Allahabad High Court
V.K.Gupta & 3 Ors. vs State Of U.P. Through Prin. Secy. Law ... on 28 May, 2019
Author: Abdul Moin
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Court No. - 20 Case :- SERVICE SINGLE No. - 4403 of 2014 Petitioner :- V.K.Gupta & 3 Ors. Respondent :- State Of U.P. Through Prin. Secy. Law Lko. & Ors. Counsel for Petitioner :- Angrej Nath Shukla,Amit Srivastava,Vikas Yadav Counsel for Respondent :- C.S.C.,Gaurav Mehrotra,Manish Kumar Hon'ble Abdul Moin,J.
1. Heard learned counsel for the petitioners, learned Standing Counsel appearing for respondent No.1 and Sri Gaurav Mehrotra, learned counsel appearing for respondents No.2 and 3.
2. By means of the present petition, the petitioners haveprayed for the following reliefs:-
(a) to issue a writ, order or direction in the nature of Certiorari thereby quashed the impugned order dated 24.01.2014 and 22.07.2000 passed by opposite party no.-3 contained as annexure No.-1 & 2 to this writ petition.
(b) to issue a writ, order or direction in the nature of Mandamus commanding the opposite parties to appoint the petitioners on the vacant class IV post existing in the judgeship of Balrampur in accordance with the waitlist dated 14.11.1998.
(c) to issue any other appropriate writ, order or direction as this Hon'ble Court deem fit and proper in the nature and circumstances of the case.
(d) to allow this writ petition in favour of the petitioners with cost."
3. The case set forth by the petitioners is that in the year 1998 an advertisement was published inviting applications for appointment on 21 Class IV posts in the Judgeship of Balrampur. In pursuance of the advertisement, the petitioners applied. A written test was held on 28.09.1998 and 29.09.1998. The petitioners claim to have been declared qualified in the said examination as per the result declared on 14.11.1998. A select list was issued containing the names of 49 persons, from which 21 persons were given appointment and a waiting list was prepared and issued by the respondents in which the name of the petitioners find place at Serial No.26, 32, 34 and 40. A copy of the select list and waiting list has been filed as Annexure-3 to the petition. It is contended that after the 21 vacancies as notified, were filled in, 22 other vacancies arose as 14 persons who were sent on deputation/transfer from Gonda to Balrampur had been repatriated to Gonda. It is also contended that 3 or 4 other posts fell vacant later. The petitioners finding their place in the waiting list, thus, staked their claim for appointment from the waiting list on the ground that subsequent to the 21 vacancies which were advertised having been filled in, further vacancies, as indicated above also arose, consequently they should be appointed. When they were not appointed, the petitioners preferred Writ Petition (S/S) No.7093 of 2000 which was decided on 9.11.2001 with a direction that if the life of the select list is three years and the appointments have not been made deliberately in spite of the existence of vacancies in Class-IV post, the select list shall not come to an end and the same will be made effective till the fulfillment of all the vacancies existing prior to the end of the life of the select list or till the select list is completely exhausted. A copy of the said judgment and order has been filed as Annexure-4 to the petition.
4. When no compliance was done by the respondents, the petitioners were constrained to file another writ petition namely Writ Petition (S/S) No.5301 of 2003 which was allowed on 14.5.2003. A copy of the judgment and order dated 14.5.2013 is Annexure-5 to the petition. While allowing the aforesaid petition, this Court observed that the respondents will consider the case of the petitioner for appointment only if there are vacancies and no other senior person to the petitioner is available in the same situation. The said judgment and order dated 14.5.2013 was modified through the judgment and order dated 21.5.2013 by allowing the writ petition in terms of the judgment and order of this Court in Writ Petition (S/S) No.323 of 2003 decided on 22.2.2013. Writ Petition No.323 (SS) of 2003 had been allowed by the writ Court with the direction to the respondents to consider fresh appointment of the petitioner therein ignoring the age against a post lying reserved. Thereafter the respondents proceeded to pass an order dated 24.1.2014, a copy of which has been filed as Annexure-1 to the petition, rejecting the claim of the petitioners duly indicating that against the 21 advertised vacancies, there is no post available and no person from the waiting list has been appointed. As the impugned order dated 24.1.2014 also indicates that the erstwhile District Judge had passed an order dated 22.7.2000 cancelling the waiting list, consequently the order cancelling the waiting list has also been challenged in the present petition, a copy of which has been filed as Annexure-2 to the petition.
