# Kumar Singh and others v. State of

- **Citation:** (2009) 1 ILRA 177
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-02-02
- **Case number:** Civil Misc. Writ Petition No. 2536 of 2009
- **Bench:** S.Rafat Alam, Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kumar-singh-and-others-v-state-of-41339
- **Pages:** 3

## Headnote

U.P. Judicial Service Rules 2001-Rule 15Reduction of number of vacancies-355 of
Civil
Judge
(J.D.)
post
advertisedselection list finalized by commission-by
notification dated 23.4.2008 15 posts
reduced to give way to the candidates of
Sanjay Singh case decided by Supreme
Court-held-valid reason for revision of
vacancies-No question of violation of
fundamental rights.

Held: Para 10

In this case it is not disputed that the
number of vacancies have been reduced
on
account
of
appointments
made
pursuant to the directions of the Apex
Court in the case of Sanjay Singh (supra)
which is admittedly a valid reason for
revising
the
number
of
vacancies
determined under Rule 15 of 2001 Rules.
Case law discussed:
2007(2) SC 534, 1991(3) SCC 47

## Text

1 All] Kameshwar Prasad V. U.P. Public Service Commission, Allahabad and others

177
25. The parties are directed to bear
their own costs.

Appeal allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.02.2009

BEFORE
THE HON'BLE S.RAFAT ALAM, J.
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 2536 of 2009

Kameshwar Prasad

...Petitioner
Versus
U.P. Public Service Commission and
others

 ...Respondents

Counsel for the Petitioner:
Sri Kameshwar Prasad (In Person)
Sri Shiv Kant Pandey

Counsel for the Respondents:
Sri Amit Sthalekar
Sri Pushpendra Singh
S.C.

U.P. Judicial Service Rules 2001-Rule 15Reduction of number of vacancies-355 of
Civil
Judge
(J.D.)
post
advertisedselection list finalized by commission-by
notification dated 23.4.2008 15 posts
reduced to give way to the candidates of
Sanjay Singh case decided by Supreme
Court-held-valid reason for revision of
vacancies-No question of violation of
fundamental rights.

Held: Para 10

In this case it is not disputed that the
number of vacancies have been reduced
on
account
of
appointments
made
pursuant to the directions of the Apex
Court in the case of Sanjay Singh (supra)
which is admittedly a valid reason for
revising
the
number
of
vacancies
determined under Rule 15 of 2001 Rules.
Case law discussed:
2007(2) SC 534, 1991(3) SCC 47
(Delivered by Hon'ble S. Rafat Alam, J.)

1. Heard Sri Shiv Kant Pandey,
learned counsel for the petitioner, Sri
Puspendra Singh, for respondent no. 1, Sri
Amit Sthalekar, for respondent no. 2 and
learned Standing Counsel for respondent
no. 3.

2. Petitioner through this writ
petition
under
Article
226
of
the
Constitution of India is seeking a writ of
certiorari
for
quashing
the
revised
requisition sent by High Court i.e.
respondent no. 2 to the State Government
on 23.04.2008 reducing the vacancies of
Civil Judge (Junior Division), 2006 from
355 to 339. He has further sought a writ
of
mandamus
commanding
the
respondent-Commission to appoint the
petitioner on the post of Civil Judge
(Junior Division) against 15 seats so
reduced by the respondents illegally in
contravention of the mandate of Hon'ble
Apex Court in Sanjay Singh and
another
Vs.
U.P.
Public
Service
Commission, Allahabad and another,
2007(2) SC 534 as well as this Court in
Writ Petition No. 51491 of 2007 (Sanjay
Kumar Singh and others Vs. State of
U.P. and others) decided on 17.01.2008.

3. Sri Pandey contended that for
recruitment to the post of Civil Judge
(Junior Division) the government in
consultation
with
the
High
Court
determined 355 vacancies under Rule 15
of U.P. Judicial Service Rules, 2001
(hereinafter referred to as the "2001
Rules") which were requisitioned to the
Commission for holding examination in
accordance with the provisions of 2001
Rules but subsequently in order to give
appointment to some other candidates
pursuant to the Hon'ble Supreme Court
178 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

