& Ors Vs. State of U.P. & Ors  Insc 103 (16 February 2004)
Raju & Arijit Pasayat.
out of SLP (C) No.6505/2003) WITH CIVIL APPEAL NO.1036/2004 (Arising out of SLP
(C) 9984/2003) WITH CIVIL APPEAL NO.1037-39/2004 (Arising out of SLP (C) No.
9985-9987/2003 ARIJIT PASAYAT,J
appeals are directed against the judgment of the Allahabad High 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.
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-meal, and therefore, it has to be from the date on which the last
recommendation was made. The State of U.P.
endorses the stand of the appellants. It has to be noted that there is no
statutory rule governing the situation.
facts are as follows:-
The Commission issued an advertisement for filling up
218 posts of 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.
first 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
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 send 30 names.
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 Commission. The High
Court by the impugned judgment held that the period of validity of the waiting
list was over.
support of the appeals, Mr. Rakesh Dwivedi, learned senior counsel submitted
that the stand taken by the Commission is contrary to the clear 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 prescribed period. The
waiting list in such cases shall be valid even after one year and if the
waiting list is not utilized within the prescribed 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
response, learned counsel for the State Government adopted the stand of the
appellants and submitted that the correct position has been highlighted by the
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
in some cases, the 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 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.
accepted by learned counsel for the parties that there is no statutory rule
governing the field. It appears from the records that the date of receipt of
the last recommendation by the State Government is 23.7.2001.
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 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:
Number of candidates Recommended
also appears that after the stay order was vacated by the High Court, 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 of 24 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.
Thereafter, various verifications were received piece-meal.
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 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 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 memorandums referred to above 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 included the unfilled posts in its
requisition. The career of 11 candidates cannot be jeopardized in this battle
of inconsistent and varying stands taken and moves adopted by the State
Government and the Commission at different stages for different purposes.
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, 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 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.
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.
appeals are allowed to the aforesaid extent without any order as to costs.