Full Judgment Text
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CASE NO.:
Appeal (civil) 4281-4289 of 2003
Appeal (civil) 4280 of 2003
Appeal (civil) 4279 of 2003
Appeal (civil) 4278 of 2003
PETITIONER:
(Arising out of S. L. P. (C) Nos. 3032-3040/2002)
(Arising out of S.L.P. (C) No. 4079 of 2002)
(Arising out of S.L.P. (C) No. 4077 of 2002)
(Arising out of S.L.P. (C) No.____(CC1629) of 2003)
State of Uttaranchal & Ors.
State of Uttaranchal & Ors.
State of Uttaranchal & Ors.
State of Uttaranchal & Ors.
RESPONDENT:
Vs.
Sidharth Srivastava & Ors.
Bharat Pal & Ors.
Rajpal Singh Pahawa & Ors.
Ravindra Pratap Singh & Ors.
DATE OF JUDGMENT: 05/06/2003
BENCH:
Shivaraj V. Patil & Arijit Pasayat.
JUDGMENT:
J U D G M E N T
Shivaraj V. Patil J.
Delay condoned in SLP (C) No.____/2003(CC
1629/2003).
Leave granted in all the SLPs.
These appeals are by the State of Uttaranchal
assailing the common judgment and order dated 6th
November, 2001 passed by the Division Bench of the High
Court of Uttaranchal.
Resolution of, the dispute in these appeals
depends on the answer to the question whether the
selection made by the Uttar Pradesh Public Service
Commission, prior to formation of State of Uttaranchal,
is binding on the State of Uttaranchal so as to appoint
selected candidates to the services in the State of
Uttaranchal having due regard to Article 323(2) of the
Constitution of India and Section 78(4) of The Uttar
Pradesh Reorganisation Act, 2000.
Uttar Pradesh Public Service Commission (UPPSC)
published advertisement inviting applications for 544
posts of J.E. Civil/Technical (507 Civil + 37
Technical). The result of selection was published on
4.1.2000. The UPPSC sent its recommendations to the
U.P. Government on 30.10.2000. The U.P. Government
forwarded the recommendations on 31.10.2000 to the
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Chief Engineer’s Office, Hill Cadre, Almora. The
separate State of Uttaranchal came into existence on
9.11.2000. U.P. Government forwarded the UPPSC
recommendations in respect of posts in Hill Cadre to
the Government of Uttaranchal. On 29.8.2001,
Government of Uttaranchal issued the order not to
appoint the selected candidates mentioning two reasons
that â\200\223 (1) the new reservation policy of the State of
Uttaranchal is different from that of U.P. and (2)
practical and legal difficulties "in such a
situation" in giving appointments to the candidates
recommended by the UPPSC. The selected candidates,
aggrieved by the same, filed a batch of writ petitions
assailing the said order, impleading State of
Uttaranchal and its officers, State of Uttar Pradesh
and its officers and UPPSC. The Division Bench of the
High court, by the common impugned judgment allowed the
writ petitions and issued direction to the State of
Uttaranchal to give appointments to the writ
petitioners. The High Court took the view that the
recommendations made by the UPPSC of the erstwhile
State of U.P. were binding on new State of Uttaranchal.
On behalf of the appellants the following
contentions were urged: -
(1) Under Article 323(2) of the Constitution of India,
it shall be the duty of a State Public Service
Commission to present annually to the Governor of
the State a report of the work done by the
Commission. The Governor shall, on receipt of
such report, cause a copy thereof together with a
memorandum explaining, as respects the cases, if
any, where the advice of the Commission was not
accepted, the reasons for such non-acceptance to
be laid before the State Legislature of the State.
(2) Section 78(1) of The Uttar Pradesh Reorganisation
Act 2000 (for short ‘the Act’) declares that the
Public Service Commission of the existing State of
Uttar Pradesh shall be the Public Service
Commission from the appointed day for the State of
Uttar Pradesh. Section 78(4) clearly provides
that the report of UPPSC would be presented under
Article 323(2) to the Governors of the States of
Uttar Pradesh and Uttaranchal. But it was the
Governor of Uttar Pradesh alone who was to cause
the report alongwith Memorandum explaining the
reasons for non-acceptance of the advice of the
Commission to be laid before the Legislature of
the State of U.P. The reason why the Legislature
provided "it shall not be necessary to cause such
report or any such memorandum to be laid before
the Legislative Assembly of the State of
Uttaranchal" was because the UPPSC was not a
joint Commission since State of Uttaranchal was
not even in existence and no functions could be
rendered by the pre-existing UPPSC in respect of
the new State of Uttaranchal.
(3) In view of the express parliamentary intention
that such a report need not be laid before the
Legislative Assembly of the State of Uttaranchal
suggests that the report of the UPPSC is not
binding upon the State of Uttaranchal which would
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have to constitute its own Public Service
Commission for the purpose of discharging
constitutional duties vide Article 315.
(4) Section 86 of the Act is a residuary provision.
It deals with the effects of the pre-existing
laws. Even assuming, the U.P. Service
(Reservation in favour of Scheduled Castes &
Scheduled Tribes and Other Backward Clauses) Act,
1994 continued to be in force within the
territories of Uttaranchal, it does not oblige the
State of Uttaranchal to follow a similar policy of
reservation.
