Allahabad High Court
Mahendra Dutt Dubey vs High Court Of Judicature At Allahabad ... on 5 March, 2013
Author: Tarun Agarwala
Bench: Tarun Agarwala
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No.1 Civil Misc. Writ Petition No.26117 of 2007 Mahendra Dutt Dubey ........ Petitioner Vs. High Court Allahabad and another ........ Respondents ****************** Hon'ble Tarun Agarwala,J.
Fast Track Courts were established all over the country including the State of Uttar Pradesh. The petitioner was appointed by the District Judge, Shahjahanpur as a Clerk on 4th September, 2002 on an ad-hoc basis for a period of 1 year. This appointment was extended from year to year. By a notification dated 28th February, 2005, the Fast Track Courts were abolished. As a result, the services of the petitioner came to an end. The High Court considered the plight of these employees, who were appointed on ad-hoc basis in the Fast Track Courts. The High Court issued a circular dated 15th April, 2005 basically for the purpose of rehabilitating Class-III and IV employees who were appointed on an ad-hoc basis, in these Fast Track Courts. The circular directed the District Judge to fill up the promotional posts in their respective districts as early as possible so that the consequential vacancies could be filled up from these ad-hoc employees on ad-hoc basis till such time regular appointments are not made. The circular further stated that if there are no vacancies in the district then necessary information may be sought from the neighbouring district and if vacancies exists in the neighbouring districts, these ex ad-hoc employees of the Fast Track Courts may be offered appointments on ad-hoc basis. It was also indicated that till such time this process was not completed, no vacancies on the regular post be invited.
After the issuance of the aforesaid circular dated 15th April, 2005, the Government took a decision to continue with the Fast Track Courts and accordingly, issued a notification on 10th May, 2005 reviving the Fast Track Courts. As a result of this notification, staff was again required for running these Fast Track Courts. The High Court accordingly, issued a fresh circular dated 24th May, 2005 withdrawing its earlier circular dated 15th April, 2005 and directed the District Judge to re-employ the ad-hoc employees who had earlier worked.
Prior to the aforesaid circular and prior to the abolition of the Fast Track Courts and revival of these Fast Track Courts, it transpires that the services of a Reader and Peshkar of a Fast Track Court in Sahahjahanpur was dispensed with. These persons, against their disengagement, filed a writ petition which was partly allowed, against which, the District Judge, Shahjahanpur filed a Special Appeal No.85 of 2005, which was allowed by a judgment dated 1st February, 2005 wherein the Division Bench held that if there are surplus employees available in the Judgeship from the regular side, the temporary ad-hoc employees engaged in the Fast Track Courts should make room for them. The Division Bench held:-
"There is agreement at the bar that if regular employees in the establishment of the District Judgeship are surplus and are available to be posted as Peshkars in the Fast Track Courts, the temporary/adhoc employees engaged in the Fast Track Courts should make the rooms for them. In case of the ad-hoc employees, engaged either in the Fast Track Court or other Courts in the District Judgeship, of Shahjahanpur, are concerned, the principle of last come first go should be adopted as the employees working on adhoc basis, and appointed without advertising the vacancy cannot claim a right to hold the post."
Pursuant to the said decision, the District Judge found that there were surplus staff available on the regular side on account of vacancies in 12 Courts and accordingly, engaged the regular staff in the Fast Track Courts and declined to reappoint the petitioner and other similarly situated persons. In this regard, the District Judge issued an order dated 8th June, 2005 indicating that there was no need to re-employ the petitioner since there are regular employees available in the Judgeship. This order has become final and has not been questioned by the petitioner, apparently being satisfied.
On 24th February, 2007, the District Judge issued an advertisement inviting applications on various posts to be filled up on temporary/ad-hoc basis in the Fast Track Courts. Based on this advertisement, several ex ad-hoc employees of the Fast Track Courts again applied and were duly selected. The petitioner did not apply pursuant to this advertisement but filed the present writ petition praying for the quashing of the advertisement dated 24th February, 2007 and also prayed for a writ of mandamus commanding the District Judge to absorb the petitioner pursuant to the circular dated 24th May, 2005.
Heard the learned counsel for the parties.
The learned counsel for the petitioner submitted that pursuant to the circular of the High Court dated 15th April, 2005 a clear cut direction was issued to rehabilitate the ad-hoc employees employed in the Fast Track Courts, which was reiterated by the High Court again in its circular of 24th May, 2005. The learned counsel submitted that it was the onerous duty cast upon the District Judge to rehabilitate the petitioner and offer him employment and that the non-employment of the petitioner was wholly illegal.
The learned counsel for the petitioner submitted that other ad-hoc employees of the Fast Track Courts were reappointed whereas the petitioner has been left out and, consequently, discriminated. It was also submitted that these ad-hoc employees who were re-employed have now been absorbed in the regular cadre.
The learned counsel for the petitioner further submitted that the issuance of the advertisement in the year 2007 was directly against the directions of the High Court as given in the circular dated 15th April, 2005 in which the High Court had categorically stated that ad-hoc employees would be rehabilitated and re-employed and that no such advertisement would be issued till the ad-hoc employees are rehabilitated.
Having heard the learned counsel for the petitioner, the Court finds that the circular of the High Court dated 15th April, 2005 had been withdrawn by its circular dated 24th May, 2005. Consequently, the directions of the High Court in its circular dated 15th April, 2005 cannot be invoked. The clause relating to advertisement not being issued till rehabilitation of the ad-hoc employees was given in the circular of 15th April, 2005 has been withdrawn. Consequently, there was no embargo upon the District Judge not to advertise and fill up the vacancies.
In so far as the circular dated 24th May, 2005 is concerned, the same will not apply for the Judgeship of Shahjahanpur in view of the decision dated 1st February, 2005 passed in Special Appeal No.85 of 2005 wherein the Division Bench had categorically directed that regular employees in the regular establishment, who were surplus for the time being on account of the vacancies of the Court would be directed to work in the Fast Track Courts. On this basis, the re-employment of the petitioner was refused by the District Judge by its order dated 8th June, 2005, which has not been questioned by the petitioner, even in this petition. This order has become final in so far as the petitioner is concerned. Further, there nothing has been indicated in the writ petition that surplus staff was not diverted in the Fast Track Courts.
In the light of the decision of the Division Bench, no mandamus can be issued by this Court to the District Judge, Shahjahanpur to comply with the circular of the High Court dated 24th May, 2005.
Between 2005 to 2007 the vacant courts on the regular side was filled up by Officers and the regular staff was sent back to the regular courts. This resulted in vacancies arising in the Fast Track Courts which led to the issuance of the advertisement on 24th February, 2007 to employ persons on ad-hoc basis in the Fast Track Courts. The Court finds that ex ad-hoc employees also applied and who were re-employed as per the circulars of the High Court. The petitioner did not apply and, therefore, his claim was not considered.
This Court is of the opinion, that the petitioner is himself to be blamed for not applying when the chance came for him to be re-employed. The advertisement was correctly issued inviting applications from the general public. This Court does not find any error in the said advertisement nor is the advertisement in conflict with any of the circulars issued by the High Court.
It has been brought to the knowledge of the Court that the Fast Track Courts has now been abolished from 1st April, 2012 and, therefore, the claim of the petitioner to be re-employed in the Fast Track Court now cannot arise.
The writ petition accordingly fails and is dismissed.
Date:5.3.2013 Bhaskar (Tarun Agarwala, J.)