Naseem Ahmad &
Ors. Vs State of U.P. & ANR.
JUDGMENT
P. Sathasivam, J.
1.
Leave
granted.
2.
This
appeal is directed against the judgment and final order dated 08.08.2007 passed
by the High Court of Judicature at Allahabad in Special Appeal No. 1004 of2007
whereby the High Court dismissed the appeal and upheld the order dated
19.09.2003 passed by the District Judge, Mahoba .
3.
The
facts and circumstances giving rise to this case are:(a) An advertisement was
issued by the Office of District Judge, Mahoba on 17.08.2000 inviting
applications for appointment of Class IV posts of Process Server, Orderly, Peon
and Farrash in the pay scale of Rs.2550-3200/- in District Judgeship, Mahoba
mentioning that the selections are to be made for the purposes of preparation
of a waitlist. The advertisement did not mention the details or number of posts
for which the advertisement was issued. The appellants herein applied for the
said posts. After interview, a select list was prepared on 19.09.2000mentioning
22 names and the appellants were placed at S.Nos. 9, 10 and 11. Subsequent to
the result, appointments were made as and when the vacancies arose. Appointment
orders were issued to the appellants on 13.08.2001. The total sanctioned
strength of Class IV employees in the Judgeship of Mahoba on the date of advertisement
was 31. In 2001, more posts were created in the Judgeship of Mahoba for the
outlying Court in Tehsil Charkhari. For the said newly created posts, the appointment
letters were issued to the appellants hereinon 13.08.2001. In the meantime, one
Court of Addl. District Judge was transferred from Hamirpur to Mahoba increasing
the sanctioned strength of Class IV employees in Mahoba to 37 including the
outlying Court of Charkhari.(b) On 19.09.2003, the District Judge, Mahoba
passed an order that as per the provisions of G.Os. dated27.02.1974 (Personnel),
29.07.1995 (Personnel and administrative Reforms Department, U.P. Government)and
order dated 23.01.1996 passed by the High Court of Allahabad in Ram Babu etc.,
the panel made of Class IV employees is valid for a period of one year, and
thus, the appointments made after 19.09.2001 are ad hoc. He also cancelled the
select list/wait list forthwith. On the basis of the said order, the
appointments of the appellants we retreated as ad hoc.(c) Alleging arbitrary
appointments, promotions and discrimination in appointments, several writ
petitions were filed which were disposed of by the High Court vide judgment and
order dated 26.10.2005. However, the appellants herein were not party to the
said writ petitions, therefore, they filed a separate Writ Petition being
W.P.(C)No. 49006 of 2003 against the order dated 19.09.2003passed by the
District Judge, Mahoba. The learned single Judge of the High Court, vide order
02.07.2007, dismissed the writ petition. Against the said order, a special
appeal being S.A. No. 1004 of 2007 was filed by the appellants herein before
the High Court which was also dismissed by the High Court on 08.08.2007 in
terms of the judgment and order dated 26.10.2005 in C.M.W.P. No. 34640 of2003
(Murari Lal Pandey vs. District Judge, Mahoba &Ors.) wherein the High Court
had held as follows:
".....A fair and
reasonable interpretation of Rule 12 in the light of the aforesaid Judgment 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 promotion, 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."In pursuance of the order dated 08.08.2007, the
District Judge, Mahoba informed the appellants by letter dated12.11.2007 that
their services came to an end with immediate effect. Aggrieved by the said
order, the appellants have filed this appeal by way of special leavepetition.
4.
Heard
learned counsel for the parties.
5.
The
advertisement was issued on 17.08.2000 by District Judge, Mahoba inviting applications
for selection and appointment on Class IV posts of Process Server, Orderly, Peon
and Farrash. In response to the said advertisement, the appellants applied and
on 19.09.2000 results were published and they were included in the select list.
All the appellants were given appointment on 13.08.2001. It is the claim of the
appellants that all the appointments were made on substantive vacancies. It is
the grievance of the appellants that without any show cause notice, by order dated19.09.2003,
their appointments have been converted into adhoc appointment. The appellants
also pointed out that the Rules nowhere provides that the regular appointments
can be converted into ad hoc appointments, hence, the order passed by the
District Judge, Mahoba, terminating their services cannot be sustained and the
same was wrongly approved by the High Court. The appellants have asserted that
they were appointed by order dated 13.08.2001 i.e. within one year of their
selection by select list dated 19.09.2000, as such, the grounds mentioned in
the order dated 19.09.2003 cannot be sustained and the service of the
appellants has to be treated as regular service and no adverse order can be
passed against them.
6.
On
the other hand, it is the contention of the respondents that in view of Rule 12
of the Uttar Pradesh Subordinate Civil Courts Inferior Establishment Rules,
1995 (in short `the Rules'), the select list, mentioned as waiting list, should
be a moderate one containing that number of candidates which was not less than
or much excess of the vacancies which might be available in the year of
recruitment or the year succeeding thereto and this list should be in
reasonable proportion to the notified vacancies. In other words, according to
the respondents, a wait list of the candidates contemplated under Rule 12 cannot
be deemed to be subsisting for a period beyond the filling up of the notified
vacancies. It is also submitted by the respondents that once all the vacancies
were filled up, the waiting list would stand exhausted. In support of the above
stand, the respondents relied on Office Memorandum of the State Government
dated 31.01.1994 in which it has been provided that the waiting list should be
valid only for one year.
7.
