Allahabad High Court
Harish Kumar And Others vs State Of U.P. And Others on 14 November, 2013
Author: Sunil Ambwani
Bench: Sunil Ambwani, Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD
Judgment reserved on 22.10.2013 Judgment delivered on 14.11.2013
1. SPECIAL APPEAL NO.1545 OF 2012
Harish Kumar and others vs. State of UP and others
connected with
2. SPECIAL APPEAL NO.1025 OF 2012
Mahendra Pal Singh & ors vs. State of UP and others
3. SPECIAL APPEAL NO.1026 OF 2012
Sanjay Kumar and others vs. State of UP and others
4. SPECIAL APPEAL NO.1546 OF 2012
High Court of Judicature at Allahabad vs. Nizamuddin & others
Hon'ble Sunil Ambwani, J.
Hon'ble Surya Prakash Kesarwani, J.
1. Heard Shri G.K. Singh, Senior Advocate assisted by Shri V.K. Singh for the appellants-respondents. Shri Yashwant Verma, Senior Advocate assisted by Shri Ashish Mishra appears for the Registrar General, High Court of Judicature at Allahabad. Shri Siddharth Khare appears for the petitioners-respondents.
2. The appellants in Special Appeal Nos. 1545 of 2012; 1025 of 2012 and 1026 of 2012 were selected in pursuance to the advertisement dated 31.1.2007 issued for recruitment on 3 posts of Hindi Stenographers against the regular establishment; 5 posts of Hindi Stenographers in Fast Track Courts and 5 posts of Clerks-cum-Typist in Fast Track Courts issued by the District Judge, Gautam Budh Nagar. All of them were placed in the select list dated 11.3.2008 and had joined.
3. All the petitioner-respondents were working as Stenographers and Typist on adhoc basis in Fast Track Courts at Gautam Budh Nagar established in the State of Uttar Pradesh on temporary basis by Government Orders dated 23.3.2001; 29.12.2001 and 21.1.2002 and which were extended by the State Government on year to year basis. The State Government stopped financial support to the Fast Track Courts with effect from which the Fast Track Courts were abolished, consequently, the petitioners working on adhoc basis were ceased to work by the District Judge, Gautam Budh Nagar by his order passed in the year 2008. The petitioner-respondents filed writ petitions for their regularisation. Pending their claim in the writ petitions they filed the writ petitions giving rise to these special appeals for quashing select list dated 11.3.2008 issued by the District Judge, Gautam Budh Nagar for the post of Clerks, Stenographers and Clerk-cum-Typists and action taken in pursuance thereto. They also prayed for directions to the respondents to allow them to function as Clerks and Stenographers respectively and to pay their salary month to month.
4. Learned Single Judge has by his judgment dated 25.4.2012 allowed the writ petition and has quashed the select list notified by the District Judge, Gautam Budh Nagar dated 11.3.2008, with further directions to permit the petitioners-respondents to continue on their respective posts on which they were working prior to 11.3.2008 in terms of the Circular letters issued by the High Court from time to time, subject to powers of the State Government to take a decision otherwise. So far as for the posts of Stenographers available against regular establishment is concerned, it has been left open to the District Judge to prepare a fresh select list on the basis of overall marks received in the examination including those obtained in the compulsory papers. In respect of vacancies available on the post of Clerk-cum-Typist against regular establishment it has been left open for the District Judge to re-prepare the select list in accordance with the Rules, if it is so possible, but so far as the posts of Clerk are concerned, since no examination in respectr of optional papers was held, the entire selection has been set aside.
5. Learned Single Judge framed five issues to be decided by him namely, (a) the District Judge and the Committee constituted by him did not have competence to modify the Rules for preparation of the select in respect of the post of Stenographers; (b) for the post of Clerk-cum-Typist, the Committee had wrongly decided that only such candidates would be considered for appointment, who achieve the minimum speed of 30 words per minute in typing test. The Rules did not contemplate any such restrictions and the select list has to be prepared irrespective of the speed achieved during typing test; (c) with regard to the posts of Clerk, the examination was held only in the first four papers as provided under 1973 Rules and maximum marks of 200. There has been no examination in any of the optional subjects and (d) the District Judge committed a manifest error in applying reservations and thereafter the roster by clubbing the posts available within two regular establishment and those created for limited duration for Fast Track Courts. The posts available in Fast Track Courts was co-terminous with the Fast Track Courts, which were ceased in the year 2011; (e) various Circulars issued by the High Court on administrative side had communicated the decision that all those, who were working against the posts created for Fast Track Courts, even after abolition of the Fast Track Courts, shall not be removed from the service. They shall be adjusted against the vacancies available in the same Judgeship and thereafter in the neighbouring Judgeship.
6. All the issues were decided in favour of the petitioners-respondents. Brief facts, giving rise to the writ petitions, are as follows.
7. The respondents, who were petitioner nos. 1 to 10, were appointed on adhoc basis as Class-III employees against vacancies in the regular establishment of the Judgeship of Gautam Budh Nagar between 19.9.1998 to 6.11.2001, the petitioner nos. 11 to 13 were appointed as Clerk-cum-Typist in the Fast Track Court on 15.1.2002, 1.4.2002 and 7.11.2002 respectively, the petitioner nos. 14 to 17 were appointed as Stenographers against the posts created for the Fast Track Court in the same Judgeship between 12.1.2000 to 21.11.2003 and petitioner nos. 18 and 19 were appointed as Stenographers on ad-hoc basis against the vacancies in the same Judgeship on 2.11.2003. All of them were allowed to continue in employment till the date of the selections i.e. 11.3.2008. The District Judge, Gautam Budh Nagar published an advertisement dated 31.1.2007 inviting applications on 3 posts of Hindi Stenographer in the regular establishment and 5 posts of Hindi Stenographer in Fast Track Courts; 20 posts of clerk in regular establishment and five posts of Clerk in Fast Track Courts. He also advertised 5 posts of Clerk-cum-Typist for Fast Track Courts with a note that the posts in respect of Fast Track Courts were temporary and co-terminous with such posts. He appointed a Committee of Judicial Officers for selections, which finalised the norms in its meeting dated 22.10.2007. In these norms, it was decided in pursuance of the directions of the High Court that for Stenographers the persons, with knowledge of the English shorthand and English typing will be given preference. The examinations will be held in Hindi typing with preference to those who have knowledge and proficiency in English typing. In order to carry out the directions of the High Court, in the absence of the specific Rules it was decided that among those candidates, who secured same number of marks in the shorthand/typing test, the candidates with knowledge of English typing will be given preference. The recommendations received the approval of the District Judge.
