1. These are the three writ petitions connected with each other since basic facts and issues are common but relief sought by the petitioners are different. Therefore, as requested and agreed by learned counsel for the parties have been heard together.
2. Sri S.U.Upadhyay, Advocate holding brief of Ms. Manisha Pandey, learned counsel for the petitioner in Writ Petition No.69008 of 2006, Sri Deepak Kumar Jaiswal, learned counsel for the petitioners in Writ Petition No.54665 of 2011 and for respondent in Writ Petition No.69008 and learned Standing Counsel for the respondents.
3. Writ petition No.34286 of 2003 (hereinafter referred to as "Writ 'A' ") has been filed by sole petitioner Rakesh Kumar Srivastava assailing result published in daily newspaper "Dainik Jagran" dated 17th July, 2003 (Annexure 5 to the writ petition), of recruitment held for the post of "Assistant Boring Technician" (hereinafter referred to as "A.B.T.") in Irrigation Department of State of Uttar Pradesh.
4. Learned counsel for the petitioners has confined his case during the course of the argument only to the extent the aforesaid result relates to the candidates declared successful in the category of Physically Handicapped persons. He has also sought a mandamus directing respondents to appoint petitioner on the post of A.B.T. on the ground that petitioner is a general category (Physically Handicapped Person) candidate and there being 183 general vacancies, 5 would fall in Physically Handicapped quota but only one candidate has been declared successful.
5. Writ petition no. 69008 of 2006 (hereinafter referred to as "Writ 'B'") has been filed by Rakesh Dhar Pandey aggrieved by order dated 13th September, 2006 whereby his representation claiming appointment on the post of 'A.B.T.' has been rejected by Chief Engineer, Minor Irrigation, U.P. Lucknow on the ground that vacancies available for Physically Handicapped persons in accordance with prescribed quota are already occupied and no vacancy is available for his appointment. The petitioner has also challenged appointment order dated 10th January, 2006 appointing respondent No.4 on the aforesaid post on the ground that he has secured marks less than the petitioner and therefore, could not have been appointed by overlooking merit of the petitioner and his appointment is wholly illegal and arbitrary.
6. Writ petition No.54665 of 2011 (hereinafter referred to as "Writ 'C' ") has been filed by four petitioners namely Ram Abhilash Patel, Ram Janm Pal, Shiva Kant Tripathi and Mahesh Chand Ojha. They have assailed selection committee's recommendation dated 30th August, 2011 recommending for cancellation of selection and appointment of certain candidates as 'A.B.T.' against the prescribed reservation for Physically Handicapped quota though there was no such quota available. They have also assailed the consequential show cause notice dated 2.9.2011 requiring petitioners to show cause why their appointments be not cancelled.
7. For the purpose of narration of facts, Writ 'B' is taken as the base case except wherever record of other writ petitions would be required to be referred. It may be placed on record that during course of arguments all the counsels have freely referred to the record of all these cases.
8. The facts giving rise to the present dispute are as under:
9. An advertisement was published notifying 401 vacancies of 'A.B.T.' vide advertisement No. 3/Stha-6/Saha.Bo.Te/2003-04. The break up of vacancies to various categories was; 183 General, 97 OBC, 110 SC and 11 ST. There was no mention about reservation of any vacancy for "physically handicapped" persons in the aforesaid advertisement. The petitioners (Writ 'A' & 'B') though disabled/physically handicapped persons suffering more than 40% disability, but applied as a general category candidate, in the absence of any reservation notified for "physically handicapped person". They did not stake their claim in the category of "Physically Handicapped quota". The petitioners (Writ 'A' & 'B') were allotted roll nos.00704 and 00877 respectively. They appeared in written examination held on 22.06.2003, result whereof was declared on 05.7.2003 in which they were declared successful. Interview letters dated 3.7.2003 were issued and they were interviewed on 7.7.2003. At the time of interview, they possess all testimonials along with disability certificate and the same were produced before Interview Board. The final result was declared on 15.7.2003 wherein certain candidates were shown to have qualified in the category of "Physically handicapped persons".
10. The petitioner (Writ 'A') filed the present writ petition No.34286 of 2003 challenging result declaring candidate successful in various categories under "Physically Handicapped quota" on the ground that despite three percent quota, lessor number candidates have been declared successful in that category. This Court while directing respondents to file counter affidavit, passed an interim order on 14.8.2003 that selection of Physically Handicapped candidates in the list of general category shall be subject to the result of writ petition.
11. Amazed by the situation where certain candidates were declared to have qualified in the category of physically handicapped person though no such reservation was prescribed at any point of time, the petitioner (Writ 'B') claiming benefit in the said category, came to this Court in Writ petition no.35572 of 2003, challenging advertisement as well as the entire selection process, and also, in the alternative, sought a mandamus against official respondents to consider his candidature in "physically handicapped category". The aforesaid writ petition was disposed of vide judgment dated 10th August, 2006 and the relevant extract is as under:
"I direct the respondents to give to the petitioner an opportunity of hearing interview within a period of ten days from the date of production of a certified copy of this order and thereafter declare his result within the next period of one month.