(5) The decision of the State of Uttaranchal dated
29.8.2001 not to appoint the selected candidates
on the recommendations of the UPPSC is not an
unconstitutional act and no fault can be found
with the said decision. For the purpose of
appointment to public services, the State of
Uttaranchal is to have due regard to Article 315
of the Constitution. In view of Section 78(4) of
the Act, communication of the State of U.P.
forwarding the list of candidates to the appellant
State has also no legal force.
(6) The order passed by the Government that after the
constitution of the State of Uttaranchal, the
reservation policy having been changed and that a
decision that candidates recommended by the UPPSC
should not be appointed in various departments of
the Government of Uttaranchal, is a decision which
is valid and consistent with the autonomy and the
freedom of the executive action enjoyed by a
newly-born State.
(7) The High Court committed an error in wrongly
construing the relevant constitutional provisions
and Section 78(4) of the Act in judging the
validity of the order dated 29.8.2001 of the State
of Uttaranchal.
(8) Re-organisation of a State is an event which
necessarily alters the existing State affairs.
Merely because the Governor of the State of U.P.
did not reverse the report of the UPPSC did not
oblige the State of Uttaranchal to make
appointments of the candidates selected by UPPSC.
(9) Even though a person is placed in the merit list
of selected candidates, he did not have an
indefeasible right to be appointed as held by this
Court; validity of the State action in these
appeals must be viewed with reference to the
creation of a new State and its commitment to make
appointments to the public services within the
State on the basis of the recommendations of the
Public Service Commission. Though, there cannot
be any arbitrary refusal to appoint, there must be
a nexus between the existence of a Public Service
Commission for a State and its recommendations
before the State Government. In the present
cases, there was no advertisement by the State of
Uttaranchal and no selection was made by Public
Service Commission of the State of Uttaranchal;
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hence to rely upon recommendations of the UPPSC
for appointments to the erstwhile Hill Cadre would
be legally apposite.
Opposing these submissions and supporting the
impugned judgment, submissions made on behalf of the
respondents were ;-
(1) The decision dated 29.8.2001 of the State of
Uttaranchal cannot be justified on the basis of
Section 78(4) of the Act. As can be seen from the
said decision, it is not based on Section 78(4) of
the Act but based on the change of the reservation
policy by the new State of Uttaranchal; the State
cannot add such fresh reasons subsequently in the
shape of an affidavit or otherwise. When the
statutory functionary makes an order based on
certain grounds, its validity must be judged by
the reasons so mentioned and cannot be
supplemented by fresh reasons.
(2) The reservation policy of the State of U.P. is
embodied in the Uttar Pradesh Services
(Reservation for Scheduled Castes, Scheduled
Tribes and Other Backward Classes) Act, 1994. The
said Act continues to remain in force in
Uttaranchal in terms of Section 86 of the Act as
it has not been amended or repealed by the
Uttaranchal Legislature. The executive decision
dated 29.8.2001 cannot prevail over U.P. Act,
1994. Consequently, the decision dated 29.8.2001
was unsustainable.
(3) The affidavit of the U.P. Government shows that it
had accepted the recommendations of the UPPSC.
The letter of Chief Engineer, Uttaranchal, PWD,
Almora dated 4.1.2001 refers to the letter of
UPPSC dated 30.10.2000 to the Chief Engineer, PWD,
and the subsequent letter dated 7.11.2000 of the
UPPSC to the Chief Engineer, Almora, both were
prior to the re-organisation. Therefore, no
further acceptance by the Uttaranchal Government
was involved in these cases.
(4) The further fact that Uttaranchal Government has
been making appointments of candidates selected by
the UPPSC even after U.P. State was re-organised
vide appointment letters dated 28.9.2000 and dated
1.3.2001 establishes that the Uttaranchal State
considered the recommendations of the UPPSC prior
to re-organisation as valid and binding. It is
not open to the State Government to resile from
this position subsequently.
(5) The conduct of Uttaranchal Government in making
some appointments and refusing to make other
appointments recommended by the UPPSC is not only
inconsistent and arbitrary but also lacks bona
fide. The object behind the decision of 29.8.2001
appears to be to bypass the constitutional
requirement as well as the recruitment rules made
under Article 309 of making appointments only
through the Public Service Commission.
(6) Section 78(4) requires the report of the UPPSC as
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to the work done by the Commission prior to the
date of re-organisation shall be presented under
Article 323(2) not only to the Governor of U.P.
but also to the Governor of the State of
Uttaranchal. While for the Governor of Uttar
Pradesh, it was mandatory to place the report of
the UPPSC before the Legislative Assembly of U.P.,
in the case of the advice of the Commission was
not accepted in some cases as far as the Governor
of Uttaranchal is concerned, it said that "it
shall not be necessary" to cause such report or
any such memorandum to be laid before the
Legislative Assembly of the State of Uttaranchal.
The words "it shall not be necessary" only mean
that it is not obligatory but discretionary.
There is no prohibition to cause such report or a
memorandum to be laid before Uttaranchal Assembly
if the Governor so desires. Parliament in
exercise of powers mandated the UPPSC to present
its report to the Governor of Uttaranchal also
shows its clear intention that recommendations of
the UPPSC are equally binding on Uttaranchal as
well.
(7) The absence of mandatory legislative check in the
case of Uttaranchal, does not in any way affect
the accountability of the State Government to the
judiciary in the instant case which is an
independent constitutional requirement. The High
Court was right in holding that the reasons given
in the decision of the Government of Uttaranchal
dated 29.8.2001 are not valid.
