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MAHESH KUMAR AND OTHERS versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Mahesh Kumar And Others v. State Of U.P. And Others - WRIT - A No. 57635 of 2005 [2005] RD-AH 4592 (21 October 2005)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

RESERVED

Civil Misc. Writ Petition No. 57635 of 2005

Mahesh Kumar and others..........................................Petitioner

Versus

State of U.P. and others........................................Respondents.

 ********

Hon.Tarun Agarwala,J.

On 15.6.1999 a new judgeship of Baghpat was carved out from district Meerut. New posts were created in the judgeship of Baghpat and, on 23.12.1999, an advertisement was issued inviting applications for 10 posts of clerks and four posts of stenographers. The advertisement also indicated that the number of posts may increase or decrease. Pursuant to the aforesaid advertisement, the petitioner's applied and sat in the examination in which they qualified. On 5th April, 2000, a select list of 73 persons was issued by the District Judge. Petitioner Nos.1 to 7 were at Sl.Nos.11 to 18 of the select list. Petitioner Nos.8 to 20 were at Sl.Nos.21 to 42 of the select list and petitioner Nos.30 to 35 were at Sl.Nos.45 to 47 and 49 to 51 of the select list. The petitioners were given an appointment as a clerk on a temporary basis on various dates between 6.4.2000 and 3.1.2001. The said  appointments were  made  within one year of the issuance  of  the select list. On 4.4.2001, the District Judge extended the life of the select list for  one  more year and candidates appearing from Sl. Nos.52-A to Sl.No.71 were also appointed as clerks on various dates.

On 5.4.2003, the High Court issued a letter to the District Judge asking for an explanation as to how the life of the select list was extended after the expiry of one year and on what basis the appointments were given from the select list after the expiry of the period of the select list. It further transpires that the Administrative Judge of the judgeship of Baghpat submitted a report dated 28.7.2003 holding that the appointments of the candidates  from Sl.Nos.11 to Sl.No.71 were illegal and that these appointments were made on non-existing posts and recommended the removal of these candidates and directed the District Judge to take action as per his report. Based on the aforesaid report of the Administrative Judge, the District Judge by an order dated 22.11.2003 terminated the services of 15 clerks. By another order dated 28.2.2005, the District Judge terminated the services of 4 clerks.

These 19 clerks whose services were terminated, as stated aforesaid, were those persons who were appointed after the select list was extended by the District Judge. Against the order dated 27.9.2003, 15 clerks filed Writ Petition No.52654 of 2003 and an interim order was passed allowing these 15 clerks to continue in the service during the pendency of the writ petition. Against the order dated 28.2.2005, the remaining 4 clerks filed Writ Petition No.34546 of 2005 in which an interim order dated 28.2.2005 was passed staying the order of dismissal. It further transpires that a Special Appeal No.702 of 2005 was filed against the interim order dated 28.2.2005. The appellate court, while hearing the appeal against the interim order, called for the record of both the writ petitions and decided the same on merits. The appellate court by a judgement dated 31.5.2005, while allowing the Special Appeal, also allowed both the writ petitions and quashed the order of termination and remanded the matter back to the District Judge to pass fresh orders in accordance with the observations and directions given in the judgement. The appellate court while setting aside the order of termination, issued the following directions:-

"(a) The decision in respect of the respondent- petitioners shall be taken by a speaking and reasoned order as per directions contained hereinabove by the District Judge, Baghpat.

(b) The District Judge shall withdraw all such similar termination orders in respect of such Class-III employees  whose appointments were pursuant to the selections dated 5.4.2000, including those which are under challenge in various writ petitions before the High Court, and thereafter shall proceed to take a decision in the matter afresh after giving opportunity to the concerned employees in the same way as in the case of the respondents herein. This exercise shall be completed within one month and compliance report shall be submitted immediately thereafter.

While passing the aforesaid directions, the appellate court further held-

"In view of the above, we are of the considered opinion that as only ten vacancies had been advertised, there could be no justification for the authority concerned to fill up more than ten vacancies as it included the then existing as well as vacancies likely to occur in the course of the year. Once ten vacancies had been filled up, the selection process stood exhausted, and the authority concerned become functus officio. Any appointment made by him beyond that number, is without jurisdiction, therefore a nullity, inexecutable and un-enforceable in law.  

