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IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CIVIL) NO.31222  OF 2018 (@ D.NO.39715 OF 2018)

DR. BABLOO SINGH AND ORS.  …Petitioners

VERSUS

STATE OF U.P. AND ORS. …Respondents

WITH SPECIAL LEAVE PETITION (CIVIL) NO.31223 OF 2018

(@ D.NO.40201 OF 2018) (Amar Singh Goutam and Ors.  vs.  State of U.P. & Ors.)

AND SPECIAL LEAVE PETITION (CIVIL) NO.31225 OF 2018

(@ D.NO.41516 OF 2018) (Ravinder Kumar & Ors.  vs.  State of U.P. & Ors.)

O  R  D  E  R

Uday Umesh Lalit, J.

1. Permission  to  file  special  leave  petition  granted  in  all  matters.

Heard Mr. Shekhar Naphade, Mr. Salman Khurshid and Mr. S.G. Hasnain,

learned Senior Advocates in support of the petitions.

2. These  petitions  are  directed  against  the  order  dated  10.10.2018

passed by a bench of five learned Judges of the High Court of Allahabad

in Writ Petition No.51212 of 2010 and other connected matters turning

down  the  reference  made  to  a  larger  bench  and  directing  that  the

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concerned matters be placed before an appropriate court for disposal of

writ petitions and other connected matters.

3. Two learned Judges of the High Court, finding themselves unable to

agree with the view taken by another bench of two learned Judges in Dr.

Vishwajeet Singh and others.  v.  State of U.P. and others.1 as well as the

view expressed by a Full Bench of the High Court in Heera Lal v.  State

of U.P.2  formulated following questions to be considered and decided by a

bench of more than three Judges.

“1. Whether  the  rules  of  reservations  under  the U.P. Act No.4 of 1994 are applicable to appointment on the post of lecturers, by direct recruitment, in the aided postgraduate and undergraduate colleges in the State of  UP,  affiliated to  the State  Universities  by clubbing all the vacancies as provided under Section 12(3)  of  the  UP  Higher  Education  Service Commission  Act,  1980  subject-wise;  or  the vacancies have to be worked out for applicability of rules of reservation college-wise and subject-wise?

2. Whether there has to be plurality posts in the cadre, for applying the rules of  reservation, which means more than one; or there has to be at least five posts  in  the  cadre  for  applying  the  rules  of reservations?

3. Whether  the  vacancies  arising  in  any recruitment year under Rule 3(2) of UP Act No.4 of 1994 can be filled up separately even if they have not been advertised earlier, in that recruitment year or  in  the  subsequent  recruitment  year,  or  such reserved  vacancies  have  to  be  advertised  at  least

1 2009 (4) ADJ 373 2 2010 (6) ADJ 1 (FB)

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once to  be carried over  for  the recruitment  in  the same year or in the subsequent year?

4. What  is  the  meaning of  the  words  ‘unfilled vacancies’ in Section 3(2) of UP Act No.4 of 1994?

5. Whether Dr. Vishwajeet Singh’s case (supra) and  the  Full  Bench  decision  in  Heera  Lal’s  case (supra) have been correctly decided?”

4. In Dr. Vishwajeet Singh’s case (supra), challenge was raised to an

advertisement issued by the U.P. Higher Education Service Commission

initiating selection process for filling-up 838 posts of lecturers in different

subjects in various graduate/post-graduate colleges in the State of Uttar

Pradesh.  The selection process was described to be a special recruitment

drive  to  clear  carry  forward  and  backlog  vacancies  of  the  reserved

categories and all the posts were said to be reserved for Scheduled Castes,

Scheduled  Tribes  and  other  backward  classes.  Apart  from  the  other

questions raised in the matter, the clubbing of vacancies by the Director of

Education for the purpose of sending requisition to the Commission was

specifically  in  issue.   The  submission  as  recorded  in  Dr.  Vishwajeet

Singh’s case (supra) was as under:

“… … …The clubbing of  the  vacancies  by the Director of Education for the purpose of sending requisition to the Commission for  advertisement may be permissible for the purpose of recruitment but the entire vacancies of Lecturers in different post-graduate colleges/graduate colleges cannot be treated  to  be  one  unit  for  applying the  rules  of

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reservation.  The vacancies have to be advertised subject-wise, college-wise and the roster has to be applied  subject-wise  and  college-wise.   Neither the vacancies of Lecturer in different colleges can be clubbed nor the vacancies of Lecturers even in one college can be clubbed together for applying the roster.  There is no common cadre of Lecturers in different colleges.  The posts are sanctioned by the  Director  of  Higher  Education  subject-wise, separately  for  each  institution.   There  is  no common cadre of Lecturer throughout the State.”

5. In Dr. Vishwajeet Singh’s case (supra), questions 3, 4 and 5 were

taken-up for consideration together.  After considering provisions of UP

Act  No.4  of  1994  from paragraph  31  of  the  judgment,  the  discussion

proceeded with framing a question as to “what is a unit?” for applying the

rules of reservation. After discussion that the posts of lecturers which had

been  advertised  were  posts  in  different  colleges  affiliated  to  different

universities in the States it was observed:

“… … …As noted above, different institutions are separate  entities  and  there  being  no  common service  of  Lecturers  throughout  the  State,  the consolidated  list  required  to  be  prepared  under Section 12(3), is at best preparation of consolidated list of vacancies for the purpose of recruitment and cannot  be  treated  as  a  unit  for  applying  the reservation.”

6. Analysing the matter in great detail, the Division Bench accepted

the challenge and passed following directions in Dr. Vishwajeet Singh’s

case (supra):

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“(i) The advertisement No.37 dated 9.7.2003 insofar as it advertised 467 vacancies which arose up  to  30.06.2003  due  to  death,  resignation  or retirement is quashed.  However, the advertisement insofar as it advertises 371 carry forward vacancies which remained unfilled is maintained.

(ii)  The  Director,  Higher  Education  shall before  declaring  the  result  against  371  carry forward vacancies shall re-determine the number of vacancies  against  which  select  list  be  issued  by applying  reservation  and  roster  subject-wise  and college-wise.   The  declaration  shall  be  confined only to those vacancies which were carry forward vacancies  and  were  advertised  earlier  by advertisement  No.29  and  could  not  be  filled-up. The Director may determine on the basis of records available with him or may call for any other reports or record from management or any other competent authority.   The  candidates  whose  names  are included in the select list shall be given option to give fresh choice of the colleges as required by the second proviso to Section 12(4) which has become necessary  in  view of  quashing  the  advertisement against 471 vacancies and direction issued by this order  to  the  Director  to  redetermine  the  correct number of reserved vacancies out of carry forward vacancies against which select list is to be issued. The Director shall complete the aforesaid exercise within three months from the date of production of certified  copy  of  this  order  and  thereafter  take appropriate  steps  for  issuing recommendation for appointment  in  accordance  with  U.P.  Higher Education Services Commission Act, 1980.

(iii)  The  Director  shall  take  steps  for advertising 471 vacancies which were covered by advertisement  No.37  applying  the  rules  of reservation and roster as per the above directions by taking necessary steps at an early date.

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(iv) The rules of reservation and roster shall be  applied  college-wise  and  subject-wise  when there are plurality of posts as indicated above.”

7. The aforesaid view taken by the Division Bench in Dr. Vishwajeet

Singh’s case (supra)  was challenged before this  Court.   After  grant  of

special  leave  to  appeal,  Civil  Appeal  Nos.6385-6396  of  2010  were

dismissed by this Court on 19.01.2017 in following terms:

“We have heard learned counsel for the parties at length.

We are  in  agreement  with  the  view taken in  the impugned  judgment.   The  judgment  of  the  High Court is accordingly affirmed.

The civil  appeals are accordingly dismissed.   No costs.  

Pending  applications,  if  any,  shall  also  stand disposed of.”

