The Allahabad High Court has ordered the government to release a waiting list to fill 30 vacant posts of the Assistant Prosecution Officer (APO).
The Division Bench of Justice Saumitra Dayal Singh and Justice Donadi Ramesh passed this order while hearing a petition filed by Vikas Singh and 21 Others.
The petition has been filed for the following relief:
“(i) a writ, order or direction of a suitable nature commanding the respondent to forthwith undertook steps for filling up the unfilled vacancies of Assistant Prosecution Officer in pursuance to advertisement dated 21.04.2022 from the remaining merit list prepared by the Public Service Commission, UP, Prayagraj in compliance with the office memorandum dated 15.11.1999 within a period to be specified by the court.
(ii) a writ, order or direction of a suitable nature declaring Rule 15(4) of Uttar Pradesh Prosecution Officer Service Rule 1991 as amended by UP Prosecuting Officer (Service) (Second Amendment) Rule 2009 as ultra vires the constitution in case it is interpreted as excluding preparation of a waiting list in the selection.”
The Court noted that the Advertisement in question was issued to recruit forty-nine Assistant Prosecution Officers. That requisition was increased to sixty-nine. Against such requisition, the Advertisement was published on 21.4.2022. Undisputedly, the petitioners applied and appeared in three stages of that examination – Preliminary, Written and Interview. They were not selected owing to lower merit positions.
At the same time, it is asserted that against sixty-nine posts advertised by Uttar Pradesh Public Service Commission, twenty-four posts remained vacant for the reason that many selected candidates had been also selected against parallel selection undertaken by the Commission for the post of Civil Judge (Junior Division). Pertinent to note that the result of Civil Judge (Junior Division) was declared on 30.8.2023 whereas the result of the present selection was declared on 21.6.2023. Perceiving better employment prospects, twenty-four selected candidates (under the present Advertisement) are described to have not joined. Also, six more vacancies allegedly exist.
It has been further stated, the aforesaid Office Memorandum is not repugnant to the existing statutory rules inasmuch as though by virtue of enforcement of U.P Prosecuting Officer (Service) (Second Amendment) Rules, 2009, the substituted Rule 15(4) of the said Rules does not contemplate preparation of Wait List, at the same time, there is no statutory provision prohibiting or restraining preparation of such Wait List.
Further, it has been submitted, the government’s own understanding of the existing Rule with respect to preparation of Wait List is consistent with the submission being advanced here. Thus, referring to Letter dated 22.3.2024, it has been submitted, in absence of any prohibition in law to prepare the Wait List, the Directorate of Prosecution had itself invited – initially non-selected candidates to join against similar selections held in the year 2015.
Referring to the above noted communication, it has been asserted, almost nine years after the issuance of the initial Advertisement, a number of posts have been filled up from the initially non-selected candidates in order of merit, thereby clearly indicating the existence of a right to appointment on the strength merit position/Wait-List principle.
Thus, an inconsistent stand has been attributed to the respondents in the context of the impugned selection.
Senior counsel for the petitioner contend dual standards have been adopted while dealing with the similar situation involving similarly situated persons inasmuch as, both under the 2015 & 2022 Advertisements, selections were to be made to the post of Assistant Prosecution Officers. No difference of law existed as may have entitled the candidates who had appeared for the selections held in the year 2015 a right to be considered against the principle of wait list recognized at that selection and to deprive the petitioners of the same treatment in law.
Senior Counsel would further contend, in the case, equities are strongly poised in favour of the petitioners inasmuch as the result has been recently declared and about thirty vacancies are lying vacant, even today. Not much time has passed. The petitioners, who are twenty-two in numbers, are willing to join against the existing vacancies in order of their merit position.
At this stage, the Court is also cognizant of the fact that against 580 posts of Assistant Prosecution Officers, 178 posts are currently lying vacant in the State of U.P. It is leading to an unhealthy imbalance between the existing Courts and the number of Assistant Prosecution Officers available to work them. The Court is also aware of the large pendency of cases and the urgent need to fill the posts of Assistant Prosecution Officers to allow for smoother and more efficient functioning of the Courts as may lead to speedy justice delivery to the citizens.
In view of the above, the Court found that the issue may be more appropriately addressed by the State Government inasmuch as it already appears to be cognizant of the fact situation noted above. Perhaps, upon force of circumstance, it has found itself persuaded to offer appointments to those who had appeared in the similar selection conducted in the year 2015, as late as in 2024. Once that policy decision has been taken, obviously in the larger public and administrative interest, that policy may be equally applicable to the petitioners, unless distinguishing facts exist.
Since the decision is to be first made on the administrative side, the Court deemed it appropriate to refer the matter to the State Government to take an appropriate informed decision, in the interest of all. Not only the petitioners but all such candidates who may not have been included in the first Select List, may remain entitled to be considered, subject to their suitability and their interse merit position.
Accordingly, the Court disposed of the petition with the following directions:
(i) The petitioners may file a composite representation before the respondent no 1 along with a self-attested copy of the petition, within a period of one week from today.
(ii) On such compliance made, respondent no 1 may invite the necessary response of respondent no 2 – with respect to the existing vacancy position on the post of Assistant Prosecution Officers. Also, it may call for a response from the Commission as to the expected time that is required to fill up those existing vacancies. The Commission and respondent no 2 shall be bound to submit their response within a period of one week from the date it is being called.
(iii) Thereafter, the respondent no 1 may pass an appropriate reasoned order on the petitioners’ representation keeping in mind the observations made above and specifically keeping in mind the earlier administrative decision dated 22.3.2024 of the Directorate of Prosecution.
(iv) Such exercise may be completed as expeditiously as possible, preferably within a period of six weeks from the date of compliance shown by the petitioners. In case that representation is to be rejected, adequate reasons for the same may be communicated to the petitioner within the same time.