# Officers Association Kedarnath Rao Ghorpade v. Mumbai Metropolitan Regional Development Authority, the Apex Court held as under

- **Citation:** (2006) 1 ILRA 239
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-11-16
- **Case number:** Civil Misc. Writ Petition No. 16267 of 2003
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/officers-association-kedarnath-rao-ghorpade-v-mumbai-metropolitan-regional-40831
- **Pages:** 6

## Headnote

Sri J.K. Tiwari
S.C.

Uttar
Pradesh
Procedure
for
direct
Recruitment of group C Post (outside the
preview
of
U.P.
Public
Service
Commission) (First Amendment Rules)
1998 Rule 5 (5)-Waiting list-91 posts of
can
supervisor
advertised-selection
made-out of 91 83 appointed-9 post
remained vacant-the claim of petitioner
rejected on the ground the life of
selection list expired after one yearfilling up same posts and keeping vacant
the other posts-held arbitrary-amounts
to discrimination for those who could
have selected from the waiting listdirection issued for utilization of waiting
list within 3 month.

Held: Para 11

The action of the respondents in filling
up some posts and keeping some post
vacant is arbitrary and also amounts to
discrimination against those persons
who could be selected on the remaining
posts. No doubt the petitioners' does not
have an indefeasible right even against
an existing vacancy and the State is
under no obligation to fill up the
vacancies. On the other hand, the State
has the obligation to act fairly and
cannot act arbitrary and adopt a pick and
choose policy. If the respondents have
chosen to fill up the seats pursuant to
the directions of the Court, in that event,
all the vacancies should be filled up by
the State. The State cannot adopt an
arbitrary policy, namely, to fill up some
of the posts and keep the remaining
posts vacant. In my view, the action of
the State was not fair
Case law discussed:
1987 (Suppl.) SCC-401
1993 (2) SCC-573
2000 (3) SCC-1999
1989 (15) ALR-13
1991 (3) SCC-47

## Text

1 All] Jafar V. State of U.P. and others
239
Consolidation did not consider the case of
both the parties and did not record any
reason for accepting or refusing to accept
grievance of the parties, this Court is of
the view that the order of Deputy Director
of Consolidation is liable to be set aside
on the ground for non-application of mind
by the Deputy Director of Consolidation
and for not assigning any reason on the
rival claims of the parties. No doubt it is
also clear from the record that the
Appellate authority has also not assigned
any reason while reversing the allotment
made at the stage of Consolidation
Officer, but as the Deputy Director of
Consolidation is the final court under the
U.P. Consolidation of Holdings Act,
which is competent to consider all aspects
and record a finding on fact also, this
Court is of the opinion that remand of the
matter
to
the
Deputy
Director
of
Consolidation for deciding the revision
afresh will serve ends of justice.

6. In a recent decision in MMRDA
Officers
Association
Kedarnath
Rao
Ghorpade
v.
Mumbai
Metropolitan
Regional Development Authority, the
Apex Court held as under:-

"Reasons substitute subjectivity by
objectivity. The emphasis on recording
reasons is that if the decision reveals the
inscrutable face of the sphinx, it can, by
its silence, render it virtually impossible
for the courts to perform their appellate
function or exercise the power of judicial
review in adjudging the validity of the
decision.
Right
to
reason
is
an
indispensable part of a sound judicial
system. Another rationale is that the
affected party can know why the decision
has gone against him. One of the salutary
requirement of natural justice is spelling
out reasons for the order made, in other
words, a speaking out. The inscrutable
face
of
the
sphinx
is
ordinarily
incongruous with a judicial or quasi
judicial performance."

7. As the order passed by the Deputy
Director of Consolidation does not
contain any reason for reversal of the
orders of the subordinate consolidation
authorities and grievance of the parties
was not considered, this Court is of the
view that the order dated 17th December,
2005 is unsustainable in law.

8. In view of the discussions made
above, the writ petition succeeds and is
allowed. The order dated 17th December,
2005, passed by the Deputy Director of
Consolidation, Moradabad, is quashed.
The matter is remanded back to the
Deputy
Director
of
Consolidation,
Moradabad to decide the matter in
accordance
with
law
after
giving
opportunity of hearing to the parties and
after considering the grievance of all the
parties in accordance with law by passing
a reasoned order within four months' from
the date of presentation of a certified copy
of this order. Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.11.2005

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 16267 of 2003

Jitendra Kumar and others ...Petitioner
Versus
State of U.P. and others ...Respondents
Connected with
Civil Misc. Writ Petition No. 35962 of 2003
Gautam Prasad Patel

...Petitioner
Versus
State of U.P. and others ...Respondents
240 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
And
Civil Misc. Writ Petition No. 56521 of 2003
Satya Narain Maurya

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

Counsel for the Petitioners
Sri Ashok Khare
Sri Vijay Kant Dwivedi

Counsel for the Respondents:
Sri J.K. Tiwari
S.C.

