Madhya Pradesh High Court
Kanchan Saxena S/O Shri R.S. Saxena vs The State Of M.P. Through The Principal ... on 24 March, 2006
Author: A.K. Shrivastava
Bench: A.K. Shrivastava
ORDER A.K. Shrivastava, J.
1. This order shall also govern the disposal of W.P. (S) No. 13439/2004 (Ashutosh Shukla v. State of M.P. and Anr.), W.P. (S) No. 13551/2004 (Prabendra Kumar Singh v. State of M.P. and Anr.) and W.P. (S) No. 407/2005 (Vivek Saxena v. State of M.P. and Anr.) since the point involved in all these writ petitions is the same.
2. M.P. Public Service Commission (hereinafter referred to as 'PSC') issued an advertisement bearing No. 01/2001 dated 13th August, 2001 (Annexure-P-1) and invited applications for the recruitment of the posts of Civil Judges Class-II. As per the advertisement in total 100 posts were advertised, out of them 54 for unreserved category, 15 for Scheduled Castes, 18 for Scheduled Tribes and 13 for O.B.C. seats were reserved. All the petitioners belong to unreserved category. Thereafter a corrigendum was issued by the PSC bearing No. 01/2001/01/Examination dated 18.9.2001. Thereafter two more corrigendums were issued bearing No. 01/2001/2001/Examination dated 24.10.2001 and 01/2001/03/Examination/3.10.2002, respectively. By all these corrigendums total 190 posts of Civil Judges Class-II have been advertised, out of them 101 have been declared for unreserved category. The reference of all these corrigendums has been mentioned in the list of successful candidates.
3. In pursuance to the advertisement the petitioner submitted his application form and he was asked to appear in the preliminary examination. After passing the preliminary examination he was allowed to appear in the main examination and was declared successful. After qualifying main examination, the petitioner was asked to appear in the interview. Thereafter, a final merit list was prepared which has been filed as Annexure-P-3. A supplementary list has also been prepared and in the supplementary list name of petitioner Kanchan Saxena finds place at Serial No. 6, name of petitioner Ashutosh Shukla of WP (S) No. 13439/2004 finds place at Serial No. 5, name of petitioner Prabendra Kumar Singh of WP (S) No. 13551/2004 is figured at Serial No. 3 and name of Vivek Saxena of EP (S) No. 407/2005 has been placed at Serial No. 4.
4. After issuing final selection list an intimation has also been sent by the PSC intimating each petitioner about their placement in the supplementary list, the said list dated 19.2.2003 is Annexure-P-4. Thereafter final selection list of total 104 candidates of unreserved category was issued appointing them. Later on two persons, namely, Sudeep Kumar Shrivastava and Archana Singh who were figured at Serial Nos. 1 and 2, respectively in the supplementary list were appointed. These appointments were made till the Month of October, 2004. It has been pleaded on behalf of the present petitioner Kanchan Saxena that three persons who have been figured above present petitioner, namely, Prabendra Kumar Singh, Vivek Saxena and Ashotush Shukla, their candidatures have been processed in the matter of issuing appointment orders though the orders of appointment have not been issued but the other remaining formalities have been completed by the State Government.
5. It is not disputed that on account of non-joining by the two candidates, Sudeep Kumar Shrivastava and Archana Singh were given appointment. Thereafter three of the candidates who initially joined their services, resigned during the probation period.
