Court No. - 58
Case :- WRIT - A No. - 12443 of 2018
Petitioner :- Sujeet Kumar
Respondent :- State Of U.P. And Another
Counsel for Petitioner :- Tarun Agrawal,M.N. Singh Counsel for Respondent :- C.S.C.,Karrar Husain,Kashif Zaidi,Vijay Tripathi,Vikul Panwar Singh
Hon'ble Ashwani Kumar Mishra,J.
This petition has been filed challenging the select list published by the U.P. Public Service Commission on 27.04.2018, appointing Registrars in U.P. State Universities on the ground that the appointments are being made far in excess of the posts available. Submission is that the advertisement issued by the Commission, culminating in issuance of select list, is in gross infraction of the statutory scheme and therefore, the same is liable to be set aside.
The writ petition was entertained by a Division Bench, after hearing the counsel for the Commission, by a reasoned order on 23.05.2018, which is reproduced hereinafter:-
"1. It is contended that there are only 15 Universities governed by U.P. State Universities Act, 1973 (hereinafter referred to as ?Act, 1973?) which are named in para 23 of writ petition and in each University there is only one sanctioned post of Registrar. U.P. State Universities (Centralized) Service Rules, 1975 (hereinafter referred to as ?Rules, 1975?) have been framed under Act, 1973 and thereunder only one post of Registrar in each University is sanctioned, therefore, in all there are 15 posts of Registrar which are governed by Rules, 1975.
2. Further, as per Rule 6(a) of Rules, 1975, 33% posts of Registrar are to be filled in by promotion, meaning thereby out of 15 sanctioned posts, only 10 are liable to be filled in by direct recruitment and remaining five posts are to be filled in by promotion. It is further said that 7 posts of Registrar are already filled in by direct recruitment and their names have also been disclosed in para 22 of writ petition. Thus only three posts of Registrar are available for direct recruitment through Commission.
3. But in an illegal manner State Government has notified 28 vacancies of Registrar to be recruited under Rules, 1975 and Commission has made recruitment for all these vacancies though there are no such number of vacancies available for recruitment on the post of Registrar in State Universities under Rules, 1975 read with provisions of Act, 1973. Therefore, recruitment beyond three vacancies is patently illegal and without jurisdiction.
4. When confronted, learned counsel appearing for Commission could not dispute that only 15 Universities are governed by Act, 1973. In the circumstances, recruitment of 28 persons on the post of Registrar is beyond comprehension and apparently appears to be illegal. The matter requires consideration.
5. Admit.
6. Respondent-1 is represented by learned Standing Counsel and Respondent-2 is represented by Sri Kashif Zaidi, Advocate. They pray for and are allowed a month's time to file counter affidavit.
7. Until further orders of this Court, respondents are restrained from making any appointment on the post of Registrar pursuant to selection and recommendation made by Commission, impugned in this writ petition, if any, except three posts of Registrar in Universities which are governed by Act, 1973 read with Rules, 1975."
A counter affidavit has been filed in the matter by the Commission and also by the selected candidates questioning the locus of the petitioner to intervene in the matter, on the ground that petitioner is a complete stranger and the writ petition itself lacks bona fide.
Today, when the matter is taken up, the objection, with regard to maintainability of the writ petition, has been pressed by Shri R.K. Ojha, learned senior counsel for the respondent.
Shri Tarun Agrawal, learned counsel for the petitioner fairly states that the petitioner is neither an applicant, nor has any direct concern with holding of selection or declaration of result. It is, however, submitted that the writ petition has been filed by the petitioner as serious issues of defalcation of public funds is likely to result in case the impugned selection is allowed to stand. Therefore, notwithstanding absence of locus with the petitioner, the cause itself is liable to be examined. Learned counsel for the petitioner places reliance upon a judgment of the Apex Court in Ayaaubkhan Noorkhan Pathan Vs. State of Maharashtra and Others reported in (2013) 4 SCC 465; wherein, following observations have been made in paragraph no. 23:-
"23. Thus, from the above it is evident that under ordinary circumstances, a third person, having no concern with the case at hand, cannot claim to have any locus-standi to raise any grievance whatsoever. However, in the exceptional circumstances as referred to above, if the actual persons aggrieved, because of ignorance, illiteracy, inarticulation or poverty, are unable to approach the court, and a person, who has no personal agenda, or object, in relation to which, he can grind his own axe, approaches the court, then the court may examine the issue and in exceptional circumstances, even if his bonafides are doubted, but the issue raised by him, in the opinion of the court, requires consideration, the court may proceed suo-motu, in such respect."
Learned counsel for the respondent, on the other hand, submits that this petition is more in the nature of public interest litigation and law is settled that a PIL would not ordinarily be entertained in service matter. [See: Bholanath Mukherjee and others vs. Ramakrishna Mission Vivekananda Centenary College and others, (2011) 5 SCC 464; Haibansh Lal Vs. Sahodar Prasad Mahto, (2010) 9 SCC 655; State of Uttaranchal vs. Balwant Singh Chaufal and others 2010 AIR SCW 1029; Hari Bansh Lal Vs. Sahodar Prasad Mahto and others, 2010 (9) SCC 655; R.K. Jain Vs. Union of India, 1993 (4) SCC 119)] It is also contended that even in a public interest litigation, the Hon'ble Supreme Court, in the case of State of Uttaranchal vs. Balwant Singh Chaufal and others reported in 2010 AIR SCW 1029, has laid down the safeguards that are to be met before a public interest litigation is, otherwise, entertained, which includes a detailed description of the standing of the petitioner, so that it could be deciphered as to whether the petitioner is filing any genuine public interest litigation or it is with an intent to settle some hidden motive or agenda.