8. The selection committee further resolved that all the candidates for Stenographer will appear in the main examination of 200 marks. The typing speed will be calculated according to the instructions of the Department of Training and Employment, Government of UP dated 11.2.2007. Since there may be some anomaly in adding the marks of the main examination and the test in Stenography, and that those candidates, who are not successful in the test of stenography may also be successful, if they score more marks in the main examination, it was decided that for selection of stenographers the basis of selections will be their performance in stenography/type test. These candidates will also be required to have good knowledge of Hindi and English language.
9. The selection committee took into consideration the fact that the persons appointed as Stenographers in the Law Department are promoted as Personal Assistants and thus these candidates should have gook knowledge of Hindi and English language and considering both the requirements the Committee resolved that only those candidates will be selected as Stenographers, who achieve minimum marks in the main examination, and the test for stenography and in this manner the best candidates will be selected.
10. The selection committee further resolved that in the test for stenography the candidates will be required to secure at least 25% marks in the main examination for general candidates and 20% for Scheduled Castes and Other Backward Class candidates and thus it will be expected from the general candidates to secure 50 marks out of 200 in the main examination, and for Scheduled Caste and Other Backward Class candidaes to secure 40 marks out of 200 marks. Those, who do not secure the minimum number of marks, will not be considered for selections.
11. For the 5 posts of Clerk-cum-Typist, the selection committee resolved that they will be expected to type at least 30 words per minute before they are allowed to appear in the main examination as they are being examined for the post of Clerk-cum-Typist. Those candidates, who do not secure the speed of 30 words per minute in the type test, will not be eligible for appearing in the main examination. For those, who appear in the main examination for Clerk-cum-Typist with a minimum speed of 30 words per minute, their marks in the main examination and type test will be added in the marks obtained in the main examination and selection will be held accordingly. The District Judge approved the recommendations made by the selection committee.
12. On the basis of the said criteria tests were held and a select panel was notified by the Distrtict Judge for the post of Stenographer and Clerk-cum-Typist on 11.3.2008. The panel has drawn according to the roster is as follows:-
"List of candidates selected for the post of Clerk on the basis of examination held on 25th November, 2007 for District Court G.B. Nagar according with roster per G.P. dated 25 June 2002.
Sl. No. Roll No. Name Category 1 1761 Poonam Singh SC 2 2382 Ashok Kumar Gupta General 3 903 Sanjai Kumar OBC 4 1889 Monika Sharma General 5 1108 Vikas Babu SC 6 318 Girish Vindal General 7 997 Shoyag Mehdi General 8 814 Rakesh Kumar Verma OBC 9 984 Shaikendra Kumar OBC 10 959 Shailendra Singh Tomar General 11 994 Sohan Veer SC 12 2286 Mukesh Kumar General 13 901 Sanjai Kumar OBC 14 1884 Mamta Tiwari General 15 1714 Kusum Lata SC 16 533 Moh. Ashim Khan General 17 111 Anurag Kumar OBC 18 1245 Ashok Kumar General 19 918 Sanjeev Kumar OBC 20 864 Ritesh Tyagi General 21 1936 Ajanta Singh SC 22 2500 Sanjeev Saxena General 23 1715 Kusum Lata OBC 24 624 Nishant Raj Sharma General 25 1731 Monu General Dated: 11.3.2008 Sd/-
(S.N.H. Zaidi) District Judge, Gautambudh Nagar List of candidates selected for the post of Clerk cum typist on the basis of examination held on 25th November 2007 for the District Court G.B. Nagar in accordance with Roster per G.O. dated 25 June 2002.
Sl. No. Roll No. Name Category 1 2334 Rajendra Singh SC 2 2500 Sanjeev Kumar Saxena General 3 2438 Alok Kumar OBC 4 2429 Vishal Mittal General 5 2267 Manjeeta Rani General Dated: 11.3.2008 Sd/-
(S.N.H. Zaidi) District Judge, Gautambudh Nagar List of candidates selected for the post of steno on the basis of examination held on 25th November 2007 for District Court G.B. Nagar in according with Roster per G.O. dated 25 June 2002.
Sl. No. Roll No. Name Category 1 2219 Gaurav Gautam SC 2 2521 Ashutosh Mishra General 3 2251 Kiran OBC 4 2426 Vipin Kumar General 5 2334 Rajendra Singh SC 6 2263 Mahendra Pal Singh General 7 2222 Govind Singh OBC 8 2582 Rakhi General Dated: 11.3.2008 Sd/-
(S.N.H. Zaidi) District Judge, Gautambudh Nagar"
13. Learned Single Judge, after considering the arguments raised on behalf of the petitioners, who were working on adhoc basis and the defence taken by the counsel appearing for the High Court, held that the vacancies were advertised by the District Judge in respect of various categories of posts both on the regular establishment and for Fast Track Courts with specific note that the posts in the Fast Track Courts are co-terminous with the life of Fast Track Courts. These posts could not be added to the cadre strength of the regular establishment as their extensions are granted by the State Government on year to year basis. The selections were thus not held for a hemogenious group of posts from which a common roster could be prepared. The application for reservation and the roster after clubbing both the category of posts were bad in law. Even if it is accepted that for appointment againt the posts of Fast Track Courts the similar procedure was to be followed, in view of the judgment in Vijay Kumar Jain vs. District Judge, Aligarh and others (Civil Misc. Writ Petition No.42802 of 2001 decided on 31.10.2002) the cadre and ex-cadre posts could not have been clubbed together for determination of reservation and for application of the roster. The preparation of select panel was thus illegal.
