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2012 DIGILAW 591 (ALL)

Anand Kumar Verma v. District Judge, Varanasi

2012-03-02

KRISHNA MURARI

body2012
JUDGMENT Krishna Murari, J. Heard learned counsel for the petitioner and Shri Ranjan Srivastava for the respondents. Petitioner was an applicant for appointment on a Class III post in Civil court, Varansi in pursuance to an advertisement dated 05.06.1993 published in local news paper Gandiv. A perusal of the terms of the advertisement goes to show that those persons, who were working on ad hoc basis in civil court, Varansi on Class III post, were also entitled to apply for being considered for appointment. In response to the aforesaid advertisement, examination was held on 10.10.1993, which was subsequently cancelled under the orders passed by this Court and a fresh examination was held on 22.04.1994 in which various candidates including the petitioner appeared. The result of the successful candidates of all the categories, i.e., General, Backward, Scheduled Castes etc. was declared on 18.06.1994. Thereafter one roster list was prepared in order of merits including all the candidates, i.e., general category as well as reserved category, which was duly approved by the then District Judge, Varansi on 31.07.1995. High Court vide order dated 28.07.1994 extended the validity of the select list from one year to three years. The said order is quoted hereunder. "From: - Sri Jagat Prakash, H.J.S., Additional Registrar, High Court of Judicature at Allahabad. To, All the District Judges. Subordinate to the High Court of Judicature at Allahabad. C.L. No. 66/Ve-4/Admn(D) Dated July 28, 1994. Subject: - Life of Select List of Class III posts in Subordinate Courts. Sir, I am directed to say that the court has been pleased to extend the validity of the select list prepared by you in your judgeship for Class III posts from one to three years. You are, therefore, directed to implement the instruction obtained in this circular letter with immediate effect. Yours faithfully. Sd/- Jagat Prakash Addl. Registrar." Again this Court issued an order dated 24.08.1994 to the District Judges for guide lines in respect of the operation of the select list stating therein that appointment in short term leave vacancies are not protected. The guide lines was issued on the basis of the judgment rendered in Special Appeal No. 235 of 1993 connected with Special Appeal No. 233 of 1993 and 263 of 1993 as well as Special Appeal No. 278 of 1993. The said letter of the High court dated 24.08.1994 is extracted hereunder. The guide lines was issued on the basis of the judgment rendered in Special Appeal No. 235 of 1993 connected with Special Appeal No. 233 of 1993 and 263 of 1993 as well as Special Appeal No. 278 of 1993. The said letter of the High court dated 24.08.1994 is extracted hereunder. "From Sri Bhanwar Singh, H.J.S., Registrar, High Court of Judicature at Allahabad. To, All the District Judges. Subordinate to the High Court of Judicature at Allahabad. C.L. No. 77/Ve-4/Admn(D) Dated 24.8.1994. Subject: - Guidelines concerning operation of select list of Class III candidates while offering appointment on the establishments of the subordinate courts. Sir, In continuation of and with reference to the courts' C.L. No. 66/Ve-4/Admn(D), Dated July 28, 1994 regarding the life at the select list prepared for appointment to class III posts be the subordinate courts, I am directed to send here with the copies of two judgments delivered by the court on 19.5.1993 and 5.8.1994 in the following cases for strict compliance: - 1.Special Appeal No. 235 of 1993 connected with Special Appeals Nos. 233 of 1993 and 263 of 1993. 2.Special Appeal No. 278 of 1993. The guidelines prescribed in the two judgments, that appointment in short term leave vacancy is not protected under Rule 14 (3) of U.P. Subordinate Civil Court Ministerial Establishment Rules, 1947 must be strictly adhered to in the operation of the approved or select list to be prepared in future and in case of any difficulty a clarification must be sought from the court. Yours faithfully. Sd/- Registrar. Enclosures : As above. This letter was received in DJ/Varansi office on 20.10.94." In response to the aforesaid letter/order dated 24.08.1994, the then District Judge, Varansi cancelled the select list vide order dated 18.10.1995 for the rest of the candidates, who were left out and were not given appointment. The order dated 18.10.1995 passed by the District Judge, Varansi was challenged in Civil Misc. Writ Petition No. 31053 of 1995, which was allowed vide order dated 30.11.1995 and the order dated 18.10.1995 of the then District Judge was quashed and it was observed that period of select list shall be three years. It may be relevant to quote the following paragraphs of the said judgment. Writ Petition No. 31053 of 1995, which was allowed vide order dated 30.11.1995 and the order dated 18.10.1995 of the then District Judge was quashed and it was observed that period of select list shall be three years. It may be relevant to quote the following paragraphs of the said judgment. "After hearing the learned counsel for the parties and perusing the material on record, I find that the circular letter dated 24.8.1994 