Anupal Singh and Others vs State of U.P through Principal Secretary, Personnel Department and Others

vacancies to be filled up in various categories in consonance with order dated 20.07.2014 – Successful candidates appeared in interview on 27.10.2014 and finally result of select list candidates was declared on 21.05.2015 – Private respondents did not qualify – Unsuccessful candidates filed writ petitions before High Court challenging the validity of O.M. 12.10.2014 and the result declared on 21.05.2015 and praying for quashing the same and for preparation of result afresh without giving effect to O.M. 12.10.2014 – The impugned result was also assailed on the ground that it contravened s.3(1) of UP Reservation Act, 1994 and r.15(3) of UP Subordinate Agriculture Services Rules, 1993 and also that the percentage of reservation to SC/ST and OBC categories crossed the upper limit of 50% – Held: Revised requisition dated 20.8.2014 and OM dated 12.10.2014 was valid since it was only intended to rectify wrongful calculation of number of vacancies in different categories and to comply with requisite percentage of quota of reservation in different categories as per 1994 Act – By virtue of r.15 and r.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 different categories which is in accordance with the provisions of UP Reservation Act, 1994 – High Court was not right in saying that the diploma holders ought not to have been absorbed against the “General category” so as to alter the advertised number of posts against the “General category” – Absorption of diploma holders were required to be done only against the “General quota” – Revising the number of vacancies in different categories to satisfy reservation quota scheme as per UP Reservation Act, 1994 would not amount to changing the rules of the game after the commencement of the selection process – Having participated in the interview and when they failed in the final selection, it was not open to the private respondents/intervenors to turn around and challenge the revised notification dated 12.10.2014 and the final select list dated 21.05.2015 – The filling up of the unfilled horizontal reservation by the candidates from the respective vertical reservation is in accordance with the policy of the government and the same cannot be faulted with – Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994.

Service law: Selection process – Reservation scheme – Appointment letter not issued to 906 candidates – Plea to exercise power under Art.142 of the Constitution of India – The 906 candidates were not issued the appointment orders in order to keep the appointment within the permissible percentage of reservation as per UP Reservation Act, 1994 – These 906 candidates who were left out and were not issued appointment orders were ranked lower in the merit list than the last selected candidate in their respective category under the reservation limit as identified by the Personnel Department, therefore appointment orders were not issued to them – This cannot be said to be arbitrariness or discrimination as selection of candidates was on the basis of the merit list – Therefore, power under Art.142 of the Constitution of India cannot SECRETARY, PERSONNEL DEPTT.

be exercised to issue direction to the State to issue appointment orders to 906 candidates – Constitution of India – Art.142.

Service law: Selection process – It is a settled law that a person having consciously participated in the interview cannot turn around and challenge the selection process – Having appeared in the interview without any demur or protest, it is not open to the candidates to challenge the selection process on the ground that there was modification in the number of vacancies in different categories and they are estopped by the principle of estoppel from challenging the same – Doctrine of estoppel.

Service law: Selection process – It is fairly well-settled that the selected candidates do not have any indefeasible right to be appointed – Merely because the names of candidates were included in the provisional select list, they do not acquire any indefeasible right to be appointed.

Doctrines/Principles: Doctrine of res judicata – Batch of writ petitions disposed of by High Court by common judgment containing common operative portion of judgment – Appeal filed in few writ petitions – Decision of Supreme Court – Whether judgment rendered in other writ petitions by High Court having not been challenged, have attained finality and operate as res judicata – Held: The decision of Supreme Court is binding on all the writ petitioners before High Court even though they were not parties in the appeal before the Supreme Court.

Allowing the appeals, the Court

HELD:

1. Revised requisition dated 20.08.2014 and Office Memorandum dated 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

1.1 On the basis of the government order dated 20.08.2014, the Department of Agriculture sent the revised requisition to the UP Public Service Commission (UPPSC). The declaration of result of the written examination was issued based on the revised requisition of the posts. The UPPSC 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 UPPSC revising the number of vacancies for different categories. The UPPSC has thus not travelled beyond the requisition sent by the Government. [Para 24, 25] [1096-F; 1097-B-C]

1.2 The Agriculture Service Rules, 1993 clearly stipulate that it is for the Recruitment Authority to 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 category candidates under Rule 6. On noticing that there was wrongful calculation of the category-wise vacancy, the Recruitment Authority is empowered to rectify the wrongful calculation and make a revised requisition which is in accordance with the provisions of UP Reservation Act, 1994 and Agriculture Service Rules, 1993. [Para 29] [1099-E-F]

R.K. Sabharwal and Others v. State of Punjab and Others (1995) 2 SCC 745 : [1995] 2 SCR 35

– relied on.

