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AJEET KUMAR SINGH AND OTHERS versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Ajeet Kumar Singh And Others v. State Of U.P. And Others - WRIT - A No. 7558 of 2006 [2006] RD-AH 19450 (17 November 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved

Civil Misc. Writ Petition No.7558 of 2006

Ajeet Kumar Singh

versus

State of U.P. and others

Connected with

Civil Misc. Writ Petition No.7561 of 2006

Yashwant Kumar and others

Versus

State of U.P. and others

Civil Misc. Writ Petition No.8015 of 2006

Krishna Kumar Rai and others

versus

State of U.P. and others  

Hon'ble V.K. Shukla, J.

Facts giving rise to instant writ petitions, in brief, are that in the Judgeship of Bareilly for making selection and appointment of class III employees (clerks and stenographers) and class IV employees, advertisement was made on 18.10.2004, inviting applications from eligible candidates. As per advertisement, number of vacancies qua clerks, were 15, qua stenographers 6 and qua class IV employees 7. Petitioners of writ petition No. 7558 of 2006 applied for consideration of their candidature as class IV employees and petitioners of writ petition Nos. 7561 and 8015 of 2006 applied for consideration of their candidatures as clerks. Results of final selection were published qua class IV employee and clerks on 20.01.2005 and 21.01.2005, respectively. In the select list, names of petitioner Nos. 1 to 7 of writ petition No.7558 of 2006, qua class IV employees, found place at serial Nos. 8 to 14, and it has been contended that on the basis of the aforesaid select list, persons who were placed at serial nos. 1 to 9 were issued appointment letters and petitioner Nos. 1 and 2 of writ petition No 7558 of 2006 were also issued appointment letters, and they claim to have joined the post on 31.01.2005. Petitioner Nos. 3 to 7 of the aforesaid writ petition claim that they were initially given appointment on leave vacancy and appointment letters were issued accordingly. Petitioners of writ petition No.7561 of 2006, who had applied for the post of clerk their name figured at serial Nos.1, 6, 18 to 22, 24 to 26, 28 and 29 respectively. Petitioners of writ petition No. 8015 of 2006 were placed at serial Nos.22, 23. Petitioners claim that they had been offered appointment and have been performing and discharging duties to the full and complete satisfaction of the authorities in the judgeship.

Record transpires that qua appointments, which had been made, report was submitted by the District Judge, Bareilly on 29.10.2005. On the said report, this Court on administrative side on 12.12.2005 had asked to take necessary action. Show cause notice was issued to each one of the incumbents as to why their appointments be not cancelled. Each one of the incumbents submitted reply, and thereafter impugned order has been passed canceling appointment of petitioners. At this juncture aforesaid writ petitions have been filed.

To the issues raised in the aforesaid writ petitions, counter affidavit has been filed, and therein, it has been sought to be contended that appointments were made beyond the prescribed strength, and the waiting list could not have been utilized as has been sought to be done in the present case, and further preparation of waiting list was totally unwarranted and illegal keeping in view the number of incumbents in the waiting list and the appointment of petitioners was clearly in contravention of Rules and dehors the provisions as contained under Articles 14 and 16 of the Constitution, as such no interference is warranted.

Rejoinder affidavit has been filed, and the averments made in the counter affidavit have been rebutted, and it has been contended that advertisement contained clear cut recital that vacancies might increase and decrease, and as such once vacancies were there and the life span of the select list was intact, there was no infirmity in the appointments made.

Sri Ashok Khare, Senior Advocate and Sri Anil Tiwari, learned counsel appearing for the petitioners, contended with vehemence that in the present case advertisement contained clear stipulation that the vacancies indicated therein could be enhanced or reduced, and in this background, the appointments which had been made cannot be said to be arbitrary or unreasonable inasmuch as said appointments had been made against existing vacancies and anticipated vacancies, and as all these aspects of the matter were not taken into consideration before proceeding to cancel the selection, as such the impugned order is manifestly illegal and liable to be quashed.

