ANUPAL SINGH AND OTHERS v. STATE OF U.P THROUGH PRINCIPAL SECRETARY, PERSONNEL DEPARTMENT AND OTHERS

G 26. …… The judgment of this Court in Hansa Corporation case is binding on all concerned whether they were parties to the judgment or not. We would like to make it clear that there is no inconsistency in the finding of this Court in Joginder Singh case AIR 1963 SC 913 and Makhanlal Waza case (1971) 1 SCC

H 749. The ratio is the same and the appellants cannot take

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SECRETARY, PERSONNEL DEPTT. [R. BANUMATHI, J.]

advantage of certain observations made by this Court in Joginder A Singh case for the reasons indicated above.”

62Copy pinpoint62. Reiterating the above principle, in Director of Settlements, A.P. and Others v. M.R. Apparao and Another (2002) 4 SCC 638, it was held as under:- “7. So far as the first question is concerned, Article 141 of the B Constitution unequivocally indicates that the law declared by the Supreme Court shall be binding on all courts within the territory of India. The aforesaid Article empowers the Supreme Court to declare the law. It is, therefore, an essential function of the Court to interpret a legislation. The statements of the Court on matters other than law like facts may have no binding force as the facts of two cases may not be similar. But what is binding is the ratio of the decision and not any finding of facts. It is the principle found out upon a reading of a judgment as a whole, in the light of the questions before the Court that forms the ratio and not any particular word or sentence….. A judgment of the Court has to be read in the context of questions which arose for consideration in the case in which the judgment was delivered…… The law which will be binding under Article 141 would, therefore, extend to all observations of points raised and decided by the Court in a given case……”. [underlining added] E After referring to the above judgments, the same principle was reiterated in Fida Hussain and others v. Moradabad Development Authority and Another(2011) 12 SCC 615.

63Copy pinpoint63. Before the High Court in several writ petitions, unsuccessful candidates challenged the revised notification dated 12.10.2014 and also the result dated 21.05.2015 published on 22.05.2015. In all the writ petitions, some contentions were raised and the writ petitions were disposed of by the common judgment. Thus, the contentious issues raised by the parties stood determined on the same set of facts and on the same reasonings. There is no merit in the contention that the judgment passed by this Court would bind only the parties in Writ-C No.34196 of 2015 and that the other judgments passed by the High Court would stand and operate as res judicata. As held in M/s Shenoy and Co. and other judgments, to do so is to ignore the binding nature of a judgment of this Court under Article 141 of the Constitution of India. H

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A Non-impleading of successful candidates in the writ petition

64Copy pinpoint64. On behalf of the appellants, repeated arguments were advanced that the non-impleadment of successful parties will affect the right of the selected candidates who have been selected and given appointments. In this regard, the High Court relied upon Union of India and Others v. B O. Chakradhar(2002) 3 SCC 146 to hold that it is not necessary to implead all the successful candidates in the writ petition and therefore, non-impleadment of the successful candidates would not affect the maintainability of the writ petition. The learned Senior counsel appearing for the appellants submitted that in O. Chakradhar, the entire selection was vitiated due to misconduct of the selection and in the present case, C there is no such misconduct, fraud or any such other factor which would vitiate the entire selection. It was submitted that the High Court itself has upheld the result of the written examination while finding fault with the further selection only because of the change in the number of vacancies advertised for each category.

65Copy pinpoint65. When the selection of successful candidates is challenged, depending upon the facts and circumstances of the case, the successful candidates ought to be put on notice about the filing of writ petition by impleading them by issuance of notice in accordance with law vide Poonam v. State of Uttar Pradesh and others(2016) 2 SCC 779. In E the present case, we are not inclined to go into this question in view of the order passed by the High Court dated 04.06.2015. In WP-C No.34196/ 2015, the High Court asked the writ petitioners/private respondents lawyer to implead the incumbents as parties who have been selected for the post in question. Before the High Court, Mr. Ajay Kumar, learned counsel representing the UP Public Service Commission submitted that he would supply at least names of ten successful candidates along with the details and by the order of the court, the counsel appearing for the writ petitioners were directed to serve notice upon those ten candidates. In such facts and circumstances, we are not inclined to go into this question as to impleading/non-impleading of all the successful candidates in the writ petition.