5. Learned counsel for the petitioners contends that the impugned order of rejection as passed by the respondents is patently bad in the eyes of law inasmuch as the appointments to be made in the Judgeship are governed by the rules namely the Uttar Pradesh Subordinate Civil Courts Inferior Establishment Rules, 1955 (hereinafter referred to as the 1955 Rules). Rule 12 of the 1955 Rules categorically provides that a waiting list of candidates shall be maintained for each Judgeship for the posts of Process-servers, Orderlies, Office Peons and Farrashes. The waiting list should be of reasonable dimensions and be revised from time to time with a view to removing therefrom the names of all such candidates as are not likely to receive appointments before attaining the maximum age prescribed in Rule 8 and such candidates as are found guilty of insubordination, misbehavior or dishonesty in the discharge of their duties in temporary or officiating vacancies, after giving them necessary opportunity to explain their conduct. It is also contended that as there is no time period fixed till which the waiting list shall be operative, consequently till such time the entire waiting list is exhausted, petitioners are entitled for appointment.
6. In this regard, learned counsel for the petitioner has placed reliance on a judgment of Hon'ble Supreme Court in the case of Naseem Ahmad vs. State of U.P. and others reported in (2011) 2 SCC 734 to contend that in similar circumstances the Hon'ble Supreme Court has held that the waiting list as prepared by the respondents under the relevant rules i.e. Rule 12 of the 1955 Rules shall continue to remain operative till such time all the candidates as available in the waiting list are appointed either in the same year or in the next year and once the respondents while proceedings to pass the impugned order have admitted that certain vacancies have been filled in the year 2000 consequently the petitioners are also entitled for their appointment against the said vacancies.
7. Reliance has also been placed by learned counsel for the petitioners on a Division Bench judgment of this Court in the case of Ram Sajivan and others vs. District Judge Raibareli passed in Special Appeal No.396 of 2001 decided on 25.02.2014 as well as the judgment of Single Judge passed in the case of Arvind Kumar Gautam vs. District Judge and others in Writ A No.47426 of 2007 decided on 25.08.2011.
8. Per contra, Sri Utsav Misra holding brief of Sri Gaurav Mehrotra, learned counsel appearing for the respondents, argues on the basis of averments contained in the counter affidavit that the advertisement dated 17.08.1998 was issued for filling up of 21 vacant posts of Class IV employees. After the written examination, the successful candidates were called for interview and the result of the selected candidates in the interview was declared on 14.11.1998. The result contained the names of 21 candidates who had been selected and a waiting list of 28 other candidates was also prepared in which the names of the petitioners find place at serial no.26, 32, 34 and 40 respectively. The appointment letters were issued to all the selected candidates of the said select list and the selected candidates joined their duties between the period of 16.11.1998 to 27.11.1998 and thus all 21 posts were filled up by 27.11.1998 and consequently the waiting list lost its efficacy and became redundant on 27.11.1998 itself. It is also contended that the District Judge, Balrampur, also issued an order dated 22.07.2000 whereby the waiting list in question was formally cancelled apart from the fact that it had already lost its efficacy on account of 21 selected candidates against 21 vacancies having already joined on the said posts. It is also contended that the order which has been passed in the case of the petitioners dated 24.01.2014 has been correctly passed after considering all the attendant facts and circumstances of the case.
9. So far as the validity of the waiting list is concerned, learned counsel for the respondents places reliance on the judgment of Hon'ble Supreme Court in the case of Raj Rishi Mehra and others vs. State of Punjab and another - (2013) 12 SCC 243 to contend that a wait listed candidate is not entitled for appointment against an unfilled post as of right. Placing reliance on the judgment of Hon'ble Supreme Court in the case of Mohd. Sohrab Khan vs. Aligarh Muslim University and others - (2009) 4 SCC 555, it is contended that with the joining of a selected candidate the waiting list would cease to operate. Reliance in this regard has also been placed on a Division Bench judgment of this Court in the case of Dr. Anand Pandey vs. King George's Medical University and others passed in Writ Petition No.1706 (SB) of 2012 decided on 30.10.2014.