6. The PSC issued a letter bearing No. 38/3/2002/Selection dated 13th February, 2003 (Annex.P-6) and Clause 5 of the letter specifies that how the posts shall be treated as vacant during the pendency of the currency period of the selection list. It would be apposite to re-write the said clause which reads thus:
5- eq[; lwph esa mYysf[kr izR;k'kh ;fn fdlh dkj.k o'k miyc/k u gksa ;k fdlh dkj.k ls fy;qfDr ds fy;s v;ksX; gks tk, vFkok muds R;kxi= nsus ;k lsok ls gVk;s tkus ;k mudh e`R;q gksus ds dkj.k p;u lwph dh oS/krk vof/k esa in iqu% fjDr gks tkrk gS] rks gh vuqiwjd lwph ls lacaf/kr Js.kh ds izR;k'kh dk mi;ksx foKkIr fjfDr;ksa ds fy;s fd;k tk ldsxk A ,slh fLFkfr esa lacaf/kr izR;k'kh dk vkosnu i= vk;ksx ls eaxok fy;k tk, A bl izdkj.k vuqiwjd lwph eq[; lwph ds laUnHkZ esa gh lhekU; iz'kklu foHkkx ls i= dzekad lh&1&7@83 ¿3À A fnukad 07 ekpZ] 1984 ds vuqlkj izklafxd gS rFkk bldk mi;ksx foKkIr inksa ds vfrfjDr vU; fjfDr;ksa dks Hkjus esa ugha fd;k tk ldsxk A In the above-said clause there is a reference of GAD circular No. 3-7/83 (3) dated 7th March, 1984.
7. The contention of learned Counsel for the petitioner is that after issuing final select list six candidates have either not joined or resigned or discontinued from the services. The description of those persons is as under:
Sl. No. Sl. No. in the Roll No. NAME & REASON FOR
Main list OCCURRING VACANCY
1. 33 206859 Ku. Priti Naik, not joined
2. 76 200597 Shri Devendra Kumar Sharma
not joined.
3. 3 2077684 Shri Shushant Huddar, Resigned
from the service.
4. 5 208678 Shri Akshay Kumar Dwivedi,
Resigned from service.
5. 95 206695 Shri Pandey Ganesh Prasad,
Resigned from services
6. 36 204619 Shri Alok Dubey has been
discontinued from services.
Thus according to the petitioners six posts have fallen vacant during the currency period of the select list. By inviting my attention to Annexure-P-10 which is a letter issued by the respondent No. 1 to PSC dated 29.1.2005 filed along with the rejoinder it has been contended by the learned Counsel for the petitioner that a request was made by the State Government to the PSC for the extension of period of validity of the list for a further period of six months from 13.2.2005 because the period of validity would be expiring from this date. It has been contended by learned Counsel for the petitioner that process of appointment of petitioner Prabendra Kumar Singh, Vivek Saxena and Ashutosh Shukla is pending, apart from this one person, namely, Alok Dubey has been terminated from the services and, therefore, one post has also fallen vacant. It has been put-forth by learned Counsel for the petitioners by inviting my attention to Annexure-P-11 which is a letter of PSC addressed to the State Government dated 10th February, 2005 that the PSC is according its consent to extend the period of validity up-to 13.8.2005. On going through Annex.P-11 it is gathered that not only the PSC gave its consent and extended the period of validity up-to 13.8.2005, but further directed to appoint the candidates and a copy thereof be sent to the Commission. Before the extension of period of validity up-to 13.8.2005, petitioner Kanchan Saxena submitted representations to PSC on 29.11.2004 (Annex.P-7) as well as to the State Government (AnnexP-8). A representation was also submitted by the petitioner to Hon'ble the Chief Justice of M.P. High Court on 18.12.2004 (Annex.P-9).
8. The contention of learned Counsel for the petitioner is that on the basis of aforesaid facts the process of appointment has been started so far as the candidates like petitioners belonging to supplementary list is concerned. Out of them two candidates have already been appointed and for remaining three candidates the process of appointment is going on. The sixth post has also fallen vacant on account of removal from service of Shri Alok Dubey and since this vacancy has occurred during the validity period, therefore, the case of present petitioner Kanchan Saxena is also similar to that of other petitioners whose names have been processed for their appointment. It has been contended by Shri Trivedi, learned senior counsel appearing for petitioner Kanchan Saxena that it appears that by oversight fourth post which had fallen vacant during the validity period of list on account of removal of Shri Alok Dubey lost attention of PSC in Annexure-P-11. However, the supplementary list was not extended for an individual and if the list is kept alive it will be giving advantage to all candidates who became eligible for appointment from the supplementary list during the validity period of the list.