14. Learned Single Judge held that the appointment on the ministerial posts in the establishment of Civil Courts subordinate to the High Court is governed by the Subordinate Civil Courts Ministerial Establishment Rules, 1947. Rules 9 to 12 of the Rules of 1947 were superseded by the Rules for Recruitment of Ministerial Staff to the Subordinate Offices 1950, made by the Governor of the State of UP under Article 309 of Constitution of India by notification dated 11.7.1950. In Om Prakash Shukla vs. Akhilesh Kumar Shukla AIR 1986 SC 1043 these Rules were held to be valid in law in so far as the recruitment to ministerial establishments in the Subordinate Courts is concerned. These Rules were amended by the notifications dated 1.11.1973 and 17.11.1973 only in so far as the subjects and the maximum marks provided in Rule 6 (2) are concerned. The amended Rules 6 and 7 of the Rules, quoted by learned Single Judge in his judgment, are re-quoted as follows:-
"6. Subject of the tests-(1) The competitive tests shall comprise a written test as well as an oral test.
(2)The subject of the tests and the maximum marks on each subject shall be as follows.
Subjects Marks Written (1) Simple Drafting (in Hindi) 50 (2) Essay and Precis writing (in Hindi) 50 (3) Simple Drafting and Precis writing (in English) 50 (4) General Knowledge 50 Optional (1) Typewriting in English and Hindi 50 (2) Shorthand in Hindi and English 50 Notes (1)Candidates must take one of the above mentioned optional subjects.
(2)Physically handicapped persons who are certified as being unable to type by the Medical Boards attached to Special Employment Exchange for the handicapped or by a Civil Surgeon shall be exempted from the type-writing test.
7.Selection of candidates- (1) On the result of the test the head of the subordinate office shall select a number of candidates sufficient to fill the number of vacancies as ascertained in Rule 4 and offer to them appointment as and when the vacancies occur according to the order of merit disclosed at the test.
(2) No one who has not been selected in accordance with sub-rule (1) shall be appointed to any vacancy unless the list of selected candidates is exhausted.
(3) Casual vacancies may be filled up by appointing persons who have not taken the test, but their further retention shall depend on their taking the next test and being selected in it."
15. It was held by learned Single Judge that the select list for Stenographers was prepared both in respect of regular establishment as well as Fast Track Courts only with reference to marks obtained in stenography test. Such procedure adopted by the Selection Committee is patently illegal and contrary to the Rules. Under the statutory Rules the select panel had to be prepared on the basis of marks achieved in the test under Rule 6, as a whole. The Selection Committee could not have departed from the method laid down under the Rules to provide that the marks obtained in first four papers of the test would be treated only for the purposes of qualification to appear in the test for stenography and thereafter to prepare the select panel. Such procedure was contrary to the Rules 6 and 7 of the Rules of 1950.
16. So for as the selection on the post of Clerk is concerned, learned Single Judge held that under Rule 6, four papers with 50 marks each were compulsory; two papers were provided as optional with 50 marks each. The Selection Committee thus could not have referring to the note appended to Rule 6 done away with the optional papers as a whole. The Rules did not contemplate exclusion of optional papers. The argument of learned counsel appearing for High Court, that the examination for the post of Clerk in optional papers was not necessary, was not accepted. Learned Single Judge held that the Circular of the High Court dated 9.2.1995 was not relevant and was wrongly relied upon by learned counsel appearing for the High court. The Circular Letter did not give up the necessity of appearing in optional papers. The merit list had to be prepared on the basis of marks obtained in compulsory papers. The marks obtained in respect of optional papers were not to be included for the purposes of preparation of merit list. The decision of the Committee approved by the District Judge not to hold test in optional papers was contrary to the Rules and Circulars.
17. Learned Single Judge held that a Clerk must know typing either in Hindi or in English specially when he required to work in Civil Court. In the back ground the Rules have provided for holding examination in either typing in Hindi or English or shorthand in Hindi or in English as optional papers. The District Judge and the Committee was bound by the statutory rules. They could not have taken a decision contrary to statutory rules.
18. For the post of Clerk-cum-Typist the decision taken by the Selection Committee, that only such candidates would be entitled to be considered for selection, who have achieved the minimum speed of 30 words per minute, was also found to be incorrect and contrary to the Rules, as the Rules contemplate type test either in Hindi or English as the option of the candidates concerned. The Committee did not hold any test in English typing or in the second optional paper i.e. shorthand. The procedure was contrary to the Rule 6.
19. Learned Single Judge did not accept the submission that the petitioners having appeared in the examination cannot question the selections inasmuch as they had filed a Writ Petition No.43585 of 2007 immediately after publication of the advertisement and therefore it cannot be said that the petitioners' participation in the selection without protest would not give them any right to challenge it subsequently.
20. Learned Single Judge thereafter considered the prayers of petitioners to continue as employees of the Fast Track Court and for their adjustment against other vacancies available in regular establishment or newly created posts in the same judgeship, and held that the decisions taken by the High Court on the administrative side vide Circulars letter dated 5.11.2009 and 11.11.2009, which clarified earlier Circular dated 5.11.2009 would entitle them to continue as employees in the Fast Track Courts. Even those employees, who were ceased under the Circular letter dated 5.11.2009 as they were found to be appointed through back door were provided interim protection under the orders of the Division Bench of the Court dated 21.1.2010 in Special Appeal No.65 of 2010 and all such employees were working. It was only for the Judgeship of Gautam Budh Nagar, that the High Court on administrative side decided that the Fast Track Court employees working in the judgship must be ceased, as they were appointed without following any procedure, and fresh appointments be made by the direct recruitment. The Circular Letter dated 11.11.2009 would apply to such employees. Learned Single Judge held that State is the employer and the Rule making authority. The High Court is only a recommendatory authority. The High Court thus could not have issued Circular Letters, which may interfere with the statutory provisions applicable in the matter of appointment on Class III and IV posts. The High Court could issue circulars only in aid and to assist the District Judge in understanding the real intent of the existing Rules. It could not have amended the procedure provided under the Rules by issuing administrative circulars.
21. Learned Single Judge further held that the High Court has to adopt a uniform policy in respect of employees working on the posts created in Fast Track Courts in various judgeships without any discrimination with reference to the place where the judgeship is situate. The District Judge, Gautam Budh Nagar could not have held fresh selections for appointment on the posts pertaining to Fast Track Courts while at the same time in the other judgeship the general circulars did not dislodge the Fast Track Court employees and permitted them to continue against other vacancies, if not in the same judgship within the administrative zone and thus all subordinate court employees had to be treated at par and their appointment and other service conditions are regulated by statutory Rules under the supervision of the High Court.
