Shitla Singh Vs. State of U.P. and ors. - Court Judgment

Excerpt:
- land acquisition act, 1894 [c.a. no. 1/1894]. section 4; [sushil harkauli, s.k. singh & krishna murari, jj] acquisition of land held, court cannot issue a writ of mandamus directing the state authorities to acquire a particular land. land acquisition is not purely ministerial act to be performed by executive no direction in nature of mandamus whether interim or final can be issued by court under article 226 necessarily to acquire particular land in public interest. land acquisition is not a purely ministerial act to be performed by the executive and therefore, no mandamus can be issued by the court in exercise of its power under article 226 of the constitution, whether suo motu or otherwise, whether in public interest litigation or otherwise directing acquisition of land under the provisions of land acquisition act, 1894. it would, however, be open to the court in exercise of that power to invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time frame. however, the power of the court under article 226 must necessarily stop at that. thereafter, if the decision taken by the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the court to quash the decision and to require reconsideration. but no direction in the nature of mandamus whether interim or final can be issued by the court under article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose. section 4; compulsory acquisition of land powers of state government held, renewal of lease in favour of petitioners would not take away power of state government of compulsory acquisition of land. renewal of lease would at best be taken into consideration for determining quantum of compensation. - in view of rule 19(6) and the note appearing in appendix e of he rules, petitioner's claim is better than pawan kumar tiwari aforesaid judgment and order of this court has caused grave injustice to the petitioner; 6. at the out set, we reproduce paras 14, 15 and 16 of the writ petition (sworn on the basis of legal advise) :14. that in view of the aforesaid facts, petitioner has a better chance to appointment. 8. we fail to appreciate the language used in the above paras as it is against court decorum. shitla singh having failed to raise this issue in the earlier writ petition is not entitled to maintain the subsequent writ petition. it lies before apex court against whose judgment no remedy is available learned counsel for the petitioner has failed to rebut the argument of learned standing counsel. khalild mujib, air 1981 sc 487. learned counsel, however, ignored the last line of para 18 of the reported judgment which clearly cuts the very root of his argument. but in the absence of any better test for measuring personal characteristics and traits, the oral interview test must at the present stage, be regarded as not irrational or irrelevant thought it is subjective and based on first impression, its result is influenced by many uncertain factors and it is capable of abuse. we would, however, like to point out that in the matter of admission of colleges or even in the matter of public employment the oral interview test as presently held should not be relied upon as an excessive test, but it may be resorted to only as an additional or supplementary test and moreover, great care must be taken to see that persons, who are appointed to conduct the oral interview test are men of high integrity, calibre and qualification. ' 26. the learned counsel for petitioner has miserably failed to place any judicial precedent to show that viva voce test cannot be taken as criteria for assessing general suitability of a candidate to prepare merit in the fact of the present case. 4 possessed better academicrecord as compared to shitla singh/present petitioner before us. in addition to theabove, we also found that date of birth of pawan kumar tiwari is 18.9.1962 andhe is older than shitla singh, whose date of birth is 23.7.1964 pawan kumar tiwari thus has better claim on all scores and rightly allotted 47th post in general category.a.k. yog, j.1. heard learned counsels for the parties at length and perused the orchard.2. u.p. public service commission/respondent no. 3 placed its original record + original marks competitive sheets in sealed cover and we perused them also.shitla singh petitioner has approached this court through present writ petition no. 47231 of 2003, under article 226 of the constitution of india and claims following reliefs :(a) issue a writ, order or direction in the nature of prohibition restraining the respondents from appointing respondent no. 4 sri pawan kumar tiwari as civil judge (junior division) in u.p. nyayik seva;(b) issue a writ, order or direction in the nature of curative mandamus commanding the respondents to consider the claim of the petitioner for being appointed as civil judge (junior division) to the u.p. nyayik seva;(c) issue any other writ, order or direction which this hon'ble court may deem fit and proper in the circumstances of the case;(d) award costs of the petition to the petitioner.3. the grounds for seeking aforementioned reliefs are that before passing