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1995 DIGILAW 1297 (ALL)

AJIT KUMAR SRIVASTAVA v. DISTT DEVELOPMENT OFFICER BALLIA

1995-12-11

B.S.CHAUHAN

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B. S. CHAUHAN J. The petitioners applied for the job of Typist Clerk in pursuance of the advertisement published in the newspaper on 9th November, 1989. The Selection Committee completed the process of selection on 15- 11-1989 and prepared the merit list (Annexure-1 to the writ petition ). The petitioners stood at serial Nos. 14, 15 and 16 in the said select lists. The first nine candidates as per the merit list were given appointments and from serial Nos. 10 to 22 were placed in the waiting list. The averment of the petitioners is that they were appointed on a short term vacancies on stop-gap arrangement. Respondent No. 1, vide his order dated 30-6-1993 terminated the job of the petitioners while they were functioning on stop-gap arrangement (Annexure-7 to the writ petition ). The said letter clearly provides that the services of Sri Ajit Kumar Srivastava, petitioner No. 1, who was functioning on the post held by Km. Indu Lata Srivatava on stop-gap arrangement as the former had been prompted, for a short period, were terminated forthwith. The order further provides that the services of all those persons who were working on stop-gap arrangement on leave vacancies etc. in the office of respondent No. 1, were no more required and if any wages were due to them it would be paid to them. The petitioners made various representations to respondent No. 1 to give them job, but their representations were not considered favour ably by him. Hence the instant writ patition was filed praying that the termination order dated 30-6-1993 (Annexure-7 to the writ petition) be quashed and the respondents may be directed to appoint the petitioners on regular basis against substantive vacancies. 2. Beard Sri S. N, Srivastava, learned counsel for the petitioners and the learned Standing counsel for the State. 3. The waiting list contained the names of thirteen candidates and the petitioners figured therein at serial Nos. 14, 15 and 16, though only the first nine candidates of the merit list had been appointed. 2. Beard Sri S. N, Srivastava, learned counsel for the petitioners and the learned Standing counsel for the State. 3. The waiting list contained the names of thirteen candidates and the petitioners figured therein at serial Nos. 14, 15 and 16, though only the first nine candidates of the merit list had been appointed. The said waiting list had been prepared in contravention of the Rules of the Subordinate Officers Ministerial Stall (Direct Recruitment) Rules, 1985 (hereinafter called the Rules) as Rule 23 (8) of the Rules reads as under : "the number of candidates to be selected will be larger (but not larger than 25 per cent) than the number of vacancies for which the selection has been made. " Thus, as only nine vacancies had been filled up, to the waiting list only two persons could have been included and as the petitioners names had been shown at serial Nos. 5 to 7 of the waiting list, they cannot derive any benefit from the said selection list. The petitioners had been given only stop-gap arrangement for a short-term and their services have to be governed according to the terms of their appointment letter. Thus, it is not possible to ascertain as to what were the terms of their appointment. The relevent provisions of the said Rules for the purpose of this case are quoted below:- "26. Appointment by Appointing Authority.-The select list referred to in sub-rules (6) and (7) of Rule 23 shall be forwarded by the Selection Committee to appointing the authority mentioning aggre gate marks obtained at the selection by each candidates. The name of general and reserve candidates shall be arranged by the appointing authority in a common list according to the merit of the candidates and the appointment shall be offered in the order in which the names are arranged in the list. The select list shall held good for a period of one year from the date of selection. 27. Ad hoc appointments.- Where the list of selected candidates is exhausted or no candidate is available for appointment from out of the list of the selected candidates, ad hoc appointment from amongst persons eligible for appointment under these rules may be made by the concerned appointing authority. Such appointments should not last for a period exceeding one year or beyond the next selection under these rules, whichever be earlier. 4. Such appointments should not last for a period exceeding one year or beyond the next selection under these rules, whichever be earlier. 4. Learned counsel for the petitioners has drawn the attention of the Court to the letter dated 5-6-1992 which has been written to the Commissioner, Rural Development U. P. , respondent No. 3, seeking instructions for the employment of the persons whose names have been mentioned in the waiting list (Annexure-3 A to the writ petition ). The Commissioner, vide his letter dated 22nd July, 1992 has replied the said letter directing respondent No. 1 to act in accordance with the Government Order dated 28th January, 1986 (Annexure-4 to the writ petition ). The G. O. of 1986 provides for the pro cedure to fill up the leave vacancies or short term vacancies. It further provides to offer the employment in such contingency to the person whose name has been included in the select list. Learned counsel for the petitioners argued that as the names of the petitioners were enlisted in the select list (waiting list) at serial Nos. 5 to 7 the job should have been given to them on regular basis. 5. Rule 27 provides that the ad hoc appointment cannot be made for more than a period of one year or beyond the next selection under the said rules whichever is earlier. Rule 26 clearly provides that the select list shall lapse after one year from the date of selection. 