22. Learned counsel appearing for the High Court produced a proposal of the Registrar General in respect of the employees working in the Fast Track Courts when all the Fast Track Courts in the State were ceased on 1.3.2011. The Registrar General proposed that the District Judges may be asked to make fresh recruitment on the post in their regular establishment after leaving requisite number of posts for adjustment of the employees of the Fast Track Courts. Such proposal was approved by Hon'ble Chief Justice on 7.3.2011 and was ratified in the meeting of the Administrative Committee on 11.3.2011. Another circular was issued on 1.4.2011 informing all the District Judges that Class-III and IV employees working in the Fast Track Courts upto 31.3.2011 be adjusted against the vacancies on regular establishment or posts created for new Courts of Additional District & Sessions Judge although at present on adhoc basis. Learned Single Judge did not quash the Circular Letter. He, however, raised doubts over the competence of the High Court to issue such directions, which are contrary to the statutory rules and observed that statutory rules must be considered before any circulars are issued.
23. Shri G.K. Singh appearing for the selected candidates-the appellants submits that learned Single Judge has mixed up the issues challenged to the selections by direct recruitment and the absorption of the Fast Track Court employees. These two issues were to be considered and decided separately. He submits that the District Judge did not commit any violation of the statutory rules in holding the regular selections. The Court had failed to take into consideration the fact that the Rules of 1947, which continued to operate and provided for a minimum typing speed of 30 words per minute, were not inconsistent with the Rules of 1950. He submits that the petitioner-respondents had no locus to challenge the appointment made on the post of Clerk-cum-Typist in Fast Track Courts for the reasons that none of the petitioners was working as Clerk-cum-Typist and had no concern with these posts. Further having participated in the selection proceedings and failed to be selected, they could not turn around and challenge the selection proceedings in so far as procedural part of the selections are concerned. The main prayer of the petitioners was for their absorption/regularization. They had not pleaded nor taken any grounds for challenging the procedural part of the selections.
24. Shri G.K. Singh submits that all the petitioners participated in the type test. In paragraph-37 of the writ petition the petitioners had clearly stated that the type test was held for the post of Clerk. In para-37 of the Writ Petition No.22503 of 2008 (Nizamuddin and others vs. State of UP and others) the petitioners had stated as follows:-
"37. That during the pendency of aforesaid writ petition a written examination was conducted on 25.11.2007. Simultaneously for the post of Stenographer a test of Stenography and typing was held while for the post of Clerk a typing test was held."
25. Shri G.K. Singh further submits that the select list of Clerk-cum-Typists was prepared by adding the marks obtained by the candidates in the written examination as well as in type test and therefore there was no illegality in the selections. No post of Clerk-cum-Typist was advertised in the regular establishment and thus it could not be said that the Rules of Reservation were not followed. The petitioners were not working on the post of Clerk-cum-Typist and thus the selections made for the said posts would not affect their right or chances of absorption for adjustment and therefore the selections in question could not be interfered on these grounds also. He submits that the appellants were appointed and are working since March, 2008. They would suffer irreparable injury, if they are thrown out on the basis of the impugned judgment.
26. Shri G.K. Singh further submits that Harish Kumar and Nagendra Raj were not impleaded in the writ petition. Their selection has been set aside without giving them any opportunity of being heard.
27. Shri Siddharth Khare, appearing for the adhoc employees of the Fast Track Courts-the petitioners submits that Rule 6 of the Rules of 1950 was not followed. The examination ought to have been taken of total number of 250 marks including an optional paper. It was not disputed that the main examinations was held only for 200 marks and thus the procedure prescribed in law for selections was not followed. The personal affidavit of the Chairman of the Selection Committee reflected that the examination was only for 200 marks. The Circular Letter dated 9.2.1995 was by way of clarification with regard to the Rules of 1947 and not Rules of 1950. Even otherwise a circular cannot override the statutory Rules. The petitioner-respondents being adhoc employees could not have been replaced by another set of adhoc/temporary employees in pursuance to the advertisement dated 31.1.2007, which clearly demonstrated that the posts advertised for Fast Track Courts were temporary. The Selection Committee had committed manifest error in applying the roster for reservations clubbing the posts available within the regular establishment of the judgeship and those created for limited duration was bad in law. He relies on Om Prakash Shukla vs. Akhilesh Kumar Shukla AIR 1986 SC 1043 in which it was held that the Rules for the Recruitment of Ministerial Staff in Subordinate Offices, 1950 were to be applied instead of UP. Subordinate Civil Court Ministerial Establishment Rules, 1947.
28. Before proceeding to consider the submissions, we may observe that all the petitioner-appellants were appointed on adhoc basis as Stenographers and Clerks in the Fast Track Courts established temporarily in District Gautam Budh Nagar. A total number of 243 Fast Track Courts created in the State of UP vide Government Order dated 21.1.2002 on temporary basis, with posts of Stenographers, Clerks, Peons and Drivers in pursuance to the financial grants given on the recommendations of the 11th Finance Commission. The Fast Track Courts established for five years were extended by the State Government on year to year basis. In the year 2005 there was considerable delay in issuing the Government Orders for extension of Fast Track Courts. The petitioner-appellants were appointed as Class III employees in the Fast Track Courts on adhoc basis. The District Judgeship of Gautam Budh Nagar was established in June, 1999. There was shortage of staff in the judgeship as nine posts of Clerks in regular courts; one post of Clerk and five posts of Clerk-cum-Typist in Fast Track Courts were lying vacant. There were 23 adhoc appointees working on the post of Clerks and Stenographers in the regular courts as well as in the Fast Track Courts. The adhoc appointment of the employees working in Fast Track Courts was extended upto 30.9.2007, whereas the adhoc appointment of employees working in regular courts was extended upto 28.2.2008 after which Hon'ble the Chief Justice considering the number of vacancies in the newly established judgeship ordered to make regular appointments in accordance with the prevailing Rules immediately. In compliance thereof the process of selection of candidates for appointment on vacant posts as well as the posts occupied by adhoc appointees was initiated.
