Vishwaraj Kumar Singh and Kiran Pal Singh Vs District Judge

Ashok Bhushan, J.@mdashHeard counsel for the petitioners.

2. By this writ petition, the petitioner has prayed for a writ of mandamus commanding the respondents to appoint the petitioners as Class-III employee in the Muzaffarnagar Judgeship.

3. Brief facts necessary for deciding the writ petition are; Twenty-seven vacancies were advertised in the year 1990 of Class-III employees in the Judgeship of Muzaffarnagar. The petitioners also applied in pursuance of the advertisement. A list was prepared by the District Judge. The list was notified on 30^th March, 1991. The petitioners have filed approved list which contains the names of petitioner No. 2, Kiran Pal Singh, at Serial No. 42 and petitioner No. 1, Vishwaraj Kumar, at Serial No. 49. The said list is titled as "Roster List 1991". Twenty-seven persons out of the list were appointed against the vacancies. The petitioners were also given short term appointment on leave vacancies. Petitioners were given appointment on 19.11.1991 and 31.10.1991 respectively and were relieved when leave vacancy came to an end. The petitioners submitted representation to the District Judge that they be given appointment on the basis of their name being included in the select list. Several representations are said to have been given and thereafter the writ petition has been filed on 26^th July, 1996 praying for mandamus.

4. A counter affidavit has been filed on behalf of the respondent. In the counter affidavit it has been categorically stated that the life of the select list prepared on 30.3.1991 expired on 30.3.1994 even after extension granted by this Court from one year to three years. It is stated in the counter affidavit that the petitioners were not given any appointment during the currency of the list, hence their names stand automatically removed after expiry of the list.

5. Learned Counsel for the petitioner, in support of the writ petition, submitted that petitioners having been given appointment within one year from the preparation of the select list, though on the leave vacancy, are entitled for regular appointment. It has further been submitted that persons whose names were lower than the petitioners in the approved list have been given regular appointment even after expiry of the period of the list as claimed by the respondent. It is submitted that one Janak Pal Singh, who was also given appointment on leave vacancy in the year 1991 was appointed on regular basis on 2.1.1995, which is apparent from Annexure-1 to the rejoinder affidavit filed by the petitioners dated 20^th March, 2001. He further submits that other persons whose names find place at Serial No. 43, 44 and 45 were also given appointment on regular basis, hence petitioners have made out a claim for appointment on regular basis.

6. I have considered the submissions and perused the record.

7. The recruitment took place for filling up 27 vacancies. The 27 persons were appointed on the basis of the approved list. Certain more persons were appointed subsequently utilising the same list. The first submission of counsel for the petitioner is that petitioners having been appointed on leave vacancy within a period of one year they must be deemed to have been appointed on regular basis. Learned Counsel for the petitioner has also placed reliance on Rule-16 of the Subordinate Civil Courts Ministerial Establishment Rules, 1947. Rule 16 of the said rule is quoted below:

16. Retention of selected candidates of approved service.- If a selected candidate has once received an appointment and his work has given satisfaction, his name shall not be removed from the register of recruited candidates in the event of his reversion.

8. The submission, which has been raised by counsel for the petitioners is not res integra. The two Division Benches of this Court have already considered the issue and on the basis of the Division Bench judgment, the High Court issued circular letter dated 24^th August, 1994 to all the District Judges. The Division Bench in Special Appeal No. 235 of 1993 had occasion to consider the effect of persons getting appointment on leave vacancy before expiry of the period of one year. The Division Bench held that appointment against leave vacancy within one one year of their empanelment gives no right to claim continuance. In Special Appeal No. 278 of 1993 (A.K. Asthana v. State of U.P.) the Division Bench deprecated the practice of giving short term appointment on leave vacancy to empanelled candidates. The Division Bench, in fact, has termed the said device as manoeuvred proceeding en masse-on medical leave and creating thereby leave vacancies in order that persons selected as Paid Apprentices could be appointed to such leave vacancies and thereby claim regular appointment. Following observations were made by the Division Bench in the said judgment:

The manoeuvred device of regular employees proceeding en masse on medical leave and creating thereby leave vacancies in order that persons selected as Paid Apprentices, for whom no posts were available, could be appointed to such leave vacancies and thereby claim regular appointment, is what was resorted to, to help the appellant (one of the petitioners in the writ petition) achieve the object. It is now on this basis that the appellant seeks regular appointment.