(8) As held in P.Mahendran & Ors. Vs. State of
Karnataka & Ors. [(1990) 1 SCC 411] and N.T. Devin
Katti & Ors. vs. Karnataka Public Service
Commission & Ors. [(1990) 3 SCC 157] selection of
appointment has to be made in accordance with the
rules in force at the time of initiation of the
selection process i.e. the publication of
advertisement. Therefore, change of reservation
policy subsequent to the selection cannot come in
the way of making appointments on the basis of the
selection made by the UPPSC for the posts
earmarked in the Hill Region of U.P. which became
an integral part of the State of Uttaranchal on
the appointed day.
(9) When there are clear vacancies and there are
candidates selected in accordance with law by a
constitutional body, namely, UPPSC and there is
urgent need to fill up the said vacancies, it is
wholly arbitrary on the part of the State not to
fill up the vacancies by the candidates selected
and recommended by the UPPSC and going in for
fresh recruitment bypassing the Public Service
Commission.
It is useful to notice the provisions of the
Constitution of India and the Act to the extent they
are relevant, in examining the rival contentions, urged
on behalf of either side.
RELEVANT PROVISIONS OF THE CONSTITUTION OF INDIA
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"Article 2:- Admission on establishment
of new States - Parliament may by law
admit into the Union, or establish, new
States on such terms and conditions as
it thinks fit."
Under Article 153, there shall be a Governor for
each State. The executive power of the State shall be
vested in the Government and shall be exercised by him
either directly or through officers subordinate to him
in accordance with the Constitution. Under Article
168, for every State, there shall be a Legislature.
There shall be a High Court for each State as per
Article 214.
"Article 309 â\200\223 Recruitment and
conditions of service of persons serving
the Union or a State:- " Subject to the
provisions of this Constitution, Acts of
the appropriate Legislature may regulate
the recruitment, and conditions of
service of persons appointed, to public
services and posts in connection with
the affairs of the Union or of any
State:
Provided .............any such Act."
"Article 315. Public Service
Commissions for the Union and for the
States â\200\223 (1) Subject to the provisions
of this article, there shall be a Public
Service commission for the Union and a
Public Service Commission for each
State.
(2) Two or more States may agree
that there shall be one Public Service
commission for that group of States and
if a resolution to that effect is passed
by the House, where there are two
Houses, by each House of the Legislature
of each of those States Parliament may
by law provide for the appointment of a
Joint State Public Service Commission
(referred to in this Chapter as Joint
Commission) to serve the needs of those
States.
(3) Any such law as aforesaid may
contain such incidental and
consequential provisions as may be
necessary or desirable for giving effect
to the purposes of the law.
(4) The Public Service Commission
for the Union, if requested so to do by
the Governor of a State, may, with the
approval of the President, agree to
serve all or any of the needs of the
State.
(5) References in this Constitution
to the Union Public Service Commission
or a State Public Service Commission
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shall, unless the context otherwise
requires, be construed as references to
the Commission serving the needs of the
Union or, as the case may be, the State
as respects the particular matter in
question."
"Article 320 :- Functions of Public
Service Commissions â\200\223 (1) It shall be
the duty of the Union and the State
Public Service Commissions to conduct
examinations for appointments to the
services of the Union and the services
of the State respectively.
(2) It shall also be the duty of the
Union Public Service Commission, if
requested by any two or more States so
to do, to assist those States in framing
and operating schemes of joint
recruitment for any services for which
candidates possessing special
qualifications are required.
(3) The Union Public Service
Commission or the State Public Service
Commission as the case may be, shall be
consulted-
(a) on all matters relating to methods
of recruitment to civil
services and for civil posts;
(b) on the principles to be followed in
making appointments to civil
services and posts and in making
promotions and transfers from one
service to another and on the
suitability of candidates for such
appointments, promotions or
transfers;
(c) ....................
(d) ....................
(e) ....................
(4) ....................
(5) ..................."
Under Article 320, it shall be duty of the Union
and the State Public Service Commissions to conduct
examinations for appointments to the services of the
Union and the services of the State respectively.
The Union Public Service Commission or the State
Public Service Commissions, as the case be, shall be
consulted on the matters enumerated under Article
320(3) which include all matters relating to methods
of recruitment to civil services and for civil posts.
"Article 323 :- Reports of Public
Service Commissions â\200\223 (1)...............
.............
(2) It shall be the duty of a State
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Commission to present annually to the
Governor of the State a report as to the
work done by the Commission, and it
shall be the duty of a Joint Commission
to present annually to the Governor of
each of the States the needs of which
are served by the Joint commission a
report as to the work done by the
Commission in relation to that State,
and in either case the Governor shall,
on receipt of such report, cause a copy
thereof together with a memorandum
explaining, as respects the cases, if
any, where the advice of the Commission
was not accepted, the reasons for such
non-acceptance to be laid before the
Legislature of the State."
RELEVANT PROVISIONS OF THE UTTAR PRADESH
REORGANISATION ACT, 2000
"Section 2:- In this Act, unless
the context otherwise requires:-
(a) to (d) .......................
(e) "existing State of Uttar Pradesh"
means the State of Uttar Pradesh as
existing immediately before the
appointed day;
(f) to (j)........................"
