Allahabad High Court
Muqeem Ahmad And Others vs District Judge, Sultanpur on 4 September, 1998
Equivalent citations: 1999(1)AWC748
Author: O.P. Garg
Bench: O.P. Garg
JUDGMENT O.P. Garg, J.
1. An advertisement which appeared in the local newspaper, 'DA1NIK RISH1DESH' published from Sultanpur on 22.6.1997, issued by the District Judge. Sultanpur, respondent, calling for applications from the candidates for appointment to class IV posts in the Judgeship of Sultanpur, has come to be challenged in the present three writ petitions, on the ground that on the basis of test and interview held for preparing the waiting list of candidates under Rule 12 of the U. P. Subordinate Civil Courts Inferior Establishment Rules. 1955 (hereinafter referred to as 'the Rules of 1955'), for the posts of Process Servers. Orderlies. Office peons and Farrashes, published on 13.6.1995 in the light of the roster as prescribed by the State Government under sub-
section (5) of Section 3 of the U. P. Public Services (Reservation for Scheduled Castes and Scheduled Tribes and Other Backward Classes) Act, 1994, has not yet exhausted by making appointments after serial number 7 onwards.
2. In Civil Misc. Writ No. 3824 of 1997, there are 7 petitioners, whose names find place at serial numbers 9 to 14 and 16. Two petitioners in Civil Misc. Writ Petition No. 4104 of 1997 have been placed at serial numbers 17 and 20, while Shiv Prasad-petitioner of Writ Petition No. 4785 of 1997 is at serial number 18 of the list, dated 13.6.95 prepared under Rule 12 of the Rules of 1955 Annexure-1 to the Civil Misc. Writ Petition No. 3824 of 1997.
3. Counter and rejoinder-affidavits have been exchanged. Heard Sri Manish Singh, learned counsel for the petitioners in Civil Misc. Wrjt Petition Nos. 3824 of 1997 and 4104 of 1997 and Sri Vijay Kumar Misra, learned counsel for the petitioner-Shiv Prasad in Civil Misc. Writ Petition No. 4785 of 1997 and learned standing counsel on behalf of the District Judge, Sultanpur-res pendent.
4. It is an indubitable fact that the names of all the 10 petitioners covered by three writ petitions appeared in the list of candidates prepared under Rule 12 of the Rules of 1955. The said rule deals with the preparation of the waiting list and it is provided that :
(i) A waiting list of candidates shall be maintained for each Judgeship for the posts of process-servers, orderlies, office peons and farrashes.
No waiting list shall be maintained for Chaukidars, Mails, 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 of dishonesty in the discharge of their duties in temporary or officiating vacancies after giving them necessary opportunities to explain their conduct."
The case of the petitioners is that unless tile list. Annexure-1, prepared under Rule 12 of the Rules of 1955 is exhausted, the District Judge cannot invite fresh applications for drawing up the list under Rule 22 afresh as it would be seriously detrimental to the rights of the petitioners. Action of the District Judge, in publishing advertisement inviting fresh applications is said to be Illegal, manifestly unjust and contrary to the provisions of Rules of 1955. It is prayed that the advertisement dated 22.6.1997, Annexure-3 to the Writ Petition No. 3824 of 1997 be quashed along with selection process, which is contemplated to be held on 12,7.1998 and that the District Judge. Sultanpur be commanded not to prepare a fresh waiting list until and unless all the candidates of the wait list dated 13.6.1995 are appointed. It is further prayed that the District Judge be directed to fill up 5 vacant posts from the wait list dated 13.6.1995.
5. The aforesaid Rules of 1955 came to be interpreted by this Court in the decision in Ram Babu and another v. District Judge, Banda, 1996 AWC 516. Both the connected writ petitions were dismissed but with a view to ensure that the Rules of 1955 are universally followed according to law, and the authority vested in the District Judge of a Judgeship be not exerciped in an arbitrary manner resulting in miscarriage of Justice and further mistakes committed in the post be not repeated and perpetuated, certain directions were issued and the Registrar of the Court was directed to communicate the directions to the District Judges for compliance. The relevant directions, issued in Ram. Babu's case (supra) are as follows :
"(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 to 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 'waiting lists' prepared under Rule 12 of the Rules which have served their purpose as indicated hereinabove shall cease to be operative forthwith. The appointments already made shall, however remain undisturbed."
The expression "waiting list' has been defined in clause (f) of Rule 2 of Rules of 1955 to mean' the list of candidates approved under these rules, for appointment to the various posts in the establishment. The waiting list, therefore, in effect is the list of candidates approved for the purposes of appointment.