judgment and order dated 19.8.2003 (annexure-1 to writ petition) in the writ petition no. 38940 of 1999 (pawan kumar tiwari v. state of u.p. and ors.) containing direction to issue writ of mandamus to appoint pawan kumar tiwari, this court ought to have examined the question as to whether there are more meritorious candidates above him and available for appointment, without considering merit of number of other candidates, this court ought to have acted with restrain and refrained from issuing, writ of mandamus commanding the respondents to appoint the petitioner in service; petitioner contends that comparatively he is a superior candidate as compared to pawan kumar tiwari, the mandamus issued by this court in the writ of pawan kumar tiwari is in contravention of articles 14 and 16 of the constitution of india; in view of rule 19(6) and the note appearing in appendix e of he rules, petitioner's claim is better than pawan kumar tiwari aforesaid judgment and order of this court has caused grave injustice to the petitioner; and that curative writ of mandamus be issued directing the respondents to consider the claim of the petitioner for appointment as civil judge (jr. div.) in u.p. niyayik seva.4. requisite pleadings are contained in the writ petition from paras 3 to 16 of the writ petition. it is pleaded by the petitioner that he appeared in the examination conducted by u.p. public service commission for short called 'the commission' for recruitment on the posts of civil judge (junior division) in the state, which are governed by the uttar pradesh nyayik sewa niyamawali, 1951 (for short called niyamawali) as amended up to date. in all, 93 vacancies were notified and petitioner secured 562 marks in written examination and 58 marks in the interview i.e. total aggregate 620/950 marks. in the aforesaid examination pawan kumar tiwari/respondent no. 4 secured 559 marks in written examination and 61 marks in the interview, 620 marks in total aggregate. result of the examination declared on 11.1.99 but the name of the petitioner did not find place in the successful candidates.5. petitioner shitla singh filed writ petition no. 39553 of 1999 challenging the procedure and selection by the u.p.p.s.c. the said writ petition (alongwith other two connected writ petitions, whose record was summoned by us) were dismissed by a division bench of this court vide order dated 24.7.2002 (annexure-i to the writ petition), pawan kumar tiwari/respondent no. 4 filed writ petition no. 38940 of 1999 challenging calculation of vacancies in different categories (general, obc, sc etc.). the said writ petition was allowed by this court vide judgment and order dated 19.8.2003 holding that pawan kumar tiwari was entitled to get the appointment on the basis of his merit on the ground that general category posts were not correctly calculated by the u.p.p.s.c., it ought to be 47 and not 46 as calculated by the commission. it is contended that in case more than one candidate secure equal marks in aggregate than the candidate, who has secured higher marks in the written examination has to be preferred. (para 13 of the writ petition) that shitla singh/petitioner is entitled in law to be appointed and not pawan kumar tiwari and hence the present curative writ of mandamus.6. at the out set, we reproduce paras 14, 15 and 16 of the writ petition (sworn on the basis of legal advise) :'14. that in view of the aforesaid facts, petitioner has a better chance to appointment. however, in view of the mandamus issued by this hon'ble court his chance stands negated. this hon'ble court has issued clear mandamus commanding the respondents therein to appoint the petitioner of that case in the service. the aforesaid mandamus issued by this hon'ble court does grave injustice to the petitioner of the present writ petition. present petition is being filed by way of curative.15. that it is submitted that before issuing mandamus, this hon'ble court ought to have examined the question as to whether there are more qualified and eligible persons for appointment. without considering the merit of a number of other candidates this hon'ble court ought to have refrained itself from issuing positive mandamus commanding the respondents to appoint the petitioner of that case in service. the petitioner being comparatively superior candidate to the petitioner of that writ petition, pawan kumar tiwari, the mandamus issued by this hon'ble court is contrary to the principle of equality as enshrined in articles 14 and 16 of the constitution of india.16. that in view of rule 19, clause 6 and note appended thereto appearing in appendix-e of the rules, the claim of the petitioner was superior to that of pawan kumar tiwari. thus, the mandamus issued by this hon'ble court inflicts grave injustice to the petitioner and is in clear breach equality claims as guaranteed under articles 14 and 16 of the constitution.' 