Court No. - 29
Case :- PUBLIC INTEREST LITIGATION (PIL) No. - 1121 of 2021 Petitioner :- Samvidhan Bachao Trust And Another Respondent :- State of U.P. and Another Counsel for Petitioner :- Akhilesh Kumar Counsel for Respondent :- C.S.C.,Ashish Mishra
Hon'ble Munishwar Nath Bhandari,Acting Chief Justice Hon'ble Subhash Chandra Sharma,J.
Heard Sri Ashok Kumar Sharma, learned counsel for the petitioners and Ms. Bushra Maryem on behalf of the respondent.
The writ petition has been filed to challenge the advertisement for recruitment to Uttar Pradesh Higher Judicial Service, 2020 holding it to be ultra vires to the provisions of the Constitution as well as the judgment of the Apex Court and thereby quash the Rule 18 of Appendix G of Uttar Pradesh Higher Judicial Service Rules, 1975. The other prayer is to reframe the rules regarding recruitment to higher judicial service.
The learned counsel for the petitioner has referred to the issues raised in the writ petition and more specifically about the reservation of Scheduled Caste candidates. The writ petition is said to have been filed in the representative capacity but in view of the judgment of the Apex Court in the case of Central Electricity Supply Utility of Odisha vs. Dhobei Sahoo and others 2014 (1) SCC 161, a public interest litigation is not maintainable in the service matters other than a writ of quo warranto. The other judgment of the Apex Court is in the case of Hari Bansh Lal vs. Sahodar Prasad Mahto and others 2010 (9) SCC 655. The relevant para 34 of the said judgment is quoted hereunder for ready reference:-
"34. From the discussion and analysis, the following principles emerge:
(a) Except for a writ of quo warranto, PIL is not maintainable in service matters.
(b) For issuance of writ of quo warranto, the High Court has to satisfy that the appointment is contrary to the statutory rules.
(c) Suitability or otherwise of a candidate for appointment to a post in Government service is the function of the appointing authority and not of the court unless the appointment is contrary to statutory provisions/rules."
A perusal of the writ petition and the prayer made therein shows it to be a public interest litigation in reference to the recruitment to the Uttar Pradesh Higher Judicial Service and for that to challenge the validity of the rules.
Since the public interest litigation in service matters is not maintainable, the writ petition is dismissed, however, with a liberty to maintain appropriate writ petition in reference to the controversy raised herein, if same is permissible at the instance of the petitioner.
Order Date :- 28.7.2021 Ashok Gupta (Subhash Chandra Sharma, J.) (Munishwar Nath Bhandari, ACJ.)