Sri Amit Asthelkar, learned counsel, appearing on behalf of respondents, on the other hand, contended that in the present case, vacancies were determined in terms of existing Rule and there was no emergent situation which warranted to fill up the vacancies much more than the number prescribed in the advertisement and entire process of appointment was void and completely dehors the Rules, as such no interference is warranted.

After respective arguments have been advanced, it would be relevant to note that the appointments qua class IV staff are governed by U.P. Subordinate Civil Courts Inferior Establishment Rules, 1955 and qua class III employees as per Subordinate Civil Courts Ministerial Establishment Rules, 1947 (herein after referred to as 1947 Rules) read with U.P. Rules for Recruitment of Ministerial Staff of Subordinate Offices in U.P., 1950 (herein after referred to as 1950 Rules). Factual position which emerges in the present case is that qua class IV posts and clerk total number of vacancies, which were advertised, were 7 and 15 in number, respectively. It is equally true that in the advertisement a mention was made that vacancies were likely to increase or decrease. Qua 7 posts of class IV employees' final select list of 52 candidates was prepared, and after filling up 7 posts of class IV employees, petitioners of writ petition No.7558 of 2006 were offered appointment. Qua class III employees, 15 vacancies were advertised and select list in that relation contained 88 names. Petitioners of writ petition Nos.7561 and 8015 of 2006, who were much below 15 candidates were offered appointment as class III employees against unadvertised vacancies. As the petitioners were offered appointment against unadvertised vacancies, show cause notice was issued to each one of them and thereafter impugned order has been passed. The question which is to be adverted to is as to whether appointment of petitioners was in consonance with the relevant Rules, which covered the field  of selection and appointment and whether in any view of the matter, petitioners could have been offered appointment beyond the posts which did not form part of the advertisement.

Before proceeding to consider the validity of appointments made against  unadvertised vacancy, judicial pronouncements of Hon'ble Apex Court and this Court are being looked into.

Hon'ble Apex Court in the case of State of Bihar and others vs. Madan Mohan Singh, AIR, 1994 SC 765, took the view that when advertisement contained number of vacancies as 32, then any vacancy which had occurred subsequent to the same cannot be included, as the said process of selection was confined to 32 vacancies only and the same exhausted and came to an end, the moment appointments had been made, and if the same list has to be kept subsisting for the purposes of filling other vacancies also that would amount to deprivation of rights of other candidates who would have become eligible subsequent to the said advertisement and selection process. Paragraph 7 of the judgment being relevant is being quoted below:

"7. Having carefully considered the advertisement and the various averments in the affidavits and the counter-affidavits, we are of the view that the crucial question is whether in fact the advertisement and the initial decision of the High Court were meant to fill up only 32 vacancies and whether accordingly the High Court called for only 129 candidates from the list, who appeared for the written test in the ratio of 1 : 4 and whether consequently the whole selection process was confined to fill up only those, 32 vacancies? If the answer is in the affirmative then the question of the same list subsisting for one more year for filling up the subsequent vacancies did not arise in spite of the resolution of the High Court dated 24-11-90. As noted above in the reply affidavit, the Registrar of the High Court categorically stated that 32 vacancies were available and to fill up the same, 129 candidates were called for interview namely four times of the number of vacancies and that the rest of the vacancies arose later on. To satisfy ourselves, we have also called for the relevant records from the High Court and the same is placed before us in a sealed cover. A perusal of the records shows that in the Full Court meeting on 5-5-90 it was resolved that on the basis of the result of the preliminary screening test, four times of number of candidates to be selected for appointment be called for interview. From the proceedings of another Full Court meeting held on 15-9-90 it is clear that it was resolved that 128 candidates alone in order of merit should be called for interview. The proceedings of the Full Court meeting dated 24-11-90 would show that the Full Court finalised the selection for filling up 32 vacancies only and sent a list of 32 candidates in order of merit. However, a further resolution was passed that if any further vacancy in the quota of the direct recruits was required to be filled up within a period of one year the same be filled up by recommending the candidates in order of merit from amongst the remaining candidates in the merit list. It is therefore crystal clear that the advertisement and the whole selection process that ensued were meant only to fill up 32 vacancies. Learned counsel for the respondents relying on the decisions of this Court in Kailash Chandra Sharma v. State of Haryana. 1989 Suppl (2) SCC 696 : (AIR 1990 SC 454) and OP. Garg v. State of U.P., AIR 1991 SC 1202. contended that when there are temporary vacancies, the direct recruits should have their share of quota in respect of temporary vacancies also. As noted above, the temporary vacancies arose subsequently but even otherwise in the view we are taking namely that the particular advertisement and the consequent selection process were meant only to fill up 32 vacancies and not to fill up the other vacancies, the merit list prepared on the basis of the written test as well as the viva voce will hold good only for the purpose of filling up those 32 vacancies and no further because the said process of selection for those 32 vacancies got exhausted and came to an end. If the same list has to be kept subsisting for the purpose of filling up other vacancies also that would naturally amount to deprivation of rights of other candidates who would have became eligible subsequent to the said advertisement and selection process."

