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2006 DIGILAW 2875 (ALL)

Ashwani Khare v. State of U. P.

2006-11-29

TARUN AGARWALA

body2006
JUDGMENT Hon’ble Tarun Agarwala, J.—The petitioners have filed the present writ petition praying for the quashing of the appointment letters issued to the respondents and have also prayed for a writ of mandamus to the respondents to consider the case of the petitioners for appointment on the post of Routine Grade Clerk (hereinafter referred to as “R.G.C.”). The facts leading to the filing of the writ petition is, that an advertisement was issued in the year 1999 for the recruitment of R.G.C. on 135 posts in the High Court of Judicature at Allahabad. Pursuant to the said advertisement, the petitioners applied and in February, 2001, the results were declared and a select list was issued. The petitioners’ names were found in the waiting list. Some of the petitioners made a representation in the year 2002, 2003 and 2004 praying that they should be considered for the appointment on the post of R.G.C. on the basis of their names being found in the waiting list. The representations of some of the petitioners was rejected by the Hon’ble Chief Justice, by his order dated 5.12.2003, which was intimated by the Registrar General, by his order dated 5.12.2003. Consequently, the writ petitions. 2. Heard Sri Rajesh Khare and Sri V.K.Singh for the petitioners, Sri Ravi Kant, the learned senior counsel assisted by Sri Amit Sthalker for the High Court and Sri Ashok Khare, the learned senior counsel assisted by Sri V.P.Mathur, Sri K.J.Khare and Sri Rishi Chaddha for the contesting respondents. 3. The learned counsel for the petitioners contended that the life of a select list is valid for three years or till such time the next selection is held as contemplated under Rule 10(4) of the Allahabad High Court Officers and Staff(Conditions of Service and Conduct) Rules 1976 (hereinafter referred as “Rules of 1976”). The petitioners contended that without considering the select list, the High Court had arbitrarily appointed the contesting respondents without following the procedure prescribed under the Rules of 1976. The appointments were made without the issuance of an advertisement and therefore, violative of Article 14 of the Constitution of India. In any case, the petitioners were entitled to be given preferential treatment since their names were found in the waiting list. The petitioners contended that they have a better right than the respondents as they had underwent a selection process and therefore, have a preferential right for being considered. In any case, the petitioners were entitled to be given preferential treatment since their names were found in the waiting list. The petitioners contended that they have a better right than the respondents as they had underwent a selection process and therefore, have a preferential right for being considered. Further, their names were found in the waiting list, the life of which was still subsisting and, on that basis also, they were entitled to be considered. In support of their submission, the learned counsel for the petitioners placed reliance upon a decision of the Supreme Court in H. C. Puttaswamy and others vs. The Hon’ble Chief Justice of Karnataka High Court, Bangalore and others, 1991 Supp (2) SCC 421 and in Secretary, State of Karnataka and others vs. Om Devi and others, 2006(4)SCC 1, in which it was held that irregular appointments could not be made against the provisions of the statutory Rules. The petitioners also contended that since their names were found in the waiting list, they had a locus standi to challenge the appointment of the respondents. 4. Sri Ravi Kant, the learned senior counsel, appearing for the High Court submitted that under Article 229 of the Constitution of India, the Chief Justice is given full powers for making an appointment and prescribing the conditions of service. The Rules of 1976 were made in pursuance of the provisions of Article 229 of the Constitution of India. The present appointments of the contesting respondents were made by the Chief Justice in exercise of the powers under Rule 45 of the Rules of 1976. The said appointments does not suffer from any irregularity or any illegality nor the appointments was made in violation of any statutory Rules. The learned counsel further submitted that the petitioners had no subsisting right, either on the date when they had filed the representation or on the date when the writ petition was filed. Consequently, they have no locus standi to challenge the order of appointments in favour of the contesting respondents. Even otherwise, the mere fact that the names of the petitioners were found in the select list did not give them any indefeasible right to challenge the appointments of the contesting respondents. Consequently, they have no locus standi to challenge the order of appointments in favour of the contesting respondents. Even otherwise, the mere fact that the names of the petitioners were found in the select list did not give them any indefeasible right to challenge the appointments of the contesting respondents. The learned counsel further submitted that in any case no benefit could be given to the petitioners merely because their names was found in the select list on account of the fact that the select list had exhausted and that all the vacancies were filled up pursuant to the advertisement. Consequently, the waiting list came to an end upon the filling up of the vacancies that was advertised. 5. Sri Ashok Khare, the leaned counsel for the respondent No. 6 assisted by Sri V.P.Mathur submitted that the said respondent was not appointed on an adhoc basis but was appointed on the basis of a regular selection being held and subsequently was sent to the High Court on deputation where he was absorbed by an order of the Chief Justice in the year 2001. The learned counsel submitted that his appointment has unnecessarily been challenged by the petitioners and that he has unnecessarily being arrayed as a party. 6. Sri K.J.Khare, the learned counsel for the other contesting respondents adopted the arguments of Sri Ravi Kant, the learned senior counsel appearing for the High Court. 