Court No. - 38
Case :- WRIT - A No. - 7494 of 2019 Petitioner :- Vatsyayan Shukla And Another Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Anil Tiwari,Chandra Shekhar Mishra Counsel for Respondent :- C.S.C.
Hon'ble Ashwani Kumar Mishra,J.
This petition has been filed for a direction to be issued to the respondents to fill up advertised posts of Computer Operator Grade-A, which have remained unfilled on account of non joining of selected candidates by permitting the petitioners to join against it.
Facts, which are not in dispute, are that recruitment process was initiated by the respondents to fill up the posts in question, according to the provisions of 'The Uttar Pradesh Police Computer Staff (Non-Gazetted Service) (Amended) Rules, 2011'. The Rule itself was amended on 30.6.2015. It is averred that 1865 posts of Computer Operator Grade-A were notified for recruitment, out of which 934 pots were for the open category candidates. According to the petitioners, cut off in open category was 113.75 marks. Total number of 73 candidates had scored 113.75 marks but only 21 out of 73 were selected by applying the rule of ' tie break '. Petitioners have also scored 113.75 marks but have been left out. They have approached this Court with the grievance that initially horizontal reservation was not correctly applied, therefore, a Writ Petition No. 4486 of 2017 was filed which has remained pending. However, 81 persons out of 933 recommended for selection in open category have apparently not joined, and consequently, 81 vacancies have remained unfilled.
Attention of the Court has been invited to Annexure- 5, which is a letter dated 30.10.2018, according to which 81 vacancies of unreserved candidates have remained unfilled and that such candidates have actually not joined. Petitioners submit that once 81 vacancies have remained available on account of non joining of candidates concerned, petitioners are liable to be considered for recruitment.
Learned counsel for the petitioners has placed reliance upon an observation of the Apex Court passed in Special Leave to Appeal (Civil) No. 10604 of 2013 dated 26.7.2013, which is extracted hereinafter:-
" In our view, the policy decision taken by the State Government does not have any bearing on the case of respondent no. 1 because he acquired a vested right to be apointed against the advertised post which remained unfilled due to non-joining of the candidate who was more meritorious than him. It is neither the pleaded case of the petitoenrs nor it has been argued before us that Dr. Vinod Kumar Lavania had joined the service and then resigned. Rather, it is the admitted case of the parties that one of the advertised posts remained unfilled due to non-joining of the selected candidate. This being the positon, the concept of waiting list cannot be brought in picture for defeating the legitimate right of respondent no. 1 appointed against the unfilled post."
It is submitted that the petitioners' claim is liable to be considered in light of the aforesaid observations.
A counter affidavit has been filed in which facts in that regard are not in dispute. Learned Standing Counsel however submits that no waiting list has been prepared and, therefore, petitioners' claim cannot be considered.
So far as the plea of waiting list is concerned, the same will have no applicability in a case of the present nature where the selected candidates have not joined. In case vacancies remain available, the authorities would be expected to fill up the posts from the candidates next in the order of merit, and their claim cannot be rejected only on the ground that a waiting list has not bee prepared. The observation of the Apex Court in the case of State of U.P. and another Vs. Rajiv Kumar Srivastava and others, would be clearly applicable in the facts of the present case.
In view of the above, writ petition succeeds and is allowed. A direction is issued to the respondents to consider petitioners' claim for appointment in light of the observations made above, by passing a reasoned order within a period of three months from the date of presentation of certified copy of this order.
Order Date :- 30.7.2019 n.u.