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2004 DIGILAW 831 (ALL)

Mohd. Islam v. District Judge

2004-04-16

ARUN TANDON

body2004
JUDGMENT : ARUN TANDON, J. 1. These three writ petitions arise out of the same selection held in the judgeship of Jaunpur for the post of Stenographer. All the writ petitions are being decided under this common judgment. 2. In the judgeship of Jaunpur an advertisement was published inviting applications for appointment on the post of Stenographers, under the Subordinate Civil Courts Ministerial Establishment Rules, 1947 (hereinafter referred to as the Rules), as amended from time to time, after selection was held, a select-list was declared vide order dated 18th November, 1993 of the District Judge. The said select-list comprised of six persons, namely, S/Sri Avinash Kumar Maurya, Rajendra Kumar Maurya, Shambhu Nath Maurya, Mohd. Islam, Ratan Kumar Pandey and Siyaram Yadav in order of merit. In the select list itself, it was mentioned that there are only two vacancies of Stenographers in the pay scale of Rs. 1,200-2,040. The persons who were enrolled at serial Nos. 1 and 2 were offered appointment against the said vacancies and there is no controversy in that regard. 3. Under Rule 14 of the aforesaid Establishment Rules, the life of select list is provided as one year. The life of the select list, as such was to expire on 17th November, 1994. However, the Hon'ble High Court issued a circular letter dated 28th July, 1994 whereby the life of the select list was extended from one year to three years. 4. On 13th March, 1995 an order was issued by the District Judge in favour of the Ratan Kumar Pandey, who was enrolled at serial No. 5 in the select list, appointing him on the post of Copiest. In the said letter, it was mentioned that the said appointment was subject to the approval of the High Court. On 4th March, 1995 another order was issued whereby Sri Shambhu Nath Maurya, who was enrolled at serial No. 3, was offered appointment on the post of Stenographer. 5. The petitioners of the Writ Petition No. 33727 of 1995, namely Mohd. Islam and Sri Siyaram Yadav, who were enrolled at serial Nos. 4 and 6 of the select list, filed representation before the District Judge, Jaunpur claiming therein that they should be offered appointment, on the post of Stenographers as has been done in the case of Ratan Kumar Pandey and Shambhu Nath Maurya. The representation filed by the petitioners was not decided. 4 and 6 of the select list, filed representation before the District Judge, Jaunpur claiming therein that they should be offered appointment, on the post of Stenographers as has been done in the case of Ratan Kumar Pandey and Shambhu Nath Maurya. The representation filed by the petitioners was not decided. As such, the said petitioners, namely, Mohd. Islam and Sri Siyaram Yadav filed Writ Petition No. 33727 of 1995 before this Court. This Court by means of the interim order dated 24th November, 1995 required the District Judge, Jaunpur to look into the grievances of the petitioners and dispose of their representations, if any, and to communicate the decision within a month. The District Judge, Jaunpur by means of the order dated 4th January, 1996 rejected the representation of the petitioners. The said order has been brought on record before this Court by means of the supplementary affidavit. Reference has also been made to the Act that one Pankaj filed Writ Petition No. 47624 of 1993 before this Court. In the said writ petition, an interim order was passed by the Court on 9th December, 1993, whereby it was provided that one post of Stenographer shall be kept vacant. During the continuance of the said interim order, Sri Shambhu Nath Maurya was offered appointment on the post of Stenographer as a new Court of Additional District Judge was created in the judgeship of Jaunpur on 1.1.1995. Mohd. Islam and Sri Siyaram brought the interim order to the knowledge of the District Judge as a result whereof the appointment of the Sri Shambhu Nath was ceased. 6. Writ petition filed by the Sri Pankaj Kumar Pandey was dismissed on 8th January, 1998 by the learned single Judge. Against the said order of the learned single Judge, a special appeal, being Special Appeal No. 381 of 1998 was filed by Sri Pankaj Kumar Pandey, which was dismissed on 23rd July, 2002. As a consequence thereto, the appointment of Sri Shambhu Nath has since been regularised. 7. In none of the writ petitions, which are up for consideration, there is any challenged to the appointment of Sri Shambhu Nath nor he has been impleaded in the writ petitions as respondent. This Court, as such, cannot look into the controversy with regards of the appointment of Sri Shambhu Nath. 8. 