Uttar
Pradesh
Procedure
for
direct
Recruitment of group C Post (outside the
preview
of
U.P.
Public
Service
Commission) (First Amendment Rules)
1998 Rule 5 (5)-Waiting list-91 posts of
can
supervisor
advertised-selection
made-out of 91 83 appointed-9 post
remained vacant-the claim of petitioner
rejected on the ground the life of
selection list expired after one yearfilling up same posts and keeping vacant
the other posts-held arbitrary-amounts
to discrimination for those who could
have selected from the waiting listdirection issued for utilization of waiting
list within 3 month.

Held: Para 11

The action of the respondents in filling
up some posts and keeping some post
vacant is arbitrary and also amounts to
discrimination against those persons
who could be selected on the remaining
posts. No doubt the petitioners' does not
have an indefeasible right even against
an existing vacancy and the State is
under no obligation to fill up the
vacancies. On the other hand, the State
has the obligation to act fairly and
cannot act arbitrary and adopt a pick and
choose policy. If the respondents have
chosen to fill up the seats pursuant to
the directions of the Court, in that event,
all the vacancies should be filled up by
the State. The State cannot adopt an
arbitrary policy, namely, to fill up some
of the posts and keep the remaining
posts vacant. In my view, the action of
the State was not fair
Case law discussed:
1987 (Suppl.) SCC-401
1993 (2) SCC-573
2000 (3) SCC-1999
1989 (15) ALR-13
1991 (3) SCC-47

(Delivered by Hon'ble Tarun Agarwala, J.)

1. On 8.8.1998 an advertisement
was issued for filling 91 posts of Cane
Supervisor in the Cane Development
Department of the Government of Uttar
Pradesh. These 91 posts were to be filled
up from the Scheduled Caste, Scheduled
Tribes
and
Other
Backward
class
categories
and
candidates
from
the
General
Class
category.
The
result
pursuant to the aforesaid advertisement
was declared on 5.3.1999. Before the
appointment letters could be issued, the
results were cancelled. The cancellation
of the results were challenged in Writ
Petition No.565 of 2000 which was
eventually allowed by a judgement dated
1.5.2001 wherein the Court directed the
respondents to appoint the selected
candidates. It transpires that the State
filed a Special Appeal which was
dismissed by a judgment dated 18.7.2002.

2. Inspite of the aforesaid, the State
did not make any appointments. It
transpires that several candidates filed
contempt petitions and subsequently the
first batch of appointments were made on
29.6.2002. It further transpires that the
State Government, after verifying and
scrutinising the certificates submitted by
the candidates, cancelled the selection of
9 candidates vide orders dated 2.10.2002
and 26.10.2002. Eventually, out of 91
1 All] Jitendra Kumar and others V. State of U.P. and others
241
posts the respondents appointed 83
persons and 9 posts remained vacant.

3. The petitioners are those persons
who were in the waiting list declared by
the respondents and have filed the present
writ petition praying for a writ of
mandamus commanding the respondents
to appoint the petitioners on the post of
Cane Supervisors on the basis of the
waiting list prepared by them. The
petitioners submitted that admittedly 9
posts have not been filled up and the same
could be filled up from the candidates
whose names were found in the waiting
list and that the action of the respondents
in not utilising the waiting list was
arbitrary.

4. Heard Sri Ashok Khare, the
learned Senior Counsel assisted by Sri
Vijay Kant Dwivedi for the petitioner and
Sri J.K. Tiwari, the learned Standing
Counsel for the respondents.

5. Sri Ashok Khare, the learned
Senior Counsel submitted that admittedly
9 posts were vacant which had not been
filled up by the respondents inspite of
preparing a waiting list. It was further
submitted that the waiting list was
prepared under Sub Rule (5) of Rule 5 of
the Uttar Pradesh Procedure for Direct
Recruitment
of
Group
'C'
Posts
(Outside the Purview of the Uttar
Pradesh Public Service Commission)
(First Amendment)Rules, 1998 which
provided that the number of names in the
list would not be larger than 25% of the
number of vacancies. The learned counsel
for the petitioner submitted that if the
waiting list was utilised to fill up the
vacancies, the petitioners would have a
chance for being appointment on the post
of a Cane Supervisor. In support of his
contention, the learned counsel for the
petitioner has relied upon the decision in
State of U.P. vs. Rafiquddin and others,
1987 (Suppl.) SCC 401 in which it was
held that in the absence of any Rules, the
life of the waiting list could be utilised till
the declaration of the results in the
subsequent examination. The learned
counsel for the petitioner further placed
reliance on a decision of Asha Kaul
(Mrs) and another vs. State of Jammu
and Kashmir and others, 1993 (2) SCC
573, in which it was held that once a
select list was sent in accordance with the
regulations of the Government, it must
accord its sanction and appoint the person
as per the select list and that the
Government cannot pick and choose or
approve a portion of the select list and
reject the other part of the list.