Needless to say that the respondents will consider the case of the petitioner conforming to principles of natural justice, and in accordance with law and the Government circular with regard to the reservations for physically handicapped persons." (emphasis added)
12. Pursuant to above, and direction contained therein, petitioner (Writ 'B') was again issued an interview letter on 24th August, 2006 whereupon he appeared before Selection Committee. However, by order dated 13th September 2006, impugned in this writ petition, Chief Engineer, Minor Irrigation rejected his candidature on the ground that quota for 'physically handicapped' is already full since appointments pursuant to final result have already been made and therefore, no benefit can be given to the petitioner.
13. Assailing appointment of respondent no.4 (Mahesh Chandra Ojha), the petitioner (Writ 'B') has pleaded that he has secured only 63.83 % marks while the petitioner (Writ 'B') had secured 70% of marks, hence, ignoring him (the petitioner), respondent no.4 could not have been appointed and his appointment is patently illegal and arbitrary.
14. Notices were issued to respondents and time for filing counter affidavit was allowed vide order dated 19th December, 2006.
15. A counter affidavit is filed (in Writ 'B') on behalf of respondents No.1, 2 and 3 sworn on 15.2.2007, by Sri R.S.Jurail, Chief Engineer, Minor Irrigation, U.P. Lucknow referring to the provisions of U.P. Public Services (Reservation for Physically Handicapped, Dependants of Freedom Fighters and Ex-Servicemen) Act, 1993 (hereinafter referred to as "Act, 1993" (as amended in 1997) and says that reservation for physically handicapped persons is applicable only in such post/services which are identified by State Government by notification. The reservation, therefore, is not applicable to all the services/posts unless so identified. He thereafter referred to Government Order dated 7th May, 1999 whereby certain service/posts were identified for the purpose of reservation for physically handicapped persons in Group 'C' and Group 'D' post. He pleaded that the post of 'A.B.T.' of Minor Irrigation Department is not one of the post so identified which would attract reservation for physically handicapped persons under the "Act, 1993". He further says that petitioner's earlier writ petition No.35572 of 2003 was disposed of on 10th August, 2006 but he has filed another writ petition No.46714 of 2005 which is pending. The counter affidavit further says that petitioner has filled the application form and in the column "enquiry about applicability of reservation", he has answered in "negative". Having said so, he has further stated in para 8 of the counter affidavit that pursuant to advertisement dated 2.6.2003, 183 vacancies in general category were advertised and 3% reservation in physically handicapped person was applied in the manner provided in 'Act, 1993' i.e. 1% for blindness or low vision; 1% for hearing impairment; and locomotor disability or cerebral palsy. Only two vacancies in "general category" became available for physically handicapped persons against which one was selected by Selection Committee; and, another was given to one Sri Mahesh Chandra Ojha, pursuant to this Court's order dated 7th December, 2005, in Writ Petition No.47429 of 2005. The order dated 13th September, 2006 passed by him was defended on the ground that it was passed in accordance with law. Since the petitioner had not claimed reservation in "physically handicapped category" in his application form and had not submitted disability certificate at the time of interview, benefit of reservation was neither admissible to him nor could have been extended.
16. Sri Jurail, Chief Engineer also said in his affidavit that there was an order passed on 13th July, 2006 in petitioner's another Writ Petition No.46714 of 2005 directing Chief Engineer, Minor Irrigation to pass appropriate order in respect of candidature of petitioner and pursuant thereto an order was passed on 31st July, 2006 holding that without recommendation by Selection Committee, no person can be appointed. Since the petitioner was not recommended by Selection Committee, hence his claim for appointment cannot be accepted. The official respondents, again reiterated that the post of 'A.B.T.' is not identified to attract reservation for physically handicapped person vide Government Order dated 7th May, 1999, and that the petitioner having also not claimed reservation in the said category is not entitled for appointment under such category.
17. The aforesaid counter affidavit came to be considered by this Court on 19th July, 2010. Having gone through it, this Court found the stand taken by official respondents self contradictory. It became difficult to understand, how physically handicapped quota has been applied for making appointment of respondent no.4 though no such reservation was available. This Court, accordingly, passed following order requiring learned Standing Counsel to file a supplementary counter affidavit giving detailed facts about the circumstances in which respondent No.4 was appointed.
"Heard learned counsel for the petitioner, learned Standing Counsel for the State-respondents and Sri Deepak Jaiswal, learned counsel for respondent no.4.
