Arvind Kumar Gautam vs District Judge & Others
2011 Latest Caselaw 4103 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved.
 
Court No. 35
 

 
Case :- WRIT - A No. - 47426 of 2007
 
Petitioner :- Arvind Kumar Gautam
 
Respondent :- District Judge & Others
 
Petitioner Counsel :- Manu Saxena, A.K.S.Parihar, Birendra Singh
 
Respondent Counsel :- C.S.C.,Amit Sthalekar
 

 
Hon'ble Sunil Hali,J.

In pursuance to the advertisement issued on 15.7.2000 for appointment on eleven post of Class IV employees under U.P. Subordinate Courts Employees Establishment Rules of 1955 (hereinafter Rules of 1955), petitioner applied for the same. No selection process was undertaken in pursuance to the aforesaid advertisement. Fresh advertisement was issued on 24.3.2003 by respondent no. 1 for fifteen Class IV posts with clear stipulation that those who had applied in pursuance of the earlier advertisement would also be considered in the said process of selection. Selection process had concluded in making selection of fifteen Class IV employees and petitioner figured at Serial No. 15 of the said select list. Appointment letter was issued to the petitioner on 27.6.2003 and he joined the services on 30.6.2003.

A show cause notice was issued to the petitioner on 20.8.2007 seeking termination of his services in pursuance of the judgement passed by this Court in Surendra Kumar Kushwaha & others Vs. State of UP & others decided on 2.7.2007 in Writ Petition No. 43323 of 2005. Show cause notice was questioned by the petitioner which was dismissed on the premise that the writ petition was premature. After having submitted his reply to the show cause notice impugned order dated 12.9.2007 was issued. The grounds for cancelling the appointment of petitioner was that one Om Prakash Tripathi was transferred from judgeship of Balrampur to Hameerpur in pursuance to the orders passed by this Court on 24.4.2003 as a result of this transfer one vacancy was filled up from the transferee employee resulting in the ouster of the petitioner who figured at Sl. No. 15. This order is subject matter of challenge before this Court.

In order to appreciate the controversy involved in this writ petition the material facts are required to be noted. The process of making selection to the Class IV employees was done in pursuance to Rule 12 of the Rules of 1955 which provides for preparation of wait list of making appointment on Class IV post. The said wait list is prepared on the basis of the available vacancies as also the vacancies which are likely to fall vacant in future. Pursuing the course provided by Rule 12 of Rules 1955 respondents prepared the list of 34 candidates who were put on wait list. It transpires that during the selection process seven Class IV employees were promoted to Class III posts as a consequence of which vacancies became available in Class IV posts. On availability of aforesaid seven posts one of the candidates S. K. Kushwaha also found his name in the said list. One of the promoted Class IV employee to Class III posts Sri Amresh Kumar Shukla was reverted back to his post as a result of which Sri S. K. Kushwaha who was last in the line was ousted from service. A writ petition came to be filed before this Court by Sri S.K.Kushwaha being Civil Misc Writ Petition No. 43323 of 2005. This Court observed that appointment of the petitioner therein was made against the vacancies which were in excess of posts advertised. The court relying upon the judgement of Hon'ble Apex Court in Ashok Kumar & others Vs. Chairman, Banking Service Recruitment Board & others, 1996 SC 976 observed that no appointment in excess of the post advertised is permissible as a result of which appointment made in favour of the petitioner therein and other candidates was required to be terminated.

This in nutshell is the controversy involved in this writ petition.

In view of the judgement of this Court, respondents issued a show cause notice to the petitioner. Premise on the basis of which notice was issued to the petitioner is on account of this fact that petitioner who figured at Sl. No. 15 was required to be terminated on account of transfer of one of the employee of other Judgeship to Hameerpur Judgeship.

Petitioner, as revealed from the impugned order, could not be appointed against the seven vacancies which became available on account of promotion of Class IV to Class III as these posts were not advertised by the respondents. In nutshell petitioner's appointment was cancelled on account of transfer of one Sri Om Prakash Tiwari from Balrampur Judgeship to Hameerpur Judgeship as a result of this petitioner's appointment was found to be in excess of available vacancies.

The controversy involved in this writ petition is within a very narrow compass and for proper adjudication of the case, the following issues arise for determination of this Court, which is as under:-

a) Whether once the vacancies notified in the advertisement can be withdrawn during the process of selection?

b) If the answer of the question no. 1 is in affirmative; can the appointment letter issued in favour of the petitioner against the vacancy which has been withdrawn be cancelled?

c) Whether the wait list prepared by the respondents is to subsist till all the vacancies are filled up?