29. An advertisement was published in the daily newspapers "Statesman" (English) and "Amar Ujala" (Hindi) on 31.8.2007, 7.9.2007 and 14.9.2007. In all 2634 application forms were received. After scrutiny 2607 candidates including the petitioners were found eligible to complete in the selections. The competitive examination was held on 25.11.2007 by the Selection Committee comprising of five Judicial Officers of the rank of Additional District Judges; Civil Judges (Senior Division) and Civil Judge (Junior Division) appointed by the District Judge. The question papers of the examination sent by the District Judge was printed by the District Judge in his chambers one day prior to the examinations. No member of the Selection Committee including its Chairman was associated with the the setting and printing of the question papers. The examination was held at four prestigious educational institutions of NOIDA, namely Delhi Public School; Amity Business School; Vishwa Bharti Public School and Government Inter College. The invigilation work was entirely manned by the staff members of the educational institutions under the supervision of the Judicial Officers of Districts Bulandshahr, Ghaziabad and Gautam Budh Nagar. The examination of answer books and type sheets was made after blackening the names and roll numbers of the candidates. The answer books/type sheets was evaluated by the Judicial Officers on the guidelines given by the District Judge and by the Directorate of Employment and Training, UP. None of the invigilator was involved at any point of time with preparation of the list of selected candidates. The type sheets of the candidates for the post of Stenographer and for regular posts as well as for the Fast Track Courts were evaluated by Shri Ram Gopal Tomar, an Instructor in the Industrial Training Institute, Ghaziabad. The results were prepared in accordance with the merit as well as reservation rules applying the roster as per Government Order dated 25.6.2002.
30. It was stated in para 13 of the counter affidavit of Shri Ram Bharosey, Senior Administrative Officer, Gautam Budh Nagar that petitioner nos. 4, 5, 6, 8, 10 and 11 had crossed the maximum upper age of 35 years on the date specified in the advertisement. They were not eligible to appear in the selections. Their representations forwarded by the District Judge to the High Court were allowed extending the upper age limit for them vide orders of the High Court dated 15.9.1997, and 6.11.2007 and with such relaxation they were allowed to appear in the examination.
31. It is stated in para 14 of the counter affidavit that all the petitioners were appointed purely on adhoc basis on fixed pay of Rs.3050/- on the post of Clerks, and Rs.4000/- on the post of Stenographer in the pay scales of Rs.3050-4590 and Rs.4000-6000. They were not given any increments nor earned leave or medical leave was allowed to them. Their services were purely temporary and could be terminated at any time without showing any reasons. They were given full opportunity to appear in the competitive examination. All of them availed the opportunity but could not succeed on merits with the selected candidates. The entire selection process was conducted in a transparent manner with utmost fairness.
32. In para-17 of the counter affidavit of the Senior Administrative Officer, District Gautam Budh Nagar it is stated that the High Court vide its notification dated 16.6.1999 had ordered that to make courts and offices functional necessary staff has to be appointed on adhoc basis by the District Judge, Gautam Budh Nagar for a period of three months and in the meantime the recruitment process shall be adopted at the initial level of each cadre. No recruitment, however, could be initiated by the District Judge within the given time. In October, 1999 the recruitment process was initiated only for the post of Stenographers after which 4 Stenographers were appointed for regular courts vide appointment orders dated 25.10.1999.
33. With regard to the petitioner nos. 11, 12 and 13 it was pointed out that they were appointed on adhoc basis as Clerks in Fast Track Courts. There were several breaks in their adhoc appointments. Their adhoc services were extended from time to time by the High Court upto 28.2.2005, when the Fast Track Courts were abolished and accordingly the services of all the adhoc employees came to an end. The petitioners no.11 to 17 were, however, re-appointed on adhoc basis in accordance with the circular letter dated May 24, 2005, and since thereafter they had worked upto 30.9.2007. With regard to petitioner nos. 16 and 17, they were appointed on 17.9.2002 and 21.2.2002 with several breaks in their adhoc service. There were several complaints, enquiries and censure entries recorded on the assessment of their work. However, since the condition of good work and conduct was not taken into consideration to cease them from work as adhoc services had in any case come to an end in accordance with the orders of the High Court. The State Government has framed Rules for regularization of adhoc employees on the posts outside the purview of Public Service Commission in the year 1979. These Rules were subsequently amended from time to time. Only those adhoc employees, who were appointed with requisite qualifications at the time of their adhoc appointments were to be considered for regularisation with the cut of date, last amended in the year 2001 specified as 30.6.1998. The adhoc employees of the judgeship were not entitled to the benefit of these Rules as they were all appointed after the cut off date in the Rules. The High Court has in Shivaji vs. High Court of Judicator at Allahabad 2004 (1) AWC 867 upheld the validity of the cut of date of 30.6.1998 for the purpose of consideration for their regularisation under the Regularization of Adhoc Appointment (On Posts Outside the Purview of Public Service Commission) (Third Amendment) Rules, 2001. One of the conditions in the Rules is that they should have been appointed on adhoc basis on or after 30.6.1998 and were continuing on the date of enforcement of the amendment in the Rules in the year 2001 which came into force on 20.12.2001. Since none of the petitioners were appointed on or before 30.6.1998 they were not entitled to be considered for regularization. Their services were thus ceased on 30.9.2007 and 28.2.2008.
34. It was further submitted in the counter affidavit of the Senior Administrative Officer, Gautam Budh Nagar that Satyam Chakrabarti and Pritam Singh, the petitioner nos.5 and 6 had filed a Writ Petition No.42181 of 2001 with prayer of regularization. This fact was concealed by them. Nizamuddin, Alok Kumar Pandey, Utkarsh Singh and Jaswant Singh, petitioners no.1, 2, 3 and 4 had also filed the Writ Petition No.55187 of 2002 for regularisation of their services, and had concealed this fact from the Court.