Learned Standing Counsel is directed to file a supplementary counter affidavit specifically mentioning therein the reason why the candidature of the petitioner has not been considered inspite of the order passed by this Court in Civil Misc.Writ Petition No. 35572 of 2003 dated 10.8.2006 and will also indicate in the affidavit as to how and why the candidature of Mahesh Chandra Ojha (respondent no.4 in this petition) has been accepted when it was a clear stand taken by the authorities in the counter affidavit that there is no quota for handicapped. Learned Standing Counsel is allowed two weeks' and no more time for the aforesaid purpose failing which the Chief Engineer shall appear in person before this Court." (emphasis added)
18. Pursuant thereto, a supplementary affidavit was filed on 31st July, 2010 sworn by one P. Ram, Chief engineer, Minor Irrigation, U.P. at Lucknow. Therein he attempted to justify appointment of Sri Mahesh Chandra Ojha (respondent No.4) by referring to this Court's judgment 25th August, 2005 passed in writ petition No.57429 of 2005 and dated 7.12.2005 passed in Writ Petition No.74429 of 2005. The Court found the aforesaid defence and reference to the said judgments thoroughly misleading. Thereupon it passed a detailed order on 17th August, 2011, the relevant extract thereof is as under:
"Pursuant to the said order a supplementary counter affidavit has been filed on 31.7.2010, which has been sworn by Shri P. Ram, Chief Engineer, Minor Irrigation, U.P. In paragraph 8 of the said affidavit the stand taken is that Mahesh Chandra Ojha (respondent no.4) was given appointment pursuant to the judgment of this Court dated 25.8.2005 passed in Writ Petition No.57429 of 2005 as also the order dated 07.12.2005 passed in Writ Petition No.74429 of 2005. Such facts are totally misleading and contrary to record. Pursuant to order dated 25.8.2005 passed in Writ Petition No.57429 of 2005 Mahesh Chandra Ojha submitted representation dated 5.9.2005 to the Chief Engineer, Minor Irrigation, U.P., who vide order dated 7.10.2005, copy whereof is annexed as annexure 15 to the Writ Petition No.74429 of 2005, rejected his claim. Thereafter, Mahesh Chandra Ojha filed Writ Petition No.74429 of 2005 in which this Court by order dated 7.12.2005 required the respondents to produce the original record as also to file an affidavit specifically disclosing certain facts. It was after the order dated 7.12.2005 when the records were directed to be produced the respondents hurriedly constituted a committee to consider the claim of Mahesh Chandra Ojha for giving appointment under the handicapped quota and accordingly appointment letter dated 10.1.2006 was issued to him based upon the recommendations made by the committee on 06.01.2006.
The admitted facts in the case are that an advertisement issued by the department did not provide reservation for physically handicapped. It is admitted by the respondents that even application form did not contain column with regard to the details regarding candidates being physically handicapped. The petitioner is also physically handicapped candidate and has applied under the general category. When the issue with regard to the advertisement, being bad in law, as it did not provide reservation for the physically handicapped, was raised before this Court, the respondents in order to safeguard their selection, granted appointment to Mahesh Chandra Ojha under the physically handicapped category. The petitioner claims to have obtained 70 marks, much higher than that of Mahesh Chandra Ojha, who is said to have secured 63 marks and, therefore, he would have better claim under the handicapped category. It appears that the respondents have not come with clean hand before this Court while placing the facts on record.
List this case on 25.8.2011 at the top. On the said date whoever is posted as Chief Engineer, Minor Irrigation, U.P. shall remain present before this Court along with an affidavit clarifying the facts and circumstances, as recorded above, in this order." (emphasis added)
19. Again a supplementary counter affidavit was filed sworn by Sri P. Ram, Chief Engineer, Minor Irrigation, the contents whereof have been noticed by this Court in order dated 12th September, 2011 which reads as under:
"(i) the post of Assistant Boring Technician was not identified as a post applicable for reservation for physically handicapped persons under Government order dated 7.5.1999.
(ii) the appointments given to Ram Janam Pal, Ram Abhilash Patel, Shiva Kant Tripathi and Mahesh Chandra Ojha were not in accordance with law as no benefit could have been extended to physically handicapped candidates.
(iii) a Committee of four members was constituted to consider the case of the petitioner comprising of three Executive Engineers and the Chief Engineer i.e. the deponent of this affidavit.
(iv) after perusing the history of the case the Committee has resolved that firstly the petitioner cannot be given any benefit of being physically handicap and secondly the appointment given to the aforementioned four candidates being illegal required cancellation of their appointments. The said resolution of the Committee dated 30.8.2011 has been filed as Annexure SCA2.
(v) SCA 3 is a letter dated 1.9.2011 issued by the deponent of this affidavit to the Executive Engineers, Minor Irrigation Divisions, Gorakhpur, Allahabad, Raibareilly and Sitapur directing them to cancel the appointments of the aforementioned four candidates in accordance with law.
(vi) SCA 4 is a bunch of four show cause notices issued by the respective Executive Engineers of the Division to all the four persons requiring them to show cause within a month as to why their appointments be not cancelled."
20. It appears that pursuant to the aforesaid observations and directions, Official respondents finding it difficult to sustain appointment of certain candidates made in the category of "physically handicapped persons", passed orders recommending cancellation of their appointments. Writ 'C' is offshoot of such orders which has been filed by four petitioners, who were beneficiaries, namely, appointees on the post of 'A.B.T.' and whose appointments are now in peril.