9. On behalf of other petitioners Prabendra Kumar Singh, Vivek Saxena and Ashotosh Shukla it has been contended by Shri Naman Nagrath and Shri Imtiaz Husain, learned Counsel appearing for them that the petitioners were directed for medical examination by the medical board and for that purpose letter dated 12.8.2003 was issued by the State Government for their recruitment to the posts of Civil Judges. These petitioners were served by another letter dated 27th August, 2004 issued by Regional Joint Director, Health Services, Jabalpur Zone directing them to appear before the medical board at Jabalpur. Accordingly, these petitioners appeared before the medical board and they were medically examined. In that regard my attention has been drawn to the letter of Regional Joint Director, Health Services addressed to Deputy Secretary, State of M.P., Law and Legislative Affairs Department (Annexure-P-6 of WP (S) No. 13551/2004) intimating that the petitioners appeared for their medical test on 8.9.2004 and the medical report was annexed with the letter. These petitioners were also directed to submit a declaration to the effect that they would appear for the medical examination before the medical board and that they are free from financial encumbrances. All the petitioners submitted such declaration dated 17.8.2004 (Annexure-P-7 of WP (S) No. 13551/2004). It has been submitted by Shri Nagrath and Shri Imtiaz Hussain that entire formalities were done by the State Government except issuing appointment letters. Shri Nagrath, learned Counsel appearing for petitioner Prabendra Kumar Singh of W.P. (S) No. 13551/2004 as well as Shri Imtiaz Husain, learned Counsel appearing for petitioner Ashutosh Shukla of W.P. (S) No. 13439/2004 and petitioner Vivek Saxena of W.P. (S) No. 407/2005 have submitted that on earlier occasion also in similar situation candidates from the supplementary list/waiting list have been given appointment to the post of Civil Judge Class-II by the respondents during the subsistence of the respective supplementary list. The duration of supplementary list from time to time was extended by the PSC at the request of the State Government. In the given case in hand, validity period of supplementary list in which the petitioners are placed at Serial Nos. 3, 4, 5 and 6 has been extended up-to 13.8.2005. The petitioners also submitted representations to PSC and Secretary, Law Department. However, since appointment has not been made, therefore, the present writ petitions have been filed.
10. The PSC has been arrayed as a party in the writ petition filed by petitioner Kanchan Saxena but no return has been filed. The High Court has been impleaded as party in other three writ petitions but the return has been filed only in W.P. (S) No. 13551/2004 filed by Prabendra Kumar Singh. The State of M.P. has filed return in all the petitions. Shri Samdarshi Tiwari, learned Govt. Advocate appears for the State Government, Shri Hemant Shrivastava, learned Advocate appears for PSC and Shri S.C. Sharma, learned Sr. Advocate with Shri Abhay Pandey, Advocate appears on behalf of the High Court.
11. The stand of the State Government in the return is that in respect to the appointment and recruitment of the Civil Judge Class-II Rules, namely, M.P. Lower Judicial Service (Recruitment and Conditions of Service) Rules, 1994 (in short 'the Rules') have been framed. Rule 5 of the Rules provides method of appointment and the appointing authority. According to the return, the State Government is empowered to appoint Civil Judge Class-II after holding selection in accordance with Rule 5(1) of the Rules. During the selection process High Court is required to be consulted and a sitting Judge of the High Court is required to be associated during the interview period. The advise of the High Court Judge is mandatory unless very cogent and sufficient reasons are assigned by the State Government for refusing to adhere to the recommendation of such High Court Judge. According to the State Government the selection and appointment is made strictly in terms of Rule 5. The PSC in consultation with the High Court selected the candidates including the petitioners and they were placed in the waiting list. According to the State Government all the petitioners are wait listed candidates and the main list has been completely exhausted by issuing appointment letters to the candidates who were selected and placed in the main select list prepared by the PSC. On issuing of appointment letters against all the vacant posts the main select list was exhausted and, therefore, there was no occasion to appoint any candidate who was included in the waiting list including the petitioners. It has been contended by the learned Govt Advocate that the petitioners are not having any right to seek any mandate for the purpose of appointment unless it is demonstrated that any of the junior candidate placed below such persons has been appointed.
12. In the return of the State Government it has also been averred that the State Government has already moved the process for holding selection of next batch of Civil Judge, Class-II and Public Service Commission has already been requested to do the needful. However, it has been submitted by the learned Govt. Advocate that till today the posts are not advertised.