66Copy pinpoint66. Re: Contention – Appointment letters not issued to 906 candidates and plea to exercise power under Article 142 of the Constitution of India: After the interview was completed, the UP Public Service Commission has selected 6599 candidates and the H

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SECRETARY, PERSONNEL DEPTT. [R. BANUMATHI, J.]

category-wise details of the candidates so recommended by the A Commission are as under:-

Total Vacancies General Scheduled Castes Scheduled OBC Tribes

B 6599 2488 1881 + 176 25 2029 Because of non-availability of ST Candidates + 2057

67Copy pinpoint67. The UP Public Service Commission has withheld the result of 29 candidates. The recommendation so made by the UP Public Service C Commission was in excess of the permissible percentage of reservation as per UP Reservation Act, 1994. In fact, this was one of the grounds of challenge in the writ petition to assail the select list. In the counter filed by the Principal Secretary, Personnel, Government of UP, it is stated that change in the category-wise vacancies was further scrutinised in terms of Uttar Pradesh Public Services (Reservation for Scheduled D Castes, Scheduled Tribes and Other Backward Classes) Act, 1994. It was found that a harmonious construction of its various sections was needed to be taken. In the counter affidavit filed by the Principal Secretary, Personnel, it is stated that the total of 6628 vacancies was exceeding the demarcated percentage and the relevant portion of the E said affidavit reads as under:- “Hence, a further revision in category-wise vacancy position was made and subject to the orders of the Hon’ble High Court, the total 6628 vacancies have been sub-divided based on the reservation percentage as the result which was declared by F UPPSC was exceeding the demarcated percentage in the following manner:

Available posts General Scheduled Scheduled OBC after 2% reduction (50%) Castes Tribes (27%) G (21%) (2%) 6628 3316 1391 132 1789

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A Thereafter, the application of horizontal reservation for dependents of Freedom Fighters, Ex-Servicemen, Disabled persons and Women was proposed as follows:

Dependent of Women Ex-Servicemen Disabled B Freedom Fighters Persons 132 1325 331 252

68Copy pinpoint68. Writ Petition No.62112/2015 was filed by few of the successful candidates for issuance of appointment letter and the High Court vide C its order dated 15.12.2015 directed the official respondents to issue appointment order. The High Court further clarified that any such appointment made as well as the select list shall abide by any order which may be passed by the Division Bench. Pursuant to the aforesaid order, the Chief Secretary, Government of UP vide its letter No.1161/ D 12-4-15-1729/2012 dated 22.12.2015 gave directions to the Department that appointment orders be issued to the selected candidates and that the appointment should abide by the final decision of the court. Accordingly, the appointment orders were issued to the selected candidates on 30.01.2016 as under:-

E Position Unreserved Scheduled Scheduled OBC Total Castes Tribes

Appointment order issued by Agriculture 2478 1385 22 1784 5669 Department F Documents withheld by UPPSC 10 06 03 05 24

Total 2488 1391 25 1789 5693 Number of candidates whose appointment letter --- 490 176 240 906

G were not issued

The appointments were made subject to the outcome of the writ petition. Thus, total of 5669 candidates were issued appointment orders; the appointment orders were withheld for 24 candidates as the documents were withheld by UP Public Service Commission. H

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SECRETARY, PERSONNEL DEPTT. [R. BANUMATHI, J.]

69Copy pinpoint69. Mr. Mehul M. Gupta, learned counsel submitted that even though UP Public Service Commission has recommended 6599 candidates on the basis of the vacancies available, 906 candidates were left out and were not issued appointment orders and prayed for direction d that the 906 candidates be issued appointment orders. It is pertinent to note that these 906 candidates were ranked lower in the merit list than the last selected candidate in their respective category under the reservation limit as identified by the Personnel Department, therefore appointment orders were not issued to them. This cannot be said to be arbitrariness or discrimination as selection of candidates was on the basis of the merit list. Further, the revised requisition dated 20.08.2014, on the basis of which the impugned office memorandum was issued itself was C a case of excessive requisition, that is, beyond the permissible limits set out by the UP Reservation Act, 1994. As a result of this excessive requisition, 906 extra candidates recommended could not be issued appointment orders after the revision.

