- (1.) A. S. Gill, J. In this petition under Article 226 of the Constitution petitioner seeks issuance of a writ, order or direction in the nature of mandamus to the opposite parties, directing them to give appointment to him on the post of Junior Engineer (Civil) from the date of appointment of his next junior and to allow his all the benefits attached to the post, which have been given his juniors on the post.
(2.) THE facts, as have been narrated in the writ petition, are that the petitioner Vijay Kumar Shukla in response to a Government advertisement for the post of Junior Engineer (Civil) was interviewed on 2nd July, 1983 by a selection committee and he was placed at serial No. 98 out of the 200 persons declared successful. THE appoint ments were given to successful candidates, even to the candidates whose names were in the select list below than the petitioner i. e. , from serial Nos. 99 to 140\and that the petitioner was discriminated in the matter of appointment, which contravened con stitutional mandate in Articles 14 and 16. Petitioner submitted representations to the Director, Local Bodies U. P, opposite party No. 2, who referred the matter to the Government and the case was considered by the Joint Secretary and the Secretary and nothing fruitful was indicated to the petitioner and ultimately on 19th May, 1987 the opposite party No. 2 informed the petitioner that it was not possible to give him appointment at this very late stage. THE petitioner claims that the opposite parties have adopted pick and choose method in the matter of appointment and the rightful claim of the petitioner has been denied to him as he had a right to get appointment on the post of Junior Engineer as juniors to him in the merit list were given appoint ment. On notice the opposite parties through Sri M. L. Paswan, Deputy Director, Local Bodies filed counter- affidavit, \ wherein it was admitted that the petitioner was placed at serial No. 98, declared in the year 1983, in accordance with the merit. The name of the petitioner along with five other selected candidates was sent to the Govern ment for posting in the Town Area of the State on such a requisition by the State Government for this purpose. It was ad mitted that the name of the petitioner along with five others was sent for appointment in Town Area of the State, but the State Government subsequently, refused to post the petitioner by its decision dated 31st July, 1985, copy of which is Annexure C-A-1. In the second counter-affidavit dated 12th Oc tober, 1995, it was also claimed that 40 posts were vacant and 46 candidates including the reserved candidates were given appoint ment on the post of Junior Engineers in accordance with their merits and since the select list was in existence only for one year vide Government order dated 16th January, 1985 (Annexure A-2), the Government refused to extend the life of the select list and that no junior to the petitioner was appointed from the general cadre from the select list. It was denied if candidates at serial Nos. 99 to 140 were given appoint ment. That subsequently sixty persons were given appointment, who were already work ing on daily wages/contract basis as Junior Engineers since long and that the petitioner cannot claim parity with them. Another counter-affidavit dated 8. 3. 1996 has also been filed and a further plea was taken that after issuance of the Government order dated 31st July, 1985, no appointment from the select list was made ignoring the petitioner. In the rejoinder-affidavit and supplementary affidavit the petitioner has reiterated that he has been discriminated in the matter of appointment by the opposite parties when a large number of persons placed in similar circumstances and junior to him in the merit list from serial Nos. 99 to 140 were given appointments without considering and appointing him and the only reason given for his non-appointment was that his name was sent for appointment and posting to the Government along with others. He further reiterated that on 4th June, 1984 vide Annexure R-l, on 16th May, 1985 vide Annexure R-2 and on 9th August, 1985 vide Annexure R-3 the Director, Local Bodies specifically mentioned for giving ap pointment to the petitioner and also ad mitted that juniors to the petitioner were given appointment on the presumption that the Government having requisitioned names of six persons from the select list for appointment, the petitioner would be given appointment, whose name along with the five others was duly sent to the Government in response to the requisition aforesaid. The petitioner further mentioned that his name figured in the main list and not in the wait ing list. In the supplementary affidavit the petitioner has given names of 34 persons whose names appeared below to his name in the final select list, who were given appoint ment from time to time till July 15,1984. The learned counsel for the parties have been heard at length. The annexures and other documents annexed with the writ petition are in Deonagri script, which I do not know or understand and since no trans lation of these documents has been provided, learned counsel for the petitioner has assisted the Court in explaining the con tents of these documents and shall be referred to accordingly as explained.