7. petitioner has, on legal advise inflicted aspersions on court.8. we fail to appreciate the language used in the above paras as it is against court decorum. when a senior counsel appears, it is his duties to ensure that language used is appropriate and befitting to the court dignity. it must not be derogatory. matter assumes significance when above paras are sworn on legal advise. sri ravi kant, senior counsel fairly tendered apologies for the lapse. hence, we ignore the lapse in hope that it shall not be repeated and the learned counsels shall fulfill their professional obligation faithfully.9. we are at his juncture informed by the commission that there is no other parallel claimant over post (found available on correct calculation of/general quota) and which according to the court's judgment in the case of pawan kumar tiwari, annexure-ii to the writ petition that become available to said pawan kumar tiwari 10. we note that petitioner/shitla singh, filed an affidavit sworn on september 10, 1999 in support of the writ petition no. 39533 of 1999, shitla singh v. state of u.p. and ors. on the other hand, pawan kumar tiwari had filed writ petition no. 38940 of 1999 supported by an affidavit sworn on september 7, 1999. it show that shitla singh had filed earlier writ petition only after two days of the writ petition filed by pawan kumar tiwari, who raised issue of wrong calculation of general category quota.11. we find no cogent reason given in the present writ petition no. 47231 of 2003, as to why this issue of wrong calculation in general quota was not raised in the earlier writ petition no. 39553 of 1999, though it was available and could/should have been taken, when he had filed the writ petition no. 39553 of 1999, and that too subsequent to the writ petition no. 38940/1999 filed by pawan kumar tiwari. shitla singh having failed to raise this issue in the earlier writ petition is not entitled to maintain the subsequent writ petition. he is estopped under law.12. we have gone through the record of earlier writ petition no. 39553 of 1999, shitla singh v. state of u.p. and ors., connected with writ petition no. 25021 of 1999, durga singh and ors. and writ petition no. 35806 of 1999, awadesh kumar v. state of u.p. and ors. we find that entire case of shitla singh was with reference to miscalculation of total vacancies.13. relevant extract of the judgment in the above writ petition is reproduced :'it is not the case of the petitioners that they have secured ranks which are within first 93 and they have been denied an appointment. what the petitioners contend is that the state government did not send requisition for the total number of vacancies which were notified by the high court and all the available vacancies, according to cadre strength, had not been advertised. as mentioned earlier, the high court had initially requested the state government to make recruitment on 100 posts, but on clarification it was informed that, only 93 clear vacancies were available up to the end of december, 1997. in such circumstances, the state government sent a requisition to the commission for making recruitment on 93 vacancies only. the petitioners being mere aspirants for the posts have no legal right to contend that the appointing authority, namely, the state government was bound to make recruitment on all the available vacancies and should have accordingly sent a requisition to the commission for making selection on all such vacancies. the petitioners, have thus, absolutely no legal right to claim that the selection should have been held for all the available vacancies or that the state government was bound to make recruitment and fill in all such vacancies.'14. paras 7 and 8 of the present writ petition no. 47231 of 2003 (curiously sworn on personal knowledge and not on the basis of record) quoted for ready reference :'(7) that in the aforesaid writ petition, the only question for consideration was regarding mode and manner of computing the existing vacancies. according to the petitioner, the vacancies ought to have been computed with reference to cadre strength of service, and if computed accordingly, the vacancies should have been 214.(8) that however, this hon'ble court: repelled the objection raised by the petitioner. according to it, the vacancies occurring two years preceding the year of recruitment alone have to be computed and considered.'15. on the other hand, paras 4 and 5 in writ petition no. 39553 of 1999, shitla singh v. state of u.p. and ors., (sworn on the basis of record and personal knowledge) are also reproduced.'4. that the advertisement issued by u.p. public service commission regarding the reservation of seats for s.c. and s.t. and obc not in agreement with the verdict of apex court held in mandal commission case accordingly the number of reserved seats should not be exceeded by 50% of the total seats while the above said advertisement manages to reserve the seat as follows.sc 20.st 2.obc 26.which comes to 47 out of 93 seats i.e. it exceeds by 50% rather thereservation should not be for more than 46 seats.5. that it is also relevant to mention here that the excess of reservation is virtually caused by miscalculation of seats reserved for o.b.c. for the 27% of total 93 seats comes to be 25.11 and not 26.'16. the writ petition, otherwise devoid of merits. the points raised on behalf of the respective parties are hereby dealt with.17. learned