Allahabad High Court
Singh Mukesh Kumar vs State Of U.P. & Others on 24 May, 2016
Bench: Amreshwar Pratap Sahi, Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD
?AFR
Court No. - 32
Case :- SPECIAL APPEAL No. - 1182 of 2008
Appellant :- Singh Mukesh Kumar
Respondent :- State Of U.P. & Others
Counsel for Appellant :- Umakant,Ram Prakash Shukla
Counsel for Respondent :- C.S.C.,Ranjan.Srivastva.
Hon'ble Amreshwar Pratap Sahi,J.
Hon'ble Vivek Kumar Birla,J.
Heard Sri Umakant, learned counsel for the appellant and Sri Manish Goyal, learned counsel for the respondents.
The matter relates to the appointment on the post of Farrash in the district judgeship of Jalaun at Orai. The services of the appellant were dispensed with in the circumstances that have been already indicated in detail by the learned Single Judge.
The two issues that fell for consideration in relation to the claim of the appellant as well as other employees, were, as to whether the appointments had been preceded by a valid advertisement and secondly whether a valid selection procedure had been followed in terms of the U.P. Subordinate Civil Courts Inferior Establishment Rules, 1955 (hereinafter referred to as the '1955 Rules'). While proceeding to record findings, the learned Single Judge even though proceeded to hold that the judgement in the case of Sachin Kumar vs. State of UP, 2005 ALJ 3100 would apply prospectively, yet advertisement was a necessary concomitant of the selection procedure but the judgement would not apply retrospectively. On the issue of the selection procedure having been violated, the learned Single Judge took up the individual cases separately and recorded separate findings.
The writ petition filed by the appellant, namely, writ petition no. 56744 of 2006 was dismissed by recording the following findings:
"In Writ Petition 56744 of 2006, the petitioner Singh Mukesh Kumar was appointed as Farrash for a period of three months. A Farrash can only be appointed from a waiting list under Rule 4(2) of the Rules of 1955 which contemplates appointments by direct recruitment after due advertisement and a selection process. Further, a waiting list is required to be prepared under Rule 12 of the Rules. The counter affidavit as well as the record reveals that no selection procedure was adopted nor an advertisement was made nor any waiting listing was prepared and that the District Judge had arbitrarily appointed the said petitioner without following the procedure. Consequently, this Court is of the opinion, that the discretion exercised by the District Judge in giving an appointment to the petitioner, Singh Mukesh Kumar, was in complete violation of Rules 4(2) of the Rules of 1955. Consequently, the said petitioner Singh Mukesh Kumar is not entitled for any relief and his writ petition is dismissed."
Rule 4(2) of the 1955 Rules as has been indicated therein is extracted in its entirety hereinafter:
"4. Method of recruitment.- Recruitment to the following posts in the establishment shall be made:
(1) Daftaries and bundle lifters.- By promotion strictly on merits from amongst process-servers,orderlies, office peons, and farrashes who have put in at least five years' service as such:
Provided that no person shall be promoted to these posts unless he is able to read and writ Hindi in Devnagri Script with correctness and fluency and can discharge the duties of the office satisfactorily and in the case of the post of daftari unless he also knows book-binding.
(2) Process servers, orderly peons, office peons and farrashes. (a) by appointment of candidates on the waiting list prepared under rule 12 or,
(b) by transfer from one post to another according to suitability.
(3) chawkidars, malis, waterman and sweepers.- By direct recruitment on the discretion of District Judge."
A perusal thereof clearly indicates that a selection procedure is envisaged therein and, therefore, the appointment to the post of process servers, orderly peons, office peons and farrashes could have been made only under the aforesaid prescribed procedure as per Rule 4(2) of 1955 Rules.
The respondents had filed a counter affidavit that was taken notice of by the learned Single Judge and relying on the aforesaid rules, the conclusion was drawn that the said process has not been followed. Even before us, no material has been brought on record that may impel us to take a different view with regard to the procedure relating to the method of recruitment as per Rule 4(2) of 1955 Rules. A counter affidavit has been filed to this appeal as well and on the issue of advertisement several other subsequent judgements have also been relied upon as also the circular of the High Court dated 20th February, 1996 to contend that vacancies were required to be notified and applications were to be invited in view of the observations made by learned Single Judge of this Court in the case of Ram Babu vs. District Judge, Banda in writ petition no. 5857 of 1994 and Ran Das Pal vs. District Judge, Banda in writ petition no. 5913 of 1994. The said circular also indicates the method of the preparation of a waiting list that also does not appear to have been followed by the learned District Judge in the matter of appointment of the appellant.
Sri Umakant, learned counsel for the appellant has invited the attention of this Court to the letter of appointment and confirmation order of the appellant that are Annexure-1 and Annexure-2 respectively to the writ petition. The said appointment letter and confirmation order leaves no room for doubt that the appellant was appointed as a Farrash and, therefore, it could have been done only in accordance with the procedure as indicated above. Since neither the procedure has been followed nor the circular has been adhered to, we do not find any reason to take a different view than what has been stated above.
On the issue of no advertisement, the judgement in the case of Sachin Kumar (supra) stands supervened by a host of judgements that have been filed along with the counter affidavit but in the present case even the circular of the High Court dated 20.2.1996 has been ignored by the District Judge and has gone unnoticed in the interim order dated 15.9.2008 passed in this appeal.
The appeal therefore lacks merit and is accordingly dismissed. Interim order dated 15.9.2008 is hereby discharged.
Order Date :- 24.5.2016
Abhishek
