IMPORTANT POINT
If employer fixes a cut off position for selection of candidates for the posts, same is not to be lightly tinkered with unless it is totally irrational or tainted with mala fides.

Headnote:Service Law-On requisition of the State for 40 vacancies, respondent Commission recommended a list of selected candidates-Petitioner-appellant was placed at Sl.No. 52-Writ petition filed on foundation that vacancies which arose on account of selected candidates not joining, should have been filled up and that having been not done appointments made subsequently were illegal-Defence contention was that there was no waiting list and as such vacancies were carried forward-High Court accepted plea of respondent-Appeal-If employer fixes a cut off position same is not to be lightly tinkered with unless it was totally irrational or tainted with mala fides-No merits in appeal.
Held : It is on record that a policy decision was taken to appoint candidates who had opted for Treasury Officer/Accounts Officer if their names were (included in the first 40 of the merit list. Admittedly, appellant-Ashwani Kumar was not so included and the position is worse in the case of other appellant-Brij Nath Srivastava. It is submitted that there is no logic for such fixation. Here again the plea is without substance. If the employer fixes a cut off position, same is not to be lightly tinkered with unless it is totally irrational or tainted with mala fides. Employer in its wisdom may consider a particular range of selection to be appropriate. It has not been shown as to how the fixation is irrational, much less mala fide. Additionally, it is noticed that the unfilled posts were carried forward to the next year and have been filled up on the basis of selection made by the Commission. Accepting the prayer of the appellants would mean that the position which has assumed a sort of finality for more than a decade would be unsettled. Persons who have been appointed on the basis of the subsequent examination has to give way to appellant-Ashwani Kumar Singh. Though they had been impleaded but did not appear, it does not mean that something which is not permissible in law has to be done. It would not be fair to disturb the prevailing position. It was pointed out by learned counsel for the appellant-Ashwani Kumar Singh that he has already been promoted as Accounts Officer, and the only question left is of his seniority over those who were subsequently appointed. This plea is without any substance. Since he has been promoted later on, in the absence of any statutory prescription, person who has been appointed to the higher post earlier would be logically senior to him. The High Court was, therefore, justified in rejecting the writ petition (Para 14)

JUDGMENT

Arijit Pasayat, J.-Leave granted.

These two appeals involve identical issues and, therefore, are taken up together.

2. Factual position which is necessary to be noted for disposal of the appeals in a nutshell is as follows :

3. The appellants appeared at the Combined State Services Examination of 1987. They indicated the preference for appointment as Treasury Officer/Accounts Officer and also for Assistant Accounts Officer as required to be indicated in the application form. The examination was conducted by the Uttar Pradesh Public Service Commission (hereinafter referred to as the Commission ) on the basis of requisition made by the State of U.P. Requisition for 40 vacancies was sent by the State to the Commission in July 1987. Out of said 40 vacancies, 21 were meant for General category, while 7, 1, 2, 6, 2 and 1 vacancies were meant for Scheduled Castes, Scheduled Tribes, Dependents of Freedom Fighters, Backward Classes, Retrenched Emergency/Short Service Commission Military Officers, and Handicapped persons respectively. The Accounts service has two designated posts i.e. Accounts Officer/Treasury Officer and Assistant Accounts Officer. Results were declared on 29.12.1989. In the merit list, appellant-Ashwani Kumar Singh was placed at Sl.No. 52 while appellant-Brij Nath Srivastava was placed much below.

4. On the basis of recommendations received from the Commission a list of 37 candidates was made available initially. Three other candidates were included on the basis of the order passed by the Allahabad High Court. All the three candidates relate to the Retrenched Military Officers category. As three selected candidates, one each from the general category, dependent of freedom fighters and scheduled tribe had already been appointed on the basis of examination held in 1986; names of three more candidates were included in the respective categories.

5. In 1990, appellant-Ashwani Kumar Singh made a representation stating that on account of some selected candidates not joining, vacancies exist and since the merit list was effective for one year, persons in the waiting list should be appointed. Appellant-Ashwani Kumar Singh in view of his placement in the select list had already been appointed as Assistant Accounts Officer. However, appellant-Brij Nath Srivastava was not appointed as his position was far below in the select list.

6. Writ petitions were filed in 1992 by the appellants before the Allahabad High Court. The writ petitions were filed on the foundation that the vacancies which arose on account of selected candidates not joining, should have been filled up and that having not been done, the appointments made subsequently were illegal. The claims were resisted by the State Government and the Commission. They took the stand that there was no waiting list as such and the vacancies were carried forward to the subsequent period as required in law and persons had already been appointed on the basis of subsequent examination. A belated attempt by the appellants to get appointment is not countenanced in law. The High Court accepted the plea of the respondents and rejected the writ petitions.

7. Mr. A. Sharan, learned senior counsel appearing for the appellants submitted that the course adopted by the State Government and the Commission is clearly contrary to the law laid down by this Court in Jai Narain Ram v. State of U.P. & Ors. (1996(1) SCC 332). It was also submitted that in several unreported judgments of the High Court, directions were given to fill up the posts on the basis of the waiting list and the stand taken by the State Government and the Commission is contrary to the factual position and in contravention of the High Court s view.

8. In response, learned counsel for the Commission and the State Government submitted that Jai Narain s case (supra) has no application to the facts of the case since there was no vacancy and the posts which fell vacant on account of selected candidates not joining have subsequently be

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2003 Supreme(SC) 609

IMPORTANT POINTIf employer fixes a cut off position for selection of candidates for the posts, same is not to be lightly tinkered with unless it is totally irrational or tainted with mala fides.

Cases Referred (2)

IMPORTANT POINT
If employer fixes a cut off position for selection of candidates for the posts, same is not to be lightly tinkered with unless it is totally irrational or tainted with mala fides.