counsel for respondents at the out set raised objection regarding maintainability of present writ petition. he argued that curative writ petition is misconceived. filing of 'curative writ petitions' can be appreciated when there is no other forum is available to the aggrieved. it lies before apex court against whose judgment no remedy is available learned counsel for the petitioner has failed to rebut the argument of learned standing counsel.18. learned standing counsel further submitted that the petitioner who ought to have approached this court in the year 1999 is guilty of laches. it is to be noted that pawan kumar tiwari similarly situated candidate had filed writ petition no. 38940 of 1999 coupled with this, petitioner did not raise the issue of general quota of 47 posts when he filed earlier writ petition no. 39553 of 1999 (noted above) as was done by pawan kumar tiwari through his writ petition no. 38940 of 1999. we find force in this contention that petitioner is guilty of laches.19. learned counsel for the petitioner further argued that since shitla singh has obtained higher marks than pawan kumar tiwari in written examination, therefore, he is to be preferred to pawan kumar tiwari.20. in this context, sri ravi kant, senior advocate, referred rules 15 and 19 of niyamwali. for the shake of convenience rules 15 and 19 are reproduced below.'15. competitive examination.--the examination may be conducted at such time and on such dates as may be notified by the commission and shall consist of-- (a) written examination in such legal and allied subjects, including procedure, as may be included in the syllabus prescribed under rule 18;(b) an examination to test the knowledge of the candidates in hindi and urdu; and(c) an interview to assess the all round student carrier of the candidates and their personality, address and general suitability. 19. list of candidates approved by the commission.--the commission shall prepare a list of candidates who have taken examination for recruitment to the service in order of their proficiency as disclosed by the aggregate marks finally awarded to each candidate. if two or more candidates obtain equal marks in the aggregate, the commission arrange them in order of merit on the basis of their general suitability for the service : provided that in making their recommendation the commission shall satisfy themselves that the candidate has obtained such an aggregate of marks in the written test that he is qualified by his ability for appointment to the service.' learned counsel for the petitioner then referred to appendix (e) framed under rule 18 of the said niyamawali. relevant extract is as follows :'(6) viva voce.--the suitability of the candidate for employment in the judicial service will be tested with reference to his record at school, college and university and his personality, address and physique. the questions whine may be put to him may be of a general nature and will not necessarily be of an academic or legal nature. note (i) the marks obtained in viva voce will be added to the marks obtained in the written papers and the candidates place with depend on the aggregate of both.(ii) the commission reserve the right to refuse to call for viva voce any candidate who has not obtained such marks in the papers as to justify such refusal.' (u.p.g. pt. 1-a dated 3.6.72 page 1742) 21. it is argued on behalf of petitioner that in case two candidates obtain equal marks in aggregate (i.e. total aggregate of both written and interview), then the candidate who has obtained higher marks in written test has to be preferred. according to the counsel for petitioner, from the above referred provisions, inference is inescapable (see para 13), such a contention fallacious and without foundation. apart from the fact that this question has also been considered by a division bench and the controversy has been rest at by holding that a candidate, who has obtained higher marks in viva voce will be preferred in category of equal aggregate marks obtained by the candidates.22. learned counsel for commission referred to the decision of avinash narain pandey v. u.p. public service commission, allahabad and ors., (1996) 2 uplbec 1249 (db), wherein the division bench referring to earlier division bench decision in the case of km. manju trivedi v. state of u.p., writ petition no. 1247 (s/b) of 1992, decided on 19.1.1994 (lucknow bench), this court observed thus :'in paragraph 6 of its counter-affidavit, the commission has stated that earlier when two or more candidates secured equal marks in the aggregate, it used to give higher place in the merit list to a candidate, who secured more marks in the interview, but after the decision of the learned single judge in the case of vijay khare v. state of u.p. (supra) it abandoned its earlier policy and has accordingly arranged the names on the basis of marks obtained by them in the written test. be that as it may, the fact, remains that the commission has declared the result of the examination of respondent nos. 3 and 4 and the petitioner on 25.11.1994 on the basis of the law laid down by the learned single judge, which had already been overruled by the division bench in april, 1994. therefore, the order rejecting the candidature of the petitioner and selection the respondent no. 3. surendra nath tripathi, cannot be sustained. as the petitioner and respondent nos. 3 and 4 have obtained equal marks in the aggregate, their names have to be placed in the merit list on the basis of the marks obtained by them in the interview.'23. apart from the above, we have also on our own carefully perused rules 15 and 19 of niyamawali, which read as follows :'15. competitive examination.