Hon'ble Apex Court in the case of Prem Singh vs. Haryana State electricity Board, (1996) 4 SCC 319 has taken the view that selection process by way of requisition and advertisement can be started for clear vacancies and also for anticipated vacancies but not for future vacancies, and if requisition and advertisement are for a certain number of posts only the State cannot make more appointment than the number of posts advertised, even though it might have prepared  a select list of more candidates. The State can deviate from the advertisement and make appointments on the posts falling vacant thereafter in exceptional circumstances only or in emergent situation and that too by taking a policy decision in that behalf. Paragraphs 25 and 26 of the said judgment being relevant are being quoted below:

"25. From the above discussion of the case law it becomes clear that the selection process by way of requisition and advertisement can be started for clear vacancies and also for anticipated vacancies but not for future vacancies, and if requisition and advertisement are for a certain number of posts only the State cannot make more appointment than the number of posts advertised, even though it might have prepared a select list of more candidates. The State can deviate from the advertisement and make appointments on the posts falling vacant thereafter in exceptional circumstances only or in 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 extraordinary jurisdiction, invalidate the excess appointments and may mould the relief in such a manner as to strike a just balance between the interest of the State and the interest of the persons seeking public employment. What relief should be granted in cases would depend upon the facts and circumstances of each case.

26. In the present case, as against the 62 advertised posts the Board made appointments on 138 posts. The selection process was started for 62 clear vacancies and at that time of anticipated vacancies were not taken into account. Therefore, strictly speaking, the Board was not justified in making more than 62 appointments pursuant to the advertisement published on 2.11.1991 and the selection process which followed thereafter. But as the Board could have taken into account not only the actual vacancies but also the vacancies which were likely to arise because of retirement etc. by the time the selection process was completed it would not be just and equitable to invalidate all the appointments made on the posts in excess of 62. However, the appointments which were made against future vacancies - in this case on posts which newly created - must be regarded as invalid. As stated earlier, after the selection process had started 13 posts had become vacant because of retirement and 12 because of deaths. The vacancies which were likely to arise as a result of retirement could have been reasonably considered by the Board. The Board through oversight had not taken into consideration while requisition was being made for filling 62 posts. Even with respect to the appointments made against vacancies which arose because of deaths, a lenient view can be taken and on consideration of expediency and equity they need not be quashed. Therefore, in view of the special facts and circumstances of this case we do not think it proper to invalidate the appointments made on those 25 additional posts. But the appointments made by the Board on posts beyond 87 posts are held invalid. Thought he High Court was right in the view it has taken, we modify its order to the aforesaid extent. These appeals are allowed accordingly,. No order as to costs."