10. Heard learned counsel for the contesting parties and perused the records. From perusal of the records, it clearly comes out that an advertisement dated 17.08.1998 was published inviting applications for appointment on 21 Class IV posts in the judgeship of Balrampur. In pursuance thereof, written test and interview was conducted which resulted in the result being declared on 14.11.1998 containing the names of 21 selected persons as well as a waiting list of 28 persons. From perusal of the records, it also clearly comes out that 21 selected candidates joined on the post that had been advertised. As the selected candidates joined against 21 advertised posts consequently all the vacancies were filled in and the respondents did not proceed to operate the waiting list. The petitioners stake their claim for appointment on the ground that their names are contained in the waiting list at serial nos. 26, 32, 34 and 40. This Court in Writ Petition No.7093 (SS) of 2000 decided on 09.11.2001 directed that if the life of the select list is three years and the appointments are not being made deliberately, the select list should not come to an end and the same will be made effective till the fulfillment of all the vacancies existing prior to the end of the life of the select list or till the select list is completely exhausted. The respondents did not act in pursuance to the said judgment inasmuch as this Court proceeded on the assumption that the life of the select list is three years. Thereafter, the petitioners again preferred Writ Petition No.5301 (SS) of 2003 which was allowed on 14.05.2003 in pursuance to which the respondents proceeded to pass an order dated 24.01.2014 by which the claim of the petitioners for appointment has been rejected. A perusal of the order which is now under challenge by means of the present petition indicates that the ground taken for rejection of the claim of the petitioners is that all 21 vacancies stood exhausted with the joining of 21 selected persons against 21 vacancies. Thus, there was no occasion for the respondents to operate the waiting list and in this regard an order dated 22.07.2000 was also issued by the learned District Judge, Balrampur cancelling the waiting list.
11. The thrust of argument of learned counsel for the petitioners is based on the interpretation of Rule 12 of 1955 Rules which pertains to the waiting list as has been interpreted by Hon'ble Supreme Court in the case of Naseem Ahmad (supra). For the sake of convenience, Rule 12 of the 1955 Rules is reproduced below:-
"12. Waiting List--(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 maintaind 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 there from 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 dishonesty in the discharge of their duties in temporary or officiating vacancies, after giving them necessary opportunities to explain their conduct.
Note--The order of names in the waiting list shall be in the order in which the candidates are admitted to it but the District Judge may at the time of appointment, choose from the list the most suitable of all the candidates for reasons to be recorded in writing."
12. Hon'ble Supreme Court in the case of Naseem Ahmad (supra) was considering an advertisement which was issued by the District Judge, Mahoba, inviting applications for appointment on Class IV posts for the purpose of preparation of a waiting list held after considering Rule 12 of the 1955 Rules that the waiting list should broadly be correlated 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.
13. In the instant case, it is clearly apparent that the advertisement that had been issued by the respondents was not for the purpose of preparation of a waiting list rather was for inviting applications against 21 notified vacancies for Class IV posts against which all 21 selected candidates submitted their joining and were consequently appointed. Thus, the nature of advertisement in Naseem Ahmad (supra) was for preparation of a waiting list while in the present case, it was for filling in 21 vacant Class IV posts without any intention of preparation of waiting list. Hence, the judgment of Naseem Ahmad (supra) and the interpretation given to waiting list is clearly not attracted in the facts of the instant case and the controversy involved herein.
14. So far as the Division Bench's judgment in the case of Ram Sajivan (supra) is concerned, in the said case also the Division Bench was seized of a matter pertaining to the letter having been issued by the District Judge, Raebareli calling for the names from the District Employment Officer, Raebareli for the purpose of preparing the approved list of 15 candidates for various Class IV posts and the said letter clearly mentioned that the posts would be filled up on occurrence of the vacancy. Thus, the facts and circumstances of the present case are at complete variance to the judgment in the case of Ram Sajivan (supra).
15. So far as the judgment of Single Judge in the case of Arvind Kumar Gautam (supra) is concerned, 15 vacancies had been notified in the case of Arvind Kumar Gautam and the selected candidate namely Arvind Kumar Gautam was placed at serial no.15 and had also been appointed. However, his services were sought to be terminated on account of a person who was transferred to fill in one vacancy which thereafter resulted in the 15th vacancy not being considered to be a vacancy which resulted in the termination of services of Sri Arvind Kumar Gautam. Considering all the aforesaid facts the Single Judge held that once the selection process was set at motion notifying that 15 vacancies are available consequently the same could not be modified or changed without prior notice to the public at large. Thus, the said judgment is again distinguishable on its facts and will not be applicable in the facts of the instant case.
