SHEO SHY AM AND ORS. --- v.

STATE OF U.P. AND ORS.

FEBRUARY 16, 2004

r• B

[DORAISWAMY RAJU AND ARIJIT PASAYAT, JJ.]

--~

Service Law:

c Appointment for the posts of Assistant Prosecuting Officer through Union Public Service Commission-Recommendations made by the Commission in piecf!-meal-Some of the candidates having not joined the service, State Government requisitioned some candidates from the waiting list-Commission refused to send additional names on the ground that waiting list had lapsed- I

Challenge to-Rejected by High Court-On appeal, Held: On the one hand, l-

D the State Government taking the stand that validity period of the waiting list has to be counted from the date of last recommendation for getting additional names from waiting list, on the other hand it included the vacancies in afresh requisition leading to the Commission holding fresh Selection Test-State Government should not have included the unfilled posts in its requisition and Commission should have asked the State Government reasons as to inclusion E of these vacancies-Career of candidates cannot be jeopardized due to the inconsistency/varying stands taken by the State Government and the - Commission-The State Government and the Commission to reconsider the case of appointment of the candidates if found eligible for the post-In the facts and circumstances of the case, it would be equitable and just to count F validity period of the waiting list from the last recommendations-Directions issued __},.

Un!on Public Service Commission made recqmmendations for appointment for the post of Assistant Prosecuting Officer. The Commission made recommendations in piece-meal and the State Government made G appointments. Thirty candidates did not join the service. However, the State Government requisitioned the commission for seven additional candidates only from the waiting list. Commission refused to send additional names as validity period of the waiting list was over. Aggrieved,

~ the candidates filed writ petitions, which were dismissed by the High

H Court. Hence the present appeals. 406 .,

SHEO SHY AM v. ST A TE 407

It was contended for the appellants that the stand taken by the A Commission was contrary to the office memorandum issued by the State Government which stipulates that if the Commission failed to send the names of the candidates within the prescribed period, waiting list in such cases shall be valid even after one year if not utilized; and that the period of one year has to be reckoned from the date of sending names of last Bl candidates from the waiting list.

On behalf of the Commission, it was submitted that though plea of the appellant has been accepted by the Commission, but in the facts and circumstances of the case that cannot act as an estoppel against the Commission; and that it was unavoidable on the part of the Commission ( to send recommendation in batches since verification of the antecedents of the selected candidates takes time.

Allowing the appeals, the Court

HELD: 1.1. In view of the peculiar nature of the fact situation in [ the present case, it would be inequitable and unjust to compute the period of one year from the date of the first recommendation made by the Commission. It would be proper to reckon the period from the date of the last recommendation. But, the State Government had requisitioned for additional posts including the unfilled posts of the previous selection and examinations were held. The fate of the appellants has suffered a set back E on account of the action of both the Commission and the State Government. [411-D-E]

1.2. If the Commission's stand is that the validity period of the waiting list is one year, it should have sought for clarification from State Government, as to why unfilled posts were included in the requisition, I when its specific stand in the office memoranda was to the contrary. At the same time, the State Government having taken a positive stand all through that the date of reckoning would be the last date on which the recommendation was made, it should not have includ2d the unfilled posts in its requisition. The career of the appellants cannot be jeoparidized in ( this battle of inconsistent and varying stands taken and m.Jves adopted by the State Government and the Commission at different stages for different purposes. Commission accepted that the period was to be from the last date of recommendation. Though there cannot be any estoppel in law, yet a statutory body like the Commission cannot blow hot and cold at the same breath. There has to be consistency in its view. [411-E-G; 412-A) f

A 1.3. In the facts and circumstances of the case, it is directed that the appellants shall be considered for appointment by the Commission and the State Government and they would be appointed if otherwise found suitable and eligible after verification of such credentials, documents and background as are necessary to be done for appointment. [412-C-D)

B 1.4. To rule out unfortunate situations like the present one being allowed to recur again, the State Government and the Commission are required to be more vigilant and constructive in their approach, when dealing with the careers of large number of candidates, their stands have to be consistent and not varying to avoid giving room for unsavoury C suspicions and ensuring the systems to work more transparently to add to its reputation and strength. [412-B)

CIVIL APPELLATE JURISDICTION Civil Appeal No. I 035 of 2004.