Hon'ble Apex Court in the case of Surendra Singh vs. State of Punjab, AIR 1998 SC 18, took the view that only in exceptional and emergent situation deviation can be made from the principle of limiting the number or appointments so advertised. Appointments beyond the number of advertised vacancies were held to be unsustainable. Said judgment was delivered after considering the judgment in case of Prem Singh vs. Haryana State Electricity  Board (1996) 4 SCC 319. Relevant paragraphs 13 to 16 of the said judgment are being quoted below:  

"13.  The factual position in this case, as disclosed by the record, is that on 15.10.1990 the Board decided to fill up 62 vacant posts of Junior Engineers by direct recruitment. In 2.11.1990 the Board advertised those 62 vacant posts and invited applications by 4.12.1990. In the notification of vacancies required to be issued under the Employment exchange Act and the Rules also the vacancies notified were 62. After the posts were advertised and published but before appointments could be made 13 more posts became vacant because of retirement and 12 because of deaths. Meanwhile, the Board also created 60 new posts of Junior Engineers. The stand taken by the respondent-Board before the High Court was that by April 1993, 85 more posts had become vacant. Even when 62 posts were advertised there was a backlog of 62 posts of Junior Engineers and that was through oversight not taken into consideration. Out of the said backlog of 62 posts 36 posts were of direct recruitment quota and this had come to the notice of the Board in December, 1991 there was a backlog of 24 posts belonging to reserved category. It was for these reasons that on 2.4.1993 the Secretary of the Board had written to the Chief Engineer who was the appointing authority that as the list of 212 candidates selected by the Selection Committee was received and as 147 post were vacant as on 11.2.1993 he should fill  up all those vacant posts as directed therein. Out of the said list the Board was able to appoint 138 candidates.

14. It was submitted by the learned counsel for the appellants that the selection process which had started on 2.11.1991 was completed in April, 1993 when the selection Committee forwarded the list of selected candidates to the Secretary of the Boar. In view of this long space of time and large number of posts remaining vacant it was permissible to the board to make appointments in excess of the number of posts advertised. If the Board had not filled up these posts the its work would have suffered adversely. It was submitted that bearing in mind these realities the High Court should have adopted a pragmatic approach and refrained from quashing the selection and appointments made by the Board. In support of these contentions the learned counsel relied upon one decision of the Punjab and Haryana High court.

15. In Subhash Chander Sharma v. State of Haryana, (1984) 1 SLR 165 the facts were that against 50 advertised posts the Public Service commission had recommended almost double the number and more than 60 candidates were appointed on the basis of that selection . Relying upon the earlier decision of the same High Court in Sachida Nand Sharma v.  Subordinate Services Selection Board, CPW No.285 of 1983 decided on 1.6.1983 it was contended that all appointments beyond 60 should be invalidated. The High Court distinguished its earlier decision in Sachida Nand Sharma case and held that if the State adopted a pragmatic approach by taking into consideration the existing vacancies in relation to the process of selection which some times takes a couple of years and make appointments in excess of the posts advertised then such an action cannot be regarded as unconstitutional.

16. In Ashok Kumar Yadva v. State of Haryana, (1985) 4 SCC 417 what had happened was that Haryana Public Service Commission had invited applications for recruitment of 61 posts in Haryana Civil Service and other allied services. The number of vacancies rose during the time taken  u[ in the written examination and the viva voce test and thus in all 119 posts became available for being filled.  The Haryana Public Service Commission, therefore, selected and recommended 119 candidates to the Government. Writ petitions were filed in the High Court of Punjab and Haryana challenging the validity of selections on various grounds. The High Court set aside the selection as it was of the view that the selection process was vitiated for more than one reason. On appeal, this Court also found substance in the contention that the Haryana Public Service Commission was not justified in calling for interview candidates representing representing more than 20 times the number of available vacancies and that the percentage of marks  allocated for the viva voce test was unduly excessive. Yet this Court did not think it just and proper  to set aside the selections made by the Haryana Public Service Commission as by that time    two years had passed and the candidates selected were already appointed to various posts and were working on those posts since about two years."  