In such an eventuality after issuing appointment letters to ten candidates, the select list/ waiting list stood exhausted and could not have been used as perennial source for appointment against any other vacancy. There can be no controversy to the settled legal proposition that even if a successful candidate joins the post and resigns or dies or stands transferred, his vacancy stands exhausted merely by his joining and the post could not be filled up from the waiting list as the statutory rules do not provide for such a course.

In the instant case, the candidates appointed against those vacancies had been transferred to different judgeships and vacancies were created time and again artificially and the select list which could not have been for more than 20 names, had been used as a reservoir by the statutory authority for making illegal appointments. The Court being the custodian of law cannot close its eyes where the facts are so startling that it shocks the conscience of the Court. However, we restrain ourselves to hold that appointments could have been made on extraneous considerations only for the reason that the then District Judge is not a party by name before us. We are told that though the officer has retired but he is facing Departmental Enquiry on such charges."

The Court further held-

"On the basis of the aforesaid provisions and the Circular, referred to hereinabove, it is explicit that the select list, which was prepared on 5th April, 2000 was in flagrant violation of the Rules, referred to above. The then District Judge has proceeded to prepare the list in an absolute arbitrary and whimsical fashion which list could not have included, by any means, more than 20 names. The first step of derailment of the process of selection seals the fate of all such candidates who are claiming themselves to have been appointed under the said list in excess of first twenty names and leave no room for doubt that the select list was prepared with some oblique and ulterior motive.

The petitioners are admittedly much below the 20 candidates in the merit list dated 5.4.2000 and as such they could not have been included in the list prepared by the District Judge. Their very inclusion is invalid. The same is the position with regard to such other candidates who stand on a similar footing. The District Judge proceeded to place 52 persons in the select list in excess of 20 names, including that of the petitioners, and subsequently appointed them which appointments are also invalid, as they are from the same invalid list. We, therefore, hold that the preparation of the select list in excess of 20 names was absolutely illegal and contrary to the Rules applicable. The question of preparing the select of more than 20 or filling up the vacancies against more than 10 posts is in contravention of Articles 14 and 16 of the Constitution of India."

Based on the aforesaid directions and observations of the appellate court, the District Judge issued a show cause notice dated 14.6.2005 to the petitioners to show cause why their services  should not be terminated as their appointments were made beyond the notified vacancies. The said show cause notice was challenged by a number of the petitioners in Writ Petition No.46867 of 2005. This Court by a judgement dated 7.7.2005 dismissed the writ petition as premature and directed the petitioners to file a reply to the show cause notice which would be considered and decided by the authority. It transpires that the petitioner filed the reply and, eventually by the impugned order dated 1.8.2005, the services of the petitioners were terminated. The petitioners have again filed the present writ petition challenging their order of  termination.

The impugned order of termination indicates that 10 posts of clerks were advertised and that only 10 posts could be filled up which were filled up from the candidates from Sl.Nos.1 to 10 of the select list and upon the filling up of the 10 posts, the select list came to an end and that no further appointment could have been made from the said select list. The District Judge further held that the select list could not become a perennial source of appointment. Since the petitioners were appointed on non-existing posts and beyond the notified 10 vacancies, their initial appointment was illegal and, therefore the District Judge by the impugned order terminated their services.

Heard Sri Ravi Kiran Jain, the learned Senior Counsel assisted by Sri K.M. Asthana, the learned counsel for the petitioner and Sri Amit Sthaleker, the learned counsel appearing for the respondents.