Section 3:- "On and from the appointed
day, there shall be formed a new State
to be known as the State of Uttaranchal
comprising the following territories of
the existing State of Uttar Pradesh,
namely:-
Pauri Garhwal, Tehri Garhwal, Uttar
Kashi, Chamoli, Dehradun, Nainital,
Almora, Pithoragarh, Udham Singh
Nagar, Bageshwar, Champawat,
Rudraprayag and Hardwar districts,
And thereupon the said territories shall
cease to form part of the existing State
of Uttar Pradesh."
Provisions as to services are made under Part VIII
of the Act in Section 72 to 78. Under Section 77,
the Central Government has power to give necessary
directions to the State Government of U.P. and the
State Government of Uttaranchal for the purpose of
giving effect to the foregoing provisions of Part
VIII.
Section 78:- "(1) The Public
Service for the existing State of Uttar
Pradesh shall, on and from the appointed
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day, be the Public Service Commission
for the State of Uttar Pradesh.
(2)...................................
(3)...................................
(4) The report of the Uttar Pradesh
Public Service Commission as to the work
done by the Commission in respect of any
period prior to the appointed day shall
be presented under clause (2) of article
323 to the Governors of the States of
Uttar Pradesh and Uttaranchal, and the
Governor of the State of Uttar Pradesh
shall, on receipt of such report, cause
a copy thereof together with a
memorandum explaining as far as
possible, as respects the cases, if any,
where the advice of the Commission was
not accepted, the reasons for such non-
acceptance to be laid before the
Legislature of the State of Uttar
Pradesh and it shall not be necessary to
cause such report or any such memorandum
to be laid before the Legislative
Assembly of the State of Uttaranchal."
Section 86:-
"The provisions of Part II shall not be
deemed to have affected any change in
the territories to which the Uttar
Pradesh Imposition of Ceiling of Land
Holding Act, 1961 and any other law in
force immediately before the appointed
day, extends or applies, and territorial
references in any such law to the State
of Uttar Pradesh shall, until otherwise
provided by a competent Legislature or
other competent authority be construed
as meaning the territories within the
existing State of Uttar Pradesh before
the appointed day."
The facts that are not in dispute are:
The State of Uttaranchal was formed from 9.11.2000
as per Section 3 of the Act. UPPSC published
advertisement inviting applications for 544 posts of
J.E. Civil/Technical â\200\223 (507 Civil + 37 Technical). The
result of selection was published on 4.1.2000. UPPSC
sent its recommendations to the U.P. Government on
30.10.2000. The U.P. Government forwarded the
recommendations on 31.10.2000 to the Office of the
Chief Engineer, Hill Cadre, Almora. Government of
Uttaranchal, by order dated 29.8.2001, took a decision
not to appoint the candidates selected by the UPPSC
pursuant to selections made on 4.1.2000 giving two
reasons â\200\223 (1) that the new reservation policy of the
State is different from that of the State of U.P. and
(2) there were practical and legal difficulties "in
such a situation" in giving appointments to the
candidates recommended by the UPPSC. The aggrieved
candidates filed writ petitions assailing the said
order in the High Court of Uttaranchal impleading State
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of Uttaranchal and its officers, State of U.P. and its
officers and UPPSC.
After Independence from time to time the States
were reorganized, created or carved out from an
existing State for historical or administrative and
other reasons and at times consequent upon the
demand/agitations of people of particular region/area
the States were reorganized or new States were formed
for better administration, development and promotion of
the interest of particular region or area of a State
keeping in mind the overall development, needs and
requirements of that region or area.
Under Article 2 of the Constitution, Parliament
may be law admit into the Union, or establish, new
States on such terms and conditions as it thinks fit.
The Parliament passed the Act to provide for the
reorganization of the existing State of Uttar Pradesh
and for matters connected therewith. As per Section 3
of the Act a new State known as the State of
Uttaranchal, comprising certain territories of the
existing State of Uttar Pradesh, was formed, which came
into existence from the appointed day being 9.11.2000.
Under the scheme of the Constitution there shall
be Governor for each State, there shall be a
Legislature for every State and there shall be a High
Court for each State. So also there shall be a Public
Service Commission for each State under Article 315 of
the Constitution. Article 315(2) provides that two or
more States may agree to have a joint Public Service
Commission for that group of States. As per the
resolution of the State Legislatures, Parliament may by
law, in such case, provide for the appointment of a
joint State Public Service Commission. Further, the
Public Service Commission for the Union, if requested
so by the Governor of a State, may, with the approval
of the President, agree to serve all or any of the
needs of the States as per Article 315(4). We may
notice here itself that State of Uttaranchal has
neither agreed for appointment of a joint Public
Service Commission under Article 315(2) nor requested
the Union Public Service Commission to serve its needs
under Article 315(4). Under Article 309, subject to
the provisions of the Constitution, Acts of the
appropriate Legislature may regulate the recruitment,
and conditions of service of persons appointed, to
public services and posts in connection with the
affairs of the Union or of any State. Under this
provision the Legislature of the State of Uttaranchal,
after coming into existence, has power to regulate the
recruitment, and conditions of service of persons
appointed, to the public services and posts in
connection with the affairs of the State of
Uttaranchal.