7. In none of the writ petitions, which are up for consideration, there is any challenged to the appointment of Sri Shambhu Nath nor he has been impleaded in the writ petitions as respondent. This Court, as such, cannot look into the controversy with regards of the appointment of Sri Shambhu Nath. 8. Writ Petition No. 51136 of 2002 has been filed by Sri Ratan Kumar Pandey, who was empanelled at Serial No. 5 of the select list prepared for the post of Stenographer on 18th November, 1993. On the basis of the said select-list, the petitioner, Sri Ratan Kumar Pandey made a representation addressed to the Registrar of the High Court of Judicature at Allahabad in August, 1994 for being appointed against the post of Clerk/Copiest. The Joint Registrar of the Hon'ble High Court by means of the letter dated 21st November, 1994 asked for the report from the District Judge on the representation of Ratan Kumar Pandey. After correspondence, the petitioner was offered appointment on the post of Clerk/Copiest vide order of the District Judge dated 30th March, 1995 on the basis of the said select-list of Stenographer. Information of the appointment of Sri Ratan Kumar Pandey was forwarded to the High Court by the District Judge by means of the letter dated 2nd May, 1995. The petitioner thereafter, continued to function. 9. After nearly eight years, Ratan Kumar Pandey was served with a notice by the District Judge dated 21st August, 2003 calling upon the petitioner to show cause as to why his appointment be not cancelled. The petitioner submitted a reply to the, same by the letter dated 3rd September, 2003. The District Judge not being satisfied with the reply submitted by the petitioner, passed the order dated 6th October, 2003 holding that the appointment of Sri Ratan Kumar Pandey is illegal and contrary to law, and therefore, he cannot be permitted to continue in service. Sri Ratan Kumar Pandey has challenged the said order of the District Judge by means of the writ petition filed before this Court. 10. I have heard Sri Arvind Srivastava and Sri P.N. Tripathi, learned counsel for the petitioners and Sri K.R. Sirohi, learned counsel for the respondents and have gone through the records of the writ petitions. 11. Sri Ratan Kumar Pandey has challenged the said order of the District Judge by means of the writ petition filed before this Court. 10. I have heard Sri Arvind Srivastava and Sri P.N. Tripathi, learned counsel for the petitioners and Sri K.R. Sirohi, learned counsel for the respondents and have gone through the records of the writ petitions. 11. On behalf of the petitioners of Writ Petition No. 33727 of 1995, it is contended that two posts of Stenographers were created in the judgeship of Jaunpur because of a new Court of Additional District Judge being created on 1st November, 1995, another by creation of a new Court of Civil Judge (Junior Division) on 2nd February, 1996 in the judgeship of Jaunpur. Against the aforesaid two newly, created vacancies of Stenographers, the petitioners claim appointment on the basis of the select list dated 18th November, 1993, as according to the petitioners the said vacancies became available for appointment during the extended period of the validity of the select list, vide circular of the High Court dated 28.7.1994 whereby the life of the select-list was extended from one year to three years. 12. The petitioners, in support of this contention reliance has been placed upon the judgment of the Hon'ble Supreme Court in Dr. Uma Kant vs. Dr. Bhika Lal Jain and Others, 1991 (5) SLR 624 specifically paragraph 8 of the said judgment. It is submitted that the - purpose for extending the life of the select list is only to accommodate candidates included in the select list against the vacancies, which may become available during the extended period of the Validity of the select list. It has further/been contended that the High Court, while issuing circular dated 28th July, 1994, was aware of the fact that the two vacancies, which were available at the time of advertisement, for which select list had been prepared on 11th November, 1993 had already been filled and therefore, the only purposes for issuance of the circular letter dated 28th July, 1994 was to permit the appointment of empanelled candidates against the vacancies, which may become available during the extended period of the life of the select list. 13. On behalf of Sri Ratan Kumar Pandey, it is contended that the appointment of the petitioner as clerk was made during the subsistence of the extended period of validity of the select-list. 13. On behalf of Sri Ratan Kumar Pandey, it is contended that the appointment of the petitioner as clerk was made during the subsistence of the extended period of validity of the select-list. Sri Ratan Kumar Pandey was at serial No. 5, the candidates empanelled at serial Nos. 3 and 4 did not make any application for being appointed as clerk and therefore, the appointment was offered to the petitioner, as he alone had applied for being appointed against the post of clerk. 