6. In State of U.P. vs. Ram Swarup
Saroj, (2000) 3 SCC 1999, the Supreme
Court held that the mere fact that the
period of the life of the select list expired
during the pendency of the writ petition,
the Court could not decline to grant the
relief if the incumbent was found to be
eligible by the High Court. In Shilesh
Chandra Saxena vs. State of U.P. and
others, 1989 (15) ALR 13, a Division
Bench of this Court held that where no
limitation was prescribed for the life of
the list, in that event, the life of the list
ennures till it was exhausted and, in any
case, the period of three years was held to
be reasonable to limit the life of the list.

7. On the other hand, the learned
Standing Counsel submitted that merely
because the petitioners' name were found
in the waiting list, the same does not
confer an indefeasible right for being
appointed on the post inasmuch as, the
State was under no obligation to fill up all
242 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
or any of the vacancies. The leaned
counsel submitted that the mere inclusion
of the petitioner's name in the waiting list
did not confer any right to be selected
even if the vacancies remained unfilled
and, even in such a situation, the
petitioners cannot claim that they were
being discriminated. In support of his
submission, the learned Standing Counsel
has
relied
upon
the
decision
in
Shankarsan Dash vs. Union of India,
(1991) 3 SCC 47, Asha Kaul vs. State of
Jammu & Kashmir (1993)2 SCC 573;
Union of India vs. S.S.Uppal, AIR 1996
SC 2346.

8. Learned Standing Counsel also
placed reliance upon the two decisions of
this Court in the case of Deputy General
Manager, U.P. Power Corporation Ltd.
and others vs. Bharat Singh, 2004 (4)
ESC 1985 and in the case of Hum Veer
Singh vs. State of U.P. and others, 2004
(1) ESC 37, on the aforesaid proposition.

9. From the aforesaid, it is clear that
number of candidates in the list prepared
should not be more than 25% of the
vacancies advertised. The reason for
including more candidates than the
number of vacancies is, that in the event a
candidate fails to join, the said post could
be filled up by the next incumbent in the
waiting list. It is common knowledge that
the selection process is a time consuming
process and involves huge expenditure
and
that
the
selections
are
made
infrequently.
Therefore,
the
list
is
prepared in such a manner to enable the
authorities to fill up the requisite number
of vacancies so advertised.

10. In the present case, the Rules
permit the respondents to prepare a
waiting list. The petitioners in paragraph
Nos.10 and 11 of the writ petition have
categorically submitted that a waiting list
of candidates which was 25% of the total
vacancies
was
prepared
by
the
respondents under the Rules of 1998 in
which the petitioners name were found.
These paragraphs has not been denied by
the respondents in paragraph nos.12 and
13 of the counter affidavit.

11. Further this Court by judgment
dated 1.5.2001 in Writ Petition No.565 of
2000 directed the respondents to fill up
the posts on the basis of the results
declared
by
the
respondents.
Subsequently, the said judgment was
affirmed by a Division Bench and
consequently it was incumbent upon the
respondents to fill the entire posts so
advertised.
The
respondents
have
appointed a number of persons but have
not filled the entire vacancies that were
advertised. The action of the respondents
in filling up some posts and keeping some
post vacant is arbitrary and also amounts
to discrimination against those persons
who could be selected on the remaining
posts. No doubt the petitioners' does not
have an indefeasible right even against an
existing vacancy and the State is under no
obligation to fill up the vacancies. On the
other hand, the State has the obligation to
act fairly and cannot act arbitrary and
adopt a pick and choose policy. If the
respondents have chosen to fill up the
seats pursuant to the directions of the
Court, in that event, all the vacancies
should be filled up by the State. The State
cannot adopt an arbitrary policy, namely,
to fill up some of the posts and keep the
remaining posts vacant. In my view, the
action of the State was not fair. This
aspect has been dealt with by a
Constitution Bench of the Supreme Court
1 All] Jitendra Kumar and others V. State of U.P. and others
243
in Shankarsan Dash vs. Union of India
(supra) wherein the Supreme Court held-

"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
candidate 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
bonafide 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 vs. Subhash Chander
Marwaha, Neelima Shangla vs. State of
Haryana, or Jatendra Kumar v. State of
Punjab."

