Allahabad High Court
Mohammad Arif vs Registrar, High Court Of Judicature At ... on 25 August, 2000
Equivalent citations: 2000(4)AWC2865A
Author: V.M. Sahai
Bench: V.M. Sahai
JUDGMENT V.M. Sahai, J.
1. An advertisement was issued on 29.11.1992 by the Registrar, High Court, Allahabad for recruitment of Routine Grade Clerks on 90 existing vacancies and 150 vacancies which were likely to occur till 1995. The petitioners who were eligible for appointment as Routine Grade Clerk applied in pursuance of the advertisement dated 26.11.1992. Mohammad Arif was allotted roll No. 2864 and Nishith Kumar Srivastava was allotted roll No. 4770. In the written examination held on 9.1.1994, the petitioners were declared successful. A communication was sent to them that typing test would be held on 1.3.1994 and interview on 2.3.1994. They appeared in typing test and interview. The result of final selection was declared on 20.3.1994 and a select list of 232 candidates was published. The petitioners were not selected. A waiting list of 108 candidates was prepared. However, in the waiting list of general category candidates Mohammad Arif was at serial No. 1 and Nishith Kumar Srivastava was at serial No. 1 of sportmen quota. It is stated that in the select list, the last candidate Pratima Sonkar who was at serial No. 232, Joined on 6.5.1999. Both the petitions have been filed claiming appointment as Routine Grade Clerk against the unfilled vacancies of 1992 examination.
2. In the counter-affidavit filed by the respondent, it is stated that the entire select list of 232 candidates exhausted on 6.1.1999. No one from the waiting list was offered appointment. The Chief Justice has initiated process for the next selection of 135 vacancies which included existing vacancies and vacancies which were likely to occur till 2001 as resolved in meeting dated 7.10.1999. An advertisement has also been issued in newspapers Pioneer on 7.11.1999, Dainik Jagaran on 8.11.1999, Employment News on 27.11.1999 and Kanpur Ujala on 30.11.1999. Paragraph 15 of the writ petition was replied in paragraph 11 of the counter-affidavit giving details about joining and non-joining of candidates. It mentions name of Vidya Nand Tripathi, roll No. 67 as not joined but subsequently he was issued appointment letter in view of order of Hon'ble the Chief Justice dated 3.11.1999.
3. The learned counsel for the respondent filed a supplementary counter-affidavit mentioning therein in detail as to when the vacancies occurred and how the appointments were made from the select list. It has been explained that the respondent estimated 90 vacancies were existing and 150 vacancies were likely to occur in future till 31.12.1995. Accordingly, advertisement was issued on 29.11.1992. After the final select list was approved by Hon'ble the Chief Justice on 19.3.1994 and result was declared on 20.3.1994, it was found that only 75 vacancies and not 90 vacancies as advertised were existing till March, 1994 on which appointments could be made. Appointment letters were issued to 75 candidates in order of merit from the select list and all of them joined. After March. 1994 till December. 1995. 66 vacancies occurred. Out of which 62 vacancies were filled from the select list and two vacancies were filled under the dying-in-harness rules from the direct recruitment vacancies. Two vacancies remained unfilled. Rule 10 (4) of The Allahabad High Court Officers and Staff (Conditions of Service and Conduct) Rules. 1976 (in brief rules), provides that the life of the select list is three years or till the next selection is held, whichever is earlier. Since the select list was approved on 19.3.1994, therefore, it was valid till 18.3.1997. During 1996-97, 36 vacancies occurred and by adding two vacancies which were of 1995 and remained unfilled, the total vacancies available were 38. From these 38 vacancies, 31 candidates were appointed from the select list and 10 candidates were appointed under the dying-in-harness rules from the direct recruitment vacancies which occurred during 1996 to March. 1997. Though only 38 vacancies were available to be filled by direct recruitment between 1996 to March. 1997 and the respondent appointed 31 candidates from the select list and 10 candidates under the dying-in-harness rules, total 41 candidates, therefore, appointment of three candidates under the dying-in-harness rules was in excess of the vacancies and these three vacancies were to be adjusted in the vacancies which were to occur subsequently. Since the respondent could not make the next selection of Routine Grade Clerks, therefore, Hon'ble the Chief Justice on 18.3.1997 exercising powers, under Rule 45 passed an order on 18.3.1997 that the select list will be followed till the next selection is made. After March. 