70Copy pinpoint70. As pointed out earlier, the revised requisition dated 20.08.2014 D and the revised notification of the UP Public Service Commission itself were in excess of the permissible limits of reservation as per UP Reservation Act, 1994. We cannot pass direction to accommodate the surplus candidates as that would be in excess of the permissible limit as prescribed by the Act and would be in violation of prescribed limits of reservation as per the statutory provisions of UP Reservation Act, 1994. E In exercise of power under Article 142 of the Constitution of India, if we are to issue direction to appoint 906 candidates, it will be crossing the limits of 50% reservation which would be violation of the constitutional provisions and the UP Reservation Act, 1994. Even assuming that the respondent State was not diligent in carrying out the proper quantifiable F data of existing working strength in different categories and ascertaining the vacancies position under different categories, it needs no reiteration that a wrong cannot be corrected by committing another wrong.

71Copy pinpoint71. It is fairly well-settled that the selected candidates do not have any indefeasible right to be appointed. As held in State of Bihar G and Others v. Amrendra Kumar Mishra (2006) 12 SCC 561, merely because the names of candidates were included in the provisional select list, they do not acquire any indefeasible right to be appointed. Merely because UP Public Service Commission has recommended the names

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A of 906 candidates, they do not acquire any indefeasible right for being appointed.

72Copy pinpoint72. In the counter affidavit filed by the State of U.P., it is stated that the candidates who were selected but not issued appointment letter filed a Writ Petition No.6198 of 2016 and the High Court vide order B dated 02.03.2016 has directed the State to issue appointment letter in favour of the petitioners thereon. On request from the Agricultural Department, the Government after taking the opinion of Chief Standing Counsel has filed the Special Appeal before the Division Bench challenging the order dated 02.03.2016. The said Special Appeal was tagged with the Writ-C No.34196 of 2015. Since in Writ-C No.34196 of C 2015, the High Court quashed the revised requisition dated 12.10.2014 and the result and quashed the entire selection process subsequent to the declaration of the written examination, consequently the Special Appeal came to be dismissed.

73Copy pinpoint73. So far as the present vacant position in the counter affidavit filed by the State, it is stated that there are total vacancies of 4838 and the next selection process for selecting 2050 candidates has been sent. The relevant portion of the counter affidavit filed by the State of U.P. before this Court reads as under:- “…….It is pertinent to mention that the Department currently has a total present vacancy of 4838, and has accordingly sent a requisition letter to the Subordinate Services Selection Commission for selecting 2059 candidates. So, effectively as of today 2779 vacancies have still not been requisitioned keeping in mind 959 (906+53) posts under the consideration on which appointment order were not issued. A break-up of the current requisition of above mentioned 2059 vacancies is as follows: No. of vacancies General SC/ST OBC requisitioned

After filing the aforesaid vacant posts, the vacancies of the said post as per cadre strength is as follows:

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SECRETARY, PERSONNEL DEPTT. [R. BANUMATHI, J.]

74Copy pinpoint74. Mr. Mehul Gupta, learned counsel on behalf of some of the appellants has prayed that power under Article 142 of the Constitution of India be exercised for extending the benefit of a beneficial provision to overcome injustice caused to 906 candidates who were not issued the appointment orders. It was submitted that the technical flaw in the revised requisition was in excess of the prescribed limit of reservation being in excess of the permissible limits under the UP Reservation Act, 1994 and the same can be rectified by exercising power under Article 142 of the Constitution of India. Learned counsel further submitted that 906 candidates in three different categories i.e. SC, ST and OBCs have successfully completed the written examination and the interview and these successful candidates have nothing to do with these technical flaws and therefore, prayed that in order to do complete justice, the power under Article 142 of the Constitution of India be exercised. In support of his contention, Mr. Mehul Gupta, learned counsel has placed reliance upon Union of India and Others v. Permanand Singh 1999 Supreme Court Cases (L&S) 625 and D.M. Premkumari v. Divisional D Commissioner, Mysore Division and Others (2009) 12 SCC 267.