21. In Writ 'C', this Court, while entertaining the writ petition, granted an interim order, restraining respondents from taking any further action pursuant to show cause notice dated 2.9.2011, as a result whereof, these four petitioners (Writ-C) are still continuing in service.
22. To complete the facts, one more affidavit may be referred which has been filed on 10.5.2012 by respondent No.2 in Writ 'B'. It has also been sworn by Sri P. Ram, Chief Engineer, Minor Irrigation. In para 3 thereof, he has categorically stated that post of 'A.B.T.' in the Department of Minor Irrigation has not been identified for applying reservation for "Physically Handicapped" persons. It would be appropriate to reproduce own words of respondents, contained in para 3 of supplementary counter affidavit:
"...post of Assistant Boring Technician in the Department of Minor Irrigation, Government of U.P., has not been identified for being reserved for persons with disability, as provided under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, hereinafter referred to as the Act, 1995. In this regard, reference may be had to the Government Order dated 7th May, 1999, whereby in exercise of powers under Section 32 of the Act, 1995, posts have been identified for being reserved for persons with disability, and the post of Assistant Boring Technician in the Department of Minor Irrigation does not find mention in the list of posts, identified in terms of the aforementioned Government Order." (emphasis added)
23. I have heard learned counsel for the parties and perused the record.
24. The theme song of all the petitioners irrespective of the fact whether they are already appointed or not is common, since the interest of petitioners in Writ 'A' and 'B' is also that they should be appointed, which is possible only when benefit of reservation of Physically Handicapped person is allowed to be retained in the service/post in question.
25. On the contrary, learned Standing Counsel had no option but to plead, though in utter desperation that there cannot be a reservation for Physically Handicapped persons on the post of 'A.B.T.' since the aforesaid service/post has not been identified for such a reservation but simultaneously he also tried to protect appointments already made on the ground that due to litigation by those persons and the orders passed by this Court, appointments were made and since those persons have already continued in service for quite some time, they may be allowed to continue.
26. Sri S.U.Upadhyay, Advocate holding brief of Ms. Manisha Pandey, Advocate and Sri Deepak Kumar Jaiswal, Advocate both contended that reservation for "Physically Handicapped" persons is a constitutional objective and goal, founded on International Convention and Treaty to which Government of India is also a signatory, in furtherance whereof, has promulgated "The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (Act No.1 of 1996)" (hereinafter referred to as "Central Act, 1995"). Therefore, to honour such objective, not only the petitioners of Writ 'C' should be allowed to continue but petitioners of Writ 'A' & 'B' should also be directed to be appointed on the post in question.
27. I have given my serious thoughts to the issue in question and finds that the answer is very straight and simple. However, apparent, wholly illegal and dishonest act on the part of respondents officials has caused some complications including embarrassment and harassment to the petitioners also.
28. There is an angular and naive attempt to shield something which is patently and blatantly illegal. It goes without saying that legislature has intended to provide special benefits in services to "Physically Handicapped persons". The Parliament enacted Central Act, 1995 with the aforesaid objective. Its preamble shows to launch the Asian and Pacific Decade of the Disabled Persons 1993-2002, a meeting was convened by Economic and Social Commission for Asian and Pacific Region and held at Beijing between 1st to 5th December, 1992. It adopted The Proclamation on Full Participation and Equality of People with Disabilities in the Asia and the Pacific region. India was a signatory to this proclamation. The Parliament therefore, found it necessary to enact a suitable legislation for achieving social welfare obligation of State towards prevention of disabilities, protection of rights, provision of medical care, education, training, employment and rehabilitation of persons with disabilities; to create barrier free environment, to remove any discrimination, to counteract any situation of abuse and exploitation, to lay down a strategy for comprehensive development of programmes and services and equalisation of opportunities for persons with disabilities and to make special provision for integration of persons with disabilities into the social mainstream.
29. Sections 32 and 33, chapter VI of Central Act, 1995, provide for "employment". Section 32 talks of "identification of posts which can be reserved for persons with disabilities" and Section 33 provides for reservation for such persons in every establishment as defined under the Central Act, 1995.
30. In the State of Uttar Pradesh there was already a statute i.e. Act, 1993 which had made provisions for reservation on certain number of posts in public services. To bring the above State Act in conformity with Central Act, 1995, an amendment was made by U.P. Act No.6 of 1997. I need not go in detail to these two statutes and their consequences, for the reason, that in Sarika Vs. State of U.P. 2005 (4) ESC 2378, a Full Bench decision of this Court, a question was raised, whether Act, 1993 entitles a physically handicapped persons to claim reservation in public service [in that case it was the post of Civil Judge (Junior Division)] in the absence of identification of the said post by State Government. The Full Bench having gone through the Central as well as State Act, both, and considering relevant provisions of the two statutes, came to the conclusion that there is no repugnancy in the two statutes in so far as requirement of identification of posts for providing reservation for physically handicapped persons in public services is concerned. The identification is must and unless made, it shall not attract reservation for Physically Handicapped under Act, 1993.
