Allahabad High Court
Krishna Kumar Saxena Son Of S.D. Bharti vs District Judge, The Selection ... on 6 July, 2007
Author: Rakesh Tiwari
Bench: Rakesh Tiwari
JUDGMENT
Rakesh Tiwari, J
1. The petitioner has knocked the door of this Court under Article 226 of the Constitution seeking the following reliefs:
i) to issue a writ of mandamus directing he opposite party No. 1 to absorb the petitioner on the post according to the Selection List dated 24.5.1990;
ii) to issue any other writ, order or direction which may be deemed fit and proper in the circumstances of the case;
iii) to award costs of this writ petition to the petitioner.
2. As per the case of the petitioner, he was empannelled in the Select List prepared on 24.5.1990 for the post of Process Server and Peons in the Subordinate Civil Court of Shahjahanpur.
3. The petitioner moved representations dated 4.10.1993 and 11.10.1993 for his absorption but they remained unactioned. Thus, compelled him to institute the instant writ petition on the grounds, interalia, that the panel once formed would not exhaust; that since the posts were lying vacant, he is entitled to be absorbed in service by the respondents and that the District Judge has appointed son of his own Peon pursuant to his selection and empanelment dated 24.5.1990.
4. Counsel for the petitioner, at the very outset, accused the District Judge, Sahajahanpur of having manipulated the entire affairs by reverting Process Server from the post of Chaukidar to office Peon which is against the provisions of Rule 4 of the U.P. Subordinate Civil Courts (Inferior Establishment) Rules, 1955 (hereinafter referred to as the 'Establishment Rules'). Drawing the attention of this Court to the decision in Sailesh Chandra Saxena v. State of U.P. 1989(15) A.L.R.-13, he urged that life of the select list is three years and hence the petitioner has approached this Court within time. He also drew the attention of the Court to Rule 7 of the Establishment Rules which provides that no person who has been selected in accordance with Sub-rule (1) shall be appointed to any vacancy unless the list of selected candidates is exhausted. He contended that the same view has been reiterated by this Court in the decision in Pawan Singh v. District Judge. Agra Civil Misc. Writ No. 3155 of 1985 decided on 23.1.1987. He, therefore, vehemently urged that the petitioner having been selected in accordance with the procedure prescribed in the Establishment Rules and period of three years from the date of preparation of the select list has not 5, yet elapsed, he is entitled for regular appointment.
5. Per contra, the contention of counsels for the respondents is that it is fit settled law that inclusion of name in the select list or the waiting list does not confer any legal right on a person to be selected even if the vacancies remain unfilled, as such, the petitioner has no right to claim his regular appointment. The life of the select list, as has been held in Sailesh Chandra Saxena's case (supra), being three years, after expiry of such period, the petitioner has no right to seek the relief of appointment. Moreover, the petitioner having acquiesed to the order of District Judge dated 30.9.1993 and order dated 30.4.1994 appointing respondent No. 3 or the appointment of similarly appointed persons, no relief can be granted to him. It is vehemently urged that the writ petition is liable to be dismissed.
6. No other point was argued by the counsels for the parties.
7. Having heard counsels for the parties and after going through the record, it appears that for resolving the controversy involved in the instant case, Rule 14 of the Establishment Rules is relevant, which is as under:
14.Registration of Selected candidates- (1) The names of candidates recruited in accordance with Rule 12 shall be
15.entered in order of merit in a bound register in Form (B) prescribed in Appendix 1 and each entry shall be initialled and dated by the District Judge after he has inspected the original of attested copies of certificates. An entry shall be made in the remark column against the name of a candidate who has qualified himself as a Stenographer under Rule 11.
Note. An official working in the regular line shall be deemed to have qualified himself as a Stenographer if at any examination held under Rule 10 he is certified to possess a speed of 100 words per minute in shorthand and 35 words per minture in typewriting.
(2) The name of any candidate entered under Sub-rule (1) may be removed for inefficiency or misconduct.
(3) If any such candidate has not been given an appointment (offered in strict order of seniority according to the list in the bound register prescribed under Sub-rule (1) within one year from the date of recruitment, his name shall be automatically removed from the register of recruited candidates and he must then take his chance with others for recruitment again in a subsequent year.
8. There is no dispute about the law laid down in Sailesh Chandra Saxena's case (supra) that life of select list expires after three years. In the instant case, the select list was prepared on 24.5.1990 and the writ petition was filed on 4.11.1993, i.e., after expiry of three years. Moreover, reference may be made to a recent Division Bench decision of this Court in District Judge, Baghpat v. Anurag Kumar and Anr. 2005(2) ESC-1509 wherein it has been held that if the appointment from the Select List is not offered within one year from the date of recruitment, then the list itself would stand exhausted and the empanelled candidates would not have any right to claim appointment. Same view was reiterated by a Single Judge of this Court in Sarad Kumar Srivastava v. High Court of Judicature and Anr. 2005( 1) AWC-246. A Full Bench of this Court in Devendra Nath Srivastava v. State of U.P. and Ors. (1996)2 UPLBEC-1037 held that Rule 14(1) of the Establishment Rules contemplates only one list. The period of recruitment from such list is one year under Sub-rule (3) of Rule 14. All the vacancies had to be filled up within one year from the first list. Therefore, on the own Knowing of the petitioner, he approached this Court after life of the select list stood expired.
9. so far as appointment of respondent No. 3 is concerned, he was appointed as per the provisions of Rule 4(3) of the Establishment Rules by direct recruitment. There is no provision for preparing waiting list for the post of Chaukidars, Malis, Watermen and Sweepers. Past precedent also reflects that several persons were appointed in those posts and even after preparation of select list dated 24.5.1990, S/Sri Aftab Ali, Ram Pratap, Sarvesh Kumar, Rakesh Kumar-II, Balram Singh Yadav, Bal Govind, Anil Kumar, and Amit Kumar Mishra were appointed but the petitioner did not. challenge their appointment which clearly indicates that the petitioner is aware of law that such posts can be filled in without preparation of select or waiting lists. In view of law laid down in Rajni Devi v. Joint Director of Education Civil Misc. Writ No. 40092 of 2001 holding that where the petitioner has not challenged the appointment of the respondent in the writ if petition then he cannot be allowed to say that the appointment of the said respondent was invalid for not following the procedure prescribed under the rules, the petitioner, in the instant case, is not entitled to any relief.
10. Merely because the petitioner was included in the select list dated 24.5.1990, he has no indefeasible right to claim absorption or appointment in view of law laid down by Hon'ble the Apex Court in State of U.P. v. Raj Kumar Sharma .
11. In so far as appointment of Sri Aftab Ali is concerned, even if his order of appointment is quashed, the petitioner cannot get any relief in view of law laid down in Dr. N.C. Singhal v. Union of India wherein it has been held that a person who is not qualified for promotion will not be benefited if promotions of others are quashed.
12. For the reasons stated above, the writ petition fails and is accordingly dismissed. No order as to costs.