14. It is further contended that the post of Stenographer and clerk belongs to the same Ministerial Cadre in the Subordinate Civil Courts and having cleared, the selection held for the post of Stenographer it cannot be said that the petitioner had not been selected for the post of Clerk. In the alternative, it is submitted that: the District Judge had power under the provisions of Rule 269 of the General Civil Rules, 1957 for making appointment on the ministerial post of Copiest in the Subordinate Civil Court in exigency of service, the petitioner having put in eight years of service on the post of Copiest, is entitled for regularisation in view of the provisions of the U. P. Regularisation of Ad Hoc Appointment (On the Post Outside the Purview of Public Service Commission) Rules as amended in 2001. 15. Lastly, it is contended on behalf of Sri Ratan Kumar Pandey that the petitioner having put in eight years of service, should not be thrown out to the employment on equitable consideration. In support of this contention reliance has been placed upon the judgments of the Hon'ble Supreme Court in the cases of H.C. Puttuswamy vs. Chief Justice of Karnataka High Court, 1991 (2) SCC 421, Buddhi Nath Chaudhary and Others vs. Abahi Kumar and Others, (2001) 3 SCC 328 , Ashwani Kumar and Others vs. State of Bihar and Others, 2003 UPLBEC 1951 and National Insurance Co. Ltd. vs. Sarojini and Others, (1994) 2 ACC 423 . 16. Ltd. vs. Sarojini and Others, (1994) 2 ACC 423 . 16. On behalf of the respondent District Judge, it is contended that the Full Bench of this Court in the judgment in D.N. Srivastava vs. State of U.P. and Others, 1996 (2) UPLBEC 1037 after taking into consideration, the provisions of Rule 14 of the Subordinate Civil Courts Ministerial Establishment Rules, 1947 as amended upto date, had specifically held that the life of the select list prepared under Rule 14 is one year only. In view of the pronouncement of the aforesaid Full Bench, the circular of the High Court dated 18th July, 1994 cannot have any legal effects inasmuch as no circular can run contrary to the statutory Rule. It is also contended that the said circular has also been withdrawn vide subsequent circular dated 24th May, 1996. Therefore, none of the petitioner can claim any right on the basis of the select-list prepared on 18th November, 1993, the life whereof had expired on 17th November, 1994. There was no vacancy available for offering appointment to the petitioner on the said cut of date. 17. As against, case set up by Sri Ratan Kumar, it is contended by the respondents that the said appointment of Ratan Kumar Pandey was patently illegal under Rule 3 of the Subordinate Civil Courts Ministerial Establishment Rules, 1947, it is specifically being provided that the cadre of Stenographer shall be a separate cadre and in view of the said statutory Rule, it cannot be claimed by Sri Ratan Kumar Pandey that on the basis of his selection as Stenographer, he becomes entitled to be appointed as Clerk/Copiest. It is also contended that the post of Clerk/Copiest was never advertised. Pay-scale admissible to the post of Stenographer is 1,200-2,040 while that admissible to the post of clerk is Rs. 950-1,500. The minimum qualifications and the procedures for selection of the two posts are completely different. The petitioner cannot claim appointment as Clerk/Copiest on the basis of the select-list prepared for Stenographer. The appointment of the petitioner was void and in violation of the Establishment Rules as well as also that of Articles 14 and 16 of the Constitution of India. 18. The petitioner cannot claim appointment as Clerk/Copiest on the basis of the select-list prepared for Stenographer. The appointment of the petitioner was void and in violation of the Establishment Rules as well as also that of Articles 14 and 16 of the Constitution of India. 