35. We find substance in the contention of learned counsel appearing for the respondent-appellants that learned Single Judge proceeded to examine the matter of absorption of employees of Fast Track Courts dehorse the fact situation prevailing in the judgeship at Gautam Budh Nagar. The District Judge had not advertised and made any selections for the post of Stenographer, Clerks and Clerk-cum-Typist in the District since its establishment in June, 1999, except for selections of Stenographers in which four Stenographers were appointed in the year 1999. There was acute shortage of staff in the judgeship as nine posts of Clerks in regular courts, one post of Clerk and five posts of Clerk-cum-Typist in Fast Track Courts were lying vacant, and 23 adhoc appointees were working on the post of Clerk and Stenographers in regular Courts as well as Fast Track Courts. The advertisement was published on 31.8.2007 inviting applications for selections in pursuance to the directions issued by Hon'ble the Chief Justice on 28.2.2008, to make regular appointments. He was aware of the fact that the regular selections were not held in the judgeship and that the entire judgeship was being run by the adhoc employees except four Stenographers. The District Judge carried out the orders of Hon'ble Chief Justice in issuing advertisement for appointment on three posts of Hindi Stenographers and 20 posts of Clerks in regular establishment by direct recruitment. He also included five posts of Hindi Stenographer; five posts of Clerk and five posts of Clerk-cum-Typist in the Fast Track Courts, which were continuing by extension on that date, from time to time. The High Court or the District Judge could not have foreseen the discontinuance of the Fast Track Courts on the date of advertisement of these vacancies in January, 2007.
36.Learned Single Judge lost sight of the fact that all the employees, working on adhoc basis in Fast Track Courts, were appointed dehorse any procedure adopted for their appointment. They were all appointed without any advertisement and selection with the condition that they are being appointed initially for three months and their services can be terminated without notice at any time. They were not given any increment and earned leave. The Fast Track Courts, initially financed for five years, were extended by the State Government from time to time. The term of their appointment was extended as adhoc arrangement from time to time. The High Court was adopting an adhoc policy of their continuance and did not take any decision to either continue or absorb them as there was no certainty of the financial support to be givenby the State Government to continue these courts.
37. The Circular letter dated 5.11.2009 quoted in the judgment issued by the High Court was in respect of regular appointment of adhoc Class III and IV employees, and for restoring back the procedure for their appointments. The High Court directed that all such employees appointed subsequent to 31.12.2001, which is the cut of date under the UP Regularization of Daily Wage Appointment on Group D Posts Rules 2001, without following any procedure must be ceased to work immediately with directions not to make any further adhoc/daily wage/tenure appointment. This circular did not relate to the employees of the Fast Track Courts and thus a clarification was issued on 11.11.2009 that the circular letter does not apply to the employees of Fast Track Courts. The clarification, however, did not mean that the adhoc employees of the Fast Track Courts were to continue indefinitely. The Fast Track Courts were abolished subsequently in the year 2001. Before such abolition in view of the advertisement issued by the District Judge on 31.1.2007 in pursuance to the directions of Hon'ble the Chief Justice, the services of the adhoc employees of Fast Track Courts were ceased with an opportunity to allow them to compete in the regular selections.
38. In the year 2007, when the advertisement was made, the District Judge could not have foreseen whether the Fast Track Courts would continue or cease. With the ceasure of the Fast Track Courts the services of the adhoc employees appointed dehorse any procedure in these Courts came to an end with no right to continue or any preference in regular appointments.
39. In the affidavit of Shri Bharat Bhushan, District Judge, Bagpat (as he then was before his elevation to the High Court) and who was the District Judge of Gautam Budh Nagar at the relevant time, it is stated that under the directions of the High Court the then District Judge, Gautam Budh Nagar initiated the selection process for conducting the examination. A Five-Members Committee of the Judges of the Court was appointed and an advertisement was issued for the posts of Clerk, Clerk-cum-Typist and Stenographers. For the post of Stenographers the applicant was required to undergo two tests i.e. the written examination and a test in shorthand. Similarly for the post of Clerk-cum-Typist a candidate was required to appear in two examinations i.e. written examination and typing test. The paper for examination was set up by the District Judge himself. The examination was duly conducted by the then District Judge with examination centres in four Schools. The teaching staff under the supervision of Judicial Officers of the District Gautam Budh Nagar and those, who were requisitioned from Districts Bulandshahr and Ghaziabad with the approval of the High Court, supervised the examination. The papers and other relevant material under sealed cover were handed over to Judicial Officers two hours prior to examination. After the examination was over, the copies were kept under sealed cover by respective Centre Incharge and thereafter handed over to Examination Committee. The District Judge himself got the codes allotted to each and every answer sheet, which was given to the evaluator with the names and roll numbers so struck off, and blackened by the District Judge himself that they may not be deciphered. The identity of examinees might was closely guarded. Even the members of the Selection Committee did not have any knowledge of the codes allotted to the applicants. No one including the Chairman of the Committee was aware of the identity of the examinees. The evaluation of the main written examination was conducted by various Judicial Officers. The answer sheets of the shorthand examination was evaluated by the expert, who was an instructor of ITI Ghaziabad. The answer sheets of type test were evaluated by a team consisting of several Judicial Officers and the merit list was prepared on the basis of qualifying main examination and the marks awarded in the shorthand examination. The stenography test in respect of Stenographer was conducted from amongst the candidates qualified in the main examination of which the merit list was prepared. The decision of the Examination Committee was duly approved by the District Judge. The passage was spoken with a speed of 80 words per minute, which was required by the applicants to be written on taking dictation in shorthand and thereafter to be typed on a paper and thereafter to be evaluated according to the settled norms and guidelines of the State Government, which provide for the method of speaking, punctuation and treatment of mistakes and which provided with 5% mistakes to be ignored. So far as the evaluation of answer sheets of Clerk-cum-Typist examination, it was done in accordance with the guidelines issued by the Training and Employment Directorate of the State Government, and for which also detailed guidelines of evaluation of answer sheets was provided by the District Judge. The District Judge also relied upon the table circulated by the Directorate of Training and Employment, Government of UP for converting the speed obtained by a candidate for the post of Clerk-cum-Typist.
40. In K.H. Siraj vs. High Court of Kerela and others (2006) 6 SCC 395; Marripati Nagaraja and others vs. Government of Andhra Pradesh and others (2007) 11 SCC 522; Dhananjay Malik and others vs. State of Uttranchal and others (2008) 4 SCC 171 and Vijendra Kumar Verma vs. Public Service Commission, Uttrakhand and others (2011) 1 SCC 150 the Supreme Court has reiterated the principles laid down in Madan Lal vs. State of Jammu and Kashmir (1995) 3 SCC 486 that when the petitioners appeared in the competitive examination and taken a chance to get selected and have not emerged successful, they take a calculated chance and thereafter only if the results are not palatable to them, they cannot turn round and contend that the process was unfair or the Selection Committee was not properly constituted.
