H.L.Gokhale, C.J. - (1.) SHRI Ashok Khare, learned Senior Advocate has appeared for the appellants. Dr. Y.K. Srivastava, learned Standing Counsel of the State of U.P. has appeared for the respondents.
(2.) ALL these Special Appeals seek to challenge the judgment and order dated 6.5.2005 passed by a learned Judge of this Court in Civil Misc. Writ Petition No. 46812 of 2003 and other connected petitions, whereby the learned Judge has dismissed the writ petitions filed by the appellants herein. Though the writ petitions have been dismissed, the learned Judge has declared the proviso to Rule 8 (3) of the U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 (in short 'Rules 1974') ultra vires the provisions of Article 16 of the Constitution of India and quashed the same. All these appellants had applied in pursuance to an advertisement published on 2.6.2003 to fill up the backlog vacancies of Scheduled Castes and Scheduled Tribes on the posts of 'Constable (Ministerial)'. In all, 165 posts were to be filled and the appellants had appeared in the written tests followed by typing test and interviews and their names were included in the select list published on 13th August, 2003. The Government of U.P. however issued Government Order dated 29th August, 2003 placing in abeyance all direct recruitments. The appellants herein filed writ petitions to challenge the said Government Order. The other prayer in the writ petitions was to seek a writ of mandamus directing the respondents to forthwith issue appointment orders to the appellants on the post of Constable (Ministerial). The respondents in the writ petitions were State of U.P. through Principal Secretary (Appointment and Personnel Department); Secretary, Department of Home (Police Section) and the U.P. Police Headquarters. The petitions were contested, amongst others, on the ground that the calculation of these 165 backlog vacancies of Scheduled Castes and Scheduled Tribes was not correct. The matter was considered by the learned Judge, who accepted this submission. He also accepted the submission of the counsel for the respondents that the selectees did not have indefeasible right to appointment. The learned Judge referred to and relied upon the judgment of the Apex Court in Shankar sant Dash v. Union of India, (1991) 3 SCC 47 and All India Scheduled Castes and Scheduled Tribes Employees Association and another v. A. Arthur Jeen and others, (2001) 6 SCC 380.
(3.) BY the time, these appeals came up for final hearing, certain subsequent developments had taken place and they have been placed through a counter affidavit affirmed by one Smt. Neeti Sharma, Deputy Superintendent of Police (Legal Cell), U.P. Police Headquarters, Allahabad and the rejoinder affidavit filed by one Arvind Kumar who is one of the appellants. Through these affidavits, it has been pointed out that whereas the posts which were advertised in the year 2003 were the posts of Constable (Ministerial), now the State Government has decided not to appoint candidates on the post of Constable (Ministerial) and there will be appointment on the post known as Assistant Sub Inspector (Ministerial). Reliance is placed on the Government communication dated 8th May 2006 issued by the Secretary, Government of U.P. to the Director General of Police. In this communication, it is recorded that as against 134 sanctioned posts of Constable (Ministerial), in fact 982 Constable (Ministerial)/Paid Apprentices were actually working. The posts of Constable (Ministerial) were actually carrying fixed pay of Rs. 3.050/-. Now, it is proposed that the Assistant Sub Inspector (Ministerial) will be given pay scale of Rs. 4,000-100-6,000 and all the persons working on the post of Constable (Ministerial) will be given this pay scale of Rs. 4,000-100- 6,000 and all future vacancies will be adjusted towards these posts of 982 posts of Assistant Sub Inspector (Ministerial). It is further stated in Clause (4) of the communication/direction dated 8th May, 2006 that in future, there will be no appointment on the post of Constable (Ministerial)/Paid Apprentice on the fixed pay of Rs. 3.050/-, though further appointments in the Cadre will be effected only after new Rules are framed. The rationale for this communication is to be found in the first paragraph of the communication dated 8th May, 2006, which states that as against 134 sanctioned posts of Constable (Ministerial), 982 Constables (Ministerial)/Paid Apprentices were working. The work of Constable (Ministerial) as well as the Assistant Sub Inspector (Ministerial) is by and large the same. Their educational and technical qualifications are also the same and, therefore, a decision had been taken to abolish the post of Constable (Ministerial) and to appoint them on the post of Assistant Sub Inspector (Ministerial) carrying the pay scale of Rs. 4,000-100-6,000.;