Law is settled. Ordinarily, a public interest litigation would not be entertained in service matter. However, in an appropriate case, where the Court finds that substantial public injury would be caused, unless the issue is examined and remedied, the jurisdiction of the Court, to step in notwithstanding the absence of locus, has been well recognized. In order to ascertain as to whether facts of this case fall in that category of cases or not, the issue has been, prima facie, examined by the Court.
This Court, while entertaining the matter, had noticed the argument raised on behalf of the petitioner. Petitioner's argument proceeds on the factual premise that there exists only 15 posts of Registrar, existing in the Universities governed by the provisions of the U.P. State Universities Act, 1973. The U.P. State Universities (Centralized) Service Rules, 1975 (in short, 'the Rules of 1975') have also been taken note of by this Court, as per which 33% vacancy is to be filled on the post of Registrar by way of promotion, while the remaining posts are to be filled by way of direct recruitment. Rules of 1975 regulate the cadre contemplated under rule 3, which includes the post of Registrar, Deputy Registrar and Assistant Registrar. The recruitments to such posts are to be made through State Public Service Commission.
The counsel for the respondents point out that the Act of 1973 has been amended in 1995 to include the post of Controller of Examination, who has to be a whole-time Officer of the University. By virtue of section 16-A, the post of Controller of Examination has also been created in the Universities and unless such posts are created, the task of Controller of Examination has also to be performed by the Registrar. The State of Uttar Pradesh, in its counter affidavit, has brought on record an order of the State Government dated 13.01.2015; whereby, 16 additional posts have been created of Registrar in the cadre of Registrar itself by invoking the jurisdiction under rule 5 of the Rules of 1975. It is contended that on account of vacancies, which have arisen pursuant to the enlargement of cadre itself, as also on account of post of Controller of Examination, which also carries similar scale of pay and has to be filled up by following the same procedure of recruitment and even the qualification whereof is also similar, it is contended that need has arisen to appoint larger number of persons. It is stated that pursuant to requisition sent by the State Government, the Commission has proceeded to advertise the post; whereafter, selections have already been concluded. Submission is that filing of the writ petition, after declaration of the result, in the facts and circumstances, smacks of ill-will and is an abuse of the process of law.
I have heard learned counsel for the parties and have perused the materials brought on record.
The post of Registrar has been created under the Act of 1975 and its recruitment, etc. is governed by the provisions of the Rules of 1975. Rules 3 and 5 of the Rules of 1975 are reproduced hereinafter:-
"3. Creation of Centralised Service. - With effect from the commencement of these rules, there shall be Centralised Service common to all the Universities, which shall consist of the following administrative posts, namely :-
(1) Registrars.
(2) Deputy Registrars.
(3) Assistant Registrars.
5. Strength. - (1) The strength of each category of posts mentioned in Rule 3 shall be such as the Government may from time to time fix.
(2) All the posts mentioned in Rule 3 existing in the Universities immediately before the commencement of these rules shall from the present permanent strength of the Centralised Service.
(3) Any of the existing posts under the Centralised Service or any such post which the State Government may create in future, shall not be abolished by any University without the prior approval of the State Government."
The cadre, which is contemplated under rule 3, includes posts of Registrar, Deputy Registrar and Assistant Registrar. The State Government has also passed an order on 13.01.2015; whereby, 16 posts of Registrar, 12 posts of Deputy Registrar and 12 posts of Assistant Registrar have been additionally created. It is in this background that vacancy has been quantified and intimated to the Commission. The Government Order dated 28.07.2017 has also been brought on record, in which the total number of posts in the cadre have been specified as 137.
From what has been placed on record before this Court, this Court finds that the cadre of Registrar is not restricted to 15 posts alone, as is being contended by the petitioner. Even if the petitioner's contention, that unless the post of Controller of Examination is included in the cadre contemplated under rule 3 of the Rules of 1975, is accepted, yet it would not result in an illegality of such proportions that this Court may be persuaded to intervene in the cause, even at the instance of a person who is a complete stranger.
Law is, otherwise, settled that in service matters, it is only at the instance of a person aggrieved that this Court would be required to intervene in the matter. The facts of the case do not fall in the case of exceptional circumstances, in which observations of the Hon'ble Supreme Court, contained in paragraph no. 23 of the judgment in Ayaaubkhan Noorkhan Pathan (supra) could be invoked.
For the reasons, recorded above, I am of the considered opinion that this petition is not liable to be entertained, particularly, as the petitioner has absolutely no locus to intervene in the matter. Even otherwise, precautions, which are expected to be resorted to while entertaining a public interest litigation, have not been taken care of; in as much as, the petitioner's credentials are absolutely lacking. Viewed in the factual backdrop, as discussed above, this Court finds that it is not a case calling for interference of this Court under Article 226 of the Constitution of India.
The writ petition is, accordingly, dismissed.
Order Date :- 28.11.2018 Amit Mishra