9. Their Lordships have also observed as under:

Appointment to the civil courts is governed by U.P. Subordinate Civil Courts, Ministerial Establishment Rules, 1947 (hereinafter referred to as ''the Rules''). A combined reading of Rule 9 and Sub-Rule (3) of Rule 14 leaves no manner of doubt that the select list is to ensure for only a period of one year...,". It follows that a candidate on the select list can claim to be appointed only in respect of vacancies in the year for which the select list had been prepared and finalised. In the present case the relevant year was 1993.

Such being the circumstances, no exception can indeed be taken to the judgment of the learned Single Judge which is accordingly hereby upheld and affirmed and this special appeal is thus dismissed.

10. Rule-16 relied by learned Counsel for the petitioners does not help the petitioners. The mention of appointment in Rule-16 obviously has to be appointment on a vacant post. Present is a case where petitioners received appointment on leave vacancy which were the posts actually held by other persons. No right can be created by a person appointed on leave vacancy. Rule 16 does not help the petitioners in any manner.

11. The next submission of counsel for the petitioner is that persons who were lower in the select list were offered appointment. He has made reference of Janak Pal Singh, whose name was at Serial No. 35 in Annexure-1 to the writ petition. The petitioners'' case is that subsequently Wasim Akhtar Siddiqui, Laxmi Kant and Nimesh Kumar Jain, whose names are at Serial No. 43, 44 and 45, have been given appointment. Learned Counsel for the petitioner has referred to paragraph 14 of the counter affidavit in which it has been stated that the name of the aforesaid persons were mentioned in the roster list. There is no date of appointment of these three persons as mentioned above whereas the date of appointment of Janak Pal Singh has been brought on the record by the petitioners themselves by Annexure RA-1 to the rejoinder affidavit as 2.1.1995. In the roster list as well as in the approved list Janak Pal Singh is much above the petitioners and also above the aforesaid three persons. Janak Pal Singh having been appointed on 2.1.1995 on regular basis, the persons whose names are mentioned below Janak Pal Singh must have received their appointment subsequent to 2.1.1995. The submission, which has been build up by the petitioners'' counsel is that persons who were lower in the roster/approved list having been given regular appointment after 2.1.1995 and after the list came to an end, the petitioners are also entitled for appointment. The petitioners'' counsel also stated that there is discrimination violating Articles 14 and 16 of the Constitutions. The said submission of the counsel for the petitioners needs consideration from two point of view. Firstly the appointment of the said persons has not been attacked in the writ petition nor there is any prayer for quashing their appointment. It is not necessary for this Court to express any opinion in this writ petition as to what was the basis of their appointment. The submission remains with regard to discrimination violating Articles 14 and 16 of the Constitution.

12. In the counter affidavit it has been specifically stated that select list came to an end on 30^th March, 1994. It is well settled that after select list has come to an end no appointment can be made utilising the select list and no person including the petitioner can claim utilisation of the select list. The appointment of persons whose names have been mentioned above were made subsequent to expiry of the select list and the same cannot be said to be inconformity with the Rules. Further the 27 vacancies were advertised and 27 posts were filled up before even offering appointment to above mentioned persons. After the advertised vacancy being filled up, the select list cannot be utilised for any other vacancy. On this score also the select list cannot be made basis for issuing appointment over and above the advertised vacancies. The Division Bench of this Court in a recent judgment in The District Judge and The Hon''ble High Court of Judicature Vs. Sri Anurag Kumar, Deepak Nigam, Narendra Kumar Khare and Sri Tarun Pratap Yadav, has laid down that select list cannot be utilised from above the vacancies advertised and after its life has come to an end.

13. The basis of the submission of the petitioners'' counsel is that since with regard to persons mentioned above appointment was made by the District Judge on regular basis, the petitioners are also entitled for the same treatment. For seeking a mandamus from this Court on the basis of certain orders passed by authorities with regard to other persons, the petitioners must satisfy the Court that orders passed in favour of those persons with whom parity is sought is legal and in accordance with law. The Apex Court in Chandigarh Administration and another Vs. Jagjit Singh and another, has held that generally speaking the mere fact that the respondent authority has passed a particular order in the case of another person similarly situated can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, such illegal and unwarranted order can be not made the basis of issuing a writ compelling the respondent- authority to repeat the illegality or to pass another unwarranted order.

14. As observed above, the life of select list having come to an end and and all advertised vacancy having been filled up, there is no justification of giving appointment after expiry of the select list. In the event certain persons were appointed after expiry of the select list, the same cannot be made basis for issuing a mandamus in favour of the petitioners at such distance of time.

15. None of the submissions raised by counsel for the petitioners has any substance. On the basis of the aforesaid submissions mandamus cannot be issued to the respondents to give appointment to the petitioners as Class- III employee.

16. The writ petition lacks merit and is dismissed.