12. In Asha Kaul (supra) the
Supreme Court held that where the select
list
was
not
being
utilised,
the
Government must record its reasons of
disapproval.

In the present case the reason given
by the respondents in not utilising the
waiting list was that the State Government
had declared the post of a Cane
Supervisor as a dying cadre. This plea is
no longer tenable, in view of the fact, that
inspite of this declaration the Court
directed the respondents to fill up the
vacancies and that the State Government,
in compliance with the judgment of the
Court, issued appointment letters to
various candidates on the post of Cane
Supervisor. Therefore, the reason for not
invoking the waiting list does not exist
any longer. The decision of the State
Government not to fill up the remaining
vacancies was not bonafide nor contained
valid reasons.

In view of the aforesaid, the
judgments cited by the Standing Counsel
is distinguishable. Once a select list is
prepared, the same has to be utilised in
order to complete the vacancies so
advertised.

The
learned
counsel
for
the
respondents submitted that the waiting list
cannot be utilised today inasmuch as the
life of the waiting list has now been
exhausted and as such, no mandamus
could be issued to the respondents to
utilise the said waiting list. In my opinion,
the submission of the learned counsel for
the respondent is misconceived. From a
bare perusal of Rule 5 of the Rules of
1998, it is clear, that there is no limitation
of the life of the waiting list. In State of
U.P. vs. Ram Swarup Saroj (supra), the
Supreme Court held that the High Court
could not decline to grant the relief to a
candidate where the life of the select list
expired during the pendency of the writ
petition.

In the present case, the appointments
were made by the respondents on
29.6.2002. Some of the appointments
were cancelled by the State Government
by
orders
dated
2.10.2002
and
244 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
26.10.2002. The petitioners approached
this Court on 10.4.2003 i.e. within one
year from the date of issuance of the
appointment letters. Even though there is
no period of the limitation for the life of
the waiting list and, assuming that the life
should be of one year, even then, the
petitioner approached this Court within
the validity of the life of the waiting list.
The mere fact that the life of the waiting
list expired during the pendency of the
writ petition does not mean that this Court
is powerless to grant the relief. The
Supreme court in State of U.P. Vs. Ram
Swarup Saroj (supra) has clearly held
that where the validity of the period of the
select list expires during the pendency of
the litigation, the Court could still grant
the relief, if the incumbent was entitled to
the relief. In Sheo Shyam and others vs.
State of U.P. and others 2004(2) ESC
256, the Supreme Court held that the
period of one year of the life of the select
list should be computed from the last date
when the recommendations were made.

In view of the aforesaid, I find that
the petitioners are entitled to the relief
claimed. The respondents were not
justified in leaving the vacancy vacant
and the respondents should have utilised
the waiting list prepared for filling up the
remaining
number
of
vacancies.
Consequently, the writ petitions are
allowed. A mandamus is issued to the
respondents commanding them to utilise
the waiting list so prepared and fill the
remaining vacancies out of the total
number of 91 that was advertised in the
year 1998, within three months from the
date of the production of a certified copy
of this order. In the circumstances of the
case, parties shall bear their own cost.
Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.12.2005

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. writ Petition No. 74397 of 2005

K. Prasad

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

Counsel for the Petitioner:
Sri S.C. Srivastava
Sri Sudhakar Upadhyay

Counsel for the Respondents:
SC

Constitution of India Art. 226-Service
Law-Regularisation-Petitioner engaged
by Nagar Punchayat-on the post of peon
on consolidated salary of Rs.1200-per
month-without
any
advertisement
without
any
selections
against
the
statutory rules-not confer any right to
claim regularisation-observation made
regarding mode of appointment in Public
office by affording right of consideration
to all suitable candidates.

Held: Para 3

It is disputed by the petitioner that
before his appointment there was no
advertisement
or
invitation
of
application
from
eligible
incumbents
against the vacancy which is said to be
existing in the officer of the Nagar
Panchayat Khanpur. The petitioner was
appointed on contract basis and no on
regular basis. The appointment was not
in accordance with statutory rules. In
other words, the appointment of the
petitioner was nothing but a back door
entry Since, on his application submitted
before the Nagar Panchayat, he was
given appointment on contract basis on
consolidated salary of Rs.1200/-, such
appointment does not confer any legal