Tarun Agarwala, J.
1. U.P. Police Headquarters, Allahabad issued an advertisement dated 2.6.2003 inviting applications to fill up 165 posts of Constable (Ministerial) in the Police Department from the backlog of the vacancies reserved for the Schedule Caste and Schedule Tribe candidates; Out of these 165 posts, 125 posts were required to be filled up from the candidates belonging to the Schedule Caste and 41 posts were to be filled up from the candidates belonging to the Schedule Tribe. Based on the aforesaid advertisement, the petitioners applied and sat in the written examination as well as in the typing test, in which they qualified. Thereafter, the petitioners were called for an oral interview and eventually on 13 8.2003, a select list was issued which included the names of the petitioners. Thereafter, the petitioners were directed to appear in the medical examination in which the petitioners were found to be medically fit. The entire process was completed and only a ministerial task of issuing an appointment letter had remained to be executed. But before the appointment letters could be issued, the Government changed and a new Government took over. The new Government issued an order dated 29.8.2003 imposing a ban on all the appointments in every department in the State of U.P. as a result of which, all the appointments were stopped and no appointment letters could be issued in favour of the petitioners. Consequently, the present writ petition was filed praying for the quashing of the Government Order dated 29.8.2003 by which the ban was imposed and further prayed for a writ of mandamus commanding the respondents to issue the appointment letters in their favour on the post of constable (M).
2. A large number of similar writ petitions have been filed praying for the same relief, which have been clubbed together and are being decided by a common judgment. For facility, writ petition No. 46812 of 2003 has been made the leading case.
3. A Counter affidavit has been filed by the State Government which has been sworn by the Secretary (Appointment and Personal), stating therein that the order dated 29.8.2003 had been cancelled by the State Government vide its order dated 15.1.2004 and, therefore, there was no restriction in the recruitment process in the various departments of the State Government and that the selections/recruitments could now be held and that the appointments on various posts could be made by the concerned departments as per the Rules. The State Government filed another counter affidavit dated 19.5.2004 stating therein that the Home Department had issued an order dated 24.5.2003 sanctioning the creation of 165 supernumerary post of constable (M) which was effective till the end of February, 2004, i.e., till 29.2.2004 or till the availability of the posts due to retirement or otherwise or till the cancellation of such post, whichever was earlier. Based on this order dated 24.5.2003, the advertisement dated 2.6.2003 was issued. The counter affidavit further stated that the State Government vide order dated 6.5.2004 had now taken a decision to cancel the 165 supernumerary post on the ground of financial constraints and also on the ground that there was no requirement of work. It was also stated in the counter affidavit that there existed only 134 sanctioned posts of constable (M) in the State of U.P. and on these 134 posts, 606 persons have already been appointed on compassionate ground under the Dying in Harness Rules and therefore, 472 candidates had been appointed in excess of the sanctioned strength and therefore, on this ground the State Government had also decided to cancel the 165 supernumerary post.
4. Upon the filing of the' counter affidavit by the State Government bringing on record the order dated 6.5.2004 by which 165 supernumerary post was cancelled, the petitioners filed an amendment application praying for the quashing of the order of the State Government dated 6.5.2004. This amendment application was allowed and the petitioners were directed to amend the writ petition.
5. During the course of the hearing of the petition, a supplementary rejoinder affidavit dated 21.2.2005 was filed stating therein that the respondents further appointed 144 persons as Constable (M) in December 2004 under the Dying in Harness Rules. The respondents filed a Supplementary Counter Affidavit admitting the aforesaid position and submitted that these appointments were made under a legal compulsion by creating supernumerary posts under Rule 8(3) of the U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules 1974. By the same affidavit, the respondents submitted that the then Deputy Inspector General of Police in his letter dated 12,5.2003 indicated the existence of 165 posts of constable (M) which was required to be filled up from the backlog quota from the Schedule Caste/ Schedule Tribe candidates. According to the respondents, this information submitted by the then Deputy Inspector General of Police was incorrect inasmuch, as he took into consideration the vacancies that would come into existence upon the promotion that would be made in future from this cadre in the next higher cadre. Therefore, future vacancies had been taken into consideration. The affidavit further stated that out of 134 sanctioned posts, 29 posts was required to be filled up by the Schedule Caste candidates and 2 posts by the Schedule Tribe candidates and 36 posts by the candidates from other backward classes out of which 57 Schedule Caste candidates were already working on the post of constable (M) and 267 candidates were working at the present moment from other backward classes. Therefore, there are no vacancies existing and the question of filling up the 165 supernumerary posts does not arise.
