Important points(1) Filling up of vacancies over and above the number of vacancies advertised would be violative of fundamental rights granted under Articles 14 and 16 of the Constitution of India.(2) Selectees cannot claim appointment as a matter of right. Mere inclusion of candidate’s name in list does not confer any right to be selected, even if some of vacancies remained unfilled and concerned candidates cannot claim that they have been given a hostile discrimination.(3) Even if in some cases appointments have been made by mistake or wrongly that does not confer any right on another person as Article 14 of Constitution does not envisage negative equality and if the State committed mistake it cannot be forced to perpetuate the same mistake.

Headnote:Service Law—Constitution of India—Articles 320 and 323(2)—Selection of a candidate for post and inclusion of his name in the list does not confer any right to be appointed even if some of vacancies remained unfilled—Filling up of vacancies over and above number of vacancies advertised would be violative of fundamental rights under Article 14 and 16 of the Constitution—Respondents were selected for posts of J.E. advertised by U.P. State Public Service Commission and recommendation was made to U.P. Govt. on 30.10.2000—Separate State of Uttaranchal came into existence on 9.11.2000 and U.P. Govt. forwarded UPPSC recommendations in respect of posts in Hill Cadre to Govt. of Uttaranchal—State of Uttaranchal did not appoint selected candidates—Division Bench of High Court allowed writ and directed State of Uttaranchal to give appointments to petitioners—Judgment was set aside in appeal—Petitioners approached U.P. State Govt. for appointment and filed writ which was allowed by High Court—Appeal—Stand of State was that vacancies advertised for the hills could not be filled up as said cadre stood abolished—Basic fallacy in judgment of High Court was that it proceeded under presumption that the select list was in force—Even though High Court noted that appointments beyond number advertised was impermissible, it erroneously directed appointment—All posts advertised for the plain cadre having being filled up, there was no scope for appointment of non-official respondents—Impugned judgment was liable to be set aside.
Held : In view of the aforesaid, the High Court after having correctly indicated the legal position has failed to apply the same to the factual scenario in its proper perspective. The basic fallacy in the judgment of the learned Single Judge and the Division Bench is that they proceeded under the presumption that the select list was in force. The view is clearly wrong. In paragraph 31 of the earlier judgment it was made clear that it was upto the State to take a decision as to whether any relief can be granted to the persons who were selected in respect of the hill cadre. All the posts advertised for the plain cadre have been filled up. Therefore, the State has rightly taken the stand that there was no scope for appointing non-official respondents. Relaxation was given for a period of three years for applicants, when applications are invited for selection by the U.P. PSC or the Uttaranchal State Public Service Commission. Obviously, relaxation is to be granted when fresh applications are invited. That is not the case here. Therefore, the judgments of the learned Single Judge as well as Division Bench affirming the same cannot be maintained and are set aside. (Para 16)

Judgment

Arijit Pasayat, J.—Leave granted.

2. Challenge in this appeal is to the judgment rendered by a Division Bench of the Allahabad High Court in a Letters Patent Appeal. This is practically the second journey of the parties to this Court. Earlier in State of Uttaranchal and Ors. v. Sidharth Srivastava and Ors. (2003(9) SCC 336) connected issues were considered.

3. The factual background in a nutshell is as follows:-

Uttar Pradesh Public Service Commission (in short ‘UPPSC’) published advertisement inviting applications for 544 posts of J.E. Civil/Technical (507 Civil + 37 Technical). The result of selection was published on 7.1.2000. 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. A Division Bench of the High Court, by a common 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. High Court’s judgment was assailed before this Court by the State of Uttaranchal.

4. After noticing various provisions contained in Articles 320 and 323(2) of the Constitution of India, 1950 (in short the ‘Constitution’), as well as Section 178 of the U.P. Reorganisation Act, 2000 it was held that the decision of the High Court was not correct. It was, inter alia, observed as follows :

"27. The High Court misread the Government order dated 29.8.2001 and drew wrong inference in saying that the Government of Uttaranchal denied acceptance of the recommendations but did not say that no appointment shall be given on the basis of the recommendations of UPPSC. If the Government of Uttaranchal has denied to accept the recommendations of UPPSC, essentially it follows that no appointment could be given. This apart in the very order in paragraph 2 it is specifically stated that "therefore, in this regard after thorough consideration it has been decided that the candidates recommended by the UPPSC may not be appointed in various Departments of the Government of Uttaranchal." Thus, the reason given by the High Court that the Government of Uttaranchal though denied to accept the recommendations of UPPSC but did not deny to give appointment and as such the said Government order could be ignored, does not stand to reason and it is untenable.

The interpretation placed by the High Court on S. 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 S. 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."

5. P

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2006 Supreme(SC) 199

Cases Referred (25)