STATE OF U P Vs. RAJKUMAR SHARMA

JUDGEMENT

(1.) Leave granted.

(2.) Challenge in this appeal is to the judgment rendered by a Division Bench of the allahabad High Court in a Letters Patent appeal. This is practically the second journey of the parties to this Court. Earlier in state of Uttaranchal and Ors. v. Sidharth srivastava and Ors. connected issues were considered.

(3.) The factual background in a nutshell is as follows:-" (1) Uttar Pradesh Public Service Commission (in short 'uppsc') published advertisement inviting applications for 544 posts of J. E. Civil/technical (507 Civil + 37 Technical). The result of selection was published on 7-1-2000. 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 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 - (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. A division Bench of the High Court, by a common 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. High Court's judgment was assailed before this Court by the State of Uttaranchal. " (2) After noticing various provisions contained in Articles 320 and 323 (2) of the constitution of India, 1950 (in short the 'constitution') , as well as Section 178 of the u. P. Reorganisation Act, 2000 it was held that the decision of the High Court was not correct. It was, inter alia, observed as follows:"27. 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 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. "" (3) Para 31 of the judgment is also significant as the case of the non-official respondents had its foundation on the said paragraph which reads as follows: "31 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 nor 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. " (4) After this Court's judgment, the candidates whose names had been included in the select list approached the State of Uttar pradesh to appoint them. However, their requests were turned down. Challenging. order of the State Government, the writ application was filed which was allowed by learned Single Judge. The state of Uttar pradesh and its functionaries filed Letters patent Appeal before the Division Bench which affirmed the order of the learned single Judge.