ANUPAL SINGH & Ors. v. STATE OF U.P THROUGH PRINCIPAL SECRETARY, PERSONNEL DEPARTMENT & Ors.

Judgment

12 S.C.R. 1071 1071 ANUPAL SINGH AND OTHERS v. STATE OF U.P THROUGH PRINCIPAL SECRETARY, PERSONNEL DEPARTMENT AND OTHERS (Civil Appeal No.4815 of 2019) SEPTEMBER 30, 2019 [R. BANUMATHI AND A.S. BOPANNA, JJ.] Service Law: Selection process – Reservation policy – Post of Technical Assistant – Appellants as well as private respondents applied for and appeared in the written examination held in 2014 – As per U.P. Reservation Act, specific percentages of vacancies were reserved for different categories – It was brought to notice of State Government that there was wrongful calculation of category-wise vacancies in the earlier requisition and, therefore, the earlier requisition was required to be revised – State Government by order dated 20.08.2014, re-worked the vacancies for different categories of persons and sent the revised requisition for the vacancies for different categories to UP Public Service Commission (UPPSC) after adjustment of diploma holders against ‘general category’ – Based on revised requisition, UPPSC declared the result of written examination, wherein appellants as well as private respondents were declared successful – Thereafter, UPPSC issued O.M. dated 12.10.2014 specifically mentioning the number of vacancies to be filled up in various categories in consonance with order dated 20.07.2014 – Successful candidates appeared in interview on 27.10.2014 and finally result of select list candidates was declared on 21.05.2015 – Private respondents did not qualify – Unsuccessful candidates filed writ petitions before High Court challenging the validity of O.M. 12.10.2014 and the result declared on 21.05.2015 and praying for quashing the same and for preparation of result afresh without giving effect to O.M. 12.10.2014 – The impugned result was also assailed on the ground that it contravened s.3(1) of UP Reservation Act, 1994 and r.15(3) of UP Subordinate Agriculture Services Rules, 1993 and also that the percentage of reservation to SC/ST and OBC categories crossed the upper limit of 50% – Held: Revised requisition dated 20.8.2014 and OM dated 12.10.2014 was valid since it was only intended to 1071 A B C D E F G H 1072 SUPREME COURT REPORTS [2019] 12 S.C.R. rectify wrongful calculation of number of vacancies in different categories and to comply with requisite percentage of quota of reservation in different categories as per 1994 Act – By virtue of r.15 and r.6 of UP Subordinate Agriculture Services Rules, 1993 (Agriculture Service Rules, 1993), the Recruitment Authority is empowered to rectify the wrongful calculation and make a revised requisition of number of vacancies in different categories which is in accordance with the provisions of UP Reservation Act, 1994 – High Court was not right in saying that the diploma holders ought not to have been absorbed against the “General category” so as to alter the advertised number of posts against the “General category” – Absorption of diploma holders were required to be done only against the “General quota” – Revising the number of vacancies in different categories to satisfy reservation quota scheme as per UP Reservation Act, 1994 would not amount to changing the rules of the game after the commencement of the selection process – Having participated in the interview and when they failed in the final selection, it was not open to the private respondents/intervenors to turn around and challenge the revised notification dated 12.10.2014 and the final select list dated 21.05.2015 – The filling up of the unfilled horizontal reservation by the candidates from the respective vertical reservation is in accordance with the policy of the government and the same cannot be faulted with – Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994. Service law: Selection process – Reservation scheme – Appointment letter not issued to 906 candidates – Plea to exercise power under Art.142 of the Constitution of India – The 906 candidates were not issued the appointment orders in order to keep the appointment within the permissible percentage of reservation as per UP Reservation Act, 1994 – These 906 candidates who were left out and were not issued appointment orders were ranked lower in the merit list than the last selected candidate in their respective category under the reservation limit as identified by the Personnel Department, therefore appointment orders were not issued to them – This cannot be said to be arbitrariness or discrimination as selection of candidates was on the basis of the merit list – Therefore, power under Art.142 of the Constitution of India cannot A B C D E F G H ANUPAL SINGH v. STATE OF U.P THR. PRINCIPAL SECRETARY, PERSONNEL DEPTT. 1073 be exercised to issue direction to the State to issue appointment orders to 906 candidates – Constitution of India – Art.142. A Service law: Selection process – It is a settled law that a person having consciously participated in the interview cannot turn around and challenge the selection process – Having appeared in the interview without any demur or protest, it is not open to the candidates to challenge the selection process on the ground that there was modification in the number of vacancies in different categories and they are estopped by the principle of estoppel from challenging the same – Doctrine of estoppel. Service law: Selection process – It is fairly well-settled that the selected candidates do not have any indefeasible right to be appointed – Merely because the names of candidates were included in the provisional select list, they do not acquire any indefeasible right to be appointed. Doctrines/Principles: Doctrine of res judicata – Batch of writ petitions disposed of by High Court by common judgment containing common operative portion of judgment – Appeal filed in few writ petitions – Decision of Supreme Court – Whether judgment rendered in other writ petitions by High Court having not been challenged, have attained finality and operate as res judicata – Held: The decision of Supreme Court is binding on all the writ petitioners before High Court even though they were not parties in the appeal before the Supreme Court. Allowing the appeals, the Court HELD:

#1. Revised requisition dated 20.08.2014 and Office Memorandum dated 12.10.2014 notifying revised vacancies in different categories in consonance with the provisions of UP Reservation Act, 1994 and UP Subordinate Agriculture Service Rules, 1993

1.1 On the basis of the government order dated 20.08.2014, the Department of Agriculture sent the revised requisition to the UP Public Service Commission (UPPSC). The declaration of result of the written examination was issued based on the revised requisition of the posts. The UPPSC acted on the revised B C D E F G H 1074 SUPREME COURT REPORTS [2019] 12 S.C.R. requisition of the Government dated 20.08.2014. Before the candidates were called for interview, Office Memorandum dated 12.10.2014 was issued by the UPPSC revising the number of vacancies for different categories. The UPPSC has thus not travelled beyond the requisition sent by the Government. [Para 24, 25] [1096-F; 1097-B-C]

1.2 The Agriculture Service Rules, 1993 clearly stipulate that it is for the Recruitment Authority to determine the number of vacancies to be filled during the year and would also determine the number of vacancies for Scheduled Castes, Scheduled Tribes and other category candidates under Rule 6. On noticing that there was wrongful calculation of the category-wise vacancy, the Recruitment Authority is empowered to rectify the wrongful calculation and make a revised requisition which is in accordance with the provisions of UP Reservation Act, 1994 and Agriculture Service Rules, 1993. [Para 29] [1099-E-F] R.K. Sabharwal and Others v. State of Punjab and Others (1995) 2 SCC 745 : [1995] 2 SCR 35 – relied on.

1.3 Revising the number of vacancies in OBC category as 2030 does not violate the right of the General category candi- dates because the State Legislature has enacted the Reserva- tion Act No.4 of 1994 providing for reservation, keeping in mind the parameters of Article 16(4) of the Constitution of India. By revising requisition, the State has endeavoured to achieve the object of the reservation by working out the vacancy for selec- tion of the posts in question without causing any prejudice to the General category candidates. The revised requisition so made was within the purview of the competency of the State in order to achieve the object of the UP Reservation Act, 1994. Moreover, the total number of vacancies have not been changed or modi- fied. [Para 32] [1101-B-C]

1.4 The category-wise vacancy position was changed after a meeting of all concerned was held i.e. representatives of the Karmik Department as well as of representatives of the Administrative Department and it was found that a wrong calculation of category-wise vacancy had been sent earlier. If the A B C D E F G H ANUPAL SINGH v. STATE OF U.P THR. PRINCIPAL SECRETARY, PERSONNEL DEPTT. 1075 original requisition dated 22.10.2013 was to be retained, it would have resulted in anomalies of the category-wise posts thereby contravening the provisions of the UP Reservation Act, 1994. Hence, the revised requisition was sent on 20.08.2014 from the Administrative Department to the Director, Agriculture who in turn communicated the same to the UPPSC. By the revised requisition of vacancies for various categories, there is no violation of any rules; on the other hand, it is only to rectify the calculation of vacancies in different categories and to comply with the requisite quota of reservation in different categories as per UP Reservation Act, 1994. This aspect was not properly appreciated by the High Court. [Para 34] [1101-F-H]

#2. Absorption of the Diploma Holders The earlier requisition was sent showing only 566 vacancies against the OBC quota, while in fact, it should have been 2030, as all the diploma holders were appointed against the General quota and they have not been appointed against the OBC quota. At the time of absorption of the diploma holders in the year 1998, there was no provision for reservation for Backward Class category in the concerned department; only by U.P. Reservation (Amendment) Act, 2002, the reservation was extended to the concerned department and therefore, the appointees/diploma holders have to be considered only against the “general quota” candidates. As seen from the affidavit filed by the Deputy Director, Agriculture (Training), the diploma holders were not required to be counted against OBC quota; by a wrongful calculation, they have been adjusted against the OBC quota which is not permissible in law as reservation cannot be granted retrospectively. By the revised requisition, the Government sought to rectify this mistake which resulted in alteration in number of vacancies available against certain categories. Such rectification of mistake by Government cannot be faulted nor can this be a ground for recalling the advertisement in question and issuing a fresh one. The variation in number of vacancies against “General quota” was only because of the absorption of the diploma holders against the “General quota” and rectifying the mistake of adjustment against “OBC vacancies”. [Paras 37, 38] [1102-E-F; 1103-D-G] A B C D E F G H 1076 SUPREME COURT REPORTS [2019] 12 S.C.R. A B C D E F G H

#3. O.M. dated 12.10.2014 revising the vacancies category- wise – whether amounts to changing the rules of the game after the commencement of the selection

3.1 In the instant case, only wrongful calculation in the number of vacancies in different categories had been corrected in order to satisfy the percentage of reservation against various categories as per the provisions of UP Reservation Act, 1994. Such correction cannot be said to changing the rules or basis of selection. The eligibility criteria was not changed. The diploma holders were wrongly counted against the vacancies in OBC category; while they could not have been counted against OBC category and while doing so, a wrongful calculation had been arrived and the same has to be corrected by counting the diploma holders against the general category. [Paras 42, 44] [1105-D-E; 1106-D-E]