6. The thrust of the argument of the learned counsel for the petitioners is that in view of Ram Baku's case (supra), the vacancies which occurred in the year 1995 and the vacancies which were to occur in 1996 are to be filled up from the waiting list dated 13.6.1995, Annexure-1 to the writ petition. It was also pointed out that even during the year 1995, four vacancies had come into existence while some more vacancies occurred in the year 1996. Learned counsel pointed out that S./Sri Ram Ashrey. Peon, Raghunath Prasad, Bundle Lifter and Ram Chandra Singh. Daftari stood superannuated on 30.11.1995. These posts were filled by promotion of class IV employees who were working ae Orderly Peon, Office Peon, Process Sewer and Farrash. A reference was made to Rule 4 of Rules of 1955 which makes it clear that the posts of Daftari and Bundle Lifters are to be filled by promotion strictly on merits from amongst Process Servers, Orderlies, Office Peons and Farrashes. who have put in at least five years service as such. It was pointed out that Mohd. Naseem, Shree Nath and Surya Prakash were promoted to the pots of Bundle Lifters and Daftaries and in this manner, three vacancies had occurred upto 30.11.1995. It was also asserted that one Ram Abhilakh retired from the post of Daftari on 31.12.1995 and in his place. Ram Swarath was promoted as Daftari. According to learned counsel, three more vacancies had occurred in 1996 on account of creation of Courts of VIth Additional District Judge and VIIth Additional Civil Judge, (Junior Division) as well as on account of retirement of Khursheed Ahmad, Daftari on 31.12.1996.
7. I have given thoughtful consideration to the matter and find that the question of vacancies has to be determined on the date on which recruitment is to be notified. In Ram Babu's case (supra), it has been held that the vacancies occurring in the year of recruitment as well as likely to occur in the succeeding year have to be taken into consideration for notifying the number of seats on which recruitment is to take place. The determination of vacancies has nothing to do with the occurrence of the vacancies after the vacancies have been notified and the recruitment had taken place. Therefore, now to say that the waiting list, Annexure-1, dated 13.6.1995, shall remain operative for the vacancies occurring in the succeeding year is of no consequence. This aspect of the matter, came to be considered by the Apex Court in a number of decisions in which it has been held that the select list would not be operative to cover the future vacancies, over and above the number of notified vacancies. In Hoshiar Singh v. State of Haryana and others, 1993 (Suppl.) 4 SCC 377, a revised requisition was made for filling up 8 posts. Ultimately, the Board recommended 19 names out of which 18 persons were given appointments. The High Court held that the appointments beyond 8 posts were illegal. The Supreme Court dismissed the appeal and held that since the requisition was for 8 posts of Inspector of Police, Board was required to send its requisition for 8 posts only. The Board of its own could not recommend names of 19 persons for appointment even though the requisition was for 8 posts only. The reasonings adopted by the Apex Court was that the appointment on the additional posts on the basis of such selection and recommendation would deprive candidates who were not eligible for appointment to the posts on the last date for submission of applications mentioned in the advertisement and who became eligible for appointment thereafter, of the opportunity of being considered for appointment on the additional post because if the said additional posts are advertised subsequently those who become eligible for appointment would be entitled to apply for the same. The High Court, was, therefore, right in holding that the selection of 19 persons by the Board even though the requisition was for 8 posts only, was not legally sustainable. To the same effect is the decision of the Apex Court in State of Bihar v. Madan Mohan Singh, AIR 1994 SC 765, in which it was held that the select list gets exhausted on completion of selection process under particular advertisement. The Court was of the view that if the same list has to be kept subsisting for the purposes of filling up other vacancies that would naturally amount to deprivation of rights of other candidates who would have become eligible subsequent to the selection process. Madan Lal and others v. Jammu and Kashmir State and others, AIR 1995 SC 1088, is another authority on the point in which while dealing with the question of the life-span of the select list, it was held that it gets exhausted the moment all va'cancies are filled up or after expiry of one year, whichever is earlier. The controversy also came to be considered by Apex Court in Ashok Kumar and others v. Chairman Banking Services Recruitment Board and others, (1996) 1 SCC 283, in which it was observed Article 14 read with" Article 16(1) of the Constitution enshrines fundamental right to every citizen to claim consideration for appointment to a post under the application from all eligible candidates to be considered for their selection in accordance with their merit. The recruitment of the candidates in excess of the notified vacancies is a denial and deprivation of the constitutional right under Article 14 read with Article 16(1) of the Constitution. The procedure adopted, therefore, in appointing the persons from the waiting list prepared by the respective Boards, though the vacancies had arisen subsequently without being notified for recruitment, is unconstitutional.
