JUDGMENT D. K. Seth, J.
1.The petitioner was engaged on a class IV post in the transport department. Subsequently, pursuant to the provisions of U. P. Transport Department Enforcement Staff (Group 'D') Service Rules, 1979, a selection was held for promotion of Group 'D' staff to the post of enforcement constables sometimes in 1985. In the said selection, the petitioner was selected and was placed at serial No. 5 of the list on the basis of seniority along with one Kamta Prasad, who was placed at serial No. 1 of the said list. In the said list, the place of appointment was also indicated. According to the petitioner, the appointment was effected by a letter dated 28th May. 1985. Subsequently, by an order dated 25.6.1985, the petitioner was reverted along with said Kamta Prasad on the alleged ground that at Allahabad the post of enforcement constable was already filled up. Therefore, it was assured that separate orders would be passed in respect of the petitioner which is contained in Annexure-3. Subsequently, pursuant to a fresh selection held sometimes in April. 1990 after the Selection Committee was constituted in 1989, a fresh selection was made, in which the petitioner had participated but was not selected. The petitioner, therefore, challenges the said selection and prays for quashing thereof on the ground that he having been selected earlier and that there had been an earlier selection, there is no scope for a fresh selection,
2. Mr. Ravi Kant, learned counsel for the petitioner contends that in the counter-affidavit, it has been alleged that the selection held in 1985 was cancelled on account of irregularity in constitution of the Selection Committee. According to him, there was no irregularity in constitution of the Selection Committee and, therefore, the alleged cancellation is arbitrary and illegal and therefore cannot be sustained. He secondly contends that so long the said selection made in 1985 continues, the respondents cannot undertake a fresh selection without giving appointment to the petitioner selected earlier. He further contends that the alleged ground on which the petitioner was found unfit, is wholly a myth and therefore the petitioner should be allowed to join the promotional post with effect from the date since when his immediate juniors had joined the post on promotion.
3. Mr. K. R. Singh, learned standing counsel on the other hand contends that the selection having been cancelled and the petitioner having participated in the subsequent selection and having been found unsuccessful, he cannot turn round and question the validity of the selection. He further contends that the petitioner having not challenged the cancellation of the earlier selection, he cannot succeed in the present writ petition in obtaining the relief of cancellation of subsequent selection. It is also contended that the petitioner was found unfit on account of his being physically shorter than the prescribed height, therefore, he cannot claim any relief.
4. After having heard both the learned counsel, it appears that the petitioner himself had appeared in the subsequent selection and had participated in the same knowing fully well he was selected in the earlier selection. Therefore, after having participated in the selection, the petitioner cannot turn round and question validity of the selection after he was found unsuccessful.
5. Then again, by earlier selection, the petitioner was reverted on the ground that there was no post vacant though he was placed at serial No. 5 in the seniority list. However, he did not challenge the order of reversion. The petitioner ought to have challenged the order of reversion on the ground that he was placed at serial No. 5, therefore, he could not be reverted whereas the person who was at the bottom of the selection list should have been reverted and the petitioner should have been accommodated in his place. But he had accepted the reversion and thereby he had waived his right, if any, in respect of the said selection list.
6. In fact, it was a selection list and not a panel, by which he could be kept waiting in the panel. After being selected, he having been reverted though he was at serial No. 5 amongst 15 candidates, he having not challenged the order of reversion, it is no more open to the petitioner to challenge the selection made in 1989. Then again, there being no panel, the petitioner cannot claim any appointment in the absence of any panel. Though Mr. Ravi Kant contended that the said selection itself was a panel but the said contention cannot be accepted on the ground that if it was a panel, in that event, the persons at the top of the panel ought to have been accommodated and the person at the bottom should have been kept in waiting. On the other hand, the petitioner being at serial No. 5 of the said list having been reverted and he having not challenged the same, it is no more open to him to contend that there was a panel in which he was waiting.
7. Mr. Ravi Kant further contends that the Selection Committee in respect of 1985 selection was duly constituted which consisted of Addl. Transport Commissioner and two other officers of the rank of Assistant Transport Commissioner, who were nominated by the Transport Commissioner, and therefore, there was np irregularity in constitution of the Selection Committee. This question is not necessary to be gone into in view of the findings as recorded here-in-before.
8. Mr. Ravi Kant relied on paragraph 16 of the decision in the case of State of U. P. v. Rafiquddin. AIR 1988 SC 162. In order to contend that a panel so selected shall continue until it is exhausted.
9. In order to appreciate the contention, it is necessary to refer paragraph 16 of the said judgment which is quoted below :
"In this context, it is necessary to consider as to how long the list of candidates for a particular examination can be utilised for appointment. There is no express provision in the Rules as to for what period the list prepared under Rule 19 can be utilised for making appointment to the service. In the absence of any provision in the Rules a reasonable period must be followed during which the appointment on the basis of the result of a particular examination should be made. The State Government and the Commission had announced 85 vacancies for being filled up through the competitive examination of 1970. In normal course, 85 vacancies could be filled on the basts of the result of the competitive examination of 1970 but if all the vacancies could not be filled up on account of non-availability of suitable candidates, the appointment to the remaining vacancies could be made on the basis of the result of the subsequent competitive examination. The unfilled vacancies of 1970 examination could not be filled after 5 years as subsequent competitive examination of the year 1972 and of the year 1973 had taken place and the result had been declared. The list prepared by the Commission on the basis of the competitive examination of a particular year could be utilised by the Government for making appointment to the service before the declaration of the result of the subsequent examination. If selected candidates are available for appointment on the basis of the competitive examination of subsequent years, it would be unreasonable and unjust to revise the list of earlier examination by changing norms to fill up the vacancies as that would adversely affect the right of those selected at the subsequent examination in matters relating to their seniority under Rule 22. The 1970 examination could not be utilised as a perennial source or inexhaustible reservoir for making appointments indefinitely. The result of a. particular examination must come to an end at some point of time like a "dead ball" in cricket. It could not be kept alive for years to come for making appointments. The practice of revising the list prepared by the Commission under Rule 19 at the behest of the Government by lowering down the standards and norms fixed by the Commission to enable appointment of unsuccessful candidates is subversive of rule of law. This practice is fraught with dangers of favouritism and nepotism and it would open back door entry to the service. We are, therefore, of the opinion that once the result of the subsequent examination of 1972 was declared, the Commission could not revise the list of approved candidates of 1970 examination prepared by it under Rule 19 at the behest of the Government by lowering down the standard fixed by It."