Functions of the Public Service Commissions are
enumerated in Article 320 of the Constitution. It
shall be the duty of the Union and the State Public
Service Commission to conduct examinations for the
appointments to the services of Union and the services
of the State respectively. The Union Public Service
Commission or the State Public Service Commission, as
the case may be, shall be consulted on all matters
relating to methods of recruitment to civil services
and for civil posts; on the principles to be followed
in making appointments to civil services and posts,
etc.
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Under Article 323(2) a duty is cast on a State
Commission to present annually to the Governor of the
State a report as to the work done by the Commission,
and it shall be the duty of a joint Commission to
present annually to the Governor of each of the State
the needs of which are served by the joint Commission.
The Governor shall on receipt of such report, cause a
copy thereof together with a memorandum explaining, as
respects the cases, if any, where the advice of the
Commission was not accepted, the reasons for such non-
acceptance to be laid before the Legislature of the
State. As per Section 2(e) of the Act "existing State
of Uttar Pradesh" means the State of Uttar Pradesh as
existing immediately before the appointed day. Section
78(1) of the Act clearly states that the Public Service
Commission for the existing State of Uttar Pradesh
shall, on and from the appointed day, be the Public
Service Commission for the State of Uttar Pradesh. In
other words, UPPSC continues to be the Public Service
Commission for the State of Uttar Pradesh only,
excluding new State of Uttaranchal. Section 78(4) of
the Act requires the UPPSC to present a report as to
the work done by the Commission in respect of any
period prior to the appointed day under Article 323(2)
of the Constitution to the Governors of the States of
Uttar Pradesh and Uttaranchal. But it specifically
states that the Governor of the State of Uttar Pradesh
shall, on receipt of such report, cause a copy thereof
together with memorandum explaining as far as possible,
as respects the cases, if any, where the advice of the
Commission was not accepted, the reasons for such non
acceptance to be laid before the Legislature of the
State of Uttar Pradesh and it shall not be necessary to
cause such report or any such memorandum to be laid
before the Legislative Assembly of the State of
Uttaranchal. UPPSC is not a joint Commission for the
States of Uttar Pradesh and Uttaranchal. The State of
Uttaranchal did not take recourse to Article 315(2) to
have a joint Public Service Commission for both the
States. Under Article 2 of the Constitution,
Parliament may by law admit into Union or establish new
States on such terms and conditions as it thinks fit.
New State of Uttaranchal is formed on the terms and
conditions contained in the Act. The UPPSC of the
existing State of Uttar Pradesh shall be the Public
Service Commission for the State of Uttar Pradesh as
already stated above. It is not the Public Service
Commission for the State of Uttaranchal. If it were to
be so, provisions could have been made in Section 2
read with Section 78 of the Act to include State of
Uttaranchal within the domain of UPPSC till such time
Uttaranchal State Public Service Commission came into
existence. Hence, the selection of the candidates made
by UPPSC cannot be accepted as selection made for the
State of Uttaranchal in the light of Section 78(4) of
the Act. For the immediate purpose, Section 78 of the
Act dealing with the Public Service Commission has to
be looked into carefully. Under Section 78(4), there
is no legislative command or compulsion to the Governor
of State of Uttaranchal to place report submitted by
UPPSC alongwith the memorandum explaining why advice of
the Commission was not accepted. The reason as to why
the Parliament provided specifically that "it shall
not be necessary to cause such report or any such
memorandum to be laid before the Legislative Assembly
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of the State of Uttaranchal" appears to be that the
UPPSC not being a joint Commission and it being a
Public Service Commission for the State of Uttar
Pradesh under Section 2(e) read with Section 78(1) of
the Act, its report could not be placed before the
State Legislature of Uttaranchal. State of Uttaranchal
was not in existence when the UPPSC initiated the
selection process for the posts in question and no
functions could be rendered by pre-existing UPPSC in
respect of new State of Uttaranchal. It was contended
that UPPSC sent the report to the Governor of
Uttaranchal as required under Section 78; there was no
prohibition from placing the said report and memorandum
containing explanation before the State Legislature of
Uttaranchal. We find it difficult in accepting this
contention having due regard to the language and
contents of Section 78(4) of the Act. A clear
distinction can be seen in the said provision. First
part of the provision speaks of UPPSC sending the
report to both the Governors and second part requires
the Governor of Uttar Pradesh alone to cause the report
and the memorandum to be laid before the Legislature of
State of Uttar Pradesh only. The express parliamentary
intention that such a report need not be laid before
the Legislative Assembly of the State of Uttaranchal
makes the position clear that the report of the UPPSC
is not binding upon the State of Uttaranchal. The
State of Uttaranchal would have to constitute its own
Public Service Commission to meet the constitutional
requirement for the purpose of discharging its duties
under Article 315. Further, appointment to services in
the State of Uttaranchal shall have to be in consonance
with Articles 315, 320 and 323 of the Constitution
consistent with autonomy and the freedom of executive
action enjoyed by newly born State of Uttaranchal.
Part VIII of the Act contains Sections 72 to 78 dealing
with services; Section 72 relates to All-India Services
and Sections 73 to 76 with other services; Section 77
gives power to Central Government to give directions.
