D.C. Srivastava, J.@mdashThe petitioner in this writ petition has prayed for a writ of mandamus directing the respondent No. 2 to appoint him as Process Server in Civil Court, Lalitpur with further direction to the respondent No. 2 to deem the petitioner appointed as Class IV employee when a substantive vacancy arose in civil court, Lalitpur.
2. The case of the petitioner is that the District Judge, Lalitpur held an examination for selection of candidates to Class IV post on 19.12.1991 under the provisions of U. P. Subordinate Civil Courts Inferior Establishment Rules, 1955. Oral examination was conducted and the petitioner was found qualified and suitable for the post. On 19.12.1991 Itself, a list of 5 selected candidates for class IV post was declared and published by the District Judge, Lalitpur respondent No. 2 vide Annexure-1, Out of the five candidates so selected, the candidates at Sl. Nos. 1 and 2 were given appointment on the same day. The remaining three candidates were assured that their candidature would be accepted when any vacancy would arise in civil court. Lalitpur. Under Rule 12 of 1955 Rules, no time-limit has been prescribed during which the select list shall remain in force. On 31.8.1992 one Thakur Prasad a class IV employee of civil court, Lalitpur retired, when one vacancy arose. One Sita Ram Maurya another Class IV employee was transferred to Oral on 14.10.1992 when second vacancy arose and the third vacancy arose on 31.3.1993 when Jagi Ram another Class IV employee retired. According to the petitioner, since no time-limit has been fixed under Rule 12 of the Rules hence the waiting list of selected candidates should expire after three years of its preparation, in view of pronouncement in Sailesh Chandra Saxena a. State of U. P., 1989 ALR 13. The petitioner moved several representations for his appointment but with no result. Accordingly this writ petition was filed.
3. In the counter-affidavit, the case of the respondents is that two persons were appointed as alleged by the petitioner. It is also admitted that Thakur Prasad retired on 31.8.1992 and Slta Ram Maurya was transferred to Oral on 14.10.1992 and Jagl Ram retired on 31.3.1993 but it is stated that in 1992, the Court of Munsif Magistrate. Mahraunl, Lalitpur was vacant, hence no appointment was given in view of Government policy and as the waiting list expired on 19.12.1992, the petitioner''s claim for appointment became nonexistent. It has been denied that the waiting list is valid for three years. It is stated that in the order dated 19.12.1991 itself. It was ordered that the list will be effective only for one year and if the aforesaid persons were not given appointment within one year, their selection shall automatically stand cancelled. Accordingly, the waiting list stood cancelled on 19.12.1992 and the petitioner accordingly cannot claim appointment.
4. In the rejoinder-affidavit in para 13, it has been stated that in the order dated 19.12.1991, there was no mention about time-limit of the select list, hence the select list could not be cancelled after one year.
5. A supplementary counter-affidavit was filed by the State of U. P. along with which Annexure-2 was enclosed Indicating Government policy. Annexure-3 is U. P. Subordinate Civil Courts Inferior Establishment Rules. Annexure-1 is the select list dated 19.12.1991.
6. Learned counsel for the parties were heard at length. There is no force in the contention of the learned counsel for the petitioner on the strength of the rejoinder-affidavit that in the select list, no time was mentioned for which the select list shall remain in force. Annexure-1 to the supplementary counter-affidavit has been perused. The last paragraph of the said annexure can be translated as under :
"It is ordered that the said list shall remain in force for a period of one year. If the above persons are not given appointment within a period of one year, their selection shall be deemed to have been cancelled."
7. It is thus clear that while preparing the select list, it was specifically mentioned that the list shall remain in force for a period of one year only. In view of this, the select list expired on 19.12.1992. The name of the petitioner in the select list was at SI. No. 5. He could not be given appointment within a period of one year for the reasons stated in the counter-affidavit that firstly there was no vacancy, secondly if there was a vacancy at Lalitpur, since in the year 1992 the Court of Munsif Magistrate, Mahrauni was vacant, no appointment could be given in view of the Government policy. Government policy is contained in Annexure-2 of the supplementary counter-affidavit.
8. It is further stated in para 14 of the counter-affidavit that after August, 1992, no Class IV employee was given appointment. From para 11 of the counter-affidavit, it is clear that Thakur Prasad retired on 31.8.1992 and Slta Ram Maurya was transferred to Oral on 14.10.1992. In these two vacancies, the petitioner could not be appointed because his position in the select list was at Sl. No. 5. The fifth vacancy arose on the retirement of Jagl Ram on 31.3.1993 but since at that time, the select list stood cancelled, the petitioner could not be given appointment.
9. Learned counsel for the petitioner contended that since no time-limit is fixed in Rule 12 of U. P. Subordinate Civil Courts Inferior Establishment Rules. 1955. normally the select list prepared on 19.12.1991 should have had its life till 19.12.1994 and in support of his contention, he placed reliance upon the Division Bench pronouncement of this Court in Sailesh Chandra Saxena v. State of U. P.. 1989 ALR 13. In this case, it was laid down that even though no particular period is prescribed for the life of the waiting list, yet the same should not be given any extension beyond the period of three years from the date of its preparation. It was further held that to put it differently, for the purposes of making an order for temporary appointment, the list should have been deemed to have exhausted itself on the expiry of three years from the date of its preparation. However, in this case, it was no where laid down that the appointing authority, in cases, where the Rule does not prescribe any time-limit for which the select list has to remain in force cannot fix a time for which the list is to remain in force. There can be no dispute in view of Annexure-3 to the supplementary counter-affidavit that no time-limit has been prescribed under the Rules of 1955 for which the waiting list shall remain in force. However, in view of the aforesaid Division Bench case, if a select list under Rule 12 is prepared and no time-limit is prescribed by the appointing authority, it shall last upto three years but the jurisdiction of appointing authority or the authority preparing the waiting list is not curtailed in case he wishes to fix a time limit during which the list shall remain operative. It cannot be interpreted, in view of the pronouncement in Sailesh Chandra Saxena''s case (supra), that the authority preparing the select list has got no power to fix a time-limit where the Rules do not prescribe any time-limit for which the waiting list or select list shall remain in force. If this is so. then the appointing authority or the authority preparing the select list was justified in placing a limit of one year for which the list dated 19.12.1991 was to remain in force.
10. 1. therefore, do not find any force in the contention that the order of the appointing authority or the authority preparing select list curtailing the period from three years to one year is illegal and without jurisdiction.
11. In view of the above discussions, the list stood cancelled and exhausted on 19.12.1992. The fifth vacancy in which the petitioner could be considered arose on 31.3.1993 when Jagi Ram retired from service and since on that date, the list it self stood cancelled and exhausted, the petitioner could not be considered for appointment,
12. For the reasons given above, if the petitioner was not given appointment after the select list exhausted, no illegality was committed by the respondent No. 2. There is thus no merit in this writ petition. The writ petition is accordingly dismissed. Parties to bear their own costs.
