Hon'ble Irshad Ali,J.
1. Heard Sri Panna Lal Gupta, learned counsel for the appellant/writ petitioner, Sri Q.H. Rizvi, learned Additional Chief Standing Counsel for respondent nos. 1 and 2 and Sri R.K. Upadhyay, learned counsel for the respondent no.3.
2. The instant special appeal is barred by 125 days.
3. On due consideration, since reasons assigned in the affidavit filed in support of application for condonation of delay (C.M. Application No. 115958 of 2019) are satisfactory, therefore, C.M. Application No. 115958 of 2019 is allowed. Delay in filing the instant appeal is condoned.
4. Ram Darash Prasad Ranjan, appellant herein, has filed the instant appeal, challenging the judgment and order dated 22.4.2019 passed in Service Bench No. 116 of 2014 : Ram Darash Prasad Ranjan Vs. State of U.P. and others, whereby the learned Writ Court dismissed the writ petition.
5. Brief facts of the case are that an advertisement was published in the month of June, 2006 for holding selection by the respondent no.3-U.P. Public Service Commission for one reserved post of 'Statistician' in the Department of Medical, Health and Family Welfare. In pursuance of the aforesaid advertisement, the appellant applied and after due process of selection, the respondent no.3-U.P. Public Service Commission found the appellant suitable for appointment vide notice dated 29.3.2007 and, accordingly, the name of the appellant was recommended by the Commission for appointment to the aforesaid post vide order dated 7.5.2007. However, no efforts were made by the respondents to appoint the appellant on the post of Statistician. In the meanwhile, one Ajay Pal Singh Gangwar, filed a writ petition, bearing No. 490 of 2007 (S/B) : Ajay Pal Singh Gangwar Vs. State of U.P. and others, wherein this Court, considering the fact that there are only two sanctioned posts of Statistician in the cadre, passed an interim order dated 18.5.2007 to the effect that the vacancy in question shall not be treated as reserved and may be re-advertised by inviting applications from all candidates, if they intend to fill the post in question, subject to further orders of the Court. Subsequently, in view of the aforesaid order dated 18.5.2007, the aforesaid writ petition No. 490 of 2007 (S/B) was dismissed as infructuous vide order dated 8.5.2013.
6. After dismissal of the aforesaid writ petition vide order dated 18.5.2013 (Supra), the appellant has filed representation but as no heed was paid by the respondents, the appellant has filed writ petition No. 116 of 2014 (S/B) : Ram Darash Prasad Ranjan Vs. State of U.P. and others. Upon filing the aforesaid writ petition by the appellant, a Committee was constituted, who, after due deliberations and affording opportunity of hearing to the writ petitioner, rejected the representation of the petitioner vide order dated 11.4.2018 and subsequently, by means of separate order dated 11.4.2018, the recommendation of the Commission dated 7.5.2007 was also cancelled. Thereafter, the appellant has challenged both the aforesaid orders dated 11.4.2018 after making amendment in the aforesaid writ petition.
7. The learned Writ Court, after hearing the learned counsel for the parties, placing reliance upon the law laid down by the Full Bench in Heera Lal Vs. State of U.P. and others : 2010 (3) UPLBEC 1761 and considering the fact that once admittedly there were only two posts in the cadre of Statistician and consequently, sending of requisition to the Commission for one post by reserving it and the issue of the advertisement in June, 2006, reserving one post for Schedule Caste could not have validly been done by the respondents, observed that the writ petitioner could not be entitled for appointment by treating one post of Statistician as reserved.
8. Subsequently, the learned Writ Court, considering the plea of the writ petitioner that since he was declared selected by the Commission, consequently such vested right cannot be taken away, has placed reliance upon Shankarsan Dash Vs. Union of India :1991 (3) SCC 47 and observed that merely because the writ petitioner was declared as selected by the Commission, he cannot stake his right for being appointed and the respondents.
9. In these backgrounds, the learned Writ Court dismissed the writ petition vide impugned judgment and order dated 22.4.2019.