8. It appears that in Dr. Archana Mishra and others.  v.  State of U.P.

and others. (Writ Petition No.51212 of 2010), a doubt was raised as to the

correctness  of  the  decision  of  the  Division  Bench  in  Dr.  Vishwajeet

Singh’s case  (supra) as well as the decision of the Full Bench in  Heera

Lal’s case (supra) and, therefore, the matters stood referred to the bench of

five  learned  Judges  of  the  High  Court  to  consider  five  questions  as

referred hereinabove.

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9. In view of the fact that the decision of the Division Bench in  Dr.

Vishwajeet Singh’s case (supra) was affirmed by this Court, the bench of

five Judges considered whether the reference could be entertained by that

bench.   In the light of the law laid down by this Court in Kunhayammed

& others v. State of Kerala and another3 and S. Shanmugavel Nadar v.

State of Tamil Nadu4 the bench observed:

“… … … The Supreme Court, while dismissing the appeal has clearly observed that it is in agreement with the view taken in  Dr.  Vishwajeet  Singh and, accordingly,  affirmed  the  same.   There  is  thus  a positive and unambiguous expression of approval of the said decision  and,  therefore,  it  cannot  be  said that the order of the High Court did not merge into the order of the supreme Court.  Insofar as the case before us is concerned, it is clear from the order that the  Supreme  Court  not  only  dismissed  the  Civil Appeals  after  granting  leave  but  while  doing  so, clearly observed that it was in agreement with the view  taken  in  the  impugned  judgment  and, accordingly affirmed the judgment of this Court.

xxx xxx xxx

Our  unequivocal  answer  therefore  to  the  issue framed would be that the decision in Dr. Vishwajeet Singh stood duly affirmed by the Supreme Court. The  terms  of  the  order  dated  19.01.2017  clearly establish that the said decision and the view taken by  the  Division  Bench  therein  was  specifically approved.  The said decision consequently merged in the order of the Supreme Court.  The order of the Supreme Court came to be rendered after grant of leave.  Once the decision of this Court stood merged

3 (2006) 6 SCC 359 4 (2002) 8 SCC 361

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in the order of the Supreme Court, it would not be legally permissible for this Full Bench to consider the  correctness  or  otherwise  of  Dr.  Vishwajeet Singh. … … …”

10. The bench of five learned Judges found itself to be bound by the

decision of this Court in Civil Appeal Nos.6385-6386 of 2010 decided on

19.01.2017 and as such held that there was no occasion to rule on the

reference.  The reference was accordingly turned down.

11. Said order turning down the reference is presently under challenge.  

12. It  is  accepted  by  the  learned  counsel  appearing  for  various

petitioners that in Civil  Appeal  Nos.6385-6386 of 2010 questions were

specifically raised regarding clubbing of all vacancies in various colleges

under  different  universities  in  the  State.   It  is,  thus,  accepted  that  the

discussion and the  reasoning of  the Division Bench in  Dr.  Vishwajeet

Singh’s case (supra) touching upon said issues including the applicability

of  the  provisions  of  UP  Act  No.4  of  1994  definitely  arose  for

consideration before this Court. However, an attempt has been made by

the learned counsel to submit that certain aspects were not considered by

the Division Bench in Dr. Vishwajeet Singh’s case (supra) and thus could

not arise in Civil Appeals before this Court and the matter may require

fuller consideration.

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13. We have anxiously considered the submissions and are unable to

accept the contentions raised by the learned counsel.   In our view, the

questions as are sought to be raised now had already been considered in

Dr. Vishwajeet Singh’s case (supra) which view was approved in terms by

this Court.  In the circumstances, the larger bench of five Judges of the

High Court was right and justified in turning down the reference.  We,

therefore, see no reason to entertain these special leave petitions, which

are accordingly dismissed.  

…...………………..…J.   (Uday Umesh Lalit)

.……..….……………J.   (R. Subhash Reddy)

New Delhi; November 27, 2018