been given to the degree holders and they were clubbed together with the diploma holders and considered as such by the Commission. The respondents challenged the entire selection in the writ petition as ultra vires the qualifications prescribed in the advertisement. The select list has also been challenged on the ground of arbitrariness as according to the respondents/writ petitioners the preference clause was totally ignored. It was contended before the High Court by the appellants that the ratio for filling up 390 total seats was in the ratio of 1 to 8. In other words, for filling up the 390 total seats, 2554 candidates were called for interview, out of which 1989 were diploma holders and 565 degree holders were found eligible.

The High Court rejected the consistent contention of the appellants that the writ petitioners/respondents herein were also called for interview and they were not selected for the posts.

Counsel for the respondents herein would contend that since the order of the High Court dated 19.7.1996 passed in Civil Misc. Writ Petition No.10175 of 1994 and batches has now attained finality, the subsequent order of the High Court following the same decision assailed in the present appeals must also be dismissed. We are unable to accept this contention. Adhering to such contention would amount allowing the perpetuation of illegality. We may also dispose of one of the arguments of the counsel for the appellants. Counsel contended that the judgment of the High Court dated 19.7.1996 passed in Civil Misc. Writ Petition No.10175 of 1994 which judgment was followed in a subsequent order has been assailed in this batch of appeals and, therefore, the judgment dated 19.7.1996 is clearly illegal and the same should also be set aside. We are unable to agree with this submission for more than one reason. Firstly, the judgment dated 19.7.1996 has not been appealed against and it has now been implemented and has attained finality. Secondly, the writ petitioners in Civil Misc. Writ Petition No.10175 of 1994 and batches thereof which were allowed by the High Court in its judgment dated 19.7.1996 are not before us.

Civil Appeal Nos.7013 of 2004 and 5760 of 2002 are dismissed. Parties are asked to bear their own costs.