13. It has also been set-forth in the return that the petitioner has no right to seek any direction for appointment as Civil Judge, Class-II against those vacant posts which have fallen vacant after resignation of some Civil Judges of original select panel which has ended after all the posts were utilized by the main select list and this legal position has been affirmed by the High Court in its administrative side as the matter was referred to the High Court on administrative side for advise. The opinion of the High Court given on administrative side is that the vacancies generated due to the resignations of Civil Judge, Class-II cannot be filled in from the waiting list because such vacancies can only be treated as future vacancies. In that regard my attention has been drawn to the letter dated 16.8.2004 (Annexure-R-1) of the Registry of the High Court addressed to Principal Secretary, Law & Legislative Affairs Department, Bhopal. On these premised submissions it has been prayed by the learned Govt. Advocate that this petition and other connected petitions be dismissed.
14. Shri Nagrath, learned Counsel for petitioner in W.P. (S) No. 13551/2004 in which the reply on behalf of the High Court (respondent No. 2) has been filed, has submitted that the stand of the High Court in the return is that the appointment to the post of Civil Judge, Class-II is to be made by the State of M.P. since it is the appointing authority and the High Court is only the posting authority after the appointment order is issued by the State Government. Learned Counsel has put emphasis on the averments made in para 2 of the reply of the High Court and has submitted that the stand of the High Court is clear that it had nothing to do with the appointment since it is the prerogative of the State Government to appoint Civil Judge, Class-II being the sole appointing authority and, therefore, when the State Government itself has requested PSC to extend the validity period and the same has been extended by the PSC, in all fairness the respondent No. 1 ought to have processed the matter further to give appointment to the petitioners.
15. After having heard learned Counsel for the parties, I am of the view that all the petitions deserve to be allowed.
16. Considered the rival contentions of learned Counsel for the parties and perused the record. Along with the rejoinder the petitioner of W.P. (S) No. 72/2005 has filed the photocopy of the entire file of the respondent No. 1 pertaining to selection and appointment of Civil Judge, Class-II and these copies have been obtained by him by filing appropriate application under Right to Information Act. Copy of the entire file has been placed on record as Annexures-P-11 to P-13.
17. It is not disputed that vide Annexure-P-10 dated 29.1.2005 the respondent No. 1 requested the PSC to extend the validity period w.e.f. 13.2.2005 to a further period of six months more. This request was made before expiration of the validity date i.e. 13.2.2005. It is also no more in dispute that vide Annex.P-11 dated 10th February, 2005 i.e. before the expiration of the validity date 13.2.2005, the PSC accorded its concurrence and extended the validity period up-to 13.8.2005. The authenticity of Annexures-P-10 and P-11 has not been disputed. Thus for all practical purposes it is held that the validity period which was going to an end on 13.2.2005 was extended up-to 13.8.2005. On going through the file of respondent No. 1 pertaining to selection and recruitment of Civil Judge, Class-II it is gathered that four posts were fallen vacant either on account of submitting resignation or the candidate did not join or removal from service of one candidate. On going through Annex.P-10 dated 29.1.2005 which is a letter of respondent No. 1 addressed to PSC indicating therein that since recruitment process of three candidates, namely, Prabendra Kumar Singh, Vivek Saxena and Ashotush Shukla is in progress and also because services of one candidate Alok Dubey have been terminated and one post has also fallen vacant, therefore, validity of supplementary list which is going to an end on 13.2.2005 be extended for another six months w.e.f. 13.2.2005. Vide Annex.P-11 dated 10th Feb. 2005 the PSC accorded its permission and extended the validity period of supplementary list up-to 13.8.2005. On going through Rule 5 of the Rules it is luminously clear that the appointing authority is the State Government. Indeed, in the return filed by the High Court as well as by the State Government this position has not been disputed rather learned Counsel appearing for them have admitted this position and contended that under Rule 5, only the State Government is the appointing authority. Similarly Shri Hemant Shrivastava, learned Counsel appearing for PSC has also admitted that the appointing authority is the State Government.