1997 till February, 1999. 40 vacancies were available and after adjusting three vacancies on which candidates were appointed in excess under the dying- in-harness rules, only 37 vacancies were available for appointment which occurred till 15.2.1999 and were to be filled by direct recruitment. Out of these 37 vacancies. 32 appointments were made from the select list and 7 appointments were made under the dying-in-harness rules, therefore, two candidates were appointed in excess of the vacancies available which were to be adjusted in future vacancies. In paragraph 12 of the supplementary counter-affidavit, it was explained that Vidya Nand Tripathi was issued appointment letter initially along with 62 candidates in 1994. He did not Join. But subsequently he has been allowed to join as a special case by Hon'ble the Chief Justice on the condition that he will be placed at the bottom of the seniority in the merit list. Vidya Nand Tripathi was issued appointment letter on 3.11.1999 and he joined on 30.11.1999. It was also stated that though the advertisements provided that 90 vacancies were existing and 150 vacancies were likely to occur till 31.12.1995, whereas in fact only 75 vacancies were available till March, 1994 and 66 vacancies occurred till December, 1995. Therefore, there were only 140 vacancies available. Therefore, the select list should be treated to be valid only with regard to 140 vacancies which were available till December, 1995. And the remaining candidates in the select list shall be treated to be in the waiting list. The petitioner is not entitled to be appointed against future vacancies and the respondent did not make the second waiting list of 108 candidates operational in which the name of the petitioners find place. The respondent has stated that no vacancies are available which could be offered to the petitioners.
4. In the rejoinder-affidavit, the petitioner has asserted that since Pratima Sonkar who was at serial No. 232 of the select list was permitted to join on 6.5.1999, therefore, the select list could not exhaust earlier to this date. It was also stated that Vidya Nand Tripathi was issued appointment letter on 3.11.1999 by the respondent, subsequent to the filing of this writ petition. In paragraph 14 of the supplementary rejoinder-affidavit, paragraph 12 of the supplementary counter-affidavit was vaguely replied and it was not claimed that the appointment of Vidya Nand Tripathi was illegal. The petitioners have not challenged the appointment of Vidya Nand Tripathi in the writ petition.
5. I have heard Shri Ashok Khare and Shri Krishnaji Khare, learned counsel for the petitioners and Shri Sudhir Agrawal, learned counsel appearing for the respondent. The respondent have also produced the records. Since the controversy involved in both the writ petitions is same, therefore, they are being decided together. Writ Petition No. 43274 of 1999 shall be the leading writ petition.
6. Learned counsel for the petitioner has urged that the vacancies which remained unfilled were required to be filled by the candidates in the select list or in the waiting list. The last candidate, Pratima Sonkar in the select list joined on 6.5.1999, and Vidya Nand Tripathi was appointed on 3.11.1999 who joined on 30.11.1999, therefore, the select list is to be treated valid till 6.5.1999 or 30.11.1999 and the vacancies which occurred till these dates were liable to be filled from the candidates mentioned in the select list or the waiting list. Since the petitioner was at serial No. 1 of the waiting list of general category candidates, he was entitled to be considered for appointment. The learned counsel for the petitioner further urged that respondent have permitted the candidates to join on 6.5.1999 and 30.11.1999, but they have not given the details of vacancies which were available with the respondent on these dates. The respondent in the supplementary counter-affidavit have mentioned that only 37 vacancies occurred till 15.2.1999 and the respondent have not counted the vacancies which occurred after 15.2.1999 till 6.5.1999 or 30.11.1999 and if these vacancies are counted by the respondent, the petitioner who is at serial No. 1 of the waiting list is likely to be appointed. The learned counsel lastly urged that this writ petition was filed on 6.10.1999, much before the advertisement was issued by the respondent to fill 135 vacancies, therefore, the respondent is duty bound to disclose the actual number of vacancies which were available on 6.5.1999, and on the vacancies so disclosed, the petitioner is entitled for appointment, as the respondent was treating the select list to be valid till 6.5.1999 or 3.11.1999.