In
order to consider the rival claim of both the parties, it is useful to refer
the relevant provisions from the Rules:-
Rule 2 (f) defines
"Waiting List" as the list of candidates approved under the rules,
for appointment to the various posts in the establishment. Rule 4(2) of the
Rules lays down the method of recruitment for Process Servers, Orderlies,
Office Peons and Farrashes and reads thus: "Rule 4. Method of
recruitment.--Recruitment to the following posts in the establishment shall be
made-- (1)..... (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) ....."As
per Rule 5, all appointments to the establishment in a Judgeship shall be made
by the District Judge. Rule 12 is very relevant for our purpose which reads as
under: "12. Waiting List--(i) A waiting list of candidates shall be maintained
for each Judgeship for the posts of process servers, orderlies, office peons
and far rashes. 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, mis behaviour or dishonesty in the discharge of
their 9 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."
1.
2.
3.
4.
5.
6.
7.
8.
The
advertisement dated 17.08.2000 makes it clear that a waiting list for the post
of Tamola Dahak Orderly, Peons and Farrash in the pay scale of Rs. 2550-3200/-
for District Court, Mahoba is to be prepared. In view of the same, applications
from eligible candidates were invited in the prescribed format and the same has
to be submitted to the Office of Senior Administrative Officer of District
Judge, Mahoba. The advertisement further shows that the candidates will be interviewed
on 11.09.2000 at District Court, Mahoba. The eligibility conditions for the said
posts were that the candidates should be at least 8th, should be an Indian
citizen, capable of writing and reading English words and figures andshould not
be less than 18 years and more than 35 years as on 31.09.2000. There is no
dispute that all the three appellants satisfied the eligibility conditions. The
list of selected candidates interviewed during 11.09.2000 to 15.09.2000 in
District Court, Mahoba was published on19.09.2000. In that select list,
appellants were shown at S.No.9, 10 and 11. By appointment orders dated
13.08.2001 of District Judge, Mahoba, the appellants have been appointed to Class
IV posts in the District Court, Mahoba. No doubt, it is specifically stated
that they were appointed in a temporary capacity in the pay scale of Rs.
2550-3200/- and their appointment was purely temporary and was terminable at
anytime without any prior notice.
9.
It
is the claim of the respondents before the High Court as well as before us that
since the appellants were appointed after a period of one year from the date of
their selection by select list dated 19.09.2000, in terms of Government Order
as well as Rule 12, their appointment cannot be sustained since the wait list
stood exhausted on the appointments being made against the available vacancies
on the date of advertisement i.e., 6 + 1, and therefore, they have no right to
claim any appointment. We are unable to accept the said contention. We have
already noted the date of advertisement and the vacancies available. The
material placed as well as the details available in the order of the learned
Single Judge of the HighCourt clearly shows that on 20.09.2000, the District
Judge appointed six persons, namely, Sri Shitla Prasad, Shri AnandKumar Shukla,
Shri Santosh Kumar Saini, Shri Ravi Ranjan Kumar Gautam and Shri Vinod Kumar
Paliwal on these available six vacancies on the thirty five sanctioned posts
(31at Mahoba and 4 at Charkhari) in the Judgeship. These factual details were
extracted by the learned single Judge in the order dated 26.11.2005 based on
the information supplied in the counter affidavit of Shri Balendu Singh, Ist
Additional District Judge, Mahoba. The same order further shows that Shri Prem
Narayan at S. No. 7 was left out and was given appointment as SC candidate on
23.12.2000. Smt. Mamta Devi at S.No. 8 of the list drawn according to roster
was given appointment on 13.02.2001. It is further recorded that the candidates
at S.Nos. 9 to 12, namely, Shri Naseem Ahmad,Shri Prakash Chandra, Shri Sohan
Lal, (appellants herein),Shri Rajendra Prasad Gautam were given appointments as
against four vacancies at the outlying court at Charkhari.
10.
It
is clear from the information furnished before the learned single Judge that
the select list of the appellants was dated 19.09.2000 whereas they were
appointed by order dated13.08.2001 i.e. within one year of the declaration of
results. The order dated 19.09.2003 provides that only the appointments made
after 19.09.2001 were ad hoc. As all the appellants have been given appointment
within one year of publication of select list dated 19.09.2000, their services cannot
be termed as ad hoc. Even if it is accepted that waitlist is valid only for one
year, since the appellants were appointed well prior to the expiry of the one
year, the said objection cannot be countenanced.
11.
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 dated19.09.2000,
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 12contemplates 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.
13.
Under
these circumstances, the claim of the appellants has to be accepted. In the
course of hearing, it is brought to our notice that appellant Nos. 1 and 3
i.e., Naseem Ahmadand Sohan Lal were once again appointed temporarily for oneyear
by order dated 30.11.2007 as Class IV employees. However, the appellant No. 2
-Prakash Chandra was not re-appointed since at that time he was over aged.
14.
In
these circumstances, we hold that appellant Nos. 1 to3 are deemed to continue
in service from the date of initial selection i.e., 13.08.2001 and for all
purpose and service benefits, the relevant date is date of their initial
selection i.e.,13.08.2001 and they are permitted to continue as per the Rules
applicable. The impugned order of the High Court is set aside. The appeal is
allowed to the extent mentioned above. No costs.
.........................................J.
(R.V. RAVEENDRAN)
..........................................J.
(P. SATHASIVAM)
..........................................J.
(A.K. PATNAIK)
NEW
DELHI;
DECEMBER
10, 2010.
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