31. Section 32 of Central Act as well as the provisions of State Act, 1993, both, have the same consequences namely both require the State Government to identify posts in the establishment which can be reserved for the persons with defined disabilities. In para 36 of the judgment, the Court in Sarika (supra), observed:
"This reservation is, however, subject to identification of 1% of vacancy each i.e. 3% for the persons suffering from blindness or low vision, hearing impairment, and locomotor disability or cerebral palsy. The identification of establishment and the post for such disability, under Sections 32 and 33 of the Central Act, is also required as condition precedent under Section 3(1) (ii) of the State Act. Hence, we find that so far as the conditionally for providing reservation for Physically Disabled Persons, in public service and posts, and the identification of vacancies for each disability is concerned, there is no repugnancy between the provisions of Central Act and the State Act."
32. To the same effect is the observation of Full Bench in Sarika (supra) in para 38 which reads as under:
"The identification of posts in question is a sine qua non for extending the benefit of reservation for Physically Disabled Persons. It is so because the persons for which the reservation has been provided may be having such disabilities which may cause obstruction to discharge on such posts in the establishment or public service.
33. It is in these circumstances, in that case, the Full Bench categorically held that in absence of requisite identification of post, a physically handicapped person is not entitled to reservation on the post.
34. Sri Upadhyay, learned counsel for the petitioner in Writ 'B' has sought to refer Apex Court's decision in Bhavnagar University Vs. Palitana Sugar Mill Pvt. Ltd. & Ors. 2003(2) SCC 111 which was a matter relating to land acquisition under Gujarat Town Planning and Urban Development Act, 1976. I fail to appreciate how that judgment would have any application in the present case and, in my view, the reliance is totally misplaced and misconceived.
35. Learned counsel for petitioner, during course of arguments, referred to para 59 of the judgment in Bhavnagar University (supra), which says, "a decision, as is well-known, is an authority for which it is decided and not what can logically by deduced therefrom. It is also well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision." The Apex Court in making the aforesaid observations referred to and relied on its earlier decision in Delhi Administration (NCT of Delhi) Vs. Manoharlal, 2002 (7) SCC 222, Haryana Financial Corporation and Anr. v. Jagdamba Oil Mills and Anr. 2002 (3) SCC 496. The proposition of law admits no exception and is well settled. I am respectfully bound by it but find it wholly inappropriate for its application to the present case. Here the respondents have categorically come with a case that posts of 'A.B.T.', in Minor Irrigation Department of State of Uttar Pradesh have not been identified for attracting reservation meant for "Physically Handicapped" persons. The relevant Government Order, whereby certain services/posts have been identified to attract such reservation, does not include the post of 'A.B.T.' in the Department of Minor Irrigation.
36. Learned counsel for the petitioners neither could have been able to lay their hands to controvert the aforesaid documentary evidence and/or the stand of respondents nor have been able to place anything otherwise before this Court to show that the post in question has been identified and is available for attracting reservation meant for "Physically Handicapped" persons under Act, 1993.
37. On the contrary, both the learned counsels for the petitioners have tried to argue that since it is the Constitutional mandate to take welfare measures for the benefit of physically handicapped persons, a benevolent approach must be taken by this Court which may fulfill such welfare measures instead of taking strict legalistic approach in this matter.
38. I am afraid this is an argument asking this Court to act in apparent breach of law. The Court is being asked to extend its so called benevolent sympathetic approach for giving public employment to the persons who are not entitled and eligible for the same in law. Any such endeavour on the part of this Court would straightway infringe other eligible and qualified candidate's fundamental right of equal opportunity of employment in public employment enshrined under Article 16 of the Constitution. Rule of law cannot be breached on the so called lenient approach on the ground of benevolence, sympathy etc. It is no doubt true that jurisdiction of this Court under Article 226 is equitable and discretionary but simultaneously a discretion, which would lead apparent breach of law, should not and cannot be exercised.
39. This Court in Shiv Kumar Dwivedi Vs. State of U.P. & Ors., 2011 (4) ADJ 306, in para 23, said:
"So far as sympathetic consideration is concerned, as argued by learned counsel for the petitioner it is also well settled that sympathy which is not within the precincts of law cannot be founded basis to grant something which is otherwise impermissible."
40. In Vibha Srivastava Vs. Cantonment Board Varanasi & Ors., 2010(3) AWC 2583 this Court, in para 22, observed:
"22. Now coming to the second question, I am of the view that the appointment made on a post which is not in accordance with law would not confer any right upon the incumbent either to hold the post or to continue in service on such post in any manner. Mere length of service or lack of any fault on the part of the employee concerned is not relevant inasmuch it is the observance of statutory provisions and not the personal or individual act on the part of the parties concerned which would decide the rights of the persons to hold the post. If a person does not possess the requisite qualification or is otherwise appointed on a particular post in violation of the statute, he/she cannot claim to have a right to continue in service simply because it has worked for a long time for the reason that estoppel does not apply against statute and any appointment against the statute is void ab initio. Even, on the ground of sympathy, no such relief can be granted since a Court of law is primarily concerned with rule of law consistent with constitutional provision and mere sympathy, which is directly against the statute and constitutional provisions would be a case of misapplication of the understanding of principles of equity and justice. It would be difficult to hold that an action which would be contrary to statute has the effect of violating others' fundamental right of equal opportunity of employment, can be equitable and sympathetic though it is otherwise unconstitutional. A sympathy or equity which will result in upholding illegal and unconstitutional orders or acts can not be considered to be within the four corners of principles of administration of justice in equitable exercise of power under Article 226 of the Constitution. It would be a travesty of justice if we allow the concept of sympathy or equity to influence the mind of the Court even when the action is ex facie illegal and unconstitutional, violative of Article 16 (1) of the Constitution. Recently, the Apex Court has declined to grant any relief to a person merely because it has worked for long time though did not possess requisite qualification at the time of appointment in accordance with rules and the appointment is not in accordance with the procedure prescribed."