--the examination may be conducted at such time and on such dates as may be notified by the commission and shall consist of-- (d) written examination in such legal and allied subjects, including procedure, as may be included in the syllabus prescribed under rule 18;(e) an examination to test the knowledge of the candidates in hindi and urdu; and(f) an interview to assess the all round student carrier of the candidates and their personality, address and general suitability. 19. list of candidates approved by the commission.--the commission shall prepare a list of candidates who have taken examination for recruitment to the service in order of their proficiency as discussed by the aggregate mark finally awarded to each candidate. if two or more candidates obtain equal marks in the aggregate, the commission arrange them in order of merit on the basis of their general suitability for the service : provided that in making their recommendation the commission shall satisfy themselves that the candidate has obtained such an aggregate of marks in the written test that he is qualified by his ability for appointment to the service.' 24. expression 'general suitability' has been used under rule 15 (c) only with reference to an interview to assess the all round career of the candidates and their personality, address and general suitability. this expression 'general suitability' finds place under rule 19 while referring to a situation, where two candidates obtained equal marks in aggregate. this is indicative of the fact that 'general suitability' of candidate for service it to be assessed and evaluated on the basis of interview and not written examination. however, there is a salient feature in the present case. earlier proviso, categorically required that in case of candidates, obtaining equal marks, one who obtained higher marks in written test was to be preferred. but there has been amendment in 1972 and the language of the proviso for preferring higher marks in written test and now in case of candidates, who have obtained equal aggregate marks in written and interview than a candidate, who obtains higher marks in interview is to be preferred by giving rank than the other candidates.25. learned counsel for petitioner in support of his argument, referred to the decision in case of ajai hasia v. khalild mujib, air 1981 sc 487. learned counsel, however, ignored the last line of para 18 of the reported judgment which clearly cuts the very root of his argument. the relevant extract of this para in ajai hasia's case reads :'it is, therefore, not possible to accept the contentions of the petitioners, that the oral interview test is so defective that selecting candidates for admission on the basis of oral interview in addition to written test must be regarded as arbitrary. the oral interview test is undoubtedly not a very satisfactory test for assessing and evaluating the capacity and calibre of candidates. but in the absence of any better test for measuring personal characteristics and traits, the oral interview test must at the present stage, be regarded as not irrational or irrelevant thought it is subjective and based on first impression, its result is influenced by many uncertain factors and it is capable of abuse. we would, however, like to point out that in the matter of admission of colleges or even in the matter of public employment the oral interview test as presently held should not be relied upon as an excessive test, but it may be resorted to only as an additional or supplementary test and moreover, great care must be taken to see that persons, who are appointed to conduct the oral interview test are men of high integrity, calibre and qualification.'26. the learned counsel for petitioner has miserably failed to place any judicial precedent to show that viva voce test cannot be taken as criteria for assessing general suitability of a candidate to prepare merit in the fact of the present case.27. it may be mentioned that while perusing the record of the commission.we found that pawan kumar tiwari/respondent no. 4 possessed better academicrecord as compared to shitla singh/present petitioner before us. in addition to theabove, we also found that date of birth of pawan kumar tiwari is 18.9.1962 andhe is older than shitla singh, whose date of birth is 23.7.1964 pawan kumar tiwari thus has better claim on all scores and rightly allotted 47th post in general category.28. considering that it is matter of student-candidate and apology tendered through his counsel, we do not impose costs.29. the writ petition is, accordingly, dismissed30. there is no order as to costs.