Naseem Ahmad & Ors vs State Of U.P.& Anr

".....A fair and reasonable interpretation of Rule 12 in the light of the aforesaid Judgment is that the wait list should not be drawn for more than twice the number of anticipated vacancies in the recruitment year, and should come to an end as soon as the last vacancy on the date of advertisement is filled up. It is always open to the District Judge to anticipate the vacancies due to superannuation or likely promotion, but having determined number of vacancies, for which the advertisement is made, and drawing a wait list of equal number of candidates he is not permitted under the Rules to go on appointing persons from the wait list on unanticipated vacancies. Any other interpretation will only give rise to serious irregularities as in the present case, and will also violate the rights of those persons, who become eligible in the meantime for being considered for such vacancies in future."

In pursuance of the order dated 08.08.2007, the District

Judge, Mahoba informed the appellants by letter dated

12.11.2007 that their services came to an end with

immediate effect. Aggrieved by the said order, the

appellants have filed this appeal by way of special leave

petition.

4) Heard learned counsel for the parties.

5) The advertisement was issued on 17.08.2000 by District

Judge, Mahoba inviting applications for selection and

appointment on Class IV posts of Process Server, Orderly,

6 Peon and Farrash. In response to the said advertisement, the

appellants applied and on 19.09.2000 results were published

and they were included in the select list. All the appellants

were given appointment on 13.08.2001. It is the claim of the

appellants that all the appointments were made on

substantive vacancies. It is the grievance of the appellants

that without any show cause notice, by order dated

19.09.2003, their appointments have been converted into ad

hoc appointment. The appellants also pointed out that the

Rules nowhere provides that the regular appointments can be

converted into ad hoc appointments, hence, the order passed

by the District Judge, Mahoba, terminating their services

cannot be sustained and the same was wrongly approved by

the High Court. The appellants have asserted that they were

appointed by order dated 13.08.2001 i.e. within one year of

their selection by select list dated 19.09.2000, as such, the

grounds mentioned in the order dated 19.09.2003 cannot be

sustained and the service of the appellants has to be treated

as regular service and no adverse order can be passed against

them.

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6) On the other hand, it is the contention of the respondents

that in view of Rule 12 of the Uttar Pradesh Subordinate Civil

Courts Inferior Establishment Rules, 1995 (in short `the

Rules'), the select list, mentioned as waiting list, should be a

moderate one containing that number of candidates which

was not less than or much excess of the vacancies which

might be available in the year of recruitment or the year

succeeding thereto and this list should be in reasonable

proportion to the notified vacancies. In other words, according

to the respondents, a wait list of the candidates contemplated

under Rule 12 cannot be deemed to be subsisting for a period

beyond the filling up of the notified vacancies. It is also

submitted by the respondents that once all the vacancies were

filled up, the waiting list would stand exhausted. In support

of the above stand, the respondents relied on Office

Memorandum of the State Government dated 31.01.1994 in

which it has been provided that the waiting list should be valid

only for one year.

7) In order to consider the rival claim of both the parties, it is

useful to refer the relevant provisions from the Rules:-

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Rule 2 (f) defines "Waiting List" as the list of candidates

approved under the rules, for appointment to the various

posts in the establishment.

Rule 4(2) of the Rules lays down the method of recruitment for

Process Servers, Orderlies, Office Peons and Farrashes and

reads thus:

"Rule 4. Method of recruitment.--Recruitment to the following posts in the establishment shall be made-- (1).....

(2) Process servers, orderly peons, office peons and farrashes.--(a) by appointment of candidates on the waiting list prepared under rule 12 or,

(b) by transfer from one post to another according to suitability.

(3) ....."

As per Rule 5, all appointments to the establishment in a

Judgeship shall be made by the District Judge.

Rule 12 is very relevant for our purpose which reads as under:

"12. Waiting List--(i) A waiting list of candidates shall be maintained for each Judgeship for the posts of process servers, orderlies, office peons and farrashes. No waiting list shall be maintaind for chaukidars, malis, sweepers and waterman.

(ii) The waiting list should be of reasonable dimensions and be revised from time to time with a view to removing there from the names of--

(a) all such candidates as are not likely to receive appointments before attaining the maximum age prescribed in Rule 8, and

(b) such candidates as are found guilty of insubordination, misbehaviour or dishonesty in the discharge of their

9 duties in temporary or officiating vacancies, after giving them necessary opportunities to explain their conduct.

Note--The order of names in the waiting list shall be in the order in which the candidates are admitted to it but the District Judge may at the time of appointment, choose from the list the most suitable of all the candidates for reasons to be recorded in writing."

8) The advertisement dated 17.08.2000 makes it clear that a

waiting list for the post of Tamola Dahak Orderly, Peons and

Farrash in the pay scale of Rs. 2550-3200/- for District Court,

Mahoba is to be prepared. In view of the same, applications

from eligible candidates were invited in the prescribed format

and the same has to be submitted to the Office of Senior

Administrative Officer of District Judge, Mahoba. The

advertisement further shows that the candidates will be

interviewed on 11.09.2000 at District Court, Mahoba. The

eligibility conditions for the said posts were that the

candidates should be at least 8th, should be an Indian citizen,

capable of writing and reading english words and figures and

should not be less than 18 years and more than 35 years as

on 31.09.2000. There is no dispute that all the three

appellants satisfied the eligibility conditions. The list of

selected candidates interviewed during 11.09.2000 to

1 15.09.2000 in District Court, Mahoba was published on

19.09.2000. In that select list, appellants were shown at S.No.

9, 10 and 11. By appointment orders dated 13.08.2001 of

District Judge, Mahoba, the appellants have been appointed to

Class IV posts in the District Court, Mahoba. No doubt, it is

specifically stated that they were appointed in a temporary

capacity in the pay scale of Rs. 2550-3200/- and their

appointment was purely temporary and was terminable at any

time without any prior notice.

9) It is the claim of the respondents before the High Court as

well as before us that since the appellants were