41. In the present case, we find that all the petitioners, who are respondents in these appeals, are appointed dehorse any rules or procedure of appointment as adhoc employees in the Fast Track Courts in the establishment of the judgeship after cut of date i.e. 30.6.1998 in the Regularization Rules of 1999 as amended in the year 2001. Some have filed writ petitions for regularization and that all of them had appeared in the selections. Their ad hoc services were ceased on 30.9.2007. They were no longer serving as adhoc employees when they appeared in the selections in pursuance to the advertisement issued on 31.1.2007, in which the result was declared in the select list prepared and notified on 11.3.2008. They did not have any right to challenge to the selection in which they appeared with a calculated risk on the ground that they were entitled to be considered for regularization. None of them succeeded to be placed in the select list on which they filed writ petitions giving rise to these Special Appeals.
42. The petitioners-respondents not only prayed for setting aside the select list, they also prayed for regularisation of their services. The reliefs were not claimed in alternative. Both the reliefs were substantive and distinct from each other and could not have been considered by learned Single Judge in alternative to the other. An adhoc employee, who claims regularisation, is not permitted to challenge the advertisement and the select list for regular appointments in the selections in which he appeared and failed. The regularization of an adhoc employee, who challenges the selection, cannot be prayed or considered as an alternative relief.
43.Before considering the challenge to the selections to which the petitioners were not entitled, we may observe that after the pronouncement of Apex Court in State of Karnataka vs. Uma Devi (2006) 4 SCC 1 it was not open to the petitioners to have prayed for absorption/regularization dehorse statutory rules. They were not entitled to be considered for regularization under the statutory rules as amended in the year 2001, as they were not appointed before 30.6.1998 and were not working on 20.11.2011 when the rules were amended by the Third Amendment on 20.11.2011. Their claim, therefore, could not have succeeded both for regularization as well as by way of challenge to the regular selections.
44.In Brij Mohan Lal vs. Union of India and ors (2012) 6 SCC 502 the Supreme Court, considering the rights of the temporary/adhoc judge, who was appointed under the temporary Fast Track Courts scheme to be considered for absorption in the regular cadre, held that normally, there are three kinds of posts that may exist in a cadre (1) permanent posts; (2) temporary posts; and (3) quasi permanent posts. There can be a temporary employee, a permanent employee or an employee in quasi permanent capacity. For a person to have a right for the post, the post itself has to be a permanent post duly sanctioned in the cadre. The person should be permanently appointed to that post. Normally, it is under these circumstances that such an employee gets a right to the post, but even when a temporary employee is appointed against a permanent post, he could get a right to the post provided he had at least acquired the status of a quasi permanent employee under the relevant Rules. Where neither the post is sanctioned nor is permanent and, in fact, the entire arrangement is ad hoc or is for an uncertain duration, it cannot create any rights and obligations in favour of the appointees, akin to those of permanent employees. There should be a right vested in an employee, which is duly recognized and declared in accordance with the Rules governing the conditions of service of such an employee before such relief is granted. Unless the Government employee holds any status as afore-indicated, it may not be possible to grant relief to the Government employee, particularly, when such relief is not provided under the relevant Rules.
45.In the present case the petitioners were appointed without any advertisement or selection as employees under the Fast Track Courts Scheme. They were allowed to continue in the ad hoc arrangement under the Government Orders which allowed the Fast Track Courts to continue on year-to-year basis after the completion of initial five years' period. There was neither any post nor their appointment was made for any definite period. The entire arrangement was adhoc for uncertain duration, which did not create any right and obligation in their favour. Under the orders passed by Hon'ble Chief Justice to hold regular selections to meet the acute shortage of the staff, the District Judge had advertised the post and thereafter ceased their services before holding the examination and declaring select list. All the employees were given a chance to appear and to be selected both against the permanent post as well as the temporary post in Fast Track Courts, which were abolished by that time. None of the petitioners succeeded in getting selected and as found above they were not entitled to be considered for regularization under the Rules of 2001 as neither they were appointed before 30.6.1998 nor they were working on 20.11.2001 when the Third Amendment of the Rules came into effect. Their claim for regularization, therefore, does not give them any right either to challenge the selections or to be regularized on the advertised posts. The writ petitions filed by them for regularization are also liable to be dismissed.
46. Learned Single Judge did not accept the proposal of Registrar General in respect of the employees working in Fast Track Court on 1.3.2011 when the Fast Track Courts were ceased in UP. It was recommended that the District Judges may be asked to make fresh recruitment on the posts in regular establishment of the judgeship after leaving requisite number of posts vacant for adjustment of employees of the Fast Track Courts, even though such proposal of the High Court was accepted by the Hon'ble Chief Justice on 7.3.2011, and was ratified in the meeting of the Administrative Committee of the High Court on 11.3.2011. Learned Judge observed that the High Court did not have competence to issue such directions contrary to the statutory rules. He, however, in the operative portion of the order, directed the petitioners to continue on their respective posts as they were working prior to 11.3.2008, in terms of the Circular Letters issued by the High Court from time to time. The observations made in the body of the judgment and the directions given in the conclusion portion are contradictory to each other. If the learned Judge did not acept adjustment/regularization of the adhoc employees of the Fast Track Courts in the judgeship appointed on adhoc basis in temporary courts, dehorse any statutory rules, he could not have given directions for the petitioners, who had ceased to work prior to selections to continue. Learned Judge found that these employees were not allowed to continue as they could not be regularized under the Rules of 1998 as amended in the year 2001. They were neither working on the date when the rules came into force nor were working on the cut of date given in the Third Amendment of the Rules in the year 2011. The life and tenure of the adhoc employees working in Fast Track Courts had come to an end. Their continuance after their adhoc services were ceased by February, 2008 on temporary posts, which were no longer existing, could not be directed by learned Single Judge after four years in 2012.