Sanjay Singh (supra) as well as this
Court in Sanjay Singh (supra) it has
decided
to
reduce
the
number
of
vacancies from 355 to 339 though in the
meantime the entire recruitment process
has already been completed by the
Commission and, therefore, it is not upon
to the respondents to reduce the number
of vacancies at this later stage. He also
argued that once the Commission actually
advertised 355 vacancies under Rule 15 of
2001 Rules it is not open to the
respondents
to
reduce
the
same
subsequently after the recruitment process
is complete since the respondents are
bound to fill in all the vacancies unless
they are reduced by issuing a notification
as provided under Rule 21(2) of 2001
Rules. He submitted that the number of
vacancies advertised have to be filled in
from the select list under Rule 20(3)
unless the vacancies are varied after due
notification. In the present case it is
submitted that no such notification has
been issued by the respondents till date
and, therefore, it is not open to the
Commission to publish the final select list
of only 339 candidates i.e. as per the
reduced vacancies instead of 355 which
were
advertised
earlier.
He
further
contended that the persons who have been
given
appointment
pursuant
to
the
directions of this Court and Apex Court
are not actually entitled for such post. He
thus contended that the decision to reduce
vacancy from 355 to 339 is wholly
arbitrary and contrary to law. He lastly
contended that under Article 16(1) of the
Constitution
the
petitioner
has
a
fundamental right for consideration as
well as appointment against the number of
vacancies advertised by the authorities
concerned since it amounts to denial of
right of equal opportunity.

4. Having considered the aforesaid
submissions at length we, however do not
find any force in the submission for the
reasons given hereto.

5. From the very perusal of Rule 15
it appears that for commencing the
procedure for recruitment to the service
the first requirement is to determine the
number of vacancies and for the said
purpose the Governor in consultation with
the High Court is required to give the
number of vacancies which are to be
filled in during the year of recruitment.
The term "year of recruitment" has also
been defined under Rule 4(m) which
reads as under:

"(m) "Year of recruitment" means a
period of twelve months commencing
from the first day of July of the calendar
year in which the process of recruitment
is initiated by the appointing authority;"

6. It nowhere requires that after the
vacancies to be filled in during the year of
notification issued by the government in
consultation with the High Court or even
when the vacancies are intimated to the
Commission for that purpose also any
notification is required to be issued. The
procedure prescribed under Rule 15 is
only to tentatively decide the number of
vacancies which have to be filled in
during the year of recruitment but it
nowhere restricts the government or this
Court from revising the vacancies as
determined under Rule 15 which are to be
filled in during the year of recruitment.
Thus the submission of learned counsel
for the petitioner cannot be accepted. It is
well established that when there is no
ambiguity in the language of the statute
the same has to be read as it is.
1 All] Rafi Abbas V. State of U.P. and others

179
7. Further Rule 21(2) also shows
that it only lays down life of the select list
which provides that after filling the
vacancies
by
due
notification
as
advertised or varied the select list would
lapse.

8. Now coming to the second
submission we find that the reduction of
vacancies if is decided not in any arbitrary
manner but for cogent and valid reasons
the same is not illegal. In the case of
Shankarsan Dash Vs. Union of India,
1991(3) SCC 47 the Hon'ble Apex Court
said:

"7. It is not correct to say that if a
number of vacancies are notified for
appointment and adequate number of
candidates are found fit, the successful
candidates acquire an indefeasible right
to be appointed which cannot be
legitimately
denied.
Ordinarily
the
notification
merely
amounts
to
an
invitation to qualified candidates to apply
for recruitment and on their selection they
do not acquire any right to the post.
Unless the relevant recruitment rules so
indicate, the State is under no legal duty
to fill up all or any of the vacancies.
However, it does not mean that the State
has the licence of acting in an arbitrary
manner. The decision not to fill up the
vacancies has to be taken bona fide for
appropriate reasons. And if the vacancies
or any of them are filled up, the State is
bound to respect the comparative merit of
the candidates, as reflected at the
recruitment test, and no discrimination
can be permitted. This correct position
has been consistently followed by this
Court, and we do not find any discordant
note in the decisions in State of Haryana
v. Subhash C7hander Marwaha and
Others, [1974] 1 SCR 165; Miss Neelima
Shangla v. State of Haryana and Others,
[1986] 4 SCC 268 and Jitendra Kumar
and Others v. State of Punjab and Others,
[1985] 1 SCR 899."

9. The aforesaid judgement clearly
shows that even a selected candidate has
no indefeasible right to get appointment.

10. In this case it is not disputed that
the number of vacancies have been
reduced on account of appointments made
pursuant to the directions of the Apex
Court in the case of Sanjay Singh (supra)
which is admittedly a valid reason for
revising
the
number
of
vacancies
determined under Rule 15 of 2001 Rules.

11. Now coming to the last
submission that Rule 16(1) only confers
right of consideration which has already
given to the petitioner since it is not his
case that in the recruitment process he has
not been considered or participated.

12. For the reasons given above, we
do not find any merit in this writ petition
and it is accordingly dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.01.2009

BEFORE
THE HON'BLE SHASHI KANT GUPTA, J.

Civil Misc. Writ Petition No.17529 of 2004

Rafi Abbas

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri. V.M. Zaidi
Sri. Vivek Prakash Mishra