41. In Shesh Mani Shukla Vs. District Inspector of Schools Deoria and others J.T. 2009 (10) SC 309, the court said:
"It is true that the appellant has worked for a long time. His appointment, however, being in contravention of the statutory provision was illegal, and, thus, void ab initio. If his appointment has not been granted approval by the statutory authority, no exception can be taken only because the appellant had worked for a long time. The same by itself, in our opinion, cannot form the basis for obtaining a writ of or in the nature of mandamus; as it is well known that for the said purpose, the writ petitioner must establish a legal right in himself and a corresponding legal duty in the State. {See Food Corporation of India & Ors. v. Ashis Kumar Ganguly & Ors. [2009 (8) SCALE 218]}. Sympathy or sentiments alone, it is well settled, cannot form the basis for issuing a writ of or in the nature of mandamus. {[See State of M.P. & Ors. v. Sanjay Kumar Pathak & Ors. [(2008) 1 SCC 456]}"
42. In State of West Bengal & others Vs. Banibrata Ghosh & others (2009) 3 SCC 250, such a request was declined to be accepted by the Apex Court observing that it would be a misplaced sympathy.
43. In D.M. Premkumari Vs. The Divisional Commissioner, Mysore Division and others 2009 (2) SCALE 731, the Court observed :
"The law is merciless", is a most frequently quoted saying. It has led people to mistakenly think that it is separated from feelings of righteousness. We have become used to the understanding that such emotions as indignation, sorrow and compassion should not exist in legal cases, especially not in judiciary. This, in our view, is a misunderstanding. Judiciary has a very strong sense of justice and it works to maintain social justice and fairness. We hasten to add, judiciary does not believe in misplaced sympathy."
44. Giving reasons for not extending the indulgence in favour of the persons, who have worked for sometimes though not validly appointed, in State of Bihar Vs. Upendra Narayan Singh & others JT 2009 (4) SC 577, the Court observed :
"...the Courts gradually realized that unwarranted sympathy shown to the progenies of spoil system has eaten into the vitals of service structure of the State and public bodies and this is the reason why relief of reinstatement and/or regularization of service has been denied to illegal appointees/backdoor entrants in large number of cases..."
45. In Om Prakash & others Vs. Radhacharan & others 2009 (6) SC 329, the Court observed:
"It is now a well settled principle of law that sentiment or sympathy alone would not be a guiding factor in determining the rights of the parties which are otherwise clear and unambiguous."
46. In Subha B. Nair & others Vs. State of Kerala & others 2008 (7) SCC 210, the Court said :
"This Court furthermore cannot issue a direction only on sentiment/sympathy."
47. In Jagdish Singh Vs. Punjab Engineering College & others JT 2009 (8) SC 501, the Court referred to the observations made earlier in Kerala Solvent Extractions Ltd. Vs. A. Unnikrishnan and another 1994 (1) SCALE 63 with approval as under :
"The reliefs granted by the courts must be seen to be logical and tenable within the framework of the law and should not incur and justify the criticism that the jurisdiction of the courts tends to degenerate into misplaced sympathy, generosity and private benevolence. It is essential to maintain the integrity of legal reasoning and the legitimacy of the conclusions. They must emanate logically from the legal findings and the judicial results must be seen to be principled and supportable on those findings. Expansive judicial mood of mistaken and misplaced compassion at the expense of the legitimacy of the process will eventually lead to mutually irreconcilable situations and denude the judicial process of its dignity, authority, predictability and respectability."
48. The above discussion therefore, leads to an impeccable inference that not even a single vacancy in the cadre of 'A.B.T.' in Minor Irrigation Department of State of Uttar Pradesh can be and could be filled by treating it reserved for "Physically Handicapped" persons under Act, 1993, since the aforesaid service has not been identified for such a reservation and so long as such identification is not there, this kind of reservation cannot be applied. That being so, the mere fact that certain appointments were made illegally and have continued for some time, cannot be a ground to allow such illegal appointees to continue for the reason that it would amount to permitting an illegality to perpetuate which is impermissible and this Court is under a constitutional obligation to maintain rule of law. Even on the plea of so called sympathy etc., such contention cannot be accepted, particularly in view of the observations of the Apex Court in catena of decisions discussed and referred to hereinabove.