Provisions are made in Section 78 as to the State
Public Service Commission. In this Part, provisions
are made for protection of service conditions and
services of the persons already in service. There is
no such provision made in Section 78 protecting the
selection made by the UPPSC prior to the formation of
the new State of Uttaranchal to contend that the
candidates selected by the UPPSC shall be appointed by
the State of Uttaranchal. Under these circumstances,
the communication of the Government of Uttar Pradesh or
UPPSC forwarding list of selected candidates to the
appellant-State has no legal sanctity or force to bind
the State of Uttaranchal so as to compel it to appoint
the non-official respondents.
The argument made on behalf of the respondents
that the State cannot add fresh reasons to the impugned
order dated 29.8.2001 subsequently in the shape of
affidavit or otherwise and that when a statutory
functionary makes an order based on certain grounds,
its validity must be judged only by the reasons so
mentioned citing the case of M.S. Gill and another vs.
Chief Election Commissioner, New Delhi and others [1978
(2) SCR 272] is not acceptable.
The said order reads:-
"No. 1358/Personnel-2/2001
From:
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Rakesh Sharma
Secretary, Government of Uttaranchal
To,
All the Principal Secretaries/
Secretary,
Govt. of Uttaranchal
Personnel Deptt. Dehradun Dated 29th
August, 2001
Subject: Action to the
recommendations of the Public Service
Commission, U.P. for appointments in
various departments.
Sir,
I have been directed to state that
after constitution of the State of
Uttaranchal, the Govt. of Uttar Pradesh
has sent the recommendations of the
selected candidates by the Public
Service Commission, U.P. Allahabad for
appointment to the various posts in
various departments of the Government of
Uttaranchal. The said recommendations
have been sent keeping in view the
departmental constitution and
reservation position of the earlier
state of Uttar Pradesh, whereas after
constitution of the State of Uttaranchal
the reservation policy has been changed.
In such a situation, there will be
various miscellaneous legal difficulties
in giving appointments to the
candidates, list of which has been sent
by the Govt. of Uttar Pradesh in
accordance with the recommendations.
2. Therefore, in this regard after
thorough consideration it has been
decided that the candidates recommended
by the Uttar Pradesh Public Service
Commission may not be appointed in
various departments of the Government of
Uttaranchal.
3. Therefore it is requested to take
further action accordingly.
Yours faithfully,
Sd/-illegible
(Rakesh Sharma)
Secretary
No. (1) Personal-2/2001 of even dated
Copy forwarded for information and
necessary action to:-
1. The Secretary of His Excellency the
Governor of Uttaranchal.
2. The Secretary, Reconstitution, Govt.
of Uttaranchal.
3. The Commissioner of Reconstitution,
Govt. of Uttaranchal, Lucknow.
4. The Secretary, Co-ordination, Govt.
of U.P. Lucknow.
5. All the Sections of the Secretariat,
Uttaranchal.
6. Departmental Book.
By Order
(Rakesh Sharma)
Secretary"
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It is evident from the above order that the
consideration was made in regard to the action to be
taken on the basis of the recommendations of the Public
Service Commission, U.P., for appointments in various
departments. It is also stated therein that after the
constitution of the State of Uttaranchal, the
reservation policy has been changed and there will be
various miscellaneous legal difficulties in giving
appointments to the candidates, list of which has been
sent by the Government of Uttar Pradesh in accordance
with the recommendations of UPPSC. In conclusion, it
is said that after thorough consideration, it has been
decided that the candidates recommended by the Uttar
Pradesh Public Service Commission may not be appointed
in various Departments of the Government of
Uttaranchal. It is true that there is no express
reference to Section 78(4) of the Act in the
aforementioned order. But reading the order as a
whole, it gives an impression that after the
Constitution of the State of Uttaranchal, there has
been change in the reservation policy; there were
various miscellaneous and legal difficulties in giving
appointments to the candidates selected by the UPPSC as
forwarded by the Government of Uttar Pradesh and that
after thorough consideration, a decision was taken not
to appoint the candidates recommended by the UPPSC in
various departments of the Government of Uttaranchal.
This being the position, it appears to us that while
passing the order, the provision of Section 78(4) and
other provisions of the Act and the relevant
constitutional provisions were kept in mind when there
was thorough consideration before taking a decision as
stated in the order. Mere non-reference or omission to
mention of Section 78(4) in the order, does not take
away its legal effect. The appellants have only
elaborated the reasons to support the said order. It
is not possible to agree that the appellants tried to
justify the aforementioned order by subsequent fresh
reasons. The High Court committed an error in holding
that the reasons cited by the State Government of
Uttaranchal in the order dated 29.8.2001 were not valid
relying on the decision of this Court in Asha Kaul
(Mrs.) and another vs. State of Jammu & Kashmir and
others [(1993) 2 SCC 573], in the light of the facts of
the present case and in view of what is stated above.
This apart, in view of the discussion made above and
having regard to clear constitutional and legal
position that the selections made by UPPSC are not
binding on the State of Uttaranchal on the basis of the
facts that are not in dispute, the argument advanced on
behalf of the respondents being devoid of merit is
rejected.
In terms of Section 86 of the Act, it was argued
that the reservation policy of the State of U.P. is
embodied in the Uttar Pradesh Services (Reservation for
Scheduled Castes, Scheduled Tribes and Other Backward
Classes) Act, 1994, the executive decision dated
29.8.2001 cannot override the U.P. Act of 1994(supra)
because the State Act continues to remain in force in
Uttaranchal by virtue of the Section 86 of the Act.
