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1987 DIGILAW 83 (ALL)

Pawan Singh v. District Judge

1987-01-23

RAJESHWAR SINGH, V.N.KHARE

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JUDGMENT : Rajeshwar Singh, J. We dismissed this petition on 20th January, 1987 and ordered that the reasons would be given later. So, now we proceed to give our reasons. 2. The Petitioner prays for a writ of certiorari quashing the order dated 4th December, 1984 passed by the District Judge, Agra cancelling the list of selected candidates, and for a writ of mandamus directing him to make appointments to the posts in the ministerial staff from the list of selected candidates prepared in 1980. 3. It appears that the District Judge, Agra held an examination for selection of candidates to the ministerial staff in the year 1980 and on 28th July, 1980 he prepared a list of seventy five persons. During the first year after the preparation of this list only twenty candidates could be appointed. By an order dated 17th October, 1981 (Annexure II) the District Judge directed that this list be continued for another year. Again, on 2nd September, 1982, (vide Annexure V) the District Judge declared the list valid for another year. Subsequently, through Annexure VI on 4-12-1984, the District Judge, who took over subsequently, cancelled the list saying that it was contrary to rules to continue the list. It was in this list that the names of the Petitioners were to be found. So, they lost the chance of being appointed and filed this petition. 4. The writ petition is opposed by the Respondents. Their contention is that under the rules the list could not be continued for more than a year and it was rightly cancelled by the District Judge. 5. For recruitment to the ministerial staff in subordinate courts there are rules of 1947 and 1950. The Petitioners rely on Rule 7(2) of 1950 rules providing that no person, not included in the list of selected candidates, will be appointed till the list has exhausted. The Respondents base their case on Rule 14(3) of the 1947 Rules that lays down that if a candidate has not been given an appointment within one year from the date of recruitment his name will stand automatically removed. 6. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla AIR 1986 SC 1043 relied upon by the Petitioners the Supreme Court held that the rules of 1950 prevail when there is inconsistency between 1950 and 1947 rules. 6. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla AIR 1986 SC 1043 relied upon by the Petitioners the Supreme Court held that the rules of 1950 prevail when there is inconsistency between 1950 and 1947 rules. It specifically says that rules 9 to 12 of the 1947 rules stand superseded by the 1950 rules, and on other topics not dealt with in 1950 rules the 1947 rules remain in tact. Rule 3 of the 1947 rules deals with the life of the select list. Rule 7(2) of the 1930 rules aims at prevention of appointment of candidates not coming through competition, when candidates successful at the competition are available. They deal, with different topics and both can stand together. Interpreting harmoniously they will mean that the select list will stand cancelled after one year and during this one year a candidate from outside the list will not be appointed unless the list has exhausted. 7. Rule 7(2) of 1950 rules provides that no person not selected in accordance with Rule 7(1) will be appointed till the list of selected candidates has exhausted. This list of selected candidates is to be prepared under Rule 7(1). Rule 7(1) provides that only so many candidates will be selected as may be sufficient for filling the vacancies determined under Rule 3. Rule 3 merely says that a competitive examination will be held. Infact, the vacancies are determined under Rule 4 which says that it will be ascertained as to how many vacancies would occur in the following year, and an information would be given about the number of vacancies to the general public. In the present case, no such information about the number of vacancies seems to have been given to the general public. In Rule 5 it has been said that if there is no need of annual recruitment, then recruitment would be made when necessary. The term "annual recruitment" has been used. Thus, the intention is that recruitment has to be made every year, and only so many candidates are to be selected as may be sufficient to fill the vacancies of the following year. To repeat, we may say that it should first be determined as to how many vacancies would occur in the following year, and candidates sufficient to fill that number of vacancies should be selected. To repeat, we may say that it should first be determined as to how many vacancies would occur in the following year, and candidates sufficient to fill that number of vacancies should be selected. Then no ad hoc appointment can be made till this list exhausts and if before the next selection it becomes necessary to fill some vacancies, then of course appointments may be made from outside the list as a stop gap arrangement. 8. What happened in this case was that a list of seventy five candidates was prepared, but only twenty persons could be absorbed in the following year, and the list did not exhaust even in three years. This shows that the District Judge never ascertained the number of probable vacancies that were likely to occur in the following year and he prepared the list in utter disregard of it. Thus, the list prepared by the District Judge was not in accordance with Rules 3, 4, 5 and 7(1). When it was not so, Rule 7(2) of 1950 rules could not apply and Rule 14 of 1947 rules must be given effect to. 9. Even otherwise, the public policy demands that employment should be evenly spread over a number of years and the recruitment for several years together should not be made at a time. If it is done, the recruitment will be on a vast scale and availability of good candidates will be affected. For several years to come there will be no recruitment and the persons becoming eligible in those years will suffer. This is unfair, and to do it will be virtually violating Rules 3, 4, 5 and 7(1) of 1950 rules. Even if two interpretations are possible, the one which is in accordance with public policy and for public good, should be accepted. 10. So, the decision of the District Judge cancelling the list was correct. 11. Lastly, the point of promissory estoppel was raised, but it has no force, because neither any promise was held out, nor the Petitioners acted on any promise altering their position to their disadvantage. 12. We are, therefore, of the opinion that the order of the District Judge cancelling the list does not suffer from any legal infirmity. This writ petition is liable to be dismissed.