D From the Judgment and Order dated 18.12.2002 of the Allahabad High

Court in C.W.P.No. 28192 of 2002.

WITH

C.A. No. 1036, 1037-39 of 2004.

Rakesh Dwivedi, K.K. Mohan, Dhan Singh Nagar, Barun Kumar Sinha, Manoj Kumar, Udai Prakash Sharma and B.K. Satija for the Appellants.

Ravi Prakash Mehrotra, Garvesh Kabra, Shail Kumar Dwivedi and G.V.Rao for the Respondent.

The Judgment of the Court was delivered by

ARIJIT PASAYAT, J. Leave granted.

These appeals are directed against the judgment of the Allahabad High G Court rejecting writ petitions filed by the appellants. The only question which falls for consideration in these appeals is the date from which the period of validity of the waiting list is to be reckoned. According to the Union Public Service Commission (hereinafter referred to as the 'Commission') it is from the first date on which the recommendation was made by the Commission.

The appellants took the stand that the recommendations were done piece- H meal, and therefore, it has to be from the date on which the last

_ ....

SHEO SHY AM v. STATE [PASA Y AT, J.] 409

recommendation was made. The State of U.P. endorses the stand of the A appellants. It has to be noted that there is no statutory rule governing the situation.

Background facts are as follows:-

The Commission issued an advertisement for filling up 218 posts of B Assistant Prosecuting Officer (in short the 'APO'). The appellants_ applied for appointment. On the basis of recommendations made by the Commission, appointments were made by the State Government in instalments since the Commission itself appears to have been sending proposals also in instalments, after due verification of the credentials and fitness of candidates. The first C batch of appointment orders was issued on 20.8.2001 requiring selected candidates to join by 10.9.2001. Thereafter, appointments were made in two further batches and the joining dates were indicated to be 3.10.2001 and 20.4.2002. It is undisputed that about 30 candidates who were selected did not join.

On 26.11.2001, the State Government sent communication to the Commission pointing out that the candidatures of 7 candidates have been cancelled as they had refused to join and a request was made for seven additional names. Grievance of _the writ petitioners (appellants herein) was that when 30 posts were vacant and the period of currency of the waiting list

was not over, the State Government should have required the Commission to E send 30 names.

Response of the Commission to the letter of the State Government was that the additional names called for were not to be sent, as two and half years had elapsed from the date when the first recommendation was sent by the Commission. Writ petitions were filed questioning the view taken by the F Commission. The High Court by the impugned judgment held that the period . of validity of the waiting list was over.

In support of the appeals, Mr. Rakesh Dwivedi, learned senior counsel submitted that the stand taken by the Commission is contrary to the clear G stipulations made by the State Government in several orders. Particular reference has been made to two Office Memorandums dated 31.1.1994 and 14.1.1999. In the first office memo, it was indicated that problems arose when names were not indicated by the Commission within a period of one year and when the Commission did not make available the names of the candidates within the orescribed period. The waiting list in such cases shall H

A be valid even after one year and if the waiting list is not utilized within the

prescribea period, the left over vacancies shall be presumed to be carried forward to the next, year. The office memorandum dated 14.1.1999 was categorical to the effect that period of one year was to be reckoned from the last date of taking names from the waiting list.