(3.) THE facts of the case are not much in dispute. It is admitted case of the parties that for the post of Junior Engineer the petitioner was one of the successful and selected candidates and his name figured at serial No. 98 of the select list (merit list ). It is not disputed that the select list was adhered to by the appointing authority and the ap pointments to various candidates were given and the State Government requisi tioned six names from the same very select list from Director, Local Bodies for ap pointment of Junior Engineers in the Town Area Committees in the districts of Ballia and Gorakhpur and in response the Direc tor, Local Bodies vide its letter dated 4th June, 1986, copy of which is stated to be Annexure R-l, had sent the names of six persons, four from general category and one each from scheduled caste and backward castes for appointment and posting purposes. It was further admitted case that the successful candidates subsequent and junior to the petitioner in the select list were given appointments, however, the petitioner was denied the appointment, when it came to be known through letter dated 31st July, 1985, which was in reply to the letter dated 16th January, 1985 whereby the Government in formed the Director, Local Bodies that the select list of Junior Engineers dated 15th October, 1983 was for one year and it was not possible to extend the same and that a fresh selection would be made for filling up of the vacancies. It would, thus, be seen that although the Director, Local Bodies made appointments on the various posts of Junior Engineers (Civil) from the select list even of candidates who were junior to the petitioner, the petitioner was denied the appointment simply because his appoint ment and posting order was not issued by the State Government although his name for the same purpose was sent well within the period of one year of the life of the select list, if it be taken that it was only for one year. THE petitioner was denied the appoint ment for no fault of his. In the circumstances he was to be given appointment by the Director, Local Bodies in case his name alongwith others had not been sent to the State Government in response to a requisi tion for appointment of such number of Junior Engineer (Civil) by the Government in the Town Area Committees of districts Ballia and Gorakhpur. It is obviously clear that the Government had requisitioned the names, including that of the petitioner from the select list which was in operation and appointments were being given by the Director, Local Bodies, but the appoint ment was not given to the petitioner and other persons simply because that after lapse of one year the Government decided not to give appointment to the petitioner. THEre is merit in the contention of the learned counsel for the petitioner that ad mittedly the posts were available in the dis tricts of Ballia and Gorakhpur, which were sought to be filled up by the Government, but the concerned authorities slept over the matter and did not pass the appointment orders in respect of the petitioner without any reasonable excuse and to take a stand that since the period of the list had expired, cannot serve detriment to the petitioner. It is no doubt true that mere selec tion and interview or name appearing of the candidate in the select list does not ipso facto entitle such a successful candidate to appointment as it does not create any vested right to claim appointment. However, if the appointments are made from the same very select list, more so when juniors in the select list to him are given appointments, he can rightfully claim that he has been dis criminated in the matter of appointment, which contravenes the provisions of Article 16 of the Constitution. It amounts victimis ing such a person and denies him the right of equal opportunity in the matter of public employment or appointment under the State. The letters, copies of which have been referred as Annexures R-2 and R-3 are quite significant. These letters have been written by the Director, Local Bodies to the Secretary, Local Bodies to the Government. As has been explained by the learned coun sel for the petitioner, these letters reiterate and emphasize that injustice was being done in the case of the petitioner as juniors to him had already been given appointments and that still vacancies were available on which the petitioner (and five others) can be duly appointed. However, these pleas were rejected and ignored by the Government in the letters already referred to as Annexures A-2 and A-l dated 16th January, 1985 and 31st July, 1985 respectively. The learned Standing Counsel has not disputed that in the case of petitioner he has been denied appointment only because the select list had lapsed, he has relied upon a decision of the Supreme Court in State of Uttar Pradesh v. Harish Chandra, JT 1996 (4) SC 414 : 1996 (2) LBESR 85 (SC), to support his conten tion that since the life of the select list ex pired, no appointment could be made on the basis of such a select list any more. The learned Standing Counsel and for that mat ter the opposite parties have not brought on record any rule or regulation or even the Government order, which restricts the life of a select list, specially the one, by which the petitioner was declared successful for the appointment. There is no reference or reliance on any rule of the service for which selection was made, which prescribes the procedure for selection including the ap plicability of the select list to the vacancies for which the selections were made. It is not in dispute that the vacancies, for which the selection was made, were available at the time the name of the petitioner alongwith others was sent for appointment and post ing and even after, but he was not given appointment when junior to him were duly appointed. He obviously stands dis criminated in the matter of appointment. The decision of the Hon'ble Supreme Court in the State of U. P and others v. Harish Chandra and others (supra) makes it clear that no mandamus directing the Govern ment to make recruitment contrary to the provisions of the Rules can be issued. In the. aforesaid case the statutory Rules provided the procedure of recruitment/selection to the post and Rule 26 specifically provided that the merit list shall hold good for a period of one year from the date of selec tion. In such circumstances there could hardly be any claim for appointment to the post on the basis of the lapsed select list. However, in the instant case, as referred above already, there is no such reference or reliance upon any such rule which restricts the life of the select list in question to one year from the date of selection. Be that as it may, the present case is altogether on a different footing. The appointments given to other candidates who were below in seniority (merit list) to the petitioner, were not after the expiry of the select list as was the case in the aforesaid decision of the Supreme Court, however, juniors to the petitioner were given appointment upto 15th October, 1984 i. e. , within one year of the selection and also according to the counter-affidavit dated 8th March, 1996 in para 5 that no appointment of the can didates from the aforesaid select list were made ignoring the petitioner after the is suance of Government order dated 31. 7. 85, which by itself admits that there were no specific directions or rules earlier to the Government order dated 31. 7. 85, that the select list would hold good only for one year. The fact remains that the candidature of the petitioner was arbitrary cancelled although his name was duly received by the Govern ment even within a year of the list and vacan cy was available for appointment. It is also obviously clear that the petitioner was or dinarily to be given appointment and post ing by the Director, Local Bodies as his juniors were given, but for the fact that his name alongwith- others was sent to the Government for posting in the Town Area Committees of the districts of Ballia and Gorakhpur. This fact stands duly admitted in the letters Annexures R-2 and R-3 by the Director, Local Bodies.;