The learned counsel for the petitioner submitted that the recruitment process was not confined to the recruitment of 10 posts of clerks inasmuch as, the advertisement indicated that the number of posts were likely to increase or decrease. Since the number of posts had increased during the course of the selection process, consequently, the District Judge had rightly appointed the petitioners from the select list. The learned counsel submitted that the appointments of the petitioners was made against the vacancies existing in the judgeship of Baghpat. In support of this contention, the learned counsel for the petitioner has relied upon a decision in Prem Singh and others vs. Haryana State Electricity Board and others, JT 1996(5)SC 219, and in the case of Rakesh Kumar Trivedi vs. High Court of Judicature at Allahabad and another, (1994)2 UPLBEC 1400, in which it was held that since the advertisement  itself indicated that there may be a variation in the number of vacancies, hence it was within the powers of the authority to recalculate the vacancies which occurred between the date of the advertisement till the date of the final selection.

On the other hand, Sri Amit Sthaleker, the learned counsel for the respondents contended that the judgeship of Baghpat was created in the year 1999 itself and new posts were sanctioned which were 10 in number. The question of increase or decrease in the number of vacancies, thus, could not arise and, at best, the number of posts could have increased or decreased. In the present case, no further posts were created or sanctioned during the selection process and, therefore, only 10 posts were required to be filled up and thereafter no further appointments could be made.

In the case of Prem Shanker Singh (supra), the Supreme Court held that the selection process by way of requisition and advertisement could be started for the clear vacancies and also for the anticipated vacancies but not for future vacancies. The Supreme Court further held:-

"The State can deviate from the advertisement and make appointments on posts falling vacant thereafter in exceptional circumstances only or in an emergent situation and that too by taking a policy decision in that behalf. Even when filling up of more posts than advertised is challenged the Court may not, while exercising its extra-ordinary jurisdiction, invalidate the excess appointments and may mould the relie in such a manner as to strike a just balance between the interest of the State and the interest of persons seeking public employment. What relief should be granted in such cases would depend upon the facts and circumstances of each case."

and further held-

"However, the appointments which were made against future vacancies- in this case on posts which were newly created- must be regarded as invalid."

In the case of Rakesh Kumar Trivedi(supra), a Division Bench of this Court held that since the advertisement itself  indicated that there could be a variation in the number of vacancies, consequently making appointments in excess of the vacancies advertised was valid.

In my opinion, the judgments cited by the learned counsel for the petitioners are distinguishable and are also not applicable to the present facts of the case.

In R.K.Sabharwal and others vs. State of Punjab and others, A.I.R. 1995 SC 1371, the Supreme Court held as under:-

"The expression "posts" and "vacancies" often used in the executive instructions providing for reservations, are rather problematical. The word "post" means as appointment, job, office or employment. A position to which a person is appointed. "Vacancy" means an unoccupied post or office. The plain meaning of the two expressions make it clear that there  must be a 'post' in existence to enable the 'vacancy' to occur. The cadre-strength is always measured by the number of posts comprising the cadre. Right to be considered for appointment can only be claimed in respect of a post in a cadre."

Admittedly, only 10 posts for the appointment of clerks was sanctioned which was advertised. Therefore, only 10 persons could be appointed on the post of clerks. Since no further posts were available, no further appointments could be made over and above the notified posts. The contention of the petitioners that since the advertisement indicated that the posts could be increased, the appointments so issued were perfectly valid, is patently misconceived. No foundation has been laid by the petitioners in the writ petition to the effect that more posts were created beyond the 10 notified posts during the selection process or that vacancies occurred during that period. The fact that there existed only 10 posts of clerk is clear from the report of the Administrative Judge, who had clearly indicated that after the creation of the Judgeship of Baghpat, only 10 posts of clerk were sanctioned in the scale of Rs.3050-4590 and, therefore, only 10 persons could have been appointed.

The Division Bench in the Special Appeal has also held that only 10 posts could be filled up. Consequently, the submission of the learned counsel for the petitioner that the posts were created in which the petitioners were appointed is patently misconceived. In my opinion, the petitioners were appointed on non-existing posts over and above the notified vacancies. At this stage, I may point out that the Administrative Judge in his report submitted that the clerks appointed in excess of the sanctioned 10 posts were working against the vacant posts in the pay scale of Rs.4000-7000 and in the pay scale of Rs.4500-7000/- and further artificial vacancies were created by transfering the newly appointed clerks to another judgeship or promoting an employee to the next higher grade. The Administrative Judge in his report has also indicated that the appointments of all the persons in excess of the 10 posts was illegal and that the District Judge had committed financial irregularities in making such appointments. I am in complete agreement with the report of the Administrative Judge. Consequently, in my opinion, only 10 posts could have been filled up and no further appointments could have been made thereafter from the select list.