It is not in dispute that fifteen vacancies were advertised for the judgeship of Hameerpur. Select list was prepared. Wait list of 34 candidates was prepared by the respondents. During the process of selection seven more vacancies became available on account of promotion of Class IV to Class III. Petitioner figured at Sl. No. 15 and accordingly found his name in the first fifteen candidates. The petitioner's selection and appointment was strictly in consonance with the advertisement notice. During process of selection one candidate namely Om Prakash Tiwari was transferred from Judgeship Balrampur to Hameerpur in terms of the order passed by this Court under Rule 17 of the Rules 1955. It is by virtue of this transfer the petitioner is sought to be ousted.

Once the selection process was set in motion notifying that 15 vacancies were available same could not be modified or changed without prior notice to the public at large. Competing candidates had right to be considered against the said vacancies. In terms of the advertisement notice 15 vacancies were available and they were required to be filled up by the respondents. In the even of any post being filled up from transfer a notification was required to be issued by the respondents in this behalf issuing a corrigendum decreasing vacancies from 15 to 14. Admittedly, no such notification has been issued. As a consequence whereof petitioner was selected and figured at Sl No. 15. He was consequently, appointed on the basis of the select list.

It is not in dispute that the State always has power to increase or decrease the vacancy once advertised but not after the selection process is completed and appointment order issued as has happened in this case. Selection process concluded in the issuance of the select list on 30.6.203 and an appointment order in favour of the petitioner on 27.6.2003. After a lapse of four years his services has been terminated on a ground that there was no vacancy available on the date the petitioner was selected. Petitioner had right to continue on the post after the appointment letter was issued. It was for the respondents to take decision in respect of the person who has been appointed after transfer from the said judgeship which has not been done by the respondents. It was for the District Judge to have informed this Court that all the vacancies have been notified and the selection process has been concluded by appointing petitioner. On this ground I find that the petitioner's order of termination was bad. First and second questions answered accordingly.

Regarding the third question Rule 12 provides for preparation of the wait list. Rule 12 of the Rules 1955 is as under:-

Rule 12 of the U.P. Subordinate Civil Courts Inferior Establishment Rules, 1955 is reproduced as below:

Waiting list- (i) A waiting list of candidates shall be maintained for each Judgeship for the posts of process servers, orderlies, office peons and farrashes.

No waiting list shall be maintained for chaukidars, malis, sweepers and waterman.

(ii) The waiting list should be of reasonable dimensions and be revised from time to time with a view to removing there from the names of-

(a) all such candidates as are not likely to receive appointments before attaining the maximum age prescribed in Rule 8, and

(b) such candidates as are found guilty of insubordination, misbehaviour or dishonesty in the discharge of their duties in temporary or officiating vacancies, after giving them necessary opportunities to explain their conduct.

Note-The order of names in the waiting list shall be in the order in which the candidates are admitted to it but the District Judge may at the time of appointment, choose from the list the most suitable of all the candidates for reasons to be recorded in writing.

This issue was considered by this Court in the case of Ram Babu Vs. District Judge Banda, 1996 AWC 516. This Court after taking notice of judgement of this Court and the Hon'ble Apex Court observed that preparation of wait list in absence of the vacancy advertised was not permissible. This Court also observed that a fair and reasonable interpretation of Rule 12 in the light of the aforesaid Judgement is that the wait list should not be drawn for more than twice the number of anticipated vacancies in the recruitment year, and should come to an end as soon as the last vacancy on the date of advertisement is filled up. It is always open to the District Judge to anticipate the vacancies due to superannuation or likely promotions, but having determined number of vacancies, for which the advertisement is made, and drawing a wait list of equal number of candidates, he is not permitted under the Rules to go on appointing persons from the wait list on unanticipated vacancies. Any other interpretation will only give rise to serious irregularities, as in the present case, and will also violate the rights of those persons, who become eligible in the meantime for being considered for such vacancies in future. While taking cue from the Hon'ble Apex Court, it may, however, be pointed out here that the Hon'ble Apex Court was not dealing with the interpretation of Rule 12 of the aforesaid Rules 1955 but it lays down that the recruitment should be made in accordance with the procedure for the notified vacancies but not on any vacancy which may arise during the process of selection. It is accordingly under these circumstances the writ petition of Surendra Kumar Kushwaha & others Vs. State of UP & others being Civil Misc. Writ Petition No. 43323 of 2005 was disposed of on 2.7.2007 by holding that the appointment offered in the judgeship of Hameerpur beyond advertised vacancy was held to be illegal.

