Full Judgment Text
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CASE NO.:
Appeal (civil) 4571 of 2003
PETITIONER:
ASHWANI KUMAR SINGH
RESPONDENT:
U.P. PUBLIC SERVICE COMMISSION AND ORS.
DATE OF JUDGMENT: 14/07/2003
BENCH:
DORAISWAMY RAJU & ARIJIT PASAYAT
JUDGMENT:
JUDGMENT
2003 Supp(1) SCR 528
The Judgment of the Court was delivered by ARIJIT PASAYAT, J. Leave
granted.
These two appeals involve identical issues and, therefore, are taken up
together.
Factual position which is necessary to be noted for disposal of the appeals
in a nutshell is as follows:
The appellants appeared at the Combined State Services Examination of 1987.
They indicated the preference for appointment as Treasury Officer/ Accounts
Officer and also for Assistant Accounts Officer as requi-ed to be indicated
in the application form. The examination was conducted by the Uttar Pradesh
Public Service Commission (hereinafter referred to as ’the Com mission’) on
the basis of requisition made by the State of U.P. Requisition for 40
vacancies was sent by the State to the Commission in July 1987. Out of said
40 vacancies, 21 were meant for General category, while 7, 1, 2, 6. 2 and 1
vacancies were meant for Scheduled Castes, Scheduled Tribes, Dependents of
Freedom Fighters, Backward Classes, Retrenched Emergency / Short Service
Commission Military Officers, and Handicapped persons respectively The
Accounts service has two designated posts i.e. Accounts Officer/Treasury
Officer and Assistant Accounts Officer. Results were declared on 29 12
1989. In the merit list, appellant - Ashwani Kumar Singh was placed at SI
No. 52 while appellant - Brij Nath Srivastava was placed much below.
On the basis of recommendations received from the Commission a list of 37
candidates was made available initially. Three other candidates were
included on the basis of the order passed by the Allahabad High Court. All
the three candidates relate to the Retrenched Military Officers category.
As three selected candidates, one each from the general category, dependent
of freedom fighters and scheduled tribe and already been appointed on the
basis of examination held in 1986; names of three more candidates were
included in the respective categories.
In 1990, appellant - Ashwani Kumar Singh made a representation stating that
on account of some selected candidates not joining, vacancies exist and
since the merit list was effective for one year, persons in the waiting
list should be appointed. Appellant - Ashwani Kumar Singh in view of his
placement in the select list had already been appointed as Assistant
Accounts Officer. However, appellant - Brij Nath Srivastava was not
appointed as his position was far below in the select list.
Writ petitions were filed in 1992 by the appellants before (he Allahabad
High Court. The writ petitions were filed on the foundation that the
vacancies which arose on account of selected candidates not joining, should
have been filled up and that having not been done, the appointments made
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subsequently were illegal. The claims were resisted by the State Government
and the Commission. They took the stand that there was no waiting list as
such and the vacancies were carried forward to the subsequent period as
required in law and persons had already been appointed on the basis of
subsequent examination. A belated attempt by the appellants to get
appointment is not countenanced in law. The High Court accepted the plea of
the respondents and rejected the writ petitions.
Mr. A. Sharan, learned senior counsel appearing for the appellants
submitted that the course adopted by the State Government and the
Commission is clearly contrary to the law laid down by this Court in Jai
Narain Ram v. State of U.P. and Ors., [1996] I SCC 332. It was also
submitted that in several unreported judgments of the High Court,
directions were given to fill up the posts on the basis of the waiting list
and the stand taken by the State Government and the Commission is contrary
to the factual position and in contravention of the High Court’s view.
In response, learned counsel for the Commission an 1 the State Government
submitted that Jai Narain’s case (supra) has no application to the facts of
the case since there was no vacancy and the posts which fell vacant on
account of selected candidates not joining have subsequently been filled
up. Initially, those persons were not impleaded as parties. Subsequently,
in view of the observations made by this Court on 11.12.2001 they were
directed to be impleaded as parties. Their non appearance does not
strengthen the appellants’ case.
It shall be necessary to first consider whether Jai Narain’s case (supra)
has application to the facts of the case. A bare reading of the judgment
shows that it was rendered in a different factual and legal background, and
related to non - appointment of persons belonging to reserved category.
This is evident from even a cursory reading of paragraphs 6 and 7 of the
Judgment. It has not laid down as a rule of universal application that
whenever vacancy exists persons who are in the merit list perforce have to
be appointed. Much would depend upon the statutory provisions governing the
field. The Learned counsel for the appellants submitted that the direction
given in Jai Narain ’s case (supra) was not strictly on that basis. The
plea has no substance as reading of the judgment goes to show otherwise.