Sri Ravi Kiran Jain, the learned Senior Counsel, for the petitioner, next submitted that the judgement of the Division Bench in Special Appeal was per incurium and was liable to be ignored. The Division Bench while giving the findings and directions, had relied upon certain provisions of The Subordinate Civil Courts Ministerial Establishment Rules, 1947 which had already been repealed. The learned counsel for the petitioner submitted that the Division Bench proceeded to lay down the law while interpreting Rules 9 to 12 of the Rules of 1947 which had already been repealed. Therefore, the judgment given by the Division Bench, relying upon the provisions of the Rules of 1947, which had already been repealed was, therefore per incurium and, such judgment can be ignored by this Court. The learned counsel for the petitioner further submitted that the petitioners were not parties to that judgment and, therefore, the said judgement was not binding upon the petitioners. In support of this submission, the petitioners have relied upon a decision of the Supreme Court in the case of A.R.Antulay vs. R.S.Nayak and another, AIR 1988 SC 1531, in which it was held as under:-

"Per incuriam" are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the Court concerned, so that in such cases some part of the decision or   some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong."

and further held-

"It is a settled rule that if a decision has been given per incurium the Court can ignore it."

The learned counsel further placed reliance on the meaning given in Law Lexicon which defines  "per incurium" as -

"though inadvertence or through want of care; a decision of the Court which is mistaken. A decision of the Court is not a binding precedent if given per incurium, i.e. Without the Courts attention having been drawn to the relevant authorities, or statutes"

The learned counsel also placed reliance on a decision of the Supreme Court in N. Bhargavan Pillai vs. State of Kerala, A.I.R. 2004 SC 2317, in which it was held that-

"the view, if any, expressed without analysing the statutory provisions cannot in our view be treated as a binding precedent and at the most is to be considered as having been rendered per incurium."

On the other hand, the learned counsel for the respondents submitted that the Division Bench in the Special Appeal had only laid down the law while considering the validity of the select list and, therefore, the said decision was not a nullity nor was it per incurium. The learned counsel submitted that the judgment of the Division Bench is not inconsistent with the statutory provisions nor was the decision given in ignorance of a statutory provision.

In my view, the submission of the learned counsel for the petitioners is devoid of any merit. No doubt the provisions of Rules 9, 10, 11 and 12 of the Rules of 1947 have been repealed upon the promulgation of The Uttar Pradesh Rules for the Recruitment of Ministerial Staff of the Subordinate Office in Uttar Pradesh, 1950. However, the entire Rules of 1947 has not been repealed, as held by the Supreme Court in O.P. Shukla vs. A.K.Shukla,  A.I.R. 1986 SC. 1043 in which it was held that Rules 9 to 12 of the Rules of 1947 were superseded by the Rules of 1950 and that the other provisions of the Rules of 1947 continued to remain in force.

Even though the Division Bench in its judgment has adverted to the aforesaid Rules 9 to 12 of the Rules of 1947, the findings on the issues in question was not based on the said Rules. The law laid down is in consequence with the Rules of 1950. The finding of the Division Bench that the vacancy was advertised cannot increase or decrease and that only 10 posts, which were advertised, could only be filled up, was in inconsonance with Rule 4 of the Rules of 1950. Rule 4 of the Rules of 1950 indicates that the probable number of vacancies should be ascertained before filling up the vacancies. The said rule clearly indicates that the posts so advertised could only be filled up. The advertising of the posts indicates the ascertainment of the number of posts or vacancies. Therefore, the usage of words "posts are likely to increase or decrease" becomes redundant or superfluous, as the case may be.