18. On going through the note-sheets of the file of respondent No. 1 pertaining to appointment of Civil Judge, Class-II it is gathered that respondent No. 1 has taken into consideration five persons from the supplementary list and in that regard the note-sheet dated 31.7.2004 is quite relevant in which it has been specifically mentioned that the PSC has recommended the names of five persons to be appointed from the supplementary list and names of these persons are:
(1) Shri Sudeep Kumar Shrivastava (already appointed).
(2) Smt. Archana Singh (already appointed).
(3) Shri Prabendra Kumar Singh (Petitioner of W.P. (S) No. 13551/2004.) (4) Shri Vivek Saxena (Petitioner of W.P. (S) No. 407/2005) (5) Shri Ashotosh Shukla (Petitioner of W.P. (S) No. 13439/2004) The note-sheet was forwarded to obtain administrative approval of the Law Minister who accorded his approval. It has been submitted by learned Counsel for the parties that admittedly Shri Sudeep Kumar Shrivastava and Smt. Archana Singh have already been appointed on the post of Civil Judge, Class-II. Thus respondent No. 1 has acted upon to appoint Civil Judge, Class-II out of the supplementary list and they have already appointed two persons, namely, Sudeep Kumar Shrivastava and Smt. Archana Singh. The Law Minister accorded its approval for the appointment of above-said five candidates. Thereafter on going through note-sheet dated 5.8.2004 it is gathered that since approval to appoint above-said five persons has already been made accordingly it was decided to proceed further in order to appoint these persons and for that medical examination, character verification etc. were directed to be sought from these candidates. On going through note-sheet dated 7.8.2004 it is gathered that since 28 posts of Civil Judge, Class-II are lying vacant, therefore, a decision was taken that the candidate of the supplementary list be appointed after completing the entire formalities. Thereafter again in the note-sheet dated 9.8.2004 it has been mentioned that on account of submitting resignation by three Civil Judges these posts be filled in by appointing three candidates from the supplementary list as those three candidates were of general category, since the posts have fallen vacant during the existence of extended validity period. However, on going through the note-sheet dated 27.10.2004 it is gathered that though letter dated 16.8.2004 has been sent by the High Court but a copy of letter of PSC dated 13.2.2003 be sent to the High Court by inviting its attention to Para 5 of the said letter that under which facts and circumstances the candidates from the supplementary list can be appointed. It was also specifically mentioned that the validity period of the list is going to end on 13.2.2005. I would not like to hesitate at the cost of repetition that the letter of the High Court dated 16.8.2004 has been placed on record as Annexure-R-1 with the return of the State Government and the letter of the PSC dated 13.2.2003 is Annexure-P-6. Para 5 of Annexure-P-6 has already been quoted hereinabove.
19. Though the High Court vide its letter dated 16th August, 2004 (Annexure-R-1) informed to treat the vacancies as future vacancies, but on going through the note-sheet of respondent No. 1 dated 23.11.2004 it is gathered that out of five candidates from the supplementary list, two persons have already been appointed. Thus, if two candidates from the supplementary list have been appointed and the appointing authority is the State Government only, therefore, the petitioners, namely, Prabendra Kumar Singh, Vivek Saxena and Ashutosh Shukla are required to be treated in similar manner specially when the validity period has already been extended up-to 13.8.2005 otherwise there would be no meaning to extend the validity period. The period of validity has been extended only because the appointment is to be provided to the wait listed candidates.
20. It is also no more in dispute that during the currency of the extended validity period i.e. 13.8.2005 one post has also fallen vacant as services of one candidate, namely, Alok Dubey have been terminated. This fact finds place in the letter of respondent No. 1 Annexure-P-10 dated 29.1.2005 addressed to PSC in which request was made to extend the validity period. Thus the case of petitioner Kanchan Saxena of W.P. (S) No. 72/2005 is also akin to that of other petitioners and all the petitioners are sailing in the same boat. The supplementary list was kept alive up-to 13.8.2005 to recruit suitable candidates from the supplementary list during the validity period.