10. A reading of the above paragraph shows that if such situation is permitted to continue that will lead to chaotic condition. The result of a particular examination must come to an end at some point of time like a 'dead ball' in cricket. It cannot be kept alive for years to come for making appointments. In the said case, it was found that selection used to take place every year and the candidates selected in the earlier examination used to be utilised for the purpose of filling up posts in the next year. In that context, it was held that if selected candidates are available for appointment on the basis of the result of examination of subsequent years, it would be unreasonable and unjust to revise the list of earlier examination to fill up the vacancies. Thus, this decision does not help Mr. Ravi Kant in his contention that the panel continued indefinitely.
11. The second decision that was relied upon by Mr. Ravi Kant is the decision in the case of Prem Prakash v. Union of India, AIR 1984 SC 1831: in paragraph 15 of the said judgment, it has been laid down as follows ;
"It is clear from this notification that if selected candidates are available from the previous list there should either be no further recruitment until those candidates are absorbed or in the alternative ' vacancies which are declared for the subsequent years should take into account the number of persons who are already in the list of selected candidates who are still awaiting appointment. The notification further shows that there should be no limit on the period of validity of the list of selected candidates prepared to the extent of declared vacancies. Once a person is declared successful according to the merit list of selected candidates the appointing authority has the responsibility to appoint him even if the number of vacancies undergoes a change after his name is included in the list of selected candidates.
Paragraph 16 of this judgment is also relevant, which is quoted below :
"We must record our dissatisfaction at the fact that the rules of the Delhi Judi cial Service have not been amended so as to bring them in conformity with the administrative instructions and notifications which have been issued by the Ministry of Home Affairs, Department of Personnel and Administrative Reforms from time to time. The situation is virtually chaotic for which we must clarify the High Court of Delhi cannot be blamed. It is surprising that though 13 years have gone by since the Delhi Judicial Service was established no attention whatsoever has been paid to a matter which concerns the future of a large number of young men and women who aspire for posts in the Judiciary. The Instant case and the case of Ajaib Singh and Ram Swarup show that the worst sufferers of this inaction are members of the Scheduled Castes and Scheduled Tribes. Sooner the Rules are amended easier will it be for the High Court to administer and superintend the affairs of the subordinate judiciary with the object of achieving the ideals enshrined in Articles 16[4], 38 and 46 of the Constitution."
12. A reading of the said judgment shows that the system that was followed in Delhi Judicial Service was not approved by the Supreme Court wherein persons were kept waiting for 13 years without providing anything as to the validity of the list of selected candidates prepared to the extent of desired vacancies. It was observed that the situation is virtually chaotic and the Supreme Court had recorded its dissatisfaction at the fact that the Rules of Delhi Judicial Service were not amended so as to bring them in conformity with administrative instructions and notifications issued by the Ministry of Home Affairs, Department of Personnel and Administrative Reforms from time to time. Therefore, the said decision also does not lay down any absolute proposition that a panel could continue indefinitely. On the other hand, the said decision points out that such a situation will lead to a chaotic condition and accordingly, such rules contained in such provision should be amended.
13. So far as the question that the petitioner was found unfit is concerned, that is made out through a supplementary affidavit filed on behalf of the respondents, in which a communication has been annexed wherein it was mentioned that petitioner's height was only 165 cm. whereas the prescribed height was 167.7 cm. It is rightly contended by Mr. Ravi Kant that no reliance can be placed on the said counter-affidavit since the said communication is not a part of the affidavit. Only by appending a communication in an affidavit without asserting the statement through oath, cannot be treated to be a part of the affidavit. Then again, the person who had made the communication, is not affirming the affidavit himself but the affidavit is being affirmed by another person. There is nothing on record to show that the petitioner was really shorter in height. The only ground that has been alleged is that the petitioner was declared unfit. The ground that the petitioner was shorter in height has been sought to be made our by Mr. K. R. Singh, learned Standing Counsel on the basis of the said affidavit.
14. In that view of the matter, it is not possible to decide whether the petitioner was really unfit. In such circumstances, the respondents are directed to find out as to whether the petitioner satisfies the prescribed height or not. If on measurement, the petitioner satisfies the prescribed height, in that event he should be treated to have been promoted along with the persons who were selected in 1990 and should be given all service benefits from the date, on which other persons were given such promotion together with all service benefits, future promotion, scale and continuity of service. The respondent No. 1 Transport Commissioner, U. P., Lucknow shall take measurement of the petitioner through the Regional Transport Officer. Allahabad. Such exercise is to be completed within a period of three months from the date a copy of this order is communicated to respondent No. 1. In case the petitioner is found ineligible on account of his being shorter in height, he will not be entitled to any Benefit as directed in the present order.
15. With the above observations, the writ petition stands finally disposed of. There, will be no order as to costs.