1.3 Revising the number of vacancies in OBC category as 2030 does not violate the right of the General category candidates because the State Legislature has enacted the Reservation Act No.4 of 1994 providing for reservation, keeping in mind the parameters of Article 16(4) of the Constitution of India. By revising requisition, the State has endeavoured to achieve the object of the reservation by working out the vacancy for selection of the posts in question without causing any prejudice to the General category candidates. The revised requisition so made was within the purview of the competency of the State in order to achieve the object of the UP Reservation Act, 1994. Moreover, the total number of vacancies have not been changed or modified. [Para 32] [1101-B-C]

1.4 The category-wise vacancy position was changed after a meeting of all concerned was held i.e. representatives of the Karmik Department as well as of representatives of the Administrative Department and it was found that a wrong calculation of category-wise vacancy had been sent earlier. If the SECRETARY, PERSONNEL DEPTT.

original requisition dated 22.10.2013 was to be retained, it would have resulted in anomalies of the category-wise posts thereby contravening the provisions of the UP Reservation Act, 1994. Hence, the revised requisition was sent on 20.08.2014 from the Administrative Department to the Director, Agriculture who in turn communicated the same to the UPPSC. By the revised requisition of vacancies for various categories, there is no violation of any rules; on the 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. [Para 34] [1101-F-H]

2. Absorption of the Diploma Holders

The earlier requisition was 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. At the time of absorption of the diploma holders in the 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 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 variation in number of vacancies against “General quota” was only because of the absorption of the diploma holders against the “General quota” and rectifying the mistake of adjustment against “OBC vacancies”. [Paras 37, 38] [1102-E-F; 1103-D-G]

3. O.M. dated 12.10.2014 revising the vacancies categorywise – whether amounts to changing the rules of the game after the commencement of the selection

3.1 In the instant case, only wrongful calculation in the number of vacancies in different categories had been corrected in order to satisfy the percentage of reservation against various categories as per the provisions of UP Reservation Act, 1994. Such correction cannot be said to changing the rules or basis of selection. The eligibility criteria was not changed. 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. [Paras 42, 44] [1105-D-E; 1106-D-E]

K. Manjusree v. State of Andhra Pradesh and Another (2008) 3 SCC 512 : [2008] 2 SCR 1025 ; Hemani Malhotra v. High Court of Delhi (2008) 7 SCC 11 : [2008] 5 SCR 1066 – distinguished.

3.2 Instruction No.7 in the advertisement dated 22.10.2013 stipulated that the number of vacancies may increase or decrease. Agriculture Service Rules, 1993 also clearly stipulated the prerogative of the government to determine the number of vacancies in accordance with the rules. 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”. Notification by the UPPSC dated 12.10.2014 is based upon the revised requisition of the vacancies by the order of the Administrative Department dated 20.08.2014. This would not amount to changing the rules of the game after the selection process had commenced nor it had affected the selection process by changing the eligibility criteria. [Paras 45, 48, 49] [1108-B-D] Tej Prakash Pathak and Others v. Rajasthan High Court and Others (2013) 4 SCC 540 – relied on.

4. Having participated in the interview, the private respondents cannot challenge the Office Memorandum dated SECRETARY, PERSONNEL DEPTT.

12.10.2014 and the selection.

It is a settled law that a person having consciously participated in the interview cannot turn around and challenge the selection process. The candidates who appeared in the interview were well aware about the modification/revision in number of vacancies of Technical Assistants in different categories. The private respondents/intervening applicants have appeared in the interview with their eyes wide open regarding the modified vacancies to be filled up in various categories of the posts. Having appeared in the interview without any demur or protest, it is not open to the candidates to challenge the selection process on the ground that there was modification in the number of vacancies in different categories and they are estopped by the principle of estoppel from challenging the same. [Paras 50, 54] [1108-E-F; 1110-G-H; 1111-A]