18. It is lastly contended that the equity did not lie in favour of Sri Ratan Kumar Pandey as his appointment was void, having being made without following any procedure prescribed and without any advertisement for the post of Clerk/Copiest. On the basis of such appointment, Sri Ratan Kumar Pandey cannot be permitted to continue in the employment, as the same, would amount to back door entry. The judgment cited above by the learned counsel for the petitioner are clearly distinguishable. 19. The contention raised by the petitioners has no force. Full Bench of this Court in the judgment in D.N. Srivastava vs. State of U.P. and Others, 1996 (2) UPLBEC 1037 after referring to the provisions of Rule 14 (1), (3) and 11, has specifically held that under rules, the life of the select list expires after one year from the date of its preparation. 20. The circular issued by this Court dated 28th July, 1994 cannot override the aforesaid statutory rules. It is rightly contended on behalf of the respondents that the High Court cannot issue a circular, contrary to the statutory Rules, and any such circular would be non-est and cannot be relied upon by the petitioners in support of their cases. It is settled law that the circular orders cannot override the statutory rules. 21. The learned counsel of the petitioners has not been able to satisfy this Court about the power of the High Court to issue such a circular, which may run contrary to the statutory Rules. The learned counsel for the petitioner admit that the circular orders are issued to fill in the gap in the rules, however, they cannot violate the statutory rule. No gap in the rules was pointed out which according to the petitioners was being filled by circular dated 28th July, 1994. 22. Even otherwise the purpose for fixing the life of the select-list as one year under Rule 14 can be had reference to the provisions of the Rule 4 of Rules, 1950, (which have superseded Rule 9 of Rules, 1947). 22. Even otherwise the purpose for fixing the life of the select-list as one year under Rule 14 can be had reference to the provisions of the Rule 4 of Rules, 1950, (which have superseded Rule 9 of Rules, 1947). Under the said Rule the District Judge is to determine the number of vacancies, which are to be filled and likely to occur during the course of the year. Rule 10 specifically provides that in the advertisement, the District Judge shall also specifically mention the number of the candidates to be appointment. Reading of the Rules 9 and 10 would establish that the District Judge is required to determine the number of the vacancies, which are available and are likely to occur during the course of the year, so that the same be advertised. The life of the select-list is confined to one year so as to take care of the vacancies, which may be caused during the course of the year, as contemplated under Rule 9. The aforesaid legal position is further established by Rule 14 Sub-clause (3) which specifically provides that in case a selected candidate, from the select list, is not offered appointment within one year, his name from the select list shall stand removed automatically and he will be required to face selection afresh. 23. In view of the aforesaid legal position, this Court has no hesitation to hold that the circular issued by the High Court dated 18th November, 1993 is wholly without jurisdiction and cannot confer any right of appointment upon the petitioners on the basis of the select list dated 18th November, 1993, the life whereof has expired under Rule 14 on 17th November, 1994. 24. Learned counsel for the respondents has also brought to my knowledge the circular issued by this Court on 24th May, 1996 whereby the earlier circular letter issued by this Court dated 28.7.1994 has been recalled. It is stated that the subsequent circular was Issued having regard to the Full Bench decision of this Court referred to above. 25. In view of the aforesaid, the petitioner cannot claim any right of appointment on the basis of the select list dated 18th November, 1993 and the writ petition filed by Mohd. Islam and Siyaram. being Writ Petition No. 33727 of 1995 is dismissed accordingly. 26. 25. In view of the aforesaid, the petitioner cannot claim any right of appointment on the basis of the select list dated 18th November, 1993 and the writ petition filed by Mohd. Islam and Siyaram. being Writ Petition No. 33727 of 1995 is dismissed accordingly. 26. So far as the writ petition of Sri Ratan Kumar Pandey is concerned, from the documents brought on record including his appointment letter, it is established beyond doubt that he was appointed as Copiest on the basis of his selection on the post of Stenographer and inclusion of his name in the said select list of Stenographer dated 18th November, 1993. 