6. Heard Sri Ashok Khare, the learned Senior Counsel assisted by Sri V.S.Gupta and Sri Santosh Kumar Srivastava, Sri R.K. Tripathi and Sri Rahul Asthana, Advocates for the petitioners and Sri Sudhir Agarwal, the learned Additional Advocate General assisted by Sri V.K. Rai and G.K. Khanna, Standing Counsel for the respondents.
7. The learned counsel for the petitioners submitted that the entire selection process had been completed and only the ministerial task of the issuance of the appointment letters had remained to be executed. The action of the respondents in not issuing the appointment letters after the lifting of the ban was wholly arbitrary and illegal. The subsequent decision of the State Government cancelling 165 supernumerary posts was not only arbitrary, but also discriminatory, inasmuch as, by the same advertisement, other posts in other cadres had been filled up after the lifting of the ban and other supernumerary posts in other departments were also filled up, but for reasons best known to the respondents, these 165 posts of constable (M) were not filled up and the same had illegally been cancelled to deprive the petitioners from being appointment on the post of Constable (Ministerial).
8. The learned counsel further submitted that the supernumerary posts had been created in pursuance of the policy decision of the State Government to fill the backlog vacancies reserved for the Schedule Caste and Schedule Tribe candidates. The computation of the backlog of the unfilled vacancies had been given in the letter of the Deputy Inspector General of Police dated 12,5.2003, on the basis of which, the State Government sanctioned the creation of 165 supernumerary posts. The learned counsel submitted that the vacancies shown in the said letter was correct and rightly took into consideration the posts which were required to be filled up by way of promotion. The decision for filling up the unfilled backlog vacancies was not only with regard to the vacancies in the post of Constable (M) but was also with regard to the higher post, namely, in the cadre of Sub Inspector (M) and Inspector (M). The shortfall in these categories was also required to be filled up and such shortfall could only be removed by inducting persons belonging to the reserved categories in the cadre of constable (M) and thereafter promoting them to a higher post. Therefore, 165 supernumerary posts had been created for meeting the backlog of the reserved vacancies existing in various cadres from a total of 2963 posts.
9. The learned counsel further submitted that supernumerary posts are substantive in nature and cannot be made for a limited period. The supernumerary post would exist till such time a vacancy became available in the regular cadre itself. The learned counsel for the petitioners drew the analogy of the appointments made on compassionate grounds under the Dying in Harness Rules as a substantive appointment and in support of his submission, placed reliance on a judgment of this Court in Ravi Karan Singh v. State of U.P. and Ors., 1999(3) UPLBEC 2263.
10. The learned counsel further submitted that the plea of financial constraint was a sham plea in as much as the State Government further appointed 144 persons on supernumerary posts under the Dying in Harness Rules. If there was any financial constraints, no further appointments could have been made even under the Dying in Harness Rules.
11. The learned counsel further submitted that the entire recruitment in the Police department is governed by the Police Act. Since the field relating to the appointments are covered by the aforesaid Act, the Dying in Harness Rules framed under the proviso to Article 309 of the Constitution was, therefore, not applicable. In support of his submission the learned counsel relied upon the following decisions namely;
AIR 2002 Secured Creditors 2322 Chandra Prakash Tiwari v. Shakuntala Shukla
2000(3)AWC 2367
Subhash Chandra Sharma v. State of U.P. and Ors.
2001(2) UPLBEC 1661
Chandra Prakash Shahi v. State of U.P.
2004 (4) ESC 2209
Vijay Singh and Ors. v. State of U.P. and Ors.
12. Sri Sudhir Agarwal, Additional Advocate General submitted that there does not exist any vacancies in the reserved category and the creation of 165 supernumerary posts was sanctioned on account of an error made by the then Deputy Inspector General of Police in his letter dated 12.5.2003 wherein he not only included vacancies of other posts, but also took into consideration the future vacancies. The learned Additional Advocate General submitted that there exist only 13 vacancies in the cadre of Constable (M) and therefore, the creation of 165 supernumarary posts to fill the backlog vacancies in the reserved category was exfacie incorrect inasmuch as the creation of supernumerary posts could not exceed the sanctioned posts.
13. The learned counsel further submitted that against 134 posts, 29 posts were sanctioned for Schedule Caste candidates and 36 posts for OBC candidates against which 57 Schedule Caste candidates plus 267 OBC candidates are already working. Therefore, at the moment there exists no vacancy. The learned , counsel submitted that the entire exercise of filling 165 posts was illegal and futile in as much as there did not exist any vacancy.
14. The learned counsel for the respondents further submitted that no relief has been sought for the creation of the post and, therefore, no mandamus could be issued. In support of his submission, the learned counsel placed reliance on a decision of the Supreme Court in Baitarani Gramiya Bank v. Pallab Kumar and Ors., 2003(8) JT SC 121.