B In response, learned counsel for the State Government adopted the stand of the appellants and submitted that the correct position has been highlighted by the appellants. But learned counsel for the Commission submitted that if the plea of the appellants is accepted it will create a totally chaotic situation. It would lead to uncertainty. Though in some cases, the C Commission has accepted the stand now presently taken by the appellants to be correct, yet that cannot act as an estoppel against the Commission on the facts of the present case. Subsequently, the State Government itself has requisitioned for 56 posts including the unfilled posts to which the present disputes.relate and the examinations were held on 9.11.2003. The vacancies have been carried forward. It was unavoidable on the part of the Commission D even as per the stand taken for it to send recommendations in batches because verifications of the antecedents of the selected candidates were to be done and that took long time.

It is accepted by learned counsel for the parties that there is no statutory E rule governing the field. It appears from the records that the date of receipt of the last recommendation by the State Government is 23. 7 .200 l. Even though the results were declared on 20.3 .1999, the first batch of appointment orders of the select list was issued on 20.8.2001. It is submitted by learned counsel for the State Government that there was an order of stay operating pursuant to the order passed by the Lucknow Bench of Allahabad High Court F from 10.5.1999 till 20.5.2001. It is of significance to note that the stay order granted by the Lucknow Bench was vacated on 19.12.2000. The list of selected candidates was sent in the following manner:

Date Number of candidates Recommended G

I. 10.5.1999 162

2. 24.6.1999 47

3. 6.9.1999

H 4. 8.9.1999 4

SHEOSHYAMv. STATE[PASAYAT, J.) 411

5. 5.11.1999 A

6. 28.2.2000

7. 26.7.2001

It also appears that after the stay order was vacated by the High Court, B the verification of the entire select list was done afresh on account of expiry of six months period in respect of verifications done earlier. After afresh verification, the list of selected candidates was received by the Government on 28.4.2001. Subsequently, on 4.5.2001 and 6.6.2001 verification lists of24 and 21 selected candidates were received and finally on 25.6.2001 verification report in respect of 18 selected candidates was received by State Government. C Thereafter, various veriJJcations were received piece-meal.

In the aforesaid background, in a case of this nature and in view of the peculiar nature of the fact situation noted above, it would be inequitable and unjust to compute the one year period from the date when the first recommendation was made by the Commission. Undisputedly, appointments D were made till the end of 2001. Therefore, it would be proper to reckon the period from the last date when the recommendation was made. But another situation has developed subsequently. The State Government itself had requisitioned for 56 posts including the unfilled posts of the previous selection and examinations are stated to have been already held. The fate of present 11 E appellants has suffered a set back on account of the action of both the Commission and the State Government. If the Commission's stand is that the validity period of the waiting list is one year, it should have sought for clarification from State Government as to why unfilled posts were included in the requisition, when its specific stand in the office memoranda referred to above was to the contrary. At the same time, the State Government having F taken a positive stand all through that the date of reckoning would be the last date on which the recommendation was made, it should not have included the unfilled posts in its requisition. The career of 11 candidates cannot e jeopardized in this battle of inconsistent and varying stands taken and moves adopted by the State Government and the Commission at different stages for G different purposes.

Had the Commission on receipt of the office memorandum dated 14.1.1999 pointed out to the State Government that its view was not in line with the Commission's view that would have sorted out the areas of differences. Interestingly, in a particular case referred to by the appellants, H

A Commission accepted that the period was to be from the last date of recommendation. Though there cannot be any estoppel in law, yet a statutory body like the Commission cannot blow hot and cold at the same breath.

There has to be consistency in its view. To rule out unfortunate situations like the present one being allowed to recur again, both the State Government and B the Commission are required to be more vigilant and constructive in their approach. When dealing_ with the careers of large number of candidates, their stands have to be consistent and not varying to avoid giving room for unsavoury suspicions and ensuring the systems to work more transparently to add to its reputation and strength.

C In the peculiar circumstances noted above, we direct that the appellants shall be considered by the Commission and the State Government and they would be appointed if otherwise found suitable, and eligible after verification of such credentials, documents and background as are necessary to be done for appointment.

D The appeals are allowed to the aforesaid extent without any order as to costs.

S.K.S.

Appeals allowed.