16. So far as the controversy in the present case is concerned i.e. right of the petitioners whose names find place in the waiting list seeking their appointment against subsequent vacancies, suffice to state that law pertaining to the candidates whose names are included in the waiting list whether they are entitled for appointment against unfilled posts has been settled beyond doubt by various judgments of Hon'ble Supreme Court. In this regard, the Court may refer to the judgment in the case of Raj Rishi Mehra (supra) wherein Hon'ble Supreme Court has held as under:-
"15. The question whether the candidates whose names are included in the waiting list are entitled to be appointed against the unfilled posts as of right is no longer res integra and must be answered in negative in view of the judgments of this Court in Union of India v. Ishwar Singh Khatri 1992 Supp (3) SCC 84, Gujarat State Dy. Executive Engineers' Association v. State of Gujarat and others 1994 Supp (2) SCC 591, State of Bihar v. Secretariat Assistant Successful Examinees Union 1986 and others (1994) 1 SCC 126, Prem Singh and others v. Haryana SEB and others 1996) 4 SCC 319, Ashok Kumar and others v. Chairman, Banking Service Recruitment Board and others (1996) 1 SCC 283, Surinder Singh and others v. State of Punjab and another (1997) 8 SCC 488, Madan Lal and others v. State of J&K and others (1995) 3 SCC 486, Kamlesh Kumar Sharma v. Yogesh Kumar Gupta and others (1998) 3 SCC 45, State of J&K and others v. Sanjeev Kumar and others (2005) 4 SCC 148, State of U.P. and others v. Rajkumar Sharma and others (2006) 3 SCC 330, Ram Avtar Patwari and others v. State of Haryana and others 2007) 10 SCC 94 and Rakhi Ray and others v. High Court of Delhi and others (2010) 2 SCC 637.
16. In Surinder Singh's case, this Court observed as under:
"A waiting list prepared in an examination conducted by the Commission does not furnish a source of recruitment. It is operative only for the contingency that if any of the selected candidates does not join then the person from the waiting list may be pushed up and be appointed in the vacancy so caused or if there is some extreme exigency the Government may as a matter of policy decision pick up persons in order of merit from the waiting list. But the view taken by the High Court that since the vacancies have not been worked out properly, therefore, the candidates from the waiting list were liable to be appointed does not appear to be sound. This practice, may result in depriving those candidates who become eligible for competing for the vacancies available in future. If the waiting list in one examination was to operate as an infinite stock for appointments, there is a danger that the State Government may resort to the device of not holding an examination for years together and pick up candidates from the waiting list as and when required. The constitutional discipline requires that this Court should not permit such improper exercise of power which may result in creating a vested interest and perpetrate waiting list for the candidates of one examination at the cost of entire set of fresh candidates either from the open or even from service."
17. In Rakhi Ray's case, this Court referred to a number of judicial precedents and held:
"It is a settled legal proposition that vacancies cannot be filled up over and above the number of vacancies advertised as "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", of those persons who acquired eligibility for the post in question in accordance with the statutory rules subsequent to the date of notification of vacancies. Filling up the vacancies over the notified vacancies is neither permissible nor desirable, for the reason, that it amounts to "improper exercise of power and only in a rare and exceptional circumstance and in emergent situation, such a rule can be deviated from and such a deviation is permissible only after adopting policy decision based on some rationale", otherwise the exercise would be arbitrary. Filling up of vacancies over the notified vacancies amounts to filling up of future vacancies and thus, is not permissible in law."