7. On the other hand. Shri Sudhir Agarwal, learned counsel for the respondent has urged that select list of 232 candidates was prepared. A waiting list of 108 candidates were prepared in which name of petitioner finds place at serial No. 1 of the general category candidates. All vacancies which had occurred or which were available till February, 1999, has been filled from the select list or from the candidates who were dependents of employees who had died in harness. The entire select list of 232 candidates has been exhausted and no one has been appointed from the waiting list. Merely because petitioner's name finds place in the waiting list, he is not entitled to claim any appointment with the respondent. It was urged that with regard to vacancies which occurred after 15.2.3999 the respondent has calculated the vacancies which were existing or which are likely to occur in future till 2001 and advertisement has been issued on 7.11.1999 in various news papers for filling the vacancies by direct recruitment. The petitioners are only in the waiting list of 1992 examination. They have no right to claim any appointment on future vacancies which have occurred after 15.2.1999 and which were not the subject-matter of advertisement. He further urged that the petitioners have got no right to ask the respondent to calculate vacancies which occurred after 15.2.1999 till 6.5.1999 or 3.11.1999 and consider him for appointment. The learned counsel urged that Vidya Nand Tripathi was issued appointment letter in the vacancies which occurred after March. 1994 till December. 1995 but he did not join. His case was considered by Hon'ble the Chief Justice and as a special case he was issued appointment letter again on 3.11.1999 and he joined on 30.11.1999. Vidya Nand Tripathi was in the select list, and he was rightly appointed. It was lastly urged that whatever vacancies were available with the respondent till 15.2.1999 has been filled by candidates who were in the select list, no candidate was given appointment from the waiting list and the waiting list was not operated by the respondent. Petitioner cannot claim any appointment on the vacancies which have occurred after 15.2.1999 or any future vacancies regarding which advertisement has been issued for recruitment on 7.11.1999 by the respondent.
8. On the arguments of learned counsel for the parties, the questions that arise for consideration are whether any vacancy advertised on 29.11.1992 remained unfilled due to non-Joining of candidates on which the petitioner who is in wailing list can be considered for appointment, whether the petitioner can claim appointment on future vacancies or vacancies which occurred prior to issuance of fresh advertisement published on 7.11.1999 and whether joining of Pratima Sonkar on 6.5.1999 and appointment of Vidya Nand Tripathi on 3.11.1999 who joined on 30.11.1999 can confer any right on the petitioner to claim appointment.