Further the decision of the Division Bench that the select list should contain not more than double the number of the vacancies advertised was also in consonance with the circular dated 29.4.1999 issued by the High Court, and which is, also in confirmity with Rule 7 of the Rules of 1950. Rule 7 of the Rules of 1950 indicates that a select list should be of such number of candidates which would be sufficient to fill the number of vacancies as ascertained in Rule 4. The circular of the High Court indicates that the select list should contain the number of candidates which should not be more than double the number of the vacancies advertised. Since 10 posts were advertised, the select list could not be more than 20 candidates. In view of the aforesaid, the mere fact  that the Division Bench had adverted to certain provisions of the Rules of 1947 which had been superseded, in my opinion, does not make the judgment per incurium nor the said decision of the Division Bench could be said to be inconsistent with the statutory provisions.

In my view, the Division Bench while considering the validity of the select list only interpreted the law. It is immaterial whether the petitioners were party to that decision or not.  It is settled law that where the Court has laid down the law, the judgment is binding on co-ordinate or subordinate courts howsoever the construction may be unless it falls within the parameters of "per incurium". In my view, the judgment of the Division Bench is binding on the learned Single Judge. The Division Bench has interpreted the law which is binding to all in relation to those issues. The contention of the learned counsel for the petitioner that the decision of the judgement of the Division Bench was not binding and was void and a nullity in the eyes of law and could be ignored is patently erroneous. In view of the aforesaid, the submission of the learned counsel for the petitioners is devoid of  merit and is rejected.

The learned counsel for the petitioners lastly submitted  that the petitioners had worked continuously since their appointments and having worked continuously for a number of years, a humanitarian approach should be taken and the petitioners should be allowed to continue even though their initial appointment may have been illegal. The learned counsel for the petitioners further submitted that there is a requirement of work in the judgeship of Baghpat and further there are no grievances against any of the petitioners with regard to their performance of work. Further, the petitioners have become over age and that the petitioners would find it difficult to get another job of a similar nature, at this stage. Therefore, a humanitarian approach should be taken by the respondents and, in the given circumstances, the petitioner should be permitted to continue in service. In support of his submission, the learned counsel for the petitioners has relied upon a decision of the Supreme Court in H.C. Puttaswamy and others vs. The Hon'ble Chief Justice of Karnataka High Court, Bangalore and others, 1991 Supp.(2)SCC 421, in which it was held that where the appointment was made against the provisions of the statutory Rules and that the appointees continued to work continuously for a number of years, the Supreme Court while adopting a humanitarian approach, directed their appointments to be regularised.

On the other hand, Sri Amit Sthaleker, has placed reliance upon  a decision of the Supreme Court in Harpal Kaur Chahal(Smt.) vs. Director, Punjab Instructions, Punjab and another, 1995 Supp.(4)SCC 706,, in which the appointment was found to be illegal and was set aside even though the incumbent was working for 15 years. Similar view was upheld by the Supreme Court in the case of Binod Kumar Gupta and others vs. Ram Ashray Mahoto andothers, (2005)4 SCC 209.

In my view, the judgment cited by the learned counsel for the petitioners  is distinguishable and, in any case, such directions cannot be issued by this Court under Article 226 of the Constitution of India. The decision in the case of H.C.Puttaswamy (supra) was passed by the Supreme Court while exercising the powers under Article 141 of the Constitution of India. Such powers cannot be exercised by the High Court under Article 226 of the Constitution. The High Court can only pass such orders and directions which are within the four corners of the provisions of the Act or the Rules. In the present case, the petitioners were appointed beyond the notified sanctioned strength. The petitioners appointment was void ab initio. After the appointment of 10 persons, the select list came to an end and could not be used any further. Consequently, the appointment of the petitioner being illegal, from the very inception, cannot be permitted to continue. In my opinion, no humanitarian approach can be adopted. Since the appointments of the petitioners were illegal, such illegality cannot be allowed to continue. The law must take its course.

Consequently, the order passed by the District Judge terminating the services of the petitioner does not suffer from any error of law. In view of the aforesaid, the writ petition is dismissed. However, in the circumstances of the case there shall be no order as to cost.

Dated:21.10.2005

AKJ.


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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