27. The contention, raised on behalf of the petitioner to the effect that his appointment as Copiest is on the basis of selection as Stenographer is in accordance with law, does not appeal to this Court. Admittedly, the vacancies, which were advertised by the District Judge, were in respect of the post of Stenographer. Only those candidates could have applied for the aforesaid post, who were possessing the necessary qualification for appointment on the post of Stenographer. 28. For the post of Copiest, the minimum qualification prescribed are different and the candidates, who were otherwise qualified for the post of Copiest could not have applied on the basis of the advertisement by the District Judge for the post of Stenographer. Further, the cadre of Stenographer under 3 Rules itself has been declared to be separate cadre vis-a-vis the cadre of other ministerial staffs. Pay-scales admissible to the post of Stenographer is higher vis-a-vis the pay-scale admissible to the post of Clerk/Copiest. 29. It is established from the order of the District Judge as well as from the record that the available vacancy against the cadre of Stenographer were advertised and selections against the said vacancies of Stenographer alone was held. There was no advertisement with regards to the post of Clerk/Copiest nor any selections was held in respect of the said post. It is also not in dispute that no select list had been prepared for the post of Clerk/Copiest by the District Judge. 30. In view of the aforesaid set of facts, the petitioner, who was empanelled in the select-list for the post of Stenographer alone, cannot claim any appointment on the post of Clerk/Copiest. It is also not in dispute that no select list had been prepared for the post of Clerk/Copiest by the District Judge. 30. In view of the aforesaid set of facts, the petitioner, who was empanelled in the select-list for the post of Stenographer alone, cannot claim any appointment on the post of Clerk/Copiest. If such, an appointment is permitted to be made the same would not only be contrary of the Establishments Rules but would also run contrary to the provisions of Articles 14 and 16 of the Constitution of India. Inasmuch as the eligible persons for the post of Copiest would be deprived of their right for consideration for the post of Copiest. It is needless to emphasize that no appointment by direct recruitment under Rules can be made without the vacancy being advertised. Reference may be made to the judgment of the Hon'ble Full Bench judgment of this Court in Kumari Radha Raizada and Others vs. Committee of Management, Vidyawati Darbari Girls Inter College and Others, 1994 ALJ 1077 in paragraph 42 whereunder this Court in respect of the appointment against the short of vacancy also has held that the vacancy must be advertised in newspapers: "42..................Paragraph 2 of the Order further provides that the short term vacancy, if cannot be filled by promotion due to non-availability of a teacher in the lower grade possessing the prescribed minimum qualification, the same may be filled by the direct recruitment in the manner laid down in sub-paragraph (3) of paragraph 2 of the Order which provides that the management shall intimate the vacancy to the District Inspector of Schools and shall also immediately notify the same on the notice board of the institution requiring the candidate to apply to the Manager of the Institution along with particulars. The advertisement of short term vacancy on the notice board of the institution, according to me, infact no notice to the prospective eligible candidates as no prospective candidate is expected to visit each institution to see the notice board for finding out whether any short term vacancy has been advertised. The advertisement of short term vacancy on the notice board of the institution, according to me, infact no notice to the prospective eligible candidates as no prospective candidate is expected to visit each institution to see the notice board for finding out whether any short term vacancy has been advertised. Since the payment of salary of the teachers appointed against the short term vacancy is the liability of the State Government, the advertisement of short term vacancy must conform to the requirement of Article 16(1) of the Constitution which prohibit the State from doing anything whether by making rule or by executive order which would deny equal opportunity to all the citizen. The provision contained in sub-paragraph (3) of paragraph 2 of the Second Removal of Difficulties Order which provides that the short term vacancy shall be notified on the notice board of the institution does not give equal opportunity to all the eligible candidates of the District, Region or the State to apply for consideration for the appointment against the said short term vacancy. Such kind of notice is an eye-wash for the requirement of Article 16 of the Constitution. This aspect can be examined from another angle. If the notice of short term vacancy, through the notice board of the institution is accepted, it will throw open the doors for manipulation and nepotism. A management of an institution may or may not notify the short term vacancy on the notice board of the institution and yet may show to the authority that such vacancy has been notified on the notice board of the institution and may process the application of its own candidate for the appointment against the short term vacancy should be the same as it is for the ad hoc appointment by direct recruitment under the First Removal of Difficulties Order. The management after intimating such vacancy to the District Inspector of Schools advertise such short term vacancy at least in two Newspapers having adequate circulation in Uttar Pradesh in addition to notifying the said vacancy on the notice board of the institution and further the application may also be invited from the local employment exchange....." 31. The petitioner, Ratan Kumar Pandey has tried to justify his appointment as Copiest on the basis of Rule 3 of the Subordinate Civil Courts Ministerial Establishment Rules, 1947. The petitioner, Ratan Kumar Pandey has tried to justify his appointment as Copiest on the basis of Rule 3 of the Subordinate Civil Courts Ministerial Establishment Rules, 1947. For reading reference to Rule 3 of the said Establishment Rules, 1947 is quoted herein below: "3. Strength of Ministerial Establishment - (1) The ministerial establishment of a judgeship shall form a unit; but the Stenographer shall form a separate cadre: Provided that a Stenographer recruited from regular line may. with the previous approval of the High Court, be reverted to the regular line subject to the condition that he is given a place in the gradation list which he would have occupied in ordinary course had he not been appointed a Stenographer : Scale or pay, if no suitable clerk is available for: Note: (1) The claim of a Stenographer working in the judgeship may also be considered for appointment to a selection post in Grade I in the revised, (1947)/scale of pay, if no suitable clerk is available for promotion to such post, provided that no such appointment shall be made without the previous approval of the High Court. (2) The sanctioned strength of the ministerial establishment of a judgeship shall consist of such posts as may be sanctioned by Government from time to time in the proposition statement of the judgeship: Provided that the District Judge may from time to time with the concurrence of the High Court or the Chief Court as the case may be, leave unfilled or the Governor may hold in abeyance or abolish any vacant post without entitling any person to any compensation." 32. A bare reading of the said rule would be reverted to this High Court. The petitioner cannot take shelter of this rule for the purpose for justifying his appointment as Copiest on the basis of the selection as Stenographer. The said rule is for entirely a different purpose and cannot be read to mean that a candidate included in the select list prepared after advertisement and selection for the post of Stenographer cannot claim nor can be appointed as Copiest/Clerk. 33. Under the rules appointment as a Clerk or as a Stenographer is a must of other actions or subsequent thereto. 33. Under the rules appointment as a Clerk or as a Stenographer is a must of other actions or subsequent thereto. Under the main clause a Clerk can be appointed as a Stenographer in the higher grade and subsequently with the approval of the High Court, he can be reverted to his regular appointment as Clerk. Similarly, under note 1, a Stenographer already appointed in the judgeship, may be considered for appointment to selection post in Grade I in the revised scale of pay. In both the contingencies appointment as Clerk or as Stenographer in accordance with the rules, is must. Thus, the contention of the petitioner that because of the aforesaid rules after selection as Stenographer, he can be appointed as Clerk, cannot be legally sustainable. 