7. Upon hearing the submissions made by the learned counsel for the parties and upon a perusal of the writ petition, counter affidavits and rejoinder affidavits, the admitted position is, that 135 vacancies was advertised in the year 1999 for the post of Routine Grade Clerks in the High Court. A select list and a waiting list was issued and all the 135 vacancies were filled up, from the aforesaid list. Consequently, upon the vacancies being filled up, the waiting list came to an end and could not be utilised thereafter. The mere fact that the life of the waiting list is 3 years is immaterial. The moment, the last vacancy that was advertised was filled up from the select/waiting list, the waiting list comes to an end and the said list could not be utilised any further. 8. In the State of Bihar and another Vs. The mere fact that the life of the waiting list is 3 years is immaterial. The moment, the last vacancy that was advertised was filled up from the select/waiting list, the waiting list comes to an end and the said list could not be utilised any further. 8. In the State of Bihar and another Vs. Madan Mohan Singh and others, AIR 1994 SC 765 , the Supreme Court held that where a selected candidate was appointed against an existing vacancy, the said select list gets exhausted and could not be kept subsisting for filling up other vacancies. Similar view was held by the Supreme Court in Surinder Singh and others vs. State of Punjab and others, AIR 1998 SC 18 , Kamlesh Kumar Sharma vs. Yogesh Kumar Gupta, (1998) 3 SCC 45 , Prem Singh and others vs. Haryana State Electricity Board and others, SCC 1996(4) 319, State of U.P. and others vs. Raj Kumar Sharma and others, SCC 2006(3)330, State of Haryana and others vs. Miss Ajay Walia, AIR 1997 SC 3007 , District Judge Baghpat and another vs. Anurag Kumar and others, ESC 2005(2) 1509, Hoshiar Singh vs. State of Haryana and other, SCC 1993 Supp(4)377 and Ashok Kumar and others vs. Chairman, Banking Service Recruitment Board and others, SCC 1996(4) 319. 9. In view of the aforesaid, the vacancies having been filled up, the petitioners have no subsisting right for being considered for any further appointment in future vacancies nor had any right for being considered for any appointment merely because their names were found in the waiting list. Even otherwise, the mere fact that their names were found in the select list, did not give them any indefeasible right for being considered for any appointment, even against the existing vacancy as held by the Constitution Bench of the Supreme Court in Shankarsan Dash vs. Union of India, 1991(3)SCC 47. Similar view was again reiterated by the Supreme Court in Ludhiana Central Cooperative Bank Ltd. vs. Amrik Singh and others, 2003(10)SCC 136, Bihar State Electricity Board vs. Suresh Prasad and others, 2004(2) SCC 681 and Karnataka State Road Transport Corporation and another vs. S.G. Kotturappa and another, 2005(3) SCC 409 . 10. Similar view was again reiterated by the Supreme Court in Ludhiana Central Cooperative Bank Ltd. vs. Amrik Singh and others, 2003(10)SCC 136, Bihar State Electricity Board vs. Suresh Prasad and others, 2004(2) SCC 681 and Karnataka State Road Transport Corporation and another vs. S.G. Kotturappa and another, 2005(3) SCC 409 . 10. In view of the aforesaid, the representation of the petitioners for being considered for the post of R.G.C. on the basis of their names being found in the waiting list was rightly rejected by the Chief Justice. 11. The contention of the petitioners that the appointments of the respondents were arbitrarily made without following the procedure as prescribed under the Rules of 1976 and therefore, their appointments were violative of Article 14 of the Constitution of India and was liable to be quashed is also misconceived. 12. Clause (1) read with Clause (2) of Article 229 of the Constitution of India confers exclusive power on the Chief Justice of the High Court in the matter of appointments and prescribing the conditions of service of officers and servants of the High Court, by Rules. The Chief Justice is the supreme authority and there can be no interference by the executive except to the limited extent as provided under Article 229 of the Constitution of India. This is essential, to secure and maintain the independence of the High Court. In exercise of the powers conferred under Article 229 of the Constitution of India, the Allahabad High Court Officers and Staff(Conditions of Service and Conduct) Rules, 1976 were framed. Rule 8 of the aforesaid Rules provides for the source of recruitment. Rule 10 and 12 provides for the method of selection. In the present case, the contesting respondents were appointed without undergoing through the process as contemplated under Rules 8, 10, 12 of the Rules of 1976. The appointments were made by the Chief Justice in exercise of the powers conferred under Rule 45 of the Rules of 1976, which reads as under:- “Notwithstanding anything contained in these rules, the Chief Justice shall have the power to make such orders, as he may consider fit, in respect of recruitment promotion confirmation or any other matter.” 13. A perusal of the aforesaid Rule clearly indicates that it is a non- obstante clause and provides over riding power to the Chief Justice to make such appointments. A perusal of the aforesaid Rule clearly indicates that it is a non- obstante clause and provides over riding power to the Chief Justice to make such appointments. Rule 45 of the Rules of 1976 has not been challenged in the present writ petition. Since, the appointments of the respondents had been made in exercise of the powers contemplated under Rule 45 of the Rules of 1976, consequently, it cannot be said, that the said appointments were arbitrary or was made in violation of any provisions of the Act or the Rules. In view of the aforesaid, the submission of the learned counsel for the petitioners that the appointments were made against the provisions of statutory rules is wholly misconceived and devoid of any merit. The judgments cited by the learned counsel for the petitioners, consequently, is not applicable. 14. In view of the aforesaid, the writ petition does not survive and is dismissed. In the circumstances of the case, the parties shall bear their own cost. Petition Dismissed. ———