8. In Ram Babu's case (supra), it was specifically held that a waiting list of candidates contemplated under Rule 12 of the Rules cannot be deemed to be subsisting for a period beyond the filling up of the notified vacancies for the filling whereof the list has to be prepared and maintained. It cannot be deemed to be subsisting or operative for an Indefinite period and be utilised for filling up the vacancies which have not been notified before the preparation of such a list. Such list will get exhausted having served its purpose once the notified vacancies are filled up by candidates taken in order of merit from that list. Ram Babu's case (supra) is also an authority on the point. The anticipated vacancies likely to occur in the year succeeding the year of recruitment in addition to the existing vacancies likely to become available in the year of recruitment itself are to be determined for purposes of notifying the vacancies for which recruitment is to take place and no sooner the last notified vacancy is filled, the waiting list prepared under Rule 12 shall stand exhausted. Any other interpretation of the matter would lead to disastrous and preposterous result.
9. There is, therefore, no authority to warrant that all the 20 candidates who have been included in the waiting list, or say, select list prepared under Rule 12 are to be necessarily given appointment. It la true, that a waiting list should be of a reasonable dimension, meaning thereby, in the ratio of 1 : 3. The list, therefore, could extend to 30 candidates as against 10 vacancies, which were notified but this did not mean that all the 30 candidates of the list were to be given appointment. The double or triple list of the candidate is prepared with a view to meet the contingency of some of the candidates whose names appear on the select list not joining or not becoming available to join. Suppose, out of first 10 persons, three are not available in that event, the next three, i.e., at SI. Nos. 11. 12 and 13 would be appointed but the list would stand exhausted the moment candidates in order of their merit are appointed against 10 notified vacancies. To say that the vacancies could inflate or deflate, one way or the other, is also otiose. In the present case, the notified vacancies should be taken to be 10. Right persons have already been appointed, i.e., from SI. Nos. 1 to 3.
10. Learned standing counsel pointed out that two more persons have been appointed under the orders of the High Court from out of the select list of the year 1988 and, therefore, all the vacancies stand exhausted. Two persons, who were appointed from the select list of 1988-namely, Keshav Prasad Dixit and Turab Ahamad, were directed to be appointed by an administrative order of 16.2.1996, which Is contained in Annexure-2 to the writ petition. Under what circumstances the aforesaid administrative order came to be passed cannot be gone into and scrutinised in this writ petition. S./Sn Keshav Prasad Dixit and Turab Ah mad are not parties to the present writ petitions. The order dated 16.2.1996. Annexure-2 has also not been challenged in the present writ petitions. It would, therefore, not be possible to comment on the alleged illegal appointments of the two candidates of the approved list of 1988, But the fact remains that 10 vacancies which were notified for appointment, have to be filled from the waiting list/approved list, Annexurc-1, dated 13.6.1995. The said list shall stand exhausted after making the appointments of the candidates at SI. Nos. 9 and 10 and if they or any one of them are/Is not available, the other candidates who are next below them are to be appointed.
11. In view of the above discussion, categorical finding of this Court is that the waiting list/approved list which is prepared under Rule 12 of the Rules of 1955 shall stand exhausted the moment the last notified vacancy is filled from the said list. It is not permissible to appoint all the candidates whose names have been incorporated in the waiting list/approved list over and above the vacancies notified. With a view to clarify the position more explicitly, an example of this case may be quoted. A notification was made for 10 vacancies. In the waiting list 20 persons found a place. Irrespective of the consideration of the actual or future vacancies to occur, the appointment shall be confined only to the first 10 candidates of the waiting list. If, however, some persons within the limit of 10 are not available or do not join the post offered to them, in that event, they shall be replaced by the next candidates whose names appear after SI. No. 10 in the order of merit.
12. In the instant case, only a persons have been appointed as against 10 notified vacancies. Two more persons can be appointed from the waiting list/approved list. Annexure-1, dated 13.6.1995. Candidates at SI. Nos. 9 and 10. i.e..
Muqeem Ahmad and Rani Raj cannot be denied the benefit of appointment. If these two candidates or any one of them are/is not available for appointment, then the next candidate (s) in the order of merit shall be considered for appointment subject to the rider that not more than 10 persons of the waiting/approved list shall be appointed.
13. In conclusion, the writ petitions succeed to the extent as stated above. All the three writ petitions are disposed of with the direction that the District Judge Sultanpur-respondent shall immediately offer appointment to the candidates at SI. Nos. 9 and 10 of the waiting/approved list Annexure-1, dated 13.6.1995 against the vacancies which are existing in the Judgeship. If these two candidates or any one of them are/is not available to Join the duties, the next candidate or candidates in order of merit shall be given appointment. The interim order dated 8.7.1997 passed in the writ petitions shall stand discharged and subject to the above direction, the District Judge, Sultanpur shall be free to proceed with the selection process on the basis of the advertisement made on 22.8.1997, Annexure-3 to the writ petition.