21. On going through the note-sheet of the file of respondent No. 1 dated 11.3.2005 it is gathered that GAD put its note and recommended to appoint wait listed candidates during the validity period and in that regard reference of circular dated 7.3.84, which has already been reproduced hereinabove, has been mentioned and thus by putting said recommendatory note by the GAD the file was marked to the Law Department. Thereafter on going through the note-sheet of the respondent No. 1 dated 21.3.2005 it is gathered that according to the GAD in the facts and circumstances appointment can be made while according to the High Court the vacancy should be treated as future vacancy. From the note-sheet it is also revealed that since the present petitions have been filed and they are pending in the High Court, therefore, the matter was kept in abeyance.
22. Thus, according to the GAD since there is a circular of it dated 7.3.1984 which has been put emphasis in para 5 of Annexure-P-6, the appointment of the petitioners can be made, but according to the opinion of the High Court vacancy should be treated as future vacancy. I would not like to hesitate at the cost of repetition that the High Court is not the appointing authority and the appointing authority is the State Government. On going through the entire file of respondent No. 1 it is gathered that the State Government is inclined to appoint the petitioners. Annexure-P-6 which is letter of the PSC dated 13th Feb. 2003 and para 5 of this letter, which is based on the GAD circular dated 7th March, 1984, is quite clear and the petitioners who are figured in the waiting list can be appointed since four posts have fallen vacant during the validity period.
23. Under Sub-rule (2) of Rule 9 of the Rules selected candidates will be considered for appointment to the available vacancies in the order in which their names appear in the lists subject to the provisions of M.P. Civil Services (General Conditions of Service) Rules, 1961 (hereinafter referred to as ' Rules of 1961'). The provisions of Rules of 1961 are silent in this regard. It would be relevant to quote rule 9 of the Rules, which reads thus:
9. Commission's decision about the eligibility of candidates Final.- The decision of the Commission as to the eligibility or otherwise of a candidate for admission to the examination shall be final.
(2) Subject to the provisions of these rules and the Madhya Pradesh Civil Services (General conditions of Service) Rules, 1961, candidates will be considered for appointment to the available vacancies in the order in which their names appear in the lists.
(Emphasis supplied) Since there is total absence of any provision in the above-said rules or in the Rules of 1961 in regard to the meaning "available vacancies", instructions are to be followed and the instructions of the GAD dated 7.3.84 in that regard has already been mentioned in Para 5 of Annexure-P-6, which I have quoted hereinabove.
24. Before dealing with the ratio decidendi of the Apex Court in the case of Gujarat State Dy. Executive Engineers' Association v. State of Gujarat and Ors. 1994 Supp (2) SCC 591 placed reliance by the learned Counsel for the petitioners it would be condign to read paras 1 and 5 of the said decision on the basis of which law has been laid down by the Apex Court in para 8. In para 1 of the said decision it has been mentioned that although the issue primarily relates to construction of a circular issued by the State Government on 4-4-1979 providing for that, "the waiting lists which are prepared on the basis of the result of the competitive examination by the Commission, such waiting lists shall remain in force till the date of result of the subsequent examination are declared." The Supreme Court in para 8 has held and laid down the law as under:
8. Coming to the next issue, the first question is what is a waiting list?, can it be treated as a source of recruitment from which candidates may be drawn as and when necessary?; and lastly how long can it operate? These are some important questions which do arise as a result of direction issued by the High Court. A waiting list prepared in service matters by the competent authority is a list of eligible and qualified candidates who in order of merit are placed below the last selected candidate. How it should operate and what is its nature may be governed by the rules. Usually it is linked with the selection or examination for which it is prepared. For instance, if an examination is held say for selecting 10 candidates for 1990 and the competent authority prepares a waiting list then it is in respect of those 10 seats only for which selection or competition was held. Reason for it is that whenever selection is held, except where it is for single post, it is normally held by taking into account not only the number of vacancies existing on the date when advertisement is issued or applications are invited but even those which are likely to arise in future within one year or so due to retirement etc. It is more so where selections are held regularly by the Commission. Such lists are prepared either under the rules or even otherwise mainly to ensure that the working in the office does not suffer if the selected candidates do not join for one or the other reason or the next selection or examination is not held soon. A candidate in the waiting list in the order of merit has a right to claim that he may be appointed if one or the other selected candidate does not join. But once the selected candidates join and no vacancy arises due to resignation etc, or for any other reason within the period the list is to operate under the rules or within reasonable period where no specific period is provided then candidate from the waiting list has no right to claim appointment to any future vacancy which may arise unless the selection was held for it. He has no vested right except to the limited extent, indicated above, or when the appointing authority acts arbitrarily and makes appointment from the waiting list by picking and choosing for extraneous reasons.