9. The first question for consideration is as to whether any vacancy advertised on 29.11.1992 remained unfilled due to non-Joining of candidates on which the petitioner who is in the waiting list could be considered for appointment. The respondent issued advertisement on 29.11.1992 that 90 vacancies of Routine Grade Clerks were existing and 150 vacancies are likely to occur till December. 1995 on which applications were invited. The petitioner applied. He was declared successful in written examination, thereafter, he was called to appear in typing test and interview. Final result was declared on 20.3.1994 and a select list of 232 candidates was published but the petitioner was not selected and he was placed at serial No. 1 of the waiting list of general category candidates. The respondent in March. 1994 at the time of issuing appointment letters to selected candidates found that instead of 90 vacancies as advertised only 75 vacancies were existing on which appointments were to be made, therefore, 75 candidates were issued appointment letters, in order of merit and all of them Joined. After March. 1994 to till December. 1995, 66 vacancies occurred, out of which 62 candidates were appointed from the select list, two candidates were appointed under the dying-in-harness rules and two vacancies were left unfilled. Vidya Nand Tripathi was also issued appointment letter on 23.8.1994 but he did not Join. During 1996 to March. 1997. 36 vacancies occurred and by adding two vacancies of 1995 which remained unfilled, total vacancies available was 38, out of which 31 candidates were appointed from the select list and 10 candidates were appointed under the dying-in-harness rules. Three candidates were appointed in excess of the vacancies available to be filled by direct recruitment. The life 6f select list as per Rule 10 (4) was for a period of three years or till the next selection is held, whichever is earlier. And three years period was to expire on 18.3.1997, but it was not possible for the respondent to hold next selection of Routine Grade Clerks, therefore, Hon'ble the Chief Justice exercising powers under Rule 45 on 18.3.1997 directed that the select list will be followed till the next selection is made and appointed a committee for holding next selection. During March, 1997 till 15.2.1999, 40 vacancies occurred. After adjusting three appointments earlier made under the dying-in-harness rules in excess of vacancies, only 37 vacancies were available to be filled. The respondent appointed 32 candidates from the select list and 7 candidates under the dying-in-harness rules. Two appointments, therefore, made were in excess of the vacancies available to be filled by direct recruitment. The aforesaid facts demonstrate the number of vacancies available with the respondent and appointments made by them from time to time. It shows that the total vacancies available with respondent till 15.2.1999 was 75 466 +36+40 = 217. The respondent have made appointments of 75 + 64+41+39 = 219. Therefore, it is clear that against 217 vacancies which were available, the respondent have made appointments of 219 candidates. Two candidates appointed under the dying-in-harness rules were in excess of the vacancies which were available, and they were to be adjusted in future vacancies. It is also clear that the respondent made appointments from the select list as and when the vacancies occurred and under the dying-in-harness rules. The last candidate in the select list Pratima Sonkar was at serial No. 232 who joined on 6.5.1999 and the select list stood exhausted on 6.1.1999 after the appointment letter was issued to the last candidate of the select list. These facts demonstrate that the respondent have given appointment to 200 candidates from the select list. 19 candidates were appointed under the dying-in-harness rules. Total 219 candidates were appointed. No vacancy was available due to non-joining of any candidate which could be filled from the waiting list. The waiting list was not touched by the respondent as there was no vacancy available on which the candidates from the waiting list could be offered appointment. Even if the vacancy of Vidya Nand Tripathi who had not joined in 1994 but was appointed later and joined in November, 1999, is considered to be available, it would not help the petitioner as the vacancy of Vidya Nand Tripathi would stand adjusted in excess appointments made under the dying-in-harness rule. Since the respondent has offered appointment to candidates in order of merit from the select list, no exception can be taken to the procedure followed by it. A candidate in the waiting list could be offered appointment only after the select list is exhausted. The select list of 232 candidates exhausted on 6.1.1999 and on this date no vacancy was available on which the petitioner who is at serial No. 1 of the waiting list could be appointed, therefore, the respondent rightly did not give effect to the waiting list and the petitioner cannot claim any right on subsequent vacancies which were not the subject-matter of advertisement dated 29.11.1992.