75Copy pinpoint75. Pointing out that even presently, there are 2779 vacancies and that 906 vacancies are kept apart, Mr. Mehul Gupta, learned counsel appearing for 906 candidates has submitted that 906 candidates can be accommodated in the aforesaid 2779 vacant posts existing as on date. This contention does not merit acceptance. The present vacancies i.e. E 4838 and the available vacancies i.e. 2779 are the future vacancies which are to be filled up by a fresh advertisement and by participation of all the eligible candidates including the 906 candidates and other unsuccessful candidates. 2779 vacancies existing as on date, which are the vacancies as on date i.e. in 2019 cannot be filled up by the candidates who got selected pursuant to the advertisement in 2013-2014.

76Copy pinpoint76. Article 142 of the Constitution of India confers wide power upon the Supreme Court to do complete justice between the parties. Though the powers conferred on the Supreme Court by Article 142 are very wide, the same cannot be exercised to pass an order inconsistent with express statutory provisions of substantive law. In Ramji Veerji Patel and Others v. Revenue Divisional Officer and Others (2011) 10 SCC 643, the Supreme Court held that the power under Article 142 of the Constitution of India is to be exercised very carefully and sparingly. The power under Article 142 of the Constitution of India can be exercised H

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A so as to do complete justice between the parties. However, as held in Supreme Court Bar Association v. Union of India and Another (1998) 4 SCC 409, though the power under Article 142 of the Constitution are plenary in nature, the same cannot be construed to mean that the power can be used to supplant the substantive law applicable to the case. In the case in hand, as discussed earlier, as per the provisions of Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994, specific percentages of vacancies have been reserved for different categories viz., (a) Scheduled Castes – 21% (b) Scheduled Tribes – 2% and (c) OBC – 27%. In any recruitment, this statutory permissible limit of reservation not exceeding 50% has to be maintained. The power under Article 142 of the Constitution of India cannot be exercised to supplant the statutory provision under the UP Reservation Act, 1994. In our view, in exercise of power under Article 142 of the Constitution of India, no direction can be issued to the State of UP to issue appointment orders to the 906 candidates. D

77Copy pinpoint77. Summary of Conclusion:- (i) The Office Memorandum dated 12.10.2014 issued by the UP Public Service Commission revising the number of vacancies is based upon the revised requisition of the E Government dated 20.08.2014. The revised requisition of the Government dated 20.08.2014 was only to rectify the wrongful calculation of the number of vacancies in different categories and to comply with the requisite percentage of quota of reservation in different categories as per Uttar Pradesh Public Services (Reservation for Scheduled Castes, F Scheduled Tribes and Other Backward Classes) Act, 1994; (ii) In view of Rule 15 and Rule 6 of UP Subordinate Agriculture Services Rules, 1993 (Agriculture Service Rules, 1993), the Recruitment Authority is empowered to rectify the wrongful calculation and make a revised requisition of number of G vacancies in different categories which is in accordance with the provisions of UP Reservation Act, 1994 and Agriculture Service Rules, 1993; (iii) Absorption of diploma holders were required to be done only against the “General quota”. The High Court was not right H

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SECRETARY, PERSONNEL DEPTT. [R. BANUMATHI, J.]

78Copy pinpoint78. In the result, the common impugned judgment dated 10.02.2017 of the High Court in WP(C) No.34196 of 2015 and batch of writ petitions is set aside and these appeals are allowed. The private respondents/intervenors and 906 candidates who were not issued H

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A appointment orders and those who filed writ petitions before the High Court shall be granted age relaxation as one-time measure to participate in the upcoming recruitment. Age relaxation is strictly a one-time mea- sure. Consequently, all the intervenors/impleading applications stand dis- missed. B Devika Gujral Appeals allowed.