(Emphasis supplied) The above-said decision of the Supreme Court is applicable in the present case. Here also the vacancy has occurred on account of resignation, non-joining and removal from service of some candidates. Thus in the words of the apex Court, the present petitioners have a right to claim their appointment. The "available vacancy"' in Rule 9(2) of the Rules has not been defined nor there is any indication in that regard in the Rules of 1961. Thus, it is to be borrowed from the GAD circular dated 7.3.84, reference of which has been made in letter (Annex.P-6) of PSC addressed to the State Government. The Supreme Court in para 9 of the said decision further held that 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. Thus, the decision of Gujarat State Dy. Executive Engineers' Association (supra) is fully applicable in the present case.
25. In the case of Virender S. Hooda and Ors. v. State of Haryana and Anr. which has been placed reliance by the learned Counsel for the petitioners similar situation was there. In the said case vacancies were filled in by appointing suitable candidates as recommended by Public Service Commission. Thereafter further vacancies became available within six months from the receipt of the recommendation of Public Service Commission. There was also a circular of the Government providing that such vacancies have to be filled up out of waiting list maintained by PSC. The apex Court in that situation held that the authorities should follow circular without entering into the controversy that the vacancies arose after selection process commenced. The apex Court further held that when a policy has been declared by the State as to the manner of filling up the posts and that policy is declared in terms of rules and instructions issued to the Public Service Commission from time to time and so long as these instructions are not contrary to the rules, the respondents ought to follow the same. It would be apposite to quote para 4 of the said decision in which the apex Court has laid down the law which reads thus:
4. The view taken by the High Court that the administrative instructions cannot be enforced by the appellant and that vacancies became available after the initiation of the process of recruitment would be looking at the matter from a narrow and wrong angle. When a policy has been declared by the State as to the manner of filling up the post and that policy is declared in terms of rules and instructions issued to the Public Service Commission from time to time and so long as these instructions are not contrary to the rules, the respondents ought to follow the same.
In the present case also there is a circular of the GAD which I have already referred hereinabove and this has also been quoted in para 5 of Annexure-P-6 and, therefore, the decision of Virender S. Hooda (supra) is squarely applicable in the present case. The apex Court in that case directed the respondents to consider the cases of the candidates for appointment to posts of Haryana Public Service Commission (Executive Branch). The apex Court further directed that the candidates will be fitted in appropriate posts and they will accord appropriate scale of pay by giving them the benefit of increments, if any, but they will not be entitled to any monetary benefits for the period for which they have been kept out of employment. In the given case in hand also the request was made by the State Government to extend the validity period and undisputedly it has been extended upto 13.8.2005. In the given case in hand there is a circular of the GAD to appoint suitable candidates from the supplementary list. The respondent No. 1 referred the file to GAD also and the GAD again put its stamp of approval on its earlier circular. If the said circular of the GAD dated 7.3.84, reference of which has been given in the letter of PSC (Annex.P-6) is not given to its effect it would become otiose and meaningless.