49. Having said so, this Court is also amazed how the respondent could declare some of the candidates selected in the category of "Physically Handicapped" quota without caring to the fact that there is no such reservation. The appointing authority also issued letters of appointment to such candidates.
50. The result of written test was declared by Chief Engineer, Minor Irrigation on 5th July, 2003, a photocopy whereof is on record as Annexure 3 to writ 'C'. The result was in three categories, namely, 'General', 'Scheduled Caste' and 'Other Backward Class'. There was no further sub division like "Dependants of Freedom Fighter", "Physically Handicapped persons", "Ex Servicemen", etc. It is also evident that Chief Engineer, Minor Irrigation himself was Chairman of Selection Committee. The constitution of Selection Committee is available on record. The minutes of Selection Committee dated 15th July, 2003 are Annexure 4 to Writ 'C'. It shows that Sri R.S.Jurail, Chief Engineer was the Chairman of Selection Committee. Other members were Sri Gomti Singh, Director, Minor Irrigation, Sri Naresh Chandra, Superintending Engineer, Sri P.Ram, Executive Engineer/Incharge Superintending Engineer and Sri R.R.P.Kushwaha, Executive Engineer, Headquarter, Lucknow were other members. These proceedings dated 15th July, 2003 were prepared after interview of candidates on 7th, 8th, and 9th July, 2003. It mentions that reservation to "Dependants of Freedom Fighter, Ex Servicemen and Handicapped Persons has been given according to their prescribed quota, suitability and availability of candidates.
51. This Court asked the learned Standing Court to explain where was an occasion for Selection Committee to find out which candidate is liable to be considered in physically handicapped quota when :
(a) no such reservation was published and advertised in the advertisement.
(b) in the application form there was no column requiring candidates to stake his claim regarding reservation in the category of physically handicapped quota.
(c) there was no occasion for any candidate to mention in his application form that he is a Physically Handicapped person entitled to be considered against quota meant for it.
(d) there was no occasion for such candidate to attach any testimonial supporting claim in the category of disabled or physically handicapped person.
(e) in the written test no separate list of selected candidates vis a vis the alleged reserved quota in the category of physically handicapped persons and others was prepared.
(f) interview letters issued to the candidates did not require them to bring any testimonial or evidence or certificate to support their claim as a physically handicapped person.
(g) there is nothing on record to show that Selection Committee informed, in any manner, all the candidates who have appeared in selection that if they satisfy requirement of physically handicappedness up to the prescribed percentage, they should submit their certificates/testimonials staking their claim against vacancy for physically handicapped persons under Act, 1993.
(h) In what manner, the candidates whose results have been declared finally, selected under physically handicapped quota, could inform the selection committee about their candidature in that category, what was the occasion therefore and why similar opportunity of consideration was not extended to other similarly placed persons.
52. Learned Standing Counsel very fairly stated that at least the record is totally silent on this aspect. It does not show in what manner candidates, who were selected and declared successful in physically handicapped category, were so selected. The final result shows that in general category, one candidate bearing Roll No.01392 was declared successful in the category "physically handicapped", while in O.B.C. Category, two such candidates were declared successful bearing roll No.00288 and 04321.
53. In para 15 of writ 'C', petitioners themselves have admitted that though there was no reservation clause for handicapped persons in advertisement no.3 of 2003, but in the final selection list published in newspaper on 17th July, 2003, certain candidates were selected in the category of handicapped. It is said that pursuant to the aforesaid selection, petitioners No.1, 2 and 3 (writ 'C') were issued letters for appointment on 18th July, 2003 but no disability certificates were demanded from them by Executive Engineer while making appointments. In respect of petitioner No.4 (writ 'C') such appointment letter was issued on 10th January, 2006 and there also no such request was made to show disability certificate.
54. It is really surprising and more painful that the petitioner no.4 (Mahesh Chandra Ojha) in Writ 'C' was offered appointment so as to prevent this Court from judicial scrutiny in Writ Petition No.74429 of 2005 filed by Sri Ojha claiming appointment in the category of Physically Handicapped quota wherein the Court found that the candidate securing lessor marks were appointed and Sri Ojha, securing higher marks, was denied such appointment. The Court required learned Standing Counsel to ensure affidavit of Chief Engineer, Minor Irrigation, disclosing as to whether candidates securing lessor marks have been appointed and this order was passed on 7.12.2005. Instead of allowing this Court, a judicial review in the aforesaid matter, the respondents tried to save themselves by offering appointment to Sri Mahesh Chandra Ojha by issuing letter of appointment on 10th January, 2006.
55. This approach taints the entire action of the respondents. It clearly smells foul and stinky. The latent becomes patent. The procedure and the manner in which Selection Committee headed by Chief Engineer himself, who was the appointing authority, have worked, raises serious doubt over its integrity. It shows that the selection was neither impartial nor honest. The Selection Committee has made selection in its own ways, deviating the settled straight procedure, and recommended candidates (irrespective of their merits) in respective categories for which statutory reservation was not available. No justification, no clarification, no explanation whatsoever, for this kind of selection, particularly in respect of the category of Physically Handicapped persons has been attempted to place on record. The dubious nature of selection is writ large. No explanation justifies an inference of extraneous considerations.