at Annexure to the writ petition was referring to two judgments in two special appeals. The guidelines referred to therein were relating to short term leave vacancy and appointments against them. The said judgments did not consider the extension of life of the select list, as as been done and communicated by circular letter dated 28.7.1994 at Annexure 3 to the writ petition. Perusing the judgments in the said two special appeals, it is apparent that the select list which were being considered in the said two special appeals were having the life of one year period and in that back ground observations have been made in the said judgments. In the aforesaid circumstances, I do not think that the observation made in the said two special appeals or the guidelines issued on the basis thereof, can decide in any manner as to the life of the present select list. Apparently, the circular letter dated 28.7.1994 communicated extension of the life of select list from one year to three years and so against such clear circular the observations in the said judgments of the special appeals or the guidelines prepared on that basis cannot prevail. It is also to be noticed that the said circular dated 24.8.1994 did not supersede or cancel the circular letter dated 28.7.1994. In view of the aforesaid findings, I am of the view that the order dated 18.10.95 at Annexure 7 to the writ petition was passed upon misconception by the respondents no. 1. Accordingly, the writ petition succeeds and is allowed. The impugned order dated 18.10.1995 at Annexure 7 to the writ petition is hereby quashed. The select list is required to be treated as valid upto 18.6.1997." In the meantime, certain ad hoc employees filed Writ Petition No. 16984 of 1994 seeking a direction for consideration of the regularisation on Class III post under the judgeship of district Varansi. The impugned order dated 18.10.1995 at Annexure 7 to the writ petition is hereby quashed. The select list is required to be treated as valid upto 18.6.1997." In the meantime, certain ad hoc employees filed Writ Petition No. 16984 of 1994 seeking a direction for consideration of the regularisation on Class III post under the judgeship of district Varansi. The said writ petition was disposed of by this Court vide order dated 30.10.1995 with the direction that the then District Judge will decide the question of regularisation in the light of observations made in the case of Civil Misc. Writ Petition No. 9913 of 1990 Adya Prasad Mishra & Ors. Vs. State of U.P. & Ors. decided on 24.03.1994. In compliance of the aforesaid orders of this Court, certain ad hoc employees were regularised and, accordingly, an arrangement was made by the District Judge for their posting vide order dated 12.12.1995. The effect of the aforesaid regularisation of the ad hoc appointees was that the appointment of the selected candidates whose name find place in the select list, was not made on the existing vacancies. The effect of the directions contained in the case of Adya Prasad Mishra (supra) for regularisation of ad hoc employees qua the selected candidates has been subject matter of consideration by a learned Single Judge of this Court in the case of Arvind Kumar Pandey & Ors. Vs. High Court Of Judicature, Allahabad through Registrar & Ors., 1998 UPLBEC (2) 1370. After considering the ratio of the decisions in the case of Adya Prasad Mishra (supra) as well as Full Bench decision of this Court in the case of Devendra Nath Srivastava Vs. State of U.P. & Ors., (1996) 2 UPLBEC 1037 as well as Division Bench decision in the case of Subedar Singh Vs. District Judge, Mirzapur, 1997 (1) ESC 655 (All), learned Single Judge in the case of Arvind Kumar Pandey (supra) held as under. "5. There is no dispute about the facts of the case. It is an admitted fact that the names of the petitioners are incorporated in order of merit in the select list which form part of the decision in Adya Prasad Misra's case (supra). It is also not disputed that there is clear and specific direction that the appointments are to be made of the selectees till the select list is exhausted, regardless of the time factor. It is also not disputed that there is clear and specific direction that the appointments are to be made of the selectees till the select list is exhausted, regardless of the time factor. The only point which arises for determination in the present petition is that whether the directions contained in Adya Prasad Misra's case survive after the Full Bench decision of this Court in Deuendra Nath Srivastava's case (supra), which limits the life of the select list for a period of one year and the subsequent decision of the Division Bench, dated 24.2.1997 in Subedar Singh and another v. District Judge, Mirzapur and others, 1997 (1) ESC 655 (All), in which it was held that decision in Adya Prasad Misra's case "did not lay down law correctly". 6. The decision by the Division Bench of this Court in Subedar Singh's case (supra), was rendered with reference to the controversy raised by certain ad hoc employees of other districts for regularization of their services under the U.P. Regularisation of Ad hoc Appointments, (on posts outside the purview of Public Service Commission) Rules. 