NARESH KUMAR Vs. STATE OF U P

JUDGEMENT

(1.) WITH the consent of counsel for the parties, we have heard the appeal on merit. This special appeal arises out of judgment and order dated 29.03.2007 passed by a learned Judge in Civil Misc. Writ Petition No. 6325 of 2004. Shorn of unnecessary details, facts giving rise to the present appeal are that the Excise Commissioner, Uttar Pradesh vide Office Memo dated 25th October, 2002 provided for appointment of 28 posts of Peon/Chowkidar at various Recruitment Centres. While doing so, he determined the number of vacancies for each of the Recruitment Centres and the reservation provided in that. In the present appeal, we are concerned with Meerut Recruitment Centre and according to the said Memo, out of 12 posts, three posts were to be filled up from the members of Scheduled Caste category candidates, three posts from Other Backward Class category candidates and six posts from general category candidates. In the light of the aforesaid decision, an advertisement was issued in the daily newspaper ''Rojgar Sangrah' dated 29.11.2002-05.12.2002. In the said advertisement, it had been clearly mentioned that out of 12 posts, six posts were for general category candidates, three posts for Scheduled Castes category candidates and three posts for Other Backward Class category candidates. As the aforesaid advertisement did not provide for reservation to women, Civil Misc. Writ Petition No. 55340 of 2002 was filed. However, the process of selection continued. Writ petitioner-respondent no.4 herein, offered her candidature and participated in the selection process. The candidature of all eligible candidates was considered and ultimately the appellants were appointed by order dated 10.01.2003. As the writ petitioner-respondent no.4 was not selected since no reservation was given to women candidates, she filed Civil Misc. Writ Petition No. 6325 of 2004 on 12th February 2004, inter alia, praying for following reliefs:- "i) A writ, order or direction in the nature of mandamus commanding the respondents to provide reservation in Advertisement which is registered as Publication No. 177/47/Recruitment/Peon/date/Meerut November 20, 2002 issued by the Deputy Excise Commissioner, Meerut Region against the post of Class IV employee according to the Govt. Order dated 26.02.1999 for Female candidates. (ii) A writ, order or direction in the nature of Mandamus commanding the respondents to make selection and further to make appointment, thereafter by giving reservation as provided under law. (iii) Any other writ, order or direction which this Hon'ble Court may deem fit and proper in view of the facts and circumstances of the case." It was contended before the learned Judge that in view of the Government Order dated 26th February 1999, reservation ought to have been provided for women candidates. The said submission was resisted by the respondents in the said writ petition on the ground that the nature of job was such that reservation could not be provided to women. The plea of the respondents in the writ petition refusing to provide reservation did not find favour with the learned Judge and the learned Judge by judgment dated 29.03.2007 quashed the advertisement. As the advertisement in the light whereof the appellants were appointed itself was quashed, the services of the appellants were terminated by order dated 11.05.2009 passed by the Excise Commissioner, Uttar Pradesh. Mr. Ashok Khare, Senior Advocate appearing on behalf of the appellants, submits that the learned Judge ought not to have interfered with the advertisement at the instance of the writ petitioner-respondent no.4, as the petition was filed after the selection and appointment was made. He further points out that the learned Judge ought not to have interfered with the advertisement and directed for filling up the posts after making fresh advertisement providing reservation for women in accordance with the Government Order dated 26.02.1999, as the writ petitioner-respondent no.4 had taken chance and when rendered unsuccessful, challenged the advertisement. In support of his submission, Mr. Khare has placed reliance on a judgment of the Supreme Court in the case of Om Prakash Shukla Vs. Akhilesh Kumar Shukla and Ors., AIR 1986 SC 1043 and our attention has been drawn to paragraph 23 of the judgment, which reads as follows:- "23. Moreover, this is a case where the petitioner in the writ petition should not have been granted any relief. He had appeared for the examination without protest. He filed the petition only after he had perhaps realized that he would not succeed in the examination. The High Court itself has observed that the setting aside of the results of examinations held in the other districts would cause hardship to the candidates who had appeared there. The same yardstick should have been applied to the candidates in the District of Kanpur also. They were not responsible for the conduct of the examination." Mr. R.K. Ojha, however, appearing on behalf of the writ petitioner-respondent no.4, submits that as the Rules have been framed for reservation to women candidates, it was only when the candidature of the writ petitioner-respondent no.4 was not considered against the women category, she filed the writ petition and hence the writ petition was rightly entertained and the learned has rightly quashed the advertisement and directed for providing reservation in the light of the Government Order dated 26th February, 1999. Having appreciated the rival submissions, we find substance in the submission of Mr. Khare. The advertisement, in no uncertain terms, provided for reservation in favour of members of Other Backward Class and Scheduled Caste category candidates. It did not provide for reservation to women. In that view of the matter, had the writ petitioner-respondent no.4 been aggrieved by not providing reservation, she ought to have approached the Court and challenged the advertisement itself. She did not choose the same. Not only this, in pursuance of the advertisement, she offered her candidature and after selection and appointment of the appellants, she had chosen to file the writ petition on 12.02.2004 whereas the appointments had already taken place in January, 2003. The writ petitioner had also not impleaded the selected candidates, who are the appellants herein, as respondents in the writ petition and nor was any relief sought for quashing their appointments. In our opinion, the learned Judge ought to have declined the relief on the aforesaid grounds alone. As we are of the opinion that the writ petition is liable to be dismissed on the aforesaid grounds, we consider it inexpedient to go into the question as to whether it was obligatory on the part of the employer to provide reservation to women. In the result, this special appeal is allowed, the impugned judgment dated 29.03.2007 passed by the learned Judge in Civil Misc. Writ Petition No.6325 of 2004 is set aside. Writ petition filed by respondent no.4 stands dismissed but without any order as to costs.