56. In absence of anything to justify bona fide of Selection Committee, this court has no option but to hold the above selection tainted with malice in law. It is vitiated on account of recommendations made without adhering strictly to the merits of candidates vis a vis respective categories of reservation. The Selection Committee carved out a category of reservation which was not attracted to the service and post in question. This action of Selection Committee is tainted with dishonest intention and in absence of anything otherwise, this Court is justified in inferring that they were involved in corrupt activities, prompted by extraneous consideration and for collateral purpose. The selection of certain persons under physically handicapped quota is thus clearly illegal founded on extraneous considerations.
57. This Court can take judicial cognizance that unemployment in the country has almost gone out of proportion. Despite various schemes and efforts on the part of Government, unemployment is virtually beyond control. Sufferance of people is basically on account of lack of resources of earning livelihood causing starvation not only to the individual(s) but to families altogether. It is driving the unemployed youth to find out other ways to get money, may be unlawful. Many a times print and electronic media have published news that for an inferior class of service, the number of applications received are in thousands and lacs. Highly qualified persons are applying for low echelon services. In one such reported matter, candidates having Ph.D., applied for Class IV post. This shows height of unemployment desperation and people's frustration in the unemployed youth. It shows anxiety to have means of earning livelihood at any level, necessary for their sustenance. It is this massive unemployment, which has given a free hand to the people in power and authority to indulge in corrupt activities. Heavy amounts are being taken for getting a person selected for employment particularly in public service. Epidemic of corruption has even spread over constitutional bodies, like Public Service Commission, as we have seen the cases against a few Public Service Commissions going to Apex Court, involving allegations of large scale corruption and illegalities in making selection and recruitment by them.
58. In the present case also respondents, and in particular Chief Engineer, Minor Irrigation, has played a dual role. On the one hand, heading a Selection Committee, in a wholly illegal manner, some candidates were selected finally under the category of "Physically Handicapped" persons and appointment letters were issued. When matter came to this Court, an attempt was made to cover up entire issue by satisfying even those early candidates who tried to unfold their illegal motives and ill designed actions but when similar claim by other candidates continued and Chief Engineer found it difficult to make adjustment, and the things went beyond control, he had no option but to straight away deny such appointment, leading to these writ petitions.
59. Here also respondents have taken a mutually opposite and self destructing stand. On one hand, they supported and tried to protect appointments made in "Physically Handicapped" quota but simultaneously opposed claim of petitioners in Writ 'A' and 'B' pleading that post of 'A.B.T.' having not been identified for reservation of "Physically Handicapped" persons, no appointment in such reserved quota is permissible.
60. The respondents in their own way have tried even to mislead this Court though, as usual, they utterly failed in such an endeavour. The mischief and conduct motivated by extraneous and illegal reasons cannot be condoned. It cannot be said that appointments on the post of A.B.T. in the present case under the category of Physically Handicapped persons has been made legally. It is also evident that pursuant to wholly illegal appointments of certain candidates and, in particular, petitioners (Writ 'C'), a huge public money has been siphoned off in terms of salary to these persons though apparently, and since very inception, their appointment are void ab initio and a nullity in the eyes of law.
61. In these peculiar facts and circumstances, all these writ petitions deserve to be dismissed with the following declarations/directions:
i. No appointment on the post of Assistant Boring Technician in Minor Irrigation Department pursuant to the selection in question in these cases could be made under the category of Physically Handicapped quota. The appointments of petitioners in writ petition no. 54665 of 2011 are wholly illegal and void ab initio. They are, therefore, not entitled for any relief against notices issued to them, impugned in Writ Petition No.54665 of 2011.
ii. For the reasons stated in (i) above, petitioners Writ 'A' & 'B' are also not entitled for any relief i.e. for getting appointment on the post of Assistant Boring Technician pursuant to the selection in question.
iii. The respondents (Appointing Authority) shall be free to cancel appointment, if any, made in the category of 'Physically Handicapped' quota pursuant to selection in question and such action would be taken without any further delay.
iv. The salary paid to the candidates, appointed on the post of Assistant Boring Technician treating certain vacancies reserved for Physically Handicapped quota, from the date of appointment till the date of their termination, shall be realized in equal proportion from the Appointing Authority as also members of Selection Committee, by State of U.P,. after making such enquiry as prescribed in law. It is made clear that in case Government find responsibility of concerned officials in some different proportion, it shall be free to apportion the amount to be recovered in such proportion. This realization of salary shall be without prejudice to the right of the State Government to take such other action as provided in law.
62. The writ petition is accordingly dismissed with the aforesaid directions.
63. A copy of this order shall forthwith be supplied by the Registrar General to the Secretary, Minor Irrigation, and Chief Secretary, U.P. Government for communication and compliance.
Order Date :- 31.7.2012 KA