47. Coming to the method of examination adopted by the District Judge, Gautam Budh Nagar for Stenographers, Clerks-cum-Typists and Clerks, we may observe that there was no allegation of any irregularity in holding the examination. The only allegation made against the examination and accepted by learned Single Judge was that the examinations were not held strictly in accordance with Rule 6 of the Rules of 1947 as amended in the year 1950. We may observe here that so far as Stenographers are concerned, they were allowed to take test for shorthand, only if they had secured a minimum number of marks in the four compulsory papers of 50 marks each for general candidates. These marks were fixed at 25% and reserved category candidates at 20%. This method of examination was not against the statutory rules as the rules do not prescribe as to who will be allowed to appear in the test for shorthand. In order to confine the shorthand and type test to a managable number of candidates the Selection Committee constituted by the Appointing Authority could have reduced the number of candidates to appear in the test for shorthand and typing. The Committee had given good reasons for providing the qualifying marks namely that the Stenographers in order to test their competence were required to secure minimum number of marks in the written test and were thereafter subjected to test in stenography. The Committee rightly found that though the work of the Stenographers is essentially to take dictation in shorthand and typing, if they do not have sufficient knowledge of Hindi and English language, they will not be able to discharge their functions efficiently and in such case the judicial work will be affected. The decision of the Committee approved by the District Judge to allow only those candidates to appear in the test in stenography, who had obtained minimum number of marks in the written examination and thereafter to prepare the result on the basis of the marks obtained by them in the test of Stenography was neither contrary to the rules nor was arbitrary, unreasonable and unfair. Similarly for Clerk-cum-Typist, the requirement of achieving efficiency of 30 words per minute in the type test, for which they are essentially appointed, was also neither contrary to the rules nor was arbitrary, unreasonable or unfair. The achievements of a minimum typing speed and thereafter to add the marks secured in the type test and in the written test, was a fair procedure, which did not in any manner violate Rules 6 and 7 of the Rules of 1947 as amended in the year 1950.
48. So far as the post of Clerks are concerned the argument, that type test was not held for them which was optional, was not based on any material on record. In fact in para-37 of the writ petition the petitioners had admitted that they were subjected to type test.
49. Rule 6 of the Rules of 1947, as amended in the year 1950, provides for written test, in four subjects with 50 marks each with optional tests in either typing in English or Hindi and in shorthand in Hindi or English. The Note-1 appended to the Rule provides that the candidates must take one of the option mentioned as optional subject. The note clearly prescribes that one of the optional subjects has to be taken. This note, however, in respect of Stenographers cannot be read to give option to a person appearing for the post of Stenographers, to give an option only of typing in English and Hindi. He has to take the test in shorthand to meet the requirement of the job. So far as Clerk-cum-Typist is concerned, he does not have option in appearing in the test of shorthand without having acquired knowledge or to appear in the type test. The optional papers, therefore, have to be taken according to the requirement of the post and not on the choice of the candidates. In the present case, the Stenographers were subject to test in shorthand and the Clerk-cum-Typist and Clerks took the test in typing, which is a proficiency commensurate with the requirement of the job. It is not denied that the merit list was prepared in accordance with the marks obtained in these optional tests in respect of each category of posts and thus there was no error committed by the Selection Committee in adopting a procedure, which was not contrary to the rules nor can be treated to be arbitrary, unreasonable and unfair.
50. The advertisement for selection was issued on 31.1.2007 and the select list was prepared on 11.3.2008. On that date there was requirement of Class III employees for Fast Track Courts continuing on year to year basis. These posts could not be treated as permanent posts as the life of Fast Track Courts was uncertain. The advertisement, therefore, clearly prescribe that the posts will be co-terminous with the Fast Track Courts, which have since been abolished on 1.3.2011 and that a final decision to allow the persons appointed on such posts has not been taken by the High Court so far. The High Court has by its Circular Letter dated 1.4.2011 informed all the District Judges that Class III and Class IV employees working in the Fast Track Courts upto 31.3.2011, be adjusted against the vacancies of regular establishment and posts created for new Courts of Additional District and Sessions Judges on adhoc basis. In the present case this policy would favour, for the time being the persons, who were selected in an open competition against adhoc posts in Fast Track Courts. They should be allowed to continue until a final decision is taken in respect of their employment by the Court. In fact the appellants in the present case selected on five posts of Hindi Stenographers against Fast Track Courts; five posts of Clerks in the Fast Track Courts and five posts of Clerk-cum-Typist in Fast Track Courts stand on a better footing inasmuch as they have been recruited through an open competition. These employees would be treated unfairly, if they are not allowed the same treatment as proposed by the High Court for adhoc employees of the Fast Track Courts appointed dehorse any procedure adopted for their selections.
51. So far as the application of roster for applying rules of reservation is concerned, the select list demonstrates that the person selected from serial no.1 to 20 on the post of Clerks were placed strictly in accordance with the roster. The select list for the Fast Track Courts from serial nos. 21 to 25 is also in the order provided in the roster and which does not disturb the percentage of reservation for Unreserved category, Other Backward Class and Scheduled Caste candidates. The position with regard to the select list of Clerk-cum-Typist for five posts and Stenographers from serial nos.1 to 3 on regular establishment, and serial nos. 4 to 8 in Fast Track Courts is also the same as they have also been placed in accordance with roster without disturbing the percentage of reservation. The percentage of reservation does not exceed the percentage prescribe in the U.P. Public Services (Reservation for Scheduled Caste, Scheduled Tribes and Other Backward Class) Act, 1994, and thus no one among the selectees is discriminated on the grounds of violation of rules of reservation.
52. For the reasons given above the Special Appeals are allowed. The judgment of learned Single Judge dated 25.4.2012, and the directions issued therein, are set aside. The appointment of all the appellants, who were in the select list dated 11.3.2008 is held to be valid. Their appointments shall be restored with consequential seniority. However, since they had not worked on the posts from the date when their services were dispensed with, in pursuance to the judgment dated 25.4.2012 to the date when their appointments are restored, they shall not be entitled to salary on the posts for the said period. The benefit of salary drawn by the contesting respondents, who were reinstated as adhoc employees of the Fast Track Courts, shall not be withdrawn from them. There shall be no orders as to costs.
Dt.14.11.2013 RKP/