34. In view of the said legal position, the post of Clerk/Copiest having not been advertised and no selection having been held for the said post. The petitioner, Sri Ratan Kumar Pandey could not have been appointed as Copiest in the judgeship of Jaunpur on the basis of his selection as Stenographer. 35. In the alternative it is contended on behalf of the petitioner that his appointment may be treated as ad hoc appointment under Rule 269 of General Civil Rule. 36. For reading reference to Rule 269 of the General Civil Rule is being quoted herein below: "269. Zila Nyayadhishon ko soochit kiya jana jab nakal nauishon ke liye karya ki badhotari ho jati hai (District Judge to be informed when work increases for copists), Yadi kisi nayayalaya main nakal karya itana badh jata hai ki nakalvishon ke vartman karmchari uska samana nahin kar saktey to pradhan nakalvishon, Zila Nyayadhish ke nayalaya ke mamley main oos nayayalaya ke madhayam sey tatha kisi anya nayalaya ke mamley main nayalaya ke pithasan adhikari key madhayam sey turan Zila Nayadhish ko report karega. Zila Nayadhish yeh abhinishit karega ki kya sthapan ki koi badhotari avashyak hai aur yadi uski rai main badhotari avashyak ho to vah Uchch Nayayalaya ke samach adesh ke liye is mamley ko report karega. Atiauashyak mamlon main Zila Nayadhish atirikt nakal navishon ko niyozit kar sakta hai aur Uchch Nayalaya ko report kar sakta hai." 37. The power conferred upon the District Judge under Rule 269 is for specific purpose namely to meet the exigency of excess work for Copiest in a particular court or in the office. Atiauashyak mamlon main Zila Nayadhish atirikt nakal navishon ko niyozit kar sakta hai aur Uchch Nayalaya ko report kar sakta hai." 37. The power conferred upon the District Judge under Rule 269 is for specific purpose namely to meet the exigency of excess work for Copiest in a particular court or in the office. From the very nature of appointments, under Rule 269 it is for a particular purpose, namely, to meet temporary rush of work. 38. The emergency power conferred upon the District Judge under Rule 269 cannot be extended so as to a confer right of making ad hoc appointment against the substantive vacancies available in judgeship Jaunpur even where there is no rush of work. In any view of the matter, the petitioner was not appointed under Rule 269, inasmuch as from the correspondence, which have been placed by the petitioner. It is established beyond doubt that the petitioner was offered appointment on the basis of his selection as Stenographer on his own representation for being appointed as Copiest. None of conditions mentioned under Rule 269 for appointment in the exigencies of excess work existed nor the District Judge has exercised his power under Rule 269 for offering appointment to the petitioner. The petitioner having not been appointed under Rule 269, cannot be permitted to claim appointment thereunder in the facts of this case. Appointments under Rule 269 cannot be said to be an ad hoc appointment, nor the benefit whereof cannot be claimed by any person for the purpose of seeking regularisation under regularisation Rules. 39. The other is further contended on behalf of the petitioner that the respondents have notified the appointment of the petitioner to the High Court and for last more than eight years no adverse action was taken in such circumstances, it is to be presumed that the High Court has given its consent to the working of the petitioner. The petitioner has placed reliance upon the judgment of the Hon'ble Supreme Court B.L. Shree Dahr and Another vs. K.N. Muni Reddy, 2002 (8) Supreme 561 and Mohamad Kavi Mohamad Amin vs. Fatmabai Ibrahim, (1997) 6 SCC 71 . The said contention raised by the petitioner is also totally misconceived, inasmuch as there can be no acquaintance or estoppel against statutes. The said contention raised by the petitioner is also totally misconceived, inasmuch as there can be no acquaintance or estoppel against statutes. Once this Court has come to the conclusion that the appointment of the petitioner was void, as it was made without following the procedure prescribed and without advertisement of the post of Copiest/Clerk, merely continuance of the petitioner for certain period on the basis of same court infuse life in such a void appointment. 40. The judgments cited by the learned counsel for the petitioner for the purpose of asserting that advertisement in newspapers is not mandatory, namely Union of India and Others vs. N. Hargopal and Others, (1987) 3 SCC 308 , have no application in the facts of the present case. Inasmuch as under the Establishments Rules advertisement of vacancies in the newspapers is a must, even otherwise, necessary in view of Articles 14 and 16 of the Constitution of India. 