Courts should not place reliance on decisions without discussing as to how
the factual situation fits in with the fact situation of the decision on
which reliance is placed. Observations of Courts are not to be read as
Euclid’s theorems nor as provisions of the statute. These observations must
be read in the context in which they appear. Judgments of Courts are no to
be construed as statutes. To interpret words, phrases and provisions of
statute, it may become necessary for Judges to embark into lengthy
discussions, but the discussion is meant to explain and not to define.
Judges interpret statutes, they do not interpret judgments. They interpret
words of statutes; their words are not to be interpreted as statutes. In
London Graving Dock Co. Ltd. v. Horton, (1951) AC 737 at p. 761, Lord Mac
Dermot observed:
"The matter cannot, of course, be settled merely by treating the ipsissima
vertra of Willes, J, as though they were part of an /- ct of parliament and
applying the rules of interpretation appropriate thereto This is not to
detract from the great weight to be given to the language actually used by
that most distinguished Judge."
In Home Officer V. Dorset Yacht Co., [1970] 2 All ER 294 Lord Reid said,
"Lord Atkin’s speech.........is not to be treated as if it was a statute
definition.
It will require qualification in new circumstances." Megarry, J in Shepherd
Homes Ltd. v. Sandham, (No. 2) (1971) 1 WER 1062 observed: "One must not,
of course, construe even a reserved judgment of Russell, L.J. as if it were
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an Act of Parliament." In Herrington v. British Railways Board, (1972) 2 Wl
R 537 Lord Morris said :
"There is always peril in treating the words of a speech or judgment as
though they are words in legislative enactment, and it is to be remembered
that judicial utterances made in the setting of the facts of a particular
case."
Circumstantial flexibility, one additional or different fact may make a
world of difference between conclusions in two cases. Disposal of cases by
blindly placing reliance on a decision is not proper.
The following words of Lord Denning in the matter of applying precedents
have become locus classicus:
"Each case depends on its own facts and a close similarity between one case
and another is not enough because even a single significant detail may
alter the entire aspect. In deciding such cases, one should avoid the
temptation to decide cases (as said by Cordozo) by matching the colour of
one case against the colour of another. To decide, therefore, on which side
of the line a case falls, the broad resemblance to another case is not at
all decisive."
xxx xxx xxx xxx
"Precedent would be followed only so far as it marks the path of justice,
but you must cut the dead wood and trim off the side branches, else you
will find yourself lost in thickets and branches. My plea is to keep the
path to justice clear of obstructions which could impede it."
It is on record that a policy decision was taken to appoint candidates who
had opted for Treasury Officer/Accounts Officer if their names were
included in the first 40 of the merit list. Admittedly, appellant - Ashwani
Kumar was not so included and the position is worse in the case of other
appellant - Brij Nath Srivastava. It is submitted that there is no logic
for such fixation. Here again the plea is without substance. If the
employer fixes a cut off position, same is not to be lightly tinkered with
unless it is total y irrational or tainted with malafides. Employer in its
wisdom may consider a particular range of selection to be appropriate. It
has not been shown as to how the fixation is irrational, much less
malafide. Additionlly, it is noticed that the unfilled posts were carried
forward to the next year and have been filled up on the basis of selection
made by the Commission. Accepting the prayer of the appellants would mean
that the position which has assumec a sort of finality for more than a
decade would be unsettled. Persons who have been appointed on the basis of
the subsequent examination has to give way to appellant - Ashwani Kumar
Singh. Though they had been impleaded but did not appear, it does not mean
that something which is not permissiole in law has to be done. It would not
be fair to disturb the prevailing position. It was pointed out by learned
counsel for the appellant - Ashwani Kumar Singh that he has already been
promoted as Accounts Officer, and the only question left is of his
seniority over those who were subsequently appointed. This plea is without
any substance. Since he has been promoted later on, in the absence of any
statutory prescription, person who has been appointed to the higher post
earlier would be logically senior to him. The High Court was, therefore,
justified in rejecting the writ petition filed by the appellant - Ashwani
Kumar Singh. So far as the other appellant - Brij Nath Srivastava is a
concerned, his claim is based on almost identical premises as that of
Ashwani Kumar Singh. His name was far below in the select list. Therefore,
he does not have a better case than that of appellant - Ashwani Kumar Singh
whose stand has been negatived. Though he claims to be candidate belonging
to the backward class, the posts have been filled up and his name finds
place much below the zone of selected candidates. Both the appeals deserve
dismissal, which we direct. However, parties shall bear their respective
costs.
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