6. In the instant case the Rules provide that selection shall be held every year. The petitioners were included in the waiting list on 15-11-1989 and that too in contravention of the provisions of Rules 23 (8) of the Rules. The said list as per the provisions of the Rule lapsed on 14-11-1999. Petitioners filed the instant writ petition in August, 1993 for quashing the termination letter dated 30-6-1993 and also claimed regularisation. It has further been brought on record that the selection process was initiated again in 1995 and Sri Ajaj Ahmad, petitioner No. 2, had appeared before the said Selection Committee, but failed to succeed. Respondents have pointed out in the counter affidavit that the petitioners has been given temporary appointment on stop-gap arrangement on a short term vacancies in different periods and they were not given any regular appointment in temporary existing vacancies. Respondents have pointed out in the counter affidavit that the petitioners has been given temporary appointment on stop-gap arrangement on a short term vacancies in different periods and they were not given any regular appointment in temporary existing vacancies. The question of their absorption and regalarisation does not arise under the said Rules 198s. The contention raised on behalf of the petitioners that they had been offered stop-gap arrangement within the period of one year from the date of preparation of the select list does not give them the right of regularisation at all as the stop-gap arrangement has come to an end in terms and conditions of their appointment. 7. In the case of State of Punjab v. Surinder Kumar, AIR 1992 SC 1593 , the Supreme Court observed as under : "it was also not suggested that the respondents accepted the terms set out in Annexures P/l and P/2 under mistake. . . . . . . . . . We, therefore, do not find any reason as to why the specific terms on which the appointments were made could be enforced. " 8. Similarly, in the case of Director, Institute of Management, U. P. v. Smt. Pushpa Srivastva, AIR 1992 SO 2070, the Supreme Court has observed that such an appointment is purely on a contractual basis and has to come to an end according to the terms of appointment. Thus, if the petitioners had been given a short term appointment it would come to an end in accor dance with the terms of the appointment letter itself. The learned counsel for the petitioners prayed that looking to the hardship of the petitioners, this Court may grants equities relief. It is settled law that no equities relief can be granted by the Court in contravention of the provisions of law, as observed by the Supreme Court in the case of Madamanchi Ramappa v. Mathalura Bojappa, AIR 1963 SC 1633 : "what is administered in Court is justice according to law and con siderations of fair play and equity however important they may be, must yield to clear and express provisions of law. " So far as the correspondence between respondents No. 1 and 2 for seeking guidance to provide job to all the persons whose names had been included in the waiting list of 1989 select list is concerned, it seems to have been procured at the behest of the petitioners for extraneous considerations. It was unwarranted and uncalled for the respondent No. 1 to seek such direction as inclusion of petitioners in the waiting list itself was contrary to the mandate of the Rules. Moreover, the waiting list, was not an ever lasting reservoir, that respondent No. 1 could use it for ever to fill up a vacancy, whenever it arises. 9. In the case of Devhi Nandan Prasad v. State of Bihar, AIR 1983 SC 1183 the Supreme Court observed as under: "nothing moved as is the sad experience that nothing moves unless like the law of inertia some outside force acts upon it and puts the files on motion. What the outside force is we need not dilate. " 10. Similarly, in the case of Delhi Transport Corporation v. D. T, C. Mezdocr Congress, AIR 1991 SC 101 , the Supreme Court has held as under : "courts should take note of actualities of life that persons activated to corrupt practices are capable to maneuver with higher echelons in diverse ways and also camouflage their activities by becoming sycophants or cronies to the superior officer. Sincere, honest and devoted subordinate officers are unlikely to lick the boots or the corrupt superior officer. " 11. In the last Sri S. N. Srivastava, teamed counsel for the petitioners pleaded to make some observations in favour of the petitioners to consider their case in future by giving some relaxation of age and other conditions of eligibility as the petitioners have become over age. . I am afifraid this Court has not been clothed with power to make such observations. In the case of State of Punjab v. Surinder Kumar (supra), the Supreme Court observed as under: "the Constitution has, by Article 142, empowered tha Supreme Court to make such order as may be necessary for doing complete justice in any case or matter pending before it, which authority the High Court does not enjoy. In the case of State of Punjab v. Surinder Kumar (supra), the Supreme Court observed as under: "the Constitution has, by Article 142, empowered tha Supreme Court to make such order as may be necessary for doing complete justice in any case or matter pending before it, which authority the High Court does not enjoy. The jurisdiction of the High Court while dealing with a writ petition, is circumscribed by the limitations discussed and declared by the judicial decisions and it cannot transgress the limits on the basis of whims or subjective sense of justice varying from Judge to Judge. " In the case of J. and K. Public Service Commission etc. v. Dr. Narinder Mohan, AIR 1994 SC 1808 , the Apex Court has observed as under : "therefore, the High Court is not right in placing reliance on the judgment as a ratio to give the direction to the Public Service Commission to consider the cases of the respondents. Article 142-power is confined only to this Court. The ratio in. . . . . . is also not an authority under Article 141. " 12. In view of the above, the writ petition fails and is dismissed. There shall be no order as to costs. Petition dismissed. .