1979, in which, by way of subsequent notification, the cut off date was fixed as 1.10.1986. The decisions in Adya Prasad Misra's case (supra) as well as Arvind Kumar Yadav and others v. State of U.P. and others, (1994) 2 UPLBEC 1019, came to be considered and it was held in Para 22 of Subedar Singh's case as under : "22. In our view the benefit of regularisation policy crystallised fn statutory rules cannot be extended by judicial pronouncement, since its extension would amount to legislation, which does not fall within the function of the Court. We are, with respect, accordingly, of the view that the decision in Adya Prasad Misra v. State of U.P. also did not lay down the law correctly." The above observation made in Subedar Singh's case does not completely wipe off or efface the decision in Adya Prasad Misra's case (supra), particularly with reference to the directions made in regard to the outsiders whose names are found in the select list. The observation that Adya Prasad Misra's case (supra), does not lay down the law correctly was made with reference to the variation made about the cut off date and the direction about the regularization of the services of those employees who were appointed on ad hoc basis after the cut off date, i.e., 1.10.1986. The direction with regard to the appointment of the outsiders/selectees was not even touched upon or discussed in Subedar Singh's case (supra). The decision in Adya Prasad Misra's case (supra), therefore, remains intact and totally unaffected by the subsequent decision of Division Bench in Subedar Singh's case (supra) insofar as it relates to the direction made about the appointment of the selectees/outsiders. My considered opinion in the matter is that the decision in Adya Prasad Misra's case with regard to the directions made about the petitioners is not, in any manner, wiped off and the direction No. 4 contained in the decision, as quoted above and which has become final, has to be implemented. Neither expressly nor by implication Adya Prasad Misra's case can be said to have been overruled in all respects by the Division Bench decision in Subedar Singh's case (supra). 7. Now, let us test the direction No. 4, referred to above, in Adya Prasad Misra's case with reference to the decision of the Full Bench of this Court in Devendra Nath Srivastava's case. The ratio decidendi in Devendra Nath Srivastava's case (supra) is that the life of the select list prepared under the Rules of 1947 is only for a period of one year and after the expiry of the period of one year, the select list ceases to exist and no appointment can be made from the select list after a period of one year. Learned standing counsel on behalf of the respondents urged that the decision in Devendra Nath Srivastava's case (supra) which has the effect of issuing general binding direction would have the effect of nullifying the direction No. 4 made in Adya Prasad Misra's case (supra), inasmuch as, the select list which formed part of the decision in Adya Prasad Misra's case, has to remain operative only for a period of one year. Sri. Sri. Ashok Khare, learned counsel for the petitioners repelled the above submission and painstakingly pointed out that even if the decision in Adya Prasad Misra's case (supra) is termed to be erroneous and against the later decision of the Full Bench of this Court, directions contained in it have to be given effect to as the said decision, which is inter partes, has become final and on the principle of res judicata, direction No. 4 contained in the decision of Adya Prasad Misra's case (supra), cannot be thwarted. I find considerable force in the contention of Sri Ashok Khare. If the principle of resjudicata has any meaning, direction No. 4 contained in Adya Prasad Misra's case (supra), would be valid and effective. The said direction cannot be rendered illusory and nugatory merely on the ground that subsequently a Full Bench of this Court has ruled that the life of the select list would be only for a period of one year. The decision in Adya Prasad Misra's case was infer partes. Inasmuch as, two of the present petitioners were also petitioners in Civil Misc. Writ No. 34562 of 1993 which was clubbed and decided with leading Writ Petition No. 9913 of 1990, Adya Prasad Misra v. State of U. P. and others. On the basis of direction No. 4 contained in the said judgment, as many as 15 persons from the select list have been extended the benefit of appointment. The petitioners as well as other outsiders, who are placed in the select list, cannot be made the victims of discrimination. It would be unwise, unjustified and unfair to extend a particular type of favourable treatment to one set of persons and to deny the similar treatment to the remaining candidates on the ground that subsequently some general directions have come to be made by a Full Bench. With all respect at my command to the decision made by the Full Bench in Devendra Nath Srivastava's case (supra), I am of the view that direction No. 4 contained in Adya Prasad Misra's case has to be given effect to and the successful candidates in the select list have to be given appointment in order of their merit against the existing vacancies or the vacancies which may arise in near future and this process