5.Unfilled vacancies of Horizontal Reservation filled by candidates of vertical reservation 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. The UP Public Service Commission furnished the details as to the number of vacancies reserved for horizontal category and the number of candidates found suitable and placed in the respective categories. On behalf of UP Public Service Commission, it was submitted that one of the policies of the State Government regarding horizontal reservation is that, if the suitable candidates for filling the vacancies reserved for such posts of horizontal reservation are not available and the same are not carried forward; they are filled up by other suitable candidates from amongst the candidates belonging to vertically reserved categories according to their merit. It was submitted that unfilled horizontal reservation vacancies were thus filled up by suitable candidates of respective vertical categories according to their merit which is as per the policy of the government. The High Court was not right in finding fault with the filling up of vacancies reserved for horizontal reservation with other candidates of respective vertical reservation. [Para 56] [1111-D-E; 1112-A-C]

Madan Lal and Others v. State of J&K and Others (1995) 3 SCC 486 : [1995] 1 SCR 908; K.H. Siraj v. High Court of Kerala and Others (2006) 6 SCC 395: [2006] 2 Suppl. SCR 790; Union of India and Others v. S. Vinodh Kumar and Others (2007) 8 SCC 100 : [2007] 10 SCR 41; Sadananda Halo and Others v. Momtaz Ali Sheikh and Others (2008) 4 SCC 619: [2008] 3 SCR 497 – relied on.

6. Plea of res judicata

6.1 The respondents have sought to invoke the principles of res judicata by contending that the common judgment dated 10.02.2017 passed by the High Court involved eighty-eight petitions which were allowed with the direction specified in the impugned judgment. Out of twenty-one appeals filed before this Court, the judgment of the High Court passed in six writ petitions only has been challenged; other matters have not been challenged either by the State or by the appellants. It was contended that when the appellants have not challenged the common judgment rendered in all the eighty-eight writ petitions and in the present appeals, only the judgment rendered in WritC No.34196 of 2015 and few other writ petitions are challenged, the judgment rendered in other writ petitions having not been challenged, have attained finality and thus, operate as res judicata. The above contention does not merit acceptance. [Paras 57, 58] [1112-D-G; 1113-A]

6.2 In the instant case, before the High Court, the contentions raised were the same and common arguments were advanced. The High Court dealt with the batch of writ petitions and disposed all of them by common judgment. Since it is a common judgment with common reasonings, the present batch of appeals would not result in any inconsistent decree or order as all of them arise out of the common judgment containing common operative portion of the judgment. Thus, submission is liable to be rejected. In M/s Shenoy case, a number of writ petitions were allowed by the High Court. However, the State chose to file appeal only in one case which came to be allowed by the Supreme Court in the said case. In that fact situation, this Court took the view that the decision of this Court was binding SECRETARY, PERSONNEL DEPTT.

on all the writ petitioners before the High Court even though they were not the respondents in the appeal before the Supreme Court. [Paras 60, 61] [1113-F-H; 1114-A-B]

M/s Shenoy and Co., Represented by its partner Bele Srinivasa Rao Street, Bangalore and Others v. Commercial Tax Officer, Circle II, Bangalore and Others (1985) 2 SCC 512 : [1985] 3 SCR 659 ; Director of Settlements, A.P. and Others v. M.R. Apparao and Another (2002) 4 SCC 638 : [2002] 2 SCR 661; Fida Hussain and Others v. Moradabad Development Authority and Another (2011) 12 SCC 615 : [2011] 9 SCR

290 – relied on.

6.3 Before the High Court in several writ petitions, unsuccessful candidates challenged the revised notification dated 12.10.2014 and also the result dated 21.05.2015 published on 22.05.2015. All the writ petitions were disposed of by the 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. [Para 63] [1115-F-H]

7. Re: Contention – Appointment letters not issued to 906 candidates and plea to exercise power under Article 142 of the Constitution of India:

7.1 After the interview was completed, the UPPSC has selected 6599 candidates and the category-wise details of the candidates so recommended by the Commission. The UPPSC has withheld the result of 29 candidates. The recommendation so made by the UPPSC was in excess of the permissible percentage of reservation as per UP Reservation Act, 1994. In fact, this was one of the grounds of challenge in the writ petition to assail the select list. In the counter filed by the Principal Secretary, 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, it is stated that the total of 6628 vacancies was exceeding the demarcated percentage. Thereafter, the application of horizontal reservation for dependents of Freedom Fighters, Ex-Servicemen, Disabled persons and Women was proposed. [Paras 66, 67] [1116-H; 1117A, C-E; 1118-A]

7.2 Writ Petition No.62112/2015 was filed by few of the successful candidates for issuance of appointment letter and the High Court vide its order dated 15.12.2015 directed the official respondents to issue appointment order. The High Court further clarified that any such appointment made as well as the select list shall abide by any order which may be passed by the Division Bench. Pursuant to the said order, the Chief Secretary, Government of UP by its letter dated 22.12.2015 gave directions to the Department that appointment orders be issued to the selected candidates and that the appointment should abide by the final decision of the court. Accordingly, the appointment orders were issued to the selected candidates on 30.01.2016. The appointments were made subject to the outcome of the writ petition. Thus, total of 5669 candidates were issued appointment orders; the appointment orders were withheld for 24 candidates as the documents were withheld by UP Public Service Commission. [Para 68] [1118-C-D, G-H]

7.3 The 906 candidates who were left out and were not issued appointment orders were ranked lower in the merit list than the last selected candidate in their respective category under the reservation limit as identified by the Personnel Department, therefore appointment orders were not issued to them. This cannot be said to be arbitrariness or discrimination as selection of candidates was on the basis of the merit list. Further, the revised requisition dated 20.08.2014, on the basis of which 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. The direction to accommodate the surplus candidates cannot be passed as that SECRETARY, PERSONNEL DEPTT.

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 UP Reservation Act, 1994. In exercise of power under Article 142 of the Constitution of India, if direction is issued 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. [Paras 69, 70] [1119B, C-E]

7.4 It is fairly well-settled that the selected candidates do not have any indefeasible right to be appointed. Merely because the names of candidates were included in the provisional select list, they do not acquire any indefeasible right to be appointed. Merely because UPPSC has recommended the names of 906 candidates, they do not acquire any indefeasible right for being appointed. The present vacancies i.e. 4838 and the available vacancies i.e. 2779 are the future vacancies which are to be filled up by a fresh advertisement and by participation of all the eligible candidates including the 906 candidates and other unsuccessful candidates. 2779 vacancies existing as on date, which are the vacancies as on date i.e. in 2019 cannot be filled up by the candidates who got selected pursuant to the advertisement in 2013-2014. [Paras 71, 75] [1119-G-H; 1120-A; 1121-E-F]

State of Bihar and Others v. Amrendra Kumar Mishra (2006) 12 SCC 561 : [2006] 6 Suppl. SCR 650 – relied on.

Union of India and Others v. Permanand Singh (1999) SCC (L&S) 625; D.M. Premkumari v. Divisional Commissioner, Mysore Division and Others (2009) 12 SCC

267 : [2009] 1 SCR 1094 – referred to

8. Article 142 of the Constitution of India confers wide power upon the Supreme Court to do complete justice between the parties. Though the powers conferred on the Supreme Court by Article 142 are very wide, the same cannot be exercised to pass an order inconsistent with express statutory provisions of substantive law. In the case in hand, as per the provisions of Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994, specific percentages of vacancies have been reserved for different categories. 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. [Para 76] [1121-G; 1122-B-D]

Ramji Veerji Patel and Others v. Revenue Divisional Officer and Others (2011) 10 SCC 643 : [2011] 14 SCR 821; Supreme Court Bar Association v. Union of India and Another (1998) 4 SCC 409 : [1998] 2 SCR 795 – relied on

Union of India and Others v. O. Chakradhar (2002) 3 SCC 146 : [2002] 1 SCR 1091; Poonam v. State of Uttar Pradesh and Others (2016) 2 SCC 779 : [2015]

14 SCR 565 ; Sri Gangai Vinayagar Temple and Another v. Meenakashi Ammal and Others (2015) 3 SCC

624 : [2014] 12 SCR 845 ; N.T. Devin Katti and Others v. Karnataka Public Service Commission and Others (1990) 3 SCC 157 : [1990] 2 SCR 239 ; Government of India through Secretary and Another v. Ravi Prakash Gupta and Another (2010) 7 SCC 626 : [2010] 7 SCR 851; Madan Mohan Sharma and Another v. State of Rajasthan and Others (2008) 3 SCC 724 : [2008] 3 SCR 232 ; C. Channabasavaih v. State of Mysore AIR 1965 SC 1293 : [1965] SCR 360 – referred to.