Assuming that be the position, as and when Uttaranchal
State Public Service Commission proceeds to make
selection, the policy contained in the U.P. Act of 1994
is to be followed unless it is amended by the
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Legislature of the State of Uttaranchal. It cannot
also be contended that the State of Uttaranchal has no
right to have its own reservation policy to meet the
requirements of the new State having due regard to
various factors. Moreover, when the selection made by
the UPPSC itself, as already stated above, is not for
the State of Uttaranchal and it has no legal or binding
effect to compel the State of Uttaranchal to appoint
the selected candidates, the question of applying
reservation policy as embodied in U.P. Act of 1994 does
not arise. Consequently, this contention also fails.
The other contention that the affidavit of the
U.P. Government shows that it had accepted the
recommendations of the UPPSC, the letter of Chief
Engineer, Uttaranchal, PWD, Almora dated 4.1.2001
referring to the letter of UPPSC dated 30.10.2000 to
the Chief Engineer, PWD and the letter dated 7.11.2000
of UPPSC to the Chief Engineer, Almora being prior to
the formation of the new State of Uttaranchal, no
further acceptance of the Uttaranchal Government was
required. In view of the discussion already made above
that the UPPSC recommendations in relation to selection
of the candidates have no legal force and are not
binding on the State of Uttaranchal, we find no merit
in this contention as well. It may also be added here
itself that a person placed in the merit list of
selected candidates has no indefeasible right to be
appointed as held by this Court. No doubt, there
cannot be an arbitrary refusal to appoint a selected
candidate. In the instant case, the action of the
State of Uttaranchal must be judged with reference to
the creation of new State and its functions,
obligations and duties to make appointments to the
public services within the State on the basis of the
recommendations of the Public Service Commission of the
State. As is clear from the facts in the present case,
there was no advertisement by the State of Uttaranchal,
no rules were framed by the State of Uttaranchal, no
selection was made by Public Service Commission for the
State of Uttaranchal. Hence, the State of Uttaranchal
was not obliged to make appointments of the non-
official respondents on the basis of the selection made
by the UPPSC even though the recommendations were
forwarded to the State of Uttaranchal. On the facts it
is not a case where the Government of Uttaranchal has
refused to make appointments arbitrarily.
A grievance was made that Uttaranchal Government
has been making appointments arbitrarily picking up
some candidates selected by the UPPSC even after the
U.P. State was re-organised and is not making
appointments of other candidates selected by the UPPSC;
there is lack of bona fides on the part of the State of
Uttaranchal in making the order dated 29.8.2001. If
any appointments are made contrary to law and the stand
taken by the State of Uttaranchal and if there is any
mala fide, they may affect such appointments on a
proper challenge by the aggrieved persons but that does
not help the non-official respondents to get them
appointed by the State of Uttaranchal.
It was also urged on behalf of the non-official
respondents that the selection and appointment has to
be made in accordance with the rules in force at the
time of initiation of the selection process, i.e.
publication of advertisement and, therefore, change of
reservation policy subsequent to the selection cannot
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come in the way of earmarked vacancies for the Hill
Region of U.P. which became an integral part of the
State of Uttaranchal. This is an untenable grievance
in view of the discussion made above while dealing with
the question whether the selection made by UPPSC is
binding on the State of Uttaranchal. The rules in
force at the time of initiation of the selection
process have to be applied in making selection but that
does not help the non-official respondents in seeking
appointments by the State of Uttaranchal on the basis
of selection made by UPPSC.
It was also urged that if there were vacancies and
the candidates were selected in accordance with the law
by UPPSC and there was urgent need to fill up the said
vacancies, it is wholly arbitrary on the part of the
appellants not to fill up the vacancies by the
candidates recommended by the UPPSC and going in for
fresh recruitment. This submission is again without
any force in law. When we have already held that the
selection made by UPPSC is not binding on the State of
Uttaranchal, no direction could be given to appoint the
non-official respondents as is done by the High Court
in the impugned judgment.
In the impugned judgment the High Court held that
the recommendations of Public Service Commission of
erstwhile State of Uttar Pradesh for appointment on the
posts under Hill Sub Cadre Rules, 1992, which were
received prior to the appointed day by the State
Government of erstwhile State of Uttar Pradesh, are
binding on the State of Uttaranchal, and, in that view,
directed the appellants to give appointments to the
candidates selected and recommended by the UPPSC. The
reasons recorded by the High Court in doing so are: -
1. From the Government Order dated 29.8.2001, it is
clear that the Government of Uttaranchal denied to
accept the recommendations of UPPSC. It does not
say that no appointment shall be given on the
basis of recommendations of UPPSC. Therefore, the
said Government Order is liable to be ignored for
the purpose of giving appointment on the
recommendations of UPPSC and in that view there
was no need to quash the said Government Order.
2. There is yet another reason for not quashing the
said Government Order as the same has been issued
after the appointed day and the State of
Uttaranchal has established its own Public Service
Commission. Now the appointments are to be made
in consultation with Uttaranchal Public Service
Commission as per the changed policy mentioned in
the Government Order.
3. In view of a Constitution Bench judgment of this
Court in Shankarasan Dash vs. Union of India
[(1991) 3 SCC 47] and Division Bench judgment of
this Court in Asha Kaul (Mrs.) and others vs.