Hon'ble Apex Court in the case of Benny T.D. and others vs. Registrar, Cooperative Societies and another (1998) 5 SCC 269 has taken the view that it is well known that during the time when an advertisement is issued and by the time when process of selection starts and ultimately appointment orders are issued, on account of several factors the number of posts may increase. In such contingencies when appointments are made depending upon the vacancies available and in excess of vacancies advertised, it cannot be said that appointment has been made in excess of the strength of the cadre approved. Relevant extract of the judgment is being quoted below:

"...............It is well known that during the time when an advertisement is issued and by the time when process of selection starts and ultimately appointment orders are issued, on account of several factors the number of posts may be increased, the factors being retirement of persons on attaining superannuation, death of several employees, promotion of the employees to higher posts and for variety of other grounds. In such contingencies when appointments are made depending upon the vacancies available and in excess of vacancies advertised, it cannot be said that appointment has been made in excess of the strength of the cadre approved. There is neither any allegation nor any material to sustain the finding of the Registrar that in fact appointment has been made in excess of the posts approved by the Registrar. The said conclusion, therefore, must be held to be a conclusion based on no evidence and accordingly cannot be sustained."

Hon'ble Apex Court in the case of State of J & K. v. Sanjeev Kumar, 2005 (4) SCC 148, has taken note of principle laid down in paragraphs 25 ad 26 of  Prem Singh's case qua existing vacancies, notified vacancies and future vacancies,and in paragraph 8 has mentioned as follows:  

"8.  As is clearly spelt from the quoted portion, the Government can by a policy decision appoint people from the waiting list. It has been laid down that on the facts of Prem Singh case (1996) 4 SCC 319, while issuing advertisement the Government could have taken into account likely vacancies. The principle in Prem Singh was followed in Virender S. Hooda v. State of Haryana, (1999) 3 SCC 696."

Qua Ministerial Staff, Division Bench of this Court in the case of District Judge, Baghpat vs. Anurag Kumar (2005) 2 ESC 1509 has considered Rules 9, 10, 11 and 14 of 1947 Rules in following manner:

"................Rule 9 empowers the District Judges to recruit as many candidates as are required for the vacancies ''likely to occur in the course of the year'. The exercise has to be commenced early in each year or as the circumstances may require. This entails an exercise by the District Judges of identifying the number of vacancies existing or likely to occur in the course of the year. This is in conformity with the Rule 4 of the 1945 Rules, referred to hereinabove, which requires that such vacancies shall be calculated and necessary steps shall be taken to make this fact generally known. What follows is that the advertisement to be made has to be preceded by an exercise by calculating the number of vacancies in the manner indicated hereinabove.

Then comes Rule 10 of the 1947 Rules which provides for an advertisement inviting applications in a particular form which should particularly disclose the number of candidates to be recruited. The advertisement, therefore, will be presumed to have included only such number of vacancies/posts which are available in accordance with the calculation made under Rule 9 and no other future vacancy. The Rule does not contemplate advertisement of future vacancies which can be taken into account after the advertisement has been made.                        

The recruitment thereafter is to be made on the basis of the result of the examination under Rule 11 and for the said purposes, the list of selected candidates has to be entered in a register in order of merit to be maintained by the District Judges under Rule 14. Sub-rule 3 of Rule 14, in no uncertain terms, provides that in case a candidate who has not been offered appointment in accordance with the said list within one year from the date of his recruitment, his name shall automatically be removed from the register.

A perusal of the aforesaid Rules would establish that the number of vacancies which have to be advertised are to be in accordance with the Rule 9 and, therefore, the recital in the advertisement that the vacancies are likely to increase or decrease has to be strictly construed in accordance with the aforesaid Rules. What logically follows is that the District Judge is not at liberty to prepare a list dehors the number of vacancies advertised. This position stands further clarified by the Circular Letter No. 9/VIIb-104 Admin. Dated 29.04.1999 issued by the High Court which clearly states that the select list shall not be prepared by the District Judges for more than the double of the vacancies advertised."

Qua class IV employees, taking in view the provisions of  U.P. Subordinate Court Inferior Establishment Rules, 1955, this Court in the case of Narpat Singh vs. Registrar 2005 (5) AWC 4219 noticing therein the directives issued by this Court in the case of Ram Babu (supra) observed and held as follows; relevant paragraphs 6 to 16 are being quoted below:

"6.  Rule 12 of the Rules reads as under:

"12.   Waiting List.- (i) A waiting list of candidates shall be maintained for each Judgeship for the post of Process servers, Orderlies, Office Peons and Farras.  