41. In view of the aforesaid legal position, none of the contentions raised on behalf of the petitioner, Ratan Kumar Pandey for justifying his appointment as Copiest in the judgeship of Jaunpur, can be legally sustained. 42. The issue now remains for considerations for this Court is as to whether, having regard to the fact that the petitioner, who has put in nearly eight years of service, could be permitted on humanitarian grounds to continue in service or not. 43. Learned counsel for the petitioner contends that no fraud was committed by the petitioner while seeking appointment on the post of Copiest, all relevant facts were stated by the petitioner in his application, the District Judge has also noticed the same, while passing the order of appointment in favour of the petitioner and the matter was reported to the Hon'ble High Court, the High Court also did not take any adverse action against the petitioner for nearly 8 years in such set of facts, the petitioner could not be removed from service, after such long period. 44. In support of this contention the learned counsel for the petitioner has placed reliance upon the judgments of the Hon'ble Supreme Court in the case of H.C. Puttaswamy, (supra). 44. In support of this contention the learned counsel for the petitioner has placed reliance upon the judgments of the Hon'ble Supreme Court in the case of H.C. Puttaswamy, (supra). In the said judgment, the facts of the said case are that then selection process was challenged on the ground that it was primarily for the District Judge to initiate action for filling up of the vacancy in their Courts through the Public Service Commission but the Chief Justice in violation of the statutory requirements himself arranged the selection of candidates and posting in District Court. It was not a case that no selection has been made for being appointed. In such circumstances, the Hon'ble Supreme Court directed that humanitarian approach be adopted. Similarly, in the case of Buddhi Nath Chaudhary (supra) selection was in fact, made for the post in question and for certain defects in following the procedure prescribed, the Hon'ble Supreme Court refused to disturb the services of the selected candidates after more than 20 years because of the violation of the prescribed procedure. 45. In such circumstances, as this Court has already held that the appointment of the petitioner was void, having been made without following the prescribed procedure and without any advertisement, there can be equity against law. As such the order of the District Judge holding that the appointment of the petitioner was not sustainable, cannot be interfered with. 46. However, adopting a humanitarian approach to the problem, having regard to the fact that the petitioner has worked for more than eight years, and in view of the statement made on behalf of the respondents to the effect that the petitioner may now apply for the post of Clerk/Copiest in pursuance of the advertisement of years 1998 and 2003. It is provided that the case of the petitioner, Ratan Kumar Pandey be considered sympathetically and if the time for submissions of application in pursuance of Advertisements of 1998 and 2003 has expired, the District Judge shall accept the application of the petitioner in respect of the said selections. Provided the petitioner, Ratan Kumar Pandey files the same within ten days from today. It is also provided that the petitioner, Ratan Kumar Pandey may continue in service till a fresh selections are held on the present salary. Provided the petitioner, Ratan Kumar Pandey files the same within ten days from today. It is also provided that the petitioner, Ratan Kumar Pandey may continue in service till a fresh selections are held on the present salary. However, if the petitioner, Ratan Kumar Pandey is successful, in the selection to be held for the post of Clerk/Copiest, he shall be offered a fresh appointment and the petitioner will not be entitled to claim any benefit of seniority or pay scale, etc. on the basis of his earlier appointment and continuance thereto. If the petitioner, Ratan Kumar Pandey fails in the said selection, he will not be entitled to continue any further. 47. Subject to the observations, referred to above, these three writ petitions being Writ Petition Nos. 33727 of 1995, 17316 of 1995 and 51136 of 2003 are dismissed. There will be no order as to costs. 48. Interim orders, if any, stand discharged.