15. The learned Additional Advocate General further submitted that the mere fact the petitioners were placed in the merit list did not give them an indefeasible right to get an appointment. In support of his submission the learned counsel placed reliance on a decision of the Supreme Court in Shankarsan Dash v. UOI, 1991(3) SCC 47. The learned counsel further submitted that the field relating to the appointment of the dependents of the deceased employee on compassionate grounds was not occupied by the Police Act and therefore, the Dying in Harness Rules 1974 was applicable in the police force.
16. The controversy which is involved in the present case now revolves on the actual existence of the vacancy in the post of Constable (M). Initially the Deputy Inspector General of Police by his letter dated 12.5.2003 intimated the State Government that 165 vacancies on the posts of Constable (M) are existing which was required to be filled up from the backlog quota of the Schedule Caste and Schedule Tribe candidates. Based on this information, the State Government sanctioned the creation of 165 supernumerary posts of Constable (M) which was effective till 29.2.2005. Subsequently, the State Government issued an order dated 6.5.2004 cancelling the said posts on certain grounds. The State Government in their Supplementary Counter Affidavits have now stated that the recommendation for the creation of the 165 posts by the then Deputy Inspector General of Police was incorrect and it was not based on the actual number of vacancies existing but was based on the occurrence of future vacancies.
17. The question to be considered is whether there exist any vacancy or not on the post of Constable (M). From a perusal of the chart annexed by the respondents as Annexure SCA 4 to the Supplementary Counter Affidavit dated 28.2.2005, it is clear that there are 134 sanctioned posts for Constable (M) in the State of U.P. From this chart, it is also clear that 165 vacancies have been shown against the vacancies existing on 2963 posts in different cadres. It is also clear that out of the 134 posts of Constable (M) 517 persons are already working as Constable (M) in some capacity or other. These 165 posts are not only from the post of Constable (M) but also from various other posts which includes promotional posts. This chart indicates that certain vacancies had been taken out on the presumption that certain promotional posts would be filled up from Constable (M) and, therefore, vacancy would be created on the post of Constable (M).
18. In my view, 165 posts have wrongly been created. Future vacancies cannot be taken into consideration for filling up the vacancies. In any case, in the present case, future vacancies of a promotional post have been taken into consideration. Consequently, in my view the recommendation sent by the Deputy Inspector General of Police by his letter dated 12.5.2003 was incorrect. From a perusal of the chart, it is clear that there are 134 sanctioned posts of Constable (M) and that 517 persons are actually working (as per the Chart). Consequently, there is no question of any vacancy occurring on the post of Constable (M). The learned Additional Advocate General rightly submitted that the entire exercise of filling up 165 posts of Constable (M) was an exercise in futility. Since no vacancy existed, the creation of 165 posts was wholly illegal. Consequently, it is immaterial now for this Court to consider the reasons and the justifications of the State Government in refusing to fill up the 165 posts as per their order dated 6.5.2004.
19. In any case, even if the petitioners were the successful candidates, they did not acquire any indefeasible right to be appointed. In Shankarsan Dash v. Union of India 1991(3) SCC 47, the Constitutional Bench of 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 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 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 v. Subhash Chandra Marwaha, Neelima Shangla v. State of Haryana, or Jatendra Kumar v. State of Punjab.'
20. In All India Schedule Caste & Schedule Tribe Employees Association and Anr. v. A. Arthur Jeen and Ors., 2001(6) SCC 380, the Supreme Court held that the State was under no obligation to fill up all or any of the vacancies and further held-
'Merely because the names of the candidates were included in the panel indicating their provisional selection, they did not acquire any indefeasible right for appointment even against the existing vacancies and the State is under no legal duty to fill up all or any of the vacancies.'
21. Similar view was reiterated by the Supreme Court in S. Renuka and Ors. v. State of A.P. and Anr., 2002(5) SCC 195, Sabita Prasad and Ors. v. State of Bihar and Ors., 1993(1) SLR 44 SC and State of A.P. and Ors. v. D. Dastagiri and Ors., 2003(3) E.S.C.291 (SC).
22. In Baitarani Gamiya Bank v. Pallab Kumar and Ors., JT 2003(8) SC 121, the Supreme Court held the writ petitioners had not required any indefeasible right to be appointed when the bank had taken a decision of not filling the vacancies and further the Bank was under no obligation of legal duty to fill up any of the vacancies.
23. In view of the aforesaid, the petitioners have no right or claim on the. post. Further, it is not necessary for this Court to dwell upon the other arguments raised by the learned counsel for the petitioner.
24. However, a glaring fact had come up before the Court and the Additional Advocate General was called upon to answer and justify the action of the State.