10. For convenience, it would be apt to reproduce paras 13 to 17 of the impugned order dated 22.4.2019, which are as under :
"13. The admitted facts which come out from a perusal of the records are that in terms of the advertisement dated June, 2006 for the post of Statistician, the petitioner had applied and thereafter had been declared as selected by the Commission. However, the appointment of the petitioner could not take place on account of an interim order that had been passed by a Division Bench of this Court in Writ Petition No. 490 (SB) of 2007. Subsequently, the said writ petition was dismissed as infructuous vide order dated 08.05.2013. Thereafter, the respondents proceeded to consider the case of the petitioner and there was also a recommendation for appointing him on the post of Research Officer but even before the same could be done, by means of the impugned order dated 11.04.2018, the case of the petitioner was rejected. A perusal of the impugned order dated 11.04.2018 indicates that the respondents have proceeded to reject the case of the petitioner on two grounds namely that subsequent to the advertisement in June, 2006, the Rules, 2012 were promulgated by which the post of Statistician stood merged with the post of Research Officer. The second ground is that at the relevant time when the advertisement was issued, there were only two posts of Statistician in the cadre and reserving one post for schedule case for which the advertisement was issued would amount to exceeding the 21 percent quota which is fixed for schedule caste and consequently it has been contended that the advertisement was itself wrongly issued.
14. Even if the first ground on which the claim of the petitioner is to be ignored i.e the Rules, 2012 having done away with the post of Statistician yet the second ground on which the claim of the petitioner has been rejected i.e there being only two posts of Statistician in the cadre and advertisement having been issued for one post and reserving it for schedule caste would be exceeding the 21 percent quota fixed for schedule caste, would be a perfectly valid ground taking into consideration the law laid down by the Full Bench in this regard in the case of Heera Lal (supra). The Full Bench of this Court in the case of Heera Lal (supra) has held that in order to apply the roster, there have to be a minimum of five posts in the cadre. As already indicated above, there was only two posts in the cadre of Statistician and consequently by no stretch of imagination could the respondents have proceeded to reserve one post for schedule caste candidate while sending the requisition to the Commission. For the sake of convenience, the relevant observations of the Full Bench in the case of Heera Lal (supra) are reproduced as under:-
"28. The rule of roster and the concept of a running account of the roster therefore would commence only if there are five or more posts for extending the benefit of 21% reservation in favour of the scheduled caste category. A numerically less strength figure, below the required number, would therefore not allow the roster to be operated, as a roster is there to implement the rule of reservation and not a tool to create reservation. As noticed in the judgments of the Apex Court that in the event of any any conflict between the percentage of reservation and the applicability of the roster, the former would prevail. Thus, in no event can the percentage of reservation be inflated or enhanced by the illusionary or imaginative application of the rule of roster........"
15. Accordingly, when the facts of the instant case are tested on the touch stone of the law down by a Full Bench of this Court in the case of Heera Lal (supra) what this Court finds is that once admittedly there were two posts in the cadre of Statistician consequently, sending of requisition to the Commission for one post by reserving it and the issue of the advertisement in June, 2006 reserving one post for schedule caste could not have validly been done by the respondents. As such, it cannot be said that there is any infirmity or illegality in both the impugned orders dated 11.04.2018 by which the claim of the petitioner has been rejected and the recommendation given by the Commission has been withdrawn.
16. As regards the arguments of learned counsel for the petitioner that as the petitioner had been declared selected by the Commission, consequently such vested right cannot be taken away, needless to mention that it is settled proposition of law that a selectee has no indefeasible right for appointment (See:- Shankarsan Dash vs. Union of India reported in 1991 (3) SCC 47). Thus merely because petitioner was declared as selected by the Commission, he cannot stake his right for being appointed and the respondents are perfectly justified in rejecting the claim of the petitioner for appointment on the aforesaid ground.
17. Keeping in view the aforesaid discussions, no case for interference is made out. The writ is dismissed."
11. Considering the aforesaid so also the law laid down by the Full Bench of this Court in Heera Lal (Supra), we are of the view that the learned Writ Court has not committed any legal error in passing the impugned order.
12. The instant special appeal has no merit and is, accordingly, dismissed.