After the judgement delivered by this Court on 2.7.2007, Hon'ble Apex Court had occasioned to discuss the import of Rule 12 in Civil Appeal No. 10459 of 2010 arising out of Special Leave to Appeal (Civil) No. 19944 of 2007 decided on 10.12.2010. Hon'ble Apex Court while interpreting the Rule 12 of the Rule 1955 has held as under:-

"About the validity of wait list and the claim of the respondents that it is valid only for one year, we have already pointed out that the relevant Rule applicable is Rule 12 which admittedly does not prescribe any such limitation. Even though, the High Court has adverted to clarification said to have been issued by the Government, the fact remains, the statutory rule i.e. Rule 12, as it existed on the relevant date did not provide any time limit in regard to the operation of the waiting list. In such circumstances, the claim of the official respondents that a waiting list of candidates contemplated under Rule 12 cannot be deemed to be subsisting for a period beyond the filling up of the notified vacancies for the filling whereof the list has to be prepared and maintained is not supported by any statutory Rule and liable to be rejected. It is true that it cannot be deemed to be operative for an indefinite period. We have already pointed out that even if we accept that the life of the wait list is only for one year, inasmuch as these appellants were appointed by order dated 13.08.2001, within one year of their selection by the select list dated 19.09.2000, the stand of the respondents is to be rejected and the service of the appellants has to be treated as regular service and no adverse order can be passed against them. As discussed above, the construction of Rule 12 as per interpretation of the statute would be that its life is not limited for a particular year since the Rule is very specific and unambiguous. Wait list gets exhausted only when all duly selected candidates are given appointments in the light of Rule 12. As long as the wait list was not exhausted, a fresh list could not be prepared under Rule 12 and the process initiated by the respondents for advertising fresh posts and cancelling the wait list by making it as ad hoc is against the provisions of the Rules.

12. The waiting list was prepared as per Rule 12 and had to be operated as per Rule 12. The aforesaid Rule 12 contemplates that the waiting list should be of "reasonable dimension" and be revised from time to time with a view to removing there from the names of such candidates who are found guilty of insubordination, misbehaviour or dishonesty in the discharge of their duties in temporary or officiating vacancies. The wait list is neither a selection list prepared with reference to specific number of vacancies notified. It is somewhat peculiar and special. The expression "reasonable dimension" used in Rule 12 of the aforesaid Rules signifies that the wait list should be a moderate one containing that number of candidates which is adequate to meet the vacancies which might be available within a reasonable period in the year of recruitment or the year succeeding thereto and this list should be in reasonable proportion to the notified vacancies. To be more precise, this waiting list should broadly be correlated to the number of vacancies either available in the year of recruitment or likely to become available in the succeeding year and the proportion qua the existing and anticipated vacancies. It is only in order to obviate the possibility of the waiting list becoming vitiated on account of the vice of arbitrariness or illegal discrimination that the provision contains the Rules which specifically provides for maintaining a waiting list of a reasonable dimension. The word `dimension' has to be understood to emphasise the proportion qua the vacancies which are sought to be filled up. It is relevant to mention that we have already noted the factual materials furnished before the learned Judge which was noted in the order and shows that the sanctioned posts at the relevant time were 35 i.e. 31 at Mahoba and 4 at Charkhari in Judgeship. In this factual position, the contrary conclusion and the interpretation as to expression "reasonable dimension" cannot be accepted."

Hon'ble Apex Court while interpreting Rule 12 has held that the validity of the wait list cannot be limited for one year. There is no such limitation prescribed under Rule 12 of the Rules 1955. It is further observed that the construction of Rule 12 as per interpretation of the statute would be that its life is not limited for a particular year since the Rule is very specific and unambiguous. Wait list gets exhausted only when all duly selected candidates are given appointments in the light of Rules. It was also held that wait list should be of "reasonable dimension" and can be revised from time to time for the purpose of those candidates who are found guilty of insubordination, misbehaviour or dishonesty in the discharge of their duties in temporary or officiating vacancies. It is further observed that the wait list is not a selection list prepared with specific number of vacancies. It is somewhat peculiar and special.

In the face of the direction issued by the Hon'ble Apex Court it is clear that the law laid down by this Court while interpreting Rule 12 does not hold good. Consequently, the appointment of the candidates made against the post which become available on account of promotion to Class III can also be filled up in view of the direction issued by the Hon'ble Apex Court.

Be as it may, the fact remains that the petitioner had acquired right to continue on the post even if it is assumed that there was no existing vacancy on which petitioner can be considered. He can still be considered on a vacancy on account of promotions as he would figured at Sl. No. 1 in the said list in terms of the direction issued by the Hon'ble Apex Court herein supra.

In the result, the writ petition is allowed. The impugned order dated 12.9.2007, whereby the services of the petitioner has been terminated, is hereby set aside. Petitioner shall be treated to be continuing in service from the date of his initial appointment with all consequential service benefits.

Dated: 25.8.2011

RKS/