25. Admittedly, there are only 134 sanctioned post of Constable (M) in the State of U.P. In the short counter affidavit dated 19.5.2004, the respondents have stated that 606 persons had been appointed as Constable (M) under the Dying in Harness Rules against 134 sanctioned posts and that 472 persons in excess of the sanctioned posts had been appointed. In the supplementary counter affidavit dated 28.2.2005, the respondents have admitted in para 5 of the affidavit that 144 persons were again appointed in December 2004 on the post of Constable (M) under the Dying in Harness Rules, According to the Additional Advocate General, these appointments were made under a legal compulsion and that such appointments would continue to be made as per the statutory provisions under Rule 8(3) of the Dying in Harness Rules 1974 which had been incorporated in the year 1991.
26. As a result of the aforesaid, out of 134 sanctioned posts, 606 persons plus another 144, i.e., 750 persons are at the moment, working on the post of Constable (M) and if the present state of affairs continue, persons under the Dying in Harness Rules would be appointed as and when a Govt. servant dies in harness.
27. The question which crept in the mind of the Court was why so many appointments had been made. The Additional Advocate General submitted that in the Civil Police, the mortality rate is high and therefore, as per Rule 8(3) of the Dying in Harness Rules, a supernumerary post is created whenever an appointment is made under the Dying in Harness Rules. As a result of the aforesaid, the situation today is, that the number of supernumarary post created under the Dying in Harness Rules is almost three times the existing sanctioned strength.
28. For facility Rule 8(3) of the U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 as it stood prior to the amendment in 1991 is quoted hereunder.
' Rule 8(3). An appointment under these rules shall he made against an existing vacancy only.'
29. By amendment dated 12.8.1991 the existing Rule 8(3) was deleted and substituted as under.
' An appointment under these rules shall be made in the existing vacancy.
Provided that if no vacancy exists, the appointment shall be made forthwith against a supernumerary post which shall be deemed to have been created for this purpose and which shall continue till a vacancy becomes available.'
30. From the aforesaid, it is clear that even if there was no vacancy, a supernumerary post would be created automatically and a person would be appointed immediately and such supernumerary posts would continue till the incumbent was absorbed in a regular vacancy.
31. This provision has now led to a startling result. At the moment, out of 134 sanctioned posts, all the 750 persons who are working are those persons who had been appointed under the Dying in Harness Rules. Today, no Constable (M) has been appointed by direct recruitment. Considering, the mortality rate, it is doubtful that these supernumerary post would ever come to an end. It is unlikely, that in the near future, the sanctioned posts of Constable (M) would ever be advertised and vacant posts would be filled up from the general public.
32. This leads us to the object underlying the enactment of the U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974. These rules were enacted to enable the family of the deceased to tide over the sudden crisis resulting due to the death of the breadwinner. A humanitarian consideration was imbibed in these rules to make a provision for an appointment by relaxing the procedure for recruitment in order to provide a source of livelihood to the family of the deceased employee. The provisions so made was a departure from the general procedure for recruitment of a person in a Government service. Such previsions made in the rules was in the nature of an exception to the general provision and such an exception could not subsume the main provision which otherwise would nullify the main provision by taking away the right conferred by the main provision itself.
33. Thus, a provision relating to compassionate employment has to be scruitnised carefully and examined to ensure that it does not interfere with the right of other persons who are eligible for an appointment against a post which would have been available to them but for the provisions enabling employment being made on compassionate grounds of a dependant of a deceased employee.
34. As a result of the amended Rule 8(3) of the Rules of 1974, the posts which were required to be filled up by direct recruitment have now being made available only to the dependants of the employees who died in harness and the right of other persons who are eligible to seek appointment on those posts by direct recruitment has now been almost excluded by necessary implication.
35. In my view, such a situation which has crept today, in the appointment of Constable (M) is on account of a class created by the dependants of the deceased employee which, in my opinion, has become a separate class by itself. Equality of opportunity means equality as between the members of the same class of employees and not between that of a separate independent class. Article 16 of the Constitution guarantees equal opportunity to all citizens to apply for employment under the State. Every citizen has a fundamental right to make an application for a post provided the post exist and is advertised. But if the posts are filled up only from the dependants of the deceased, such action would be totally arbitrary and violative of Article 16. In my view, the guarantee provided under Article 16 is being violated by the Government by filling up the posts of Constable (M) under the Dying in Harness Rules.
36. In view of the aforesaid, the proviso to Rule 8(3) of the Dying in Harness Rules 1974 as inserted in 1991 is violative of the right to equality in the matter of employment inasmuch as other persons who are eligible for appointment and who could be more meritorious than the dependants of the deceased employees are being deprived of their constitutional right for being considered for such an appointment.
37. In view of the aforesaid, I declare the proviso to Rule 8(3) of the U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 as ultravires Article 16 of the Constitution of India and quash the same.
38. Consequently, I am not inclined to interfere in the writ petition. The writ petition fails and is dismissed. There shall be no order as to cost.