State of Jammu and Kashmir and others [(1993) 2
SCC 573], though no indefeasible right for
appointment can be claimed on the basis of
recommendations made by the Public Service
Commission but equally the Government has no
absolute right to reject the recommendations and
to refuse appointment to the recommended
candidates; there has to be valid and reasonable
ground for not accepting the recommendations of
the Public Service Commission for appointment on
the posts for which the selection was held by the
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Commission.
4. Though the impugned order dated 29.8.2001 was to
be ignored the reasons stated there for not
accepting the recommendations of the Commission
are not valid reasons as those reasons were not
the reasons for not accepting the recommendations
of the Public Service Commission.
5. The recommendations were made by the UPPSC and
were duly received by the State Government of
erstwhile State of Uttar Pradesh prior to the
appointed day. The recommendations were made
strictly in accordance with the Rules then
prevailed prior to the appointed day. Under
Section 78 of the Act, in case of non acceptance
of the recommendations of the Commission the
Governor of Uttar Pradesh had to place the report
before the Uttar Pradesh Legislative Assembly for
not accepting the recommendations. Admittedly,
all the recommendations received by the erstwhile
State of Uttar Pradesh have been sent to the State
of Uttaranchal and they were not reversed by the
Governor for being placed with reasons before the
Assembly of the State of Uttar Pradesh.
The High Court misread the Government Order dated
29.8.2001 and drew wrong inference in saying that the
Government of Uttaranchal denied acceptance of the
recommendations but did not say that no appointment
shall be given on the basis of the recommendations of
UPPSC. If the Government of Uttaranchal has denied to
accept the recommendations of UPPSC, essentially it
follows that no appointment could be given. This apart
in the very order in paragraph 2 it is specifically
stated that "therefore, in this regard after thorough
consideration it has been decided that the candidates
recommended by the UPPSC may not be appointed in
various departments of the Government of Uttaranchal".
Thus, the reason given by the High Court that the
Government of Uttaranchal though denied to accept the
recommendations of UPPSC but did not deny to give
appointment and as such the said Government Order could
be ignored, does not stand to reason and it is
untenable.
The other reason given to ignore the said
Government Order is that the same was issued after the
appointed day. Merely because the said Government
Order was issued after the appointed day it could not
be simply ignored without considering the legality and
validity of that order, in the light of the relevant
constitutional provisions and provisions of the Act.
The order exists unless it is quashed or it ceases to
operate for any other reason.
There is no difficulty in accepting the principles
laid down in the cases of Shankarsan Dash and Asha Kaul
(Mrs.) (supra). But the High Court failed to apply
those principles correctly to the facts of the present
cases. As stated by the High Court it is settled law
that a candidate whose name is included in the select
list does not get indefeasible right for appointment on
the basis of the recommendations made by the Public
Service Commission, but at the same time the Government
has no absolute right to reject the recommendations and
refuse appointment to the candidates recommended
without a valid and reasonable ground for not accepting
the recommendations of UPPSC. The High Court found
that the reasons given in the Government Order dated
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29.8.2001 were not valid reasons for not accepting the
recommendations of UPPSC. While discussing whether the
recommendations of UPPSC are binding on the State
Government of Uttaranchal, keeping in view the
constitutional provisions and in particular Section
78(4) of the Act, we have already expressed above that
the recommendations of the UPPSC are not binding to
compel the State of Uttaranchal to give appointments to
the candidates recommended by the UPPSC. It is not
possible to accept the view of the High Court that the
reasons given in Government Order dated 29.8.2001 are
not valid. On the other hand, we find that the reasons
given in the said order are valid and reasonable. At
any rate it cannot be said that the State of
Uttaranchal arbitrarily or whimsically refused to give
appointments to the selected candidates.
The interpretation placed by the High Court on
Section 78 of the Act is also wrong. Merely because
the recommendations received by the erstwhile State of
Uttar Pradesh had been sent to State of Uttaranchal and
they were not reversed by the Governor for being placed
with the reasons before the Assembly of State of Uttar
Pradesh under Section 78 of the Act, it cannot be held
that the recommendations made by the UPPSC were binding
on Government of Uttaranchal. In this regard we have
already made the legal position clear. Hence it is
unnecessary to deal with the same any further. In our
view, looking to the reasons recorded by the High Court
in the impugned judgment, which are neither tenable nor
acceptable, the impugned judgment cannot be allowed to
stand.
It was also urged in the alternative that the
State of Uttar Pradesh may be directed to give
appointments to the non-official respondents. This
aspect was neither raised before the High Court not it
was considered. Hence, we do not wish to deal with the
same. All that we can say is that this order shall not
come in the way of the State of Uttar Pradesh, if so
advised, to consider the claims of the non-official
respondents for appointments based on the selection
made by UPPSC. Having regard to the peculiar situation
in which the non-official respondents are placed, we
would like to say that in case the non-official
respondents apply as and when the applications are
invited for selection either by UPPSC or by the
Uttaranchal State Public Service Commission in future
within a period of three years, the UPPSC or the
Uttaranchal State Public Service Commission shall
consider them for selection subject to their satisfying
all other eligibility requirements but relaxing the
upper age limit.
Having due regard to all aspects and in the light
of what is stated above, the question set out in the
beginning is answered in the negative. Hence the
impugned judgment and order of the High Court cannot be
sustained. In this view, we find merit in these
appeals. They are entitled to succeed. Accordingly,
the impugned judgment and order are set aside and the
appeals are allowed but with no order as to costs.
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