10. The next question is whether the petitioner can claim appointment on future vacancies or vacancies which occurred prior to issuance of fresh advertisement published on 7.11.1999. The advertisement published on 29.11.1992 provided that there were 90 existing vacancies and 150 vacancies were likely to occur till 1995. When appointment letters were issued in March, 1994 after final result was declared, it was found by the respondent that existing vacancies were 75 and not 90, therefore, appointment letters were issued to 75 candidates. The respondent continued to appoint candidates from the select list of 232 candidates as the select list was valid till 18.3.1997. As per the advertisement, appointment could be made on future vacancies which occurred till 1995. Even though the advertisement did not provide that vacancies which occurred in 1996 or thereafter were to be filled from 1992 examination, but the respondent could not hold the next selection and continued to make appointments on the vacancies which occurred in 1996 till March. 1997 from the select list. Thereafter, the life of select list was extended on 18.3.1997 by order of the Chief Justice and it was to remain valid till the next selection. The respondent continued to make appointments from the select list in order of merit till entire select list of 232 candidates exhausted on 6.1.1999. The waiting list is prepared to meet the contingency that if any candidates in the select list does not join or the vacancy remains unfilled, the same can be filled by waiting list candidate. Apart from this, a waiting list candidate has got no right to claim appointment. In paragraph 15 of the writ petition, the petitioner has given name of various candidates who had not joined and whose vacancies remained unfilled. Paragraph 15 of the writ petition was replied in paragraph 11 of the counter-affidavit. The respondent also filed a supplementary counter-affidavit and explained that where a candidate did not join, the vacancy was offered to the next candidate of the select list in order of merit. Because of it out of 232 candidates in the select list only 200 candidates was appointed. The select list exhausted on 6.1.1999. After 6.1.1999 there was no vacancy, which remained unfilled which could be filled by a waiting list candidate.
The respondent did not give effect to the waiting list prepared, instead took steps to make a fresh selection on the vacancies which occurred after 15.2.1999 and issued an advertisement on 7.11.1999 to fill 135 vacancies which were existing and were likely to occur till 2001. From the aforesaid facts, it is clear that no vacancy was available or was left unfilled on which the petitioner could be appointed. The Apex Court in Gujarat State Dy. Executive Engineers' Association v. State of Gujarat and others. 1994 Supp (2) SCC 591, held that a candidate in the waiting list does not have any right on future vacancy. The relevant observation are extracted below :
"..... 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..."
11. The last question is whether joining of Pratima Sonkar on 6.5.1999 and appointment of Vidya Nand Tripathi on 3.11.1999 who joined on 30.11.1999 can confer any right on the petitioner to claim appointment. The respondent have stated that select list exhausted on 6.1.1999 when appointment letter was issued to the last candidate. Pratima Sonkar was the last candidate at serial No. 232 of the select list. Merely because she joined on 6.5.1999. It could not be treated to be the date on which the select list exhausted as the select list exhausts on the date the last candidate is issued appointment letter. Joining in pursuance of the appointment letter is of 110 consequence. So far as Vidya Nand Tripathi is concerned, the respondent has produced the records. From the records, it is borne out that Vidya Nand Tripathi was issued appointment letter on 23.8.1994. He did not join. His name was deleted from the select list on 20.7.1996 by order of Hon'ble the Chief Justice. Vidya Nand Tripathi on 14.9.1999 made a representation before the respondent that his name has been deleted from the select list without affording any opportunity of hearing to him and he claimed that he be permitted to join as Routine Grade Clerk. The matter was considered by Hon'ble the Chief justice, who as a special case approved the appointment of Vidya Nand Tripathi on 3.11.1999 with a condition that he shall be placed at the bottom of the candidates of the select list of the year 1994 who have already joined. Appointment letter was issued to Vidya Nand Tripathi on 3.11.1999 and he joined on 30.11.1999. This power was exercised by the Chief Justice under Rule 45 which is extracted as below :
45. General rules -- Notwithstanding anything contained in these rules, the Chief Justice shall have the power to make such orders as he may consider fit, in respect of recruitment, promotion, confirmation or any other matter.
12. The rule empowers the Chief Justice with wide discretionary power which can be exercised by him with regard to any matter. In the matter of Vidya Nand Tripathi, Hon'ble the Chief Justice exercised his discretionary power under Rule 45 as the name of Vidya Nand Tripathi was deleted from the select list on 20.7.1996 without affording him any opportunity of hearing. The exercise of power has not been challenged by the petitioner nor they have impleaded Vidya Nand Tripathi as party to the writ petition. For the reasons stated above, the submissions raised on behalf of the petitioners are devoid of any merit, consequently they are not entitled to any relief.
13. In the result both the writ petitions fail and are dismissed but there shall be no order as to costs.