No waiting list shall be maintained for chaukidars, Malis, sweepers and waterman.

(ii)    The    waiting   list   should  be  of  reasonable dimensions  and  be revised from time to time with a view to removing therefrom the names of :

(a) all such candidates as are not likely to receive appointments before attaining the maximum age prescribed in rule 8, and

(b) such candidates as are found guilty of insubordination, misbehaviour or dishonest  in the discharge of their duties in temporary or officiating vacancies, after giving them necessary opportunities to explain their conduct.

7. The aforesaid rule contemplates that the posts of Process servers, Orderlies, Office Peons and Farras have to be filled up by the appointment of the candidates, whose names are found in the waiting list prepared under Rule 12 of the Rules. This rule further contemplates that the waiting list  should be of "reasonable dimensions and be revised from time to time with a view to removing therefrom the names of" such candidates as are not likely to receive appointments before attaining the maximum age prescribed in rule 8 of the rules, and for removing the names of such candidates who are found guilty of insubordination, misbehaviour or dishonest  in the discharge of their duties in temporary or officiating vacancies.

8. In Ram Babu and another vs. District Judge Banda 1996, AWC 516, this court held that the waiting list must be prepared under Rule 12 of the rules before the concurrence of the vacancy and has to be utilized mainly for the purpose of filling in the substantive vacancy for the posts of  Process servers, Orderlies, Office Peons and Farras.  This Court in the aforesaid judgment further held that the list could be utilized for making temporary or officiating appointments.

9. The expression  "reasonable dimensions" as indicated above was explained in Ram Babu case (supra). This Court held:

"24. The use of expression "reasonable dimensions" indicated above is of great significance. It seems to me that the expression "reasonable dimensions" as used in Rule 12 of the Rules  signifies that the waiting list should be a moderate one containing that number of candidates which is not less than or much in excess of the vacancies  which might be available in the year of recruitment or the years succeeding thereto and this list should be in reasonable proportion to the notified vacancies. To be more precise this waiting list should not be  immoderate or excessive and must be co-related to the number of  vacancies either available in the year of recruitment or likely to become available in the succeeding year and the proportion qua the existing and anticipated vacancies  which must be clearly should be in the proportion of 1:3 which proportion has to be accepted as a reasonable proportion. It may be emphasized that it is only in order to obviate  the possibility of the waiting list becoming vitiated on account of  the vice of   arbitrariness or illegal discrimination that the provisions contained in Rule 12 of the rules specifically provide for maintaining waiting list of a reasonable dimension. The word "dimension" has to be understood to emphasise the proportion qua the vacancies which are sought to be filled up"

10. In Ram Babu case (supra), it was also held that a waiting list of candidates contemplated under Rule 12 of the rules could not be deemed to subsist for a period beyond the filling up of the notified vacancies and that the waiting list could be subsist or remain operative for an indefinite period nor could the list be utilized for filling up the vacancies which had not been notified before the preparation of such a list. This Court held that the waiting list wold get exhausted the moment the notified vacancies are filled up by the candidates.

This court further held :

"I am of the considered opinion that the waiting list contemplated under rule 12 of the rules has to be of a reasonable proportion qua the number of vacancies actually notified and it will not be reasonable to hold that the vacancies which are notified may be of any year beyond the year succeeding to the year of recruitment."

11. In view of the aforesaid,the Court in Ram Babu's case (supra) issued the following guidelines, namely:

"50. Accordingly, let a direction issue requiring the District Judge referred to herein above to ensure that:

(a) all the available substantive vacancies in the posts covered by Rule 12 of the Rules or such vacancies which are likely to become available in the year of recruitment and the year succeeding it be notified inviting applications before the preparation of the waiting list contemplated therein.

(b)  the waiting list indicated above shall consist of the names of the candidates in the proportion of 1:3 qua the notified number of vacancies.

(c )   the waiting list shall cease to be operative and stand exhausted on the filling up of the last notified vacancy.

(d) the fresh waiting list shall invariably be prepared before the accrual of the vacancies so that there may not be any unnecessary delay in its being filled up.

(e) all the existing 'waitng lists' prepared under Rule 12 of the Rules which have served their purpose as indicated herein above shall cease to be operative forthwith. The appointments already made shall, however, remain undisturbed."

12. In Muqeem Ahmad and others v. District Judge, Sultanpur, 1999(1) AWC 748, it was held that the waiting list prepared under Rule 12 of the Rules stood exhausted the moment the last notified vacancy was filled up from the list and that it was not permissible to appoint all the candidates whose names have been incorporated in the waiting list over and above the vacancy notified.

13. In the present case admittedly five vacancies were notified and a list of 35 candidates was prepared. Candidates from serial Nos. 1 to 5 were filled up and, therefore, the notified vacancies came to an end. Accordingly, the waiting list stood exhausted. Further I hold that the waiting list of 35 candidates was unreasonable and did not come within the parameters of "reasonable dimensions" as contemplated under Rule 12 of the Rules, and therefore, this list was required to be scrapped. In any case the notified vacancies got exhausted and consequently the waiting list came to an end and could be utilized any further.

14. Thus, the waiting list of 35 candidates was not a correct list and stood exhausted upon the filling up of the notified vacancies. The contention of the learned counsel that the list continues to remain operative and only gets exhausted when all the candidates are given appointment is wholly erroneous. The list gets exhausted the moment notified vacancies are filled up by the selected candidates.

15. The contention of the learned counsel for the petitioner that the District Judge had no power to seek instructions from the High Court, nor had any power to make a request to the High Court under the  rules. The learned counsel further submitted that the High Court had no power under the Rules to issue directions to the District Judge for cancellation of the waiting list.

16. The submission of the learned counsel is devoid of any merit. Rule 12 indicates that the list should be revised from time to time. Therefore, the District had the power to revise the waiting list The revision of the list could be  with or without  material changes or could substitute or displace the original with a new one. Therefore, the District Judge has power to cancel the list under Rule 12 of the Rules while revising the list. The District Judge also has the power to seek instructions from the High Court and High Court has power to issue instructions to the District Judge on its administrative side."

On the touchstone of the dictum noted above, claim of petitioners is being adverted to. Qua class IV employees, this Court in Ram Babu case (supra) 1996 AWC 516 had issued guidelines, mentioning therein that all the substantive vacancies in the posts covered by Rule 12 of the aforesaid rules or such vacancies which are likely to become available in the year of recruitment and the year succeeding it be notified inviting applications, before the preparation of the waiting list contemplated therein. The wait list has to consist names of candidates in the proportion of 1:3 qua the notified number of vacancies and the said wait list is to cease to be operative and stand exhausted on the filling up of last notified vacancy. It has also been provided for, that fresh waiting list  shall invariably be prepared before the accrual of vacancies so that there may not be unnecessary delay in being filled up. Thus before proceeding to notify the vacancy, a positive exercise has to be undertaken for calculating the substantive vacancies, which are available in the year of recruitment and the year succeeding it. The list prepared shall shall stand exhausted on the filling up of the last notified vacancy. The position is clear that requisition and advertisement  are for certain number of posts only, and to make more appointments than the posts advertised, is clearly not permissible, even  though select list of more candidates would have been prepared . Exception has been carved out to this rule, by mentioning that State can deviate from advertisement and make appointment, on post falling vacant thereafter in exceptional circumstances only or in an emergent situation, and that too by taking policy decision in this behalf. Here number of vacancies notified qua class IV employees had been seven. Petitioners of Civil Misc. Writ petition No.7558 of 2006 have been appointed against un-notified/unadvertised vacancies. At the point of time of making advertisement, anticipated vacancies could also have been taken into account, it appears that anticipated vacancies  have not at all been taken into account. District Judge at no point of time took policy decision  for filling  up posts, which had fallen vacant after the advertisement, on account of any exceptional circumstances being there or there being any emergent situation. District Judge, in his wisdom thought that wait list was reservoir of candidates, and the same can be utilized against all available vacancies. This was a totally misconception on his part and totally misuser of the authority  vested in him. Hon'ble Apex Court in the case of Prem Singh  v. Haryana State Electricity Board, referred to above, has clearly held that, strictly speaking, Board was not justified in making more than 62 appointments pursuant to advertisement, but as the Board could have taken into account not only the actual vacancies  but also vacancies which were likely to occur because of retirement etc. by the time selection process was completed, it would not be just and equitable to invalidate all appointments. Hon'ble Apex Court in this very judgment has taken the view that even when filling up of more posts than advertised is challenged, the Court may not, while exercising its extraordinary jurisdiction, invalidate the excess appointments and may mould the relief in such a manner as to strike just balance in between the interest of  State and the interest of persons seeking public employment. Relief would depend on facts and circumstances of each case.

As mentioned above, selection process by way of requisition and advertisement can be started for clear vacancies and also for anticipated vacancies. Anticipated vacancies be such vacancies, which were likely to arise by way of retirement etc., by the time selection process was completed. Here selection process commenced on 08.10.2004 and came to an end with the publication of select list on 20.01.2005. Qua substantive vacancy, which is alleged to have occurred in between these two dates, on account of superannuation on computation being made, can be termed as anticipated vacancy, and here in the present case in between advertisement and declaration of result, from the own showing of petitioners, two vacancies are alleged to have occurred on account of retirement of two permanent staff, and rest of th vacancies have occurred thereafter. Two vacancies,  thus,  can be termed anticipated vacancies in the present case.  Anticipated vacancies in the present case, have not at all been taken into account, while proceeding to notify the vacancy, therefore, appointments, strictly speaking, could not have been made beyond seven posts of class IV employees, but here, as it was mentioned that posts mentioned can either increase or decrease and anticipated vacancy could have been taken into account, as such equities could have been balanced qua the said two vacancies. However, qua said two vacancies also there is dispute. Petitioners in paragraph 32 of the writ petition have mentioned that two vacancies have occurred by retirement of permanent staff on 31.12.2004. Names of said two incumbent have not at all been specified in the said paragraph, and while replying said paragraph, specific stand has been taken in paragraph 24 of the counter affidavit that said averments are incorrect and denied. Even after specific denial in counter affidavit, in the rejoinder affidavit details have not at all been furnished qua the said two incumbents. Consequently, in the present case, this Court refuses to balance the equity. There is yet another ground for refusing to balance the equity. Appointment which has been offered against unadvertised vacancies, are purely temporary in nature. Appointment clearly mentions that appointment is purely temporary, and can be terminated at any time without notice. Consequently, there is no error in the impugned order of cancellation of appointment of class IV employees.            

Qua class III employees also same principles would apply, as has been made applicable to class IV employees. Class III appointments made against unadvertised vacancies, are in the teeth of dictum of Division Bench of this Court in the case of District Judge, Baghpat vs. Anurag Kumar, 2005 (2) ESC 1509, and are as such clearly unsustainable and void. The appointments are clearly dehors the Rules, as such error which had occurred on earlier occasion, the same has been rectified by cancelling appointment. The appointments were made over and above the number of vacancies advertised and the District Judge had clearly exercised the power improperly, as only in rare and exceptional circumstances same could have been deviated from and that too only after taking policy decision based on some rational basis.

Herein the present case waiting list has been sought to be used as perennial source of recruitment. Qua class IV employee Rules provide that such select list has to be reasonable one. Here as against 7 vacancies of class IV employee, waiting list of 52 candidates was prepared and qua class III posts as against 15 vacancies waiting list of 88 candidates was prepared.

Consequently, in the facts and circumstances of the present case, the appointments which have been offered to the petitioners beyond the advertised vacancies, are not at all sustainable. It was clearly improper exercise of power on the part of the then district Judge, Bareilly, and the error, which had been committed on earlier occasion, has been rightly rectified on subsequent occasion; as such there is no infirmity in the impugned orders.

Consequently, writ petitions lack substance and are dismissed.  

17.11.2006

SRY.


Copyright

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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