26. Earlier also this type of arrangement was being followed in making appointments in the identical circumstances and the appointments from waiting list were made when vacancies occurred during the validity period. In the rejoinder it has been put-forth by petitioner Kanchan Saxena and which has not been refuted by any counter affidavit that in the select list of the year 1999 the candidates were appointed till 22.11.2002 and prior to making such appointments no correspondence was made with the High Court and this fact finds place in the document supplied by the Law Department to the petitioners under Right to Information Act in Annexure-P-13 wherein one Bhubhaskar Yadav was appointed on 31st March, 2001 in place of selected candidate Jagmohan Agrawal since he did not join. Arvind Kumar was appointed on 26.11.2001 since selected candidate Nityanand Shrinet as he was relieved on being selected in Uttar Pradesh Judicial Services did not join. Arun Pratap Singh was appointed on 26.11.2001 in place of selected candidate Manish Khare as Shri Khare was relieved on account of his selection in M.P. Administrative Services. Saifi Daudi was appointed on 2.8.2002 as supplementary candidate No. 2. Pankaj Mishra who was appointed and did not join. All these candidates were of unreserved category. Apart from these, two other candidates who belong to OBC and Scheduled Caste were appointed on 31.12.2001 and 22.11.2002. Names of these persons are Munnalal Rathore (OBC) and Sushri Shashi Dohrey (SC). Thus when earlier this type of arrangement was there why the present petitioners should be steply treated. The view of this Court is that this is a fit case where it can safely be said they are also entitled for the similar treatment under the ambit and scope of Articles 14 and 16 of the Constitution of India.
27. On going through the file of the respondent No. 1 in regard to the appointment of petitioners it is gathered that it was closed because the petitioners filed present petitions. It be seen that all the writ petitions were filed much prior to the expiration of the validity period which was 13.8.2005. The petition of Ashotosh Shukla was filed on 16.12.2004; Vivek Saxena filed his petition on 7.1.2005; Prabendra Kumar Singh filed his petition on 17.12.2004 and Kanchan Saxena filed his petition on 3.1.2005. By placing reliance on the decision of the Supreme Court in the case of Rameshwar and Ors. v. Jot Ram and Ors. it has been argued by Shri Nagrath that right to relief must be judged to exist as on the date a suitor institutes the legal proceedings and since all the petitions were filed during the currency of the validity period, the petitioners would be entitled to the relief which was available to them on the date of the filing of the petitions. This is an emphatic statement that the right of a party is determined by the facts as they exist on the date the action is instituted. Granting the presence of such facts, then he is entitled to its enforcement. Later developments cannot defeat his right because, had the Court found his facts to be true the day he sued he would have got his relief. The Court's procedural delays cannot deprive him of legal justice or rights crystallised in the initial cause of action. The apex Court placed reliance on its earlier decision in this regard Bhajan Lal v. State of Punjab . At this juncture it would be condign to place reliance on the well-known maxim "actus curiae neminem gravabit" and in that regard it would be profitable to rely decision of the Supreme Court in the case of Kishan alias Krishan Kumar v. Manoj Kumar and Mohammed Gazi v. State of M.P. and Ors. AIR 2000 SC 1806. In the case of Beg Rai Singh v. State of U.P. and Ors. the apex Court again reiterated the same principle as decided in the case of Rameshwar (supra) that a plaintiff or petitioner having been found entitled to a right to relief, the court would as an ordinary rule try to place the successful party in the same position in which he would have been if the wrong complained against would not have been done to him. The delay in final decision cannot, in any manner, be attributed to the petitioner.
28. Apart from this, I have held hereinabove, that the material factual aspects are not at all in dispute. On going through the file of respondent No. 1, copy of which has been placed by the petitioners as they obtained it under the Right to Information Act, it is gathered that at every point of time the State Government (respondent No. 1) was inclined to appoint all the petitioners. But this Court fails to understand that why in the return they have deviated themselves from their stand.
29. The decision in the case of K. Jayamohan v. State of Kerala and Anr. placed reliance by the learned Govt. Advocate is tangentially off the point because in the said decision it was opinion of the Government not to make appointment even if vacancy exisits. But in the present case all the time the State Government was willing to appoint the wait listed candidates from the select list and for that purpose only the request was made to the PSC to extend the validity period which was accepted by the PSC. Not only this the GAD was also consulted and the GAD also directed that appointment should be made in the light of the circular dated 7.3.84. Thus on the facts this decision is distinguishable.
30. For the reasons stated hereinabove all the writ petitions stand allowed and the State Government as well as PSC are hereby directed to start process of appointment of all the petitioners against posts of Civil Judge, Class-II which have fallen vacant during the extended period of the final select list. Let necessary orders be passed by the State Government as early as possible, preferably within a period of one month from today. Looking to the facts and circumstances, the parties are directed to bear their own costs.