shall go on till the select list is finally exhausted. There are other reasons which have impelled me to take the above view. This fact cannot be lost sight of that initially 51 posts were advertised. All these 51 posts were, therefore, to go to the selectees. It was on account of the directions about regularization of the ad hoc employees under the 1979 Rules that substantial number of vacancies were consumed by the ad hoc employees leaving outsider selectees in a lurch, without no fault of theirs. There would have been no dispute or controversy if the ad hoc employees had not conjured up substantial number of vacancies in the light of the decision in Adya Prasad Misra's case (supra). Learned single Judge while issuing various directions in Adya Prasad Misra's case was conscious of this fact and it was for this reason that he had, with all awareness and to balance the rights of the parties, issued direction No. 4 and on equitable considerations, commanding that the candidates in the select list shall continue to be appointed till the list is exhausted. The direction to regularise the ad hoc appointees did not only have the effect of reducing the number of vacancies which would otherwise have been available to the outsider selectees, but some of the ad hoc employees who had failed to compete with the outsiders in the written examination too have been able to secure the appointments. Now, when the ad hoc appointees have been regularised in service-whether rightly or wrongly, and they have been continuously working for the last more than a decade, it would be difficult to disturb the vested rights which they have acquired. Therefore, the only via media left was to confer the benefit of appointment on the petitioners and other candidates appearing in the select list even after the expiry of the period of one year during which the select list was to remain in force. If this benefit would not have been conferred, most of the petitioners would have become overage with the result, their chances to seek any other public employment would have been totally marred. It was for all these considerations that Hon'ble A. S. Tripathi, J., has made a conscious direction No. 4 in his decision in Adya Prasad Misra's case (supra). 8. It was for all these considerations that Hon'ble A. S. Tripathi, J., has made a conscious direction No. 4 in his decision in Adya Prasad Misra's case (supra). 8. The direction that the petitioners and other selectees shall continue to be appointed as and when the vacancies arise till the list is exhausted is not, in any manner, whittled down by the decision of the Full Bench in Devendra Nath Srivastava's case (supra). The administrative directions issued by this Court to the District Judge have to be ignored as they are clearly against the Judicial direction contained in Adya Prasad Misra's case (supra), which in all respects, has become final insofar as it related to the appointment of the selectees/outsiders." In this case also judgment dated 30.11.1995 rendered in Writ Petition No. 31053 of 1995 in between the parties directing the select list to be valid for a period of three years, became final as there is nothing on record to indicate that the same was ever challenged. It is well settled that even if the judgment of a Court is wrong, it is binding on the parties and the question decided in it, cannot be reopened in proceedings/cases initiated subsequently. In view of above fact also, the time of the select list has to be treated to be three years. Thus, the argument advanced with much vehemence by Shri Ranjan Srivastava for the respondents that the name of the candidates automatically got removed from the register of the recruited candidate after one year when the select list lost its life, has no force and is not liable to be accepted. The facts of this case are identical to that of Arvind Kumar Pandey (supra) and ratio laid down therein, with which I am in respectful agreement, is applicable with full force and the petitioner herein is entitled to same benefits. In view of the above, the petitioner is entitled for appointment on a Class III ministerial post in the judgeship of Varansi against the existing vacancy. Shri Ranjan Srivastava on the basis of the instructions received from District Judge, Varansi has made a statement that there are vacancies available in the district judgeship wherein the petitioner could be adjusted. In view of the above, the petitioner is entitled for appointment on a Class III ministerial post in the judgeship of Varansi against the existing vacancy. Shri Ranjan Srivastava on the basis of the instructions received from District Judge, Varansi has made a statement that there are vacancies available in the district judgeship wherein the petitioner could be adjusted. Shri Kishan Ji Khare, learned counsel appearing for the petitioner has made a statement that the petitioner shall not claim any back wages, though he shall be entitled for the other consequential benefits. In the result, writ petition stands allowed. District Judge, Varansi is hereby directed to offer appointment to the petitioner on a vacant post of Class III cadre within a period of one month from the date of production of a certified copy of this order before him.