18. In State of Punjab v. Raghbir Chand Sharma (2002) 1 SCC 113, a two Judge Bench considered the questions as to when the recruitment process can be said to have come to an end and whether the select list can be operated qua the posts/vacancies which become available due to resignation of the existing incumbent and answered the same in negative by making the following observations:
"With the appointment of the first candidate for the only post in respect of which the consideration came to be made and select panel prepared, the panel ceased to exist and has outlived its utility and, at any rate, no one else in the panel can legitimately contend that he should have been offered appointment either in the vacancy arising on account of the subsequent resignation of the person appointed from the panel or any other vacancies arising subsequently. The circular order dated 22-3-1957, in our view, relates to select panels prepared by the Public Service Commission and not a panel of the nature under consideration. That apart, even as per the circular orders as also the decision relied upon for the first respondent, no claim can be asserted and countenanced for appointment after the expiry of six months. We find no rhyme or reason for such a claim to be enforced before courts, leave alone there being any legally protected right in the first respondent to get appointed to any vacancy arising subsequently, when somebody else was appointed by the process of promotion taking into account his experience and needs as well as administrative exigencies."
19. In Mukul Saikia v. State of Assam (2009) 1 SCC 386, this Court held that once the appointments are made against the advertised posts, the select list gets exhausted and those who are placed below the last appointee cannot claim appointment against the posts which subsequently become available. Paragraph 33 of the judgment which contains discussion on this issue is reproduced below:
"At the outset it should be noticed that the select list prepared by APSC could be used to fill the notified vacancies and not future vacancies. If the requisition and advertisement was only for 27 posts, the State cannot appoint more than the number of posts advertised, even though APSC had prepared a select list of 64 candidates. The select list got exhausted when all the 27 posts were filled. Thereafter, the candidates below the 27 appointed candidates have no right to claim appointment to any vacancy in regard to which selection was not held. The fact that evidently and admittedly the names of the appellants appeared in the select list dated 17-7-2000 below the persons who have been appointed on merit against the said 27 vacancies, and as such they could not have been appointed in excess of the number of posts advertised as the currency of select list had expired as soon as the number of posts advertised are filled up, therefore, appointments beyond the number of posts advertised would amount to filling up future vacancies meant for direct candidates in violation of quota rules. Therefore, the appellants are not entitled to claim any relief for themselves. The question that remains for consideration is whether there is any ground for challenging the regularisation of the private respondents."
17. It is settled proposition of law that with the appointment of selected persons the waiting list gets exhausted. In this regard, apart from the judgment of Surinder Singh and others vs. State of Punjab and others -(1997) 8 SCC 488, State of Punjab vs. Raghbir Chand Sharma - (2002) 1 SCC 113 and Mukul Saikia vs. State of Assam - (2009) 1 SCC 386, this Court may also refer to the judgment in the case of Mohd. Sohrab Khan (supra) wherein Hon'ble Supreme Court has held as under:-
"After analysing the present issue in the light of the abovesaid legal proposition laid down by this Court we hold that the High Court was justified in rejecting the candidature of Merajuddin Ahmad as against the said post which was advertised for pure Chemistry stream. However, with the appointment of Merajuddin Ahmad to the said post, the list recommended by the Selection Committee and approved by the other competent authority has lapsed. We, therefore, uphold the order passed by the High Court giving liberty to the University to lay down the qualification necessary for filling up the aforesaid post. The University shall now advertise the said post by laying down exact essential qualification indicating the particular subject and subjects- stream which is required to be possessed for making an application to fill up the said post and therefore proceed to appoint a Lecturer suitable for the aforesaid post."
18. To the same effect is the judgment of the Division Bench of this Court in the case of Dr. Anand Pandey (supra).
19. Accordingly, keeping in view the aforesaid discussions, it is apparent that the judgment of Hon'ble Apex Court in the case of Naseem Ahmad (supra) as well as the Division Bench judgment in the case of Ram Sajivan (supra) are not applicable upon the petitioners. Likewise, the judgment of Arvind Kumar Gautam (supra) is also not applicable rather the preparation of waiting list as in the instant case would fall within the ambit of law pertaining to waiting list as has been crystallized by Hon'ble Apex Court in the case of Raj Rishi Mehra (supra) as well as the judgment of Apex Court in the case of Mohd. Sohrab Khan (supra). Thus, upon appointment on all 21 vacancies as had been advertised, the select list stood exhausted and as such there was no occasion for the respondents to operate the waiting list for future vacancies.
20. Keeping in view the aforesaid facts and circumstances no case for interference is made out. Accordingly, the writ petition is dismissed.
Order Date :- 28.5.2019 Rakesh/A. Katiyar (Abdul Moin, J.)