Allahabad High Court
Wahab Uddin And Others vs Km. Meenakshi Gahlot And Others on 23 January, 2020
Bench: Bala Krishna Narayana, Rohit Ranjan Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved Special Appeal No.638 of 2012 Wahabuddin and others Vs. State of U.P. and others ***** Hon'ble Bala Krishna Narayana,J.
Hon'ble Rohit Ranjan Agarwal, J.
(Delivered by Hon'ble Rohit Ranjan Agarwal) Heard Sri Kshitj Shailendra, learned counsel for petitioners, Sri Anwar Mehdi Zaidi and Sri Mohammad Sakir, learned counsel for respondent nos.1,2 and 3 and Sri Ashish Mishra, learned coun sel for respondent nos.4 and 5.
This intra Court appeal under Chapter VIII Rule5 of High Court Rules has been filed assailing judgment and order dated 20.3.2012, passed by learned Single Judge in Civil Misc. Recall Application No.67083 of 2012 in Civil Misc. Writ Petition No.15355 of 1990 confirming earlier order dated 7.2.2012.
Before proceeding to decide the appeal on merits it would be necessary to have a glance of the facts of the case, which are as under:
In the judgeship of Moradabad, in the year 1987, a competitive examination was held for filling up post of English and Hindi Stenographers. Select list of English stenographers (containing names of appellants-respondents) and Hindi Stenographers was prepared on 14.7.1987. Copy of the said list is part of record at page 151 and 152 of the paper book. As no vacancy existed in the judgeship for the post of English stenographers, as such no appointments were given to the candidates in the select list of English stenographers. However, appellants were engaged for a period of one month under leave vacancy vide orders dated 14.10.1987, 15.10.1987 and 14.10.1987, copies of their engagement order have been brought on record as Annexure 6 to paper book.
As per the provisions contained in Rule 14(3) of the Subordinate Civil Court Ministerial Establishment Rules, 1947 (in short "Rules of 1947"), select list was to remain valid for one year while Hindi stenographers were given appointment.
On 24.9.1988 fresh examination was conducted for recruitment of Hindi stenographers in the Judgeship. On 29.11.1988 a select list of 10 persons was prepared in which respondent nos.1 to 3 were placed at Sl. Nos.1, 2 and 3, copy of select list of Hindi stenographers as on 29.11.1988 is on record at page 82. Thereafter on 30.11.1988 appointment orders were issued in respect of respondent nos.1 and 2 and appointment order of respondent no.3 was issued on 3.1.1989. Pursuant to said appointment letters respondents joined and were working as Hindi stenographers in the judgeship of Moradabad.
It appears that a representation was moved by appellants raising their grievance for non-appointment in pursuant to select list dated 14.7.1987. The District Judge, on 15.5.1990 submitted his comment. Thereafter on 22.5.1990, Deputy Registrar High Court communicated the District Judge, Moradabad that approved list of ex-stenos and Hindi stenos dated 14.7.1987 shall be combined and their names arranged in order of merit. It was further directed that since appellants had joined their duties and worked on leave vacancy their seniority shall be refixed in the list of English stenographers. Further, it was required that appointment letters be issued to appellants as well as one Raisul Hasan. It appears that District Judge, Moradabad proceeded on communication of this Court on administrative side and asked IV Additional District Judge, Moradabad to conduct test of Hindi stenography of four persons including appellants. The officer in-charge proceeded and conducted Hindi typing test of appellants and one more candidate on 29.5.1990 and submitted his report to District Judge, Moradabad on 30.5.1990. In the said report all the three appellants were found not qualified as per Rule 5(c) of the Rules of 1947 as appellants' typing speed was less than prescribed in Rule 5(c). Rule 5 (c) of Rules of 1947 are extracted hereunder:
"5(c) he possesses in the case of a candidate for the post of stenographer a diploma or certificate from a University or a recognized short hand and typewriting institution, showing that he possesses a speed of atleast 100 words per minute in shorthand and 35 worlds per minute in typewriting."
However, District Judge proceeded to appoint appellants on 5.6.1990 on the post held by respondent nos.1 to 3 dispensing with their services. Respondent nos.1 to 3 challenged the action of District Judge, Moradabad by filing Writ Petition No.15355 of 1990. This Court on 7.2.2012 allowed the writ petition of respondents and quashed appointment of appellants. Further cost of Rs.25,000/- was imposed upon District Judge, Moradabad. Against the said order Special Appeal No.80 of 2015 was preferred by High Court on limited issue challenging imposition of cost on District Judge and this Court on 2.8.2017 disposed of the appeal with a direction for reduction of cost to Rs.50/-.
However, appellants moved a recall application No.67083 of 2012 for recalling order dated 7.2.2012. The said application was rejected by order impugned dated 20.3.2012.
Sri Kshitij Shailendra, learned counsel appearing for appellants submitted that typing test conducted on 29.5.1990 by Sri S.B.Vaish, clearly demonstrated that appellants had smoothly and clearly written down the subject matter dictated to them. However, with regard to the typing speed, the officer mentioned that it was less than the average speed. He further submitted that appellants were already working on the post of English stenographers in pursuance of selection finalised on 14.7.1987 and since appellants were also having acquaintance about Hindi typing at that time, as the Judicial Officers were switching over to prefer to work in Hindi in comparison to English, a necessity for Hindi typist also arose and appellants were thus called for Hindi typing test in which they appeared on the instructions of the then District Judge. It was also contended that Rule 5(c) is in regard to shorthand and typing test applicable to English stenographer and not stenographer/typist in Hindi and Rules of 1947 are silent about Hindi shorthand/typing.
He further contended that appellants were appointed pursuant to the communication issued by this Court on administrative side on 22.5.1990 wherein the approved list of ex-stenos and Hindi stenos dated 14.7.1987 was combined and they were granted appointments. The said communication does not speak about any test of Hindi stenography to be undertaken by District Judge and order was simpliciter appointing appellants as stenographers.
Per contra, Sri Anwar Mehdi Zaidi, learned counsel appearing for respondent nos.1 to 3 submitted that the select list dated 14.7.1987 came to an end on 13.7.1988 after one year in view of Rule 14(3) of the Rules of 1947 and appellants had not joined as per the select list as English stenographers. They were temporarily engaged against leave vacancy, which had occurred in the District Judgeship of Moradabad on 14.10.1987 and 15.10.1987 and their appointment was temporary and was not against any substantive vacancy.
It was further contended that respondent nos.1 to 3 were appointed pursuant to the fresh recruitment conducted in the judgeship on 24.9.1988 for Hindi stenographers and were placed at Sl.Nos.1, 2 and 3 and were given appointment on 30.11.1988 and 3.1.1989. Learned counsel further submitted that respondents had already joined and were working when by orders of District Judge dated 5.6.1990 they were removed from service without affording any opportunity of hearing, though they were validly selected candidates against substantive vacancy. It was further contended that Rule 5(c) is clear as far as the speed of 100 words per minute in shorthand and 35 words per minute in typing is concerned, which a candidate must have for being qualified as a stenographer. Appellants having failed in typing test conducted on 29.5.1990 by IV Additional District Judge, Moradabad, Sri S.B.Vaish, they could not appointed as stenographers.
Sri Ashish Mishra, learned counsel appearing for the High Court, apart from reiterating the stand taken in Counter Affidavit submitted that the then District Judge had proceeded to appoint appellants on the basis of communication of this Court dated 22.5.1990 and the earlier engagement of appellants on 14.10.1987 was purely temporary against leave vacancy.
He had further placed reliance upon a decision of the coordinate Bench of this Court in the case of District Judge, Baghpat and another vs. Anurag Kumar and others, 2006(5)AWC 4682 wherein this Court has held that life of the select list is one year for appointment. Relevant paragraph no.32 of the said judgment is extracted hereunder:
"Coming to the next question with regard to the period for which the said select list survived, it is apparent that the list for recruitment was prepared finally on 05,04.2000. On a simple mathematical calculation, the period of one year, as per the Gregorian Calendar, cannot, in any circumstance, stretch beyond 04.04.2001. Thus, according to Rule 14(3) of the 1947 Rules, all names that were existing up to 04.04.2001, stood automatically removed with effect from 05.04.2001 and no person could either have claimed appointment or could have been appointed by the District Judge under the said select list. The Rule, referred to hereinabove, is ruthless and negatively worded. It brings about automatic removal and is not subject to any relaxation. The word 'automatic' in its ordinary sense means 'on its own'. Thus, the removal of the name does not require any action to be taken and stands removed accordingly. The removal of the name, therefore, brings about a complete and unqualified cessation of any semblance of claim under the select list. To put it otherwise, the District Judge looses all authority and jurisdiction and is completely forbidden from picking up any name out of the said list after the expiry of the aforesaid period of one year for appointment. In short, the District Judge becomes functus officio vis-a-vis to that extent. This position with regard to the existence of the select list and the automatic removal of the names from the list was subject matter of consideration of several decisions and the final pronouncement in this regard is in the case of D.N.Srivastava v. State of U.P. and others, a Full Bench decision of our Court reported in 1996 (2) UPLBEC 1037. This view stands fortified by the judgments of the Hon'ble Apex Court in State of Bihar and others v. Mohd. Kalimuddin, AIR 1996 SC 1145; State of U.P. and others v. Harish Chandra and others, AIR 1996 SC 2173; and & State of U.P. and others v. Ram Swarup Saroj, AIR 2000 SC 1097."
We have heard learned counsel for the parties and perused the material on record.
It is not in dispute that in the District Judgeship of Moradabad in the year 1987 competitive examination was held for filling up the post of English and Hindi stenographers. On 14.7.1987 a select list was prepared, as it is not in dispute that the life of select list is valid only for one year and it came to an end on 13.7.1988 in view of the provisions contained in Rule 14 (3) of the Rules of 1947.
As leave vacancy had arisen in the judgeship, the then District Judge Moradabad on 14.10.1987 and 15.10.1987 had appointed appellants purely on temporary basis in leave arrangement w.e.f. 14.10.1987 to 13.11.1987.
It is also not in dispute that as there was no vacancy of English stenographers, no person from the select list was given appointment and the same came to an end, while Hindi stenographers were given appointment. Further, fresh examination was conducted for recruitment of Hindi stenographers on 24.9.1988 and respondent nos.1 to 3 qualified and select list of 10 persons was prepared in which they were placed at Sl.Nos.1, 2 and 3, pursuant to which appointment orders were issued and respondent nos.1 and 2 joined on 30.11.1988 while respondent no.3 joined on 3.1.1989.
Though appellants were working against leave vacancy, on the representation, it appears that communication was sent on administrative side by this Court on 22.5.1990 wherein District Judge, Moradabad proceeded to hold stenography test in Hindi of three appellants alongwith one another candidate. On the test being conducted on 29.5.1990, it was found that their speed was below the limit prescribed in Rule 5(c) of 1947 Rules, but, despite the said fact, District Judge Moradabad on 5.6.1990 appointed appellants on the post of Hindi stenographers and removed respondent nos.1 to 3 from services, who were already working pursuant to being selected in 1988 examination conducted by District Judgeship of Moradabad, without affording any opportunity of hearing.
Learned Single Judge, on a petition filed by respondents on 7.2.1912 quashed the order of appointment of appellants, passed by District Judge on 5.6.1990 as the same dehor's the Rules.
Argument of counsel for appellant as far as the typing test conducted and report so submitted by Officer concerned regarding typing speed, which was less than the average speed as envisaged under Rule 5(c) of the Rules of 1947 was not in regard to Hindi stenographers cannot be accepted, as from the plain and simple reading of Rule 5(c) it is clear that a candidate to be considered for the post of stenographer must possess a speed of at least 100 words per minute in shorthand and 35 words per minute in typing. Thus, it cannot be said that Rule 5(c) is applicable in the case of English Stenographer and not in case of Hindi stenographer as Rule 5(c) speaks about stenographer which includes both English Stenographer and Hindi Stenographers.
Further argument that appointment of appellants was on the basis of communication of this Court dated 22.5.1990 also has no legs to stand as communication dated 22.5,1990 itself speaks that appellants were working against leave vacancy and this fact is not disputed to either of the parties, as such, appellants cannot claim benefit of working against any substantive vacancy to claim seniority from respondent nos.1 to 3, and also respondents were selected and appointed pursuant to recruitment process initiated in the year 1988 for Hindi stenographers, while appellants are claiming benefit to be appointed pursuant to select list dated 14.7.1987, which exhausted on 13.7.1988.
Learned Single judge rightly allowed the writ petition filed by respondents on 7.2.2012 and quashed the appointments so made on 5.6.1990.
From the perusal of order dated 5.6.1990, passed by the then District Judge, Moradabad, it appears that by one stroke of pen he appointed appellants as Stenographers and removed respondent nos.1 to 3, who were validly appointed and working on the said post.
The case of appellants was never that they were appointed as a Hindi Stenographer against any substantive vacancy, which occurred in the Judgeship of Moradabad. It was their temporary appointment against leave vacancy as English Stenographers, and after typing test was taken that they were given appointments on the post which was validly occupied by respondent nos.1 to 3, who were duly selected in the year 1988. More so respondent nos.1 to 3 were appointed against substantive vacancy, which had occurred in the year, 1988 and by communication of this Court dated 22.5.1990 on the administrative side the then District Judge proceeded to appoint appellant on 5.6.1990, on the post being marked for Hindi stenographers in the judgeship.
After having considered, we are of the opinion, that impugned order dated 20.3.2012 confirming the order dated 7.2.2012 needs no interference.
The appeal is devoid of merit and is hereby dismissed.
Dated: 23.1.2020 AKJ