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2003(4) Supreme 379
SUPREME COURT OF INDIA
(From Uttaranchal High Court at Nainital)
Shivaraj V. Patil & Arijit Pasayat, JJ.
State of Uttaranchal & Ors. -Appellants
versus
Sidharth Srivastava & Ors. -Respondents
Civil Appeal Nos. 4281-4289 of 2003
(Arising out of SLP (C) Nos. 3032-3040/2002)
With
Civil Appeal Nos. 4280 of 2003
(Arising out of SLP (C) No. 4079 of 2002)
With
Civil Appeal No. 4279 of 2003
(Arising out of SLP (C) No. 4077 of 2002)
With
Civil Appeal No. 4278 of 2003
(Arising out of SLP (C) No. 10363 (CC 1629 of 2003
Decided on 5-6-2003
Counsel for the Parties :
For the Appearing Parties : Gopal Subramanium, P.P. Rao, Sr. Advocates, Ms. Rachna Srivastava, Rohit Singh Mrs. Bharati Reddy, Ajay K. Agrawal, Raj Kumar Gupta, Sheo Kumar Gupta, A.N. Bardiyar, Yatish Mohan, Vishwajit Singh, K.L. Janjani, K.L. Taneja, K.V. Mohan, A.K. Yadav, Ravi Prakash Mehrotra, Ms. Deepti R. Mehrotra, Garvbesh Kabra, Vishwajit Singh, Ashok K. Srivastava, Arvind Kr. Shukla, S. Chandra Shekhar and A.S. Pundir, Advocates.
Held : After the Constitution of the State of Uttaranchal, there has been change in the reservation policy; there were various miscellaneous and legal difficulties in giving appointments to the candidates selected by the UPPSC as forwarded by the Government of Uttar Pradesh and that after thorough consideration, a decision was taken not to appoint the candidates recommended by the UPPSC in various departments of the Government of Uttaranchal. This being the position, it appears to us that while passing the order, the provision of Section 78(4) and other provisions of the Act and the relevant constitutional provisions were kept in mind when there was thorough consideration before taking a decision as stated in the order. Mere non-reference or omission to mention of Section 78(4) in the order, does not take away its legal effect. The appellants have only elaborated the reasons to support the said order. It is not possible to agree that the appellants tried to justify the aforementioned order by subsequent fresh reasons. The High Court committed an error in holding that the reasons cited by the State Government of Uttaranchal in the order dated 29.8.2001 were not valid relying on the decision of this Court in Asha Kaul (Mrs.) and another vs. State of Jammu & Kashmir and others [(1993) 2 SCC 573], in the light of the facts of the present case and in view of what is stated above. This apart, in view of the discussion made above and having regard to clear constitutional and legal position that the selections made by UPPSC are not binding on the State of Uttaranchal on the basis of the facts that are not in dispute, the argument advanced on behalf of the respondents being devoid of merit is rejected. (Para 18)
The interpretation placed by the High Court on Section 78 of the Act is also wrong. Merely because the recommendations received by the erstwhile State of Uttar Pradesh had been sent to State of Uttaranchal and they were not reversed by the Governor for being placed with the reasons before the Assembly of State of Uttar Pradesh under Section 78 of the Act, it cannot be held that the recommendations made by the UPPSC were binding on Government of Uttaranchal. In this regard we have already made the legal position clear. Hence it is unnecessary to deal with the same any further. In our view, looking to the reasons recorded by the High Court in the impugned judgment, which are neither tenable nor acceptable, the impugned judgment cannot be allowed to stand. (Para 28)
JUDGMENT
Shivaraj V. Patil. J.-Delay condoned in SLP (C) No.10363/2003 (CC 1629/2003).
Leave granted in all the SLPs.
2. These appeals are by the State of Uttaranchal assailing the common judgment and order dated 6th November, 2001 passed by the Division Bench of the High Court of Uttaranchal.
3. Resolution of the dispute in these appeals depends on the answer to the question whether the selection made by the Uttar Pradesh Public Service Commission, prior to formation of States of Uttaranchal, is binding on the State of Uttaranchal so as to appoint selected candidates to the services in the State of Uttaranchal having due regard to Article 323(2) of the Constitution of India and Section 78(4) of The Uttar Pradesh Reorganisation Act, 2000.
4. Uttar Pradesh Public Service Commission (UPPSC) published advertisement inviting applications for 544 posts of J.E. Civil/Technical (507 Civil + 37 Technical). The result of selection was published on 4.1.2000. The UPPSC sent its recommendations to the U.P. Government on 30-10-2000. The U.P. Government forwarded the recommendations on 31-10-2000 to the Chief Engineer s Office, Hill Cadre, Almora. The separate State of Uttaranchal came into existence on 9.11.2000. U.P. Government forwarded the UPPSC recommendations in respect of posts in Hill Cadre to the Government of Uttaranchal. On 29.8.2001, Government of Uttaranchal issued the order not to appoint the selected candidates mentioning two reasons that - (1) the new reservation policy of the State of Uttaranchal is different from that of U.P. and (2) practical and legal difficulties "in such a situation" in giving appointments to the candidates recommended by the UPPSC. The selected candidates, aggrieved by the same, filed a batch of writ petitions assailing the said order, impleading State of Uttaranchal and its officers, State of Uttar Pradesh and its officers and UPPSC. The Division Bench of the High Court, by the common impugned judgment allowed the writ petitions and issued direction to the State of Uttaranchal to give appointments to the writ petitioners. The High Court took the view that the recommendations made by the UPPSC of the erstwhile State of U.P. were binding on new State of Uttaranchal.
5. On behalf of the appellants the following contentions were urged:-
(1) Under Article 323(2) of the Constitution of India, it shall be the duty of a State Public Service Commission to present annually to the Governor of the State a report of the work done by the Commission. The Governor shall, on receipt of such report, cause a copy thereof together with a memorandum explaining, as respects the cases, if any, where the advice of the Commission was not accepted, the reasons for such non-acceptance to be laid before the State Legislature of the State.
(2) Section 78(1) of The Uttar Pradesh Reorganisation Act 2000 (for short the Act ) declares that the Public Service Commission of the existing State of Uttar Pradesh shall be the Public Service Commission from the appointed day for the State of Uttar Pradesh. Section 78(4) clearly provides that the report of UPPSC would be presented under Article 323(2) to the Governors of the States of Uttar Pradesh and Uttaranchal. But it was the Governor of Uttar Pradesh alone who was to cause the report alongwith Memorandum explaining the reasons for non-acceptance of the advice of the Commission to be laid before the Legislature of the State of U.P. The reason why the Legislature provided "it shall not be necessary to cause such report or any such memorandum to be laid before the Legislative Assembly of the State of Uttaranchal" was because the UPPSC was not a joint Commission since State of Uttaranchal was not even in existence and no functions could be rendered by the pre-existing UPPSC in respect of the new State of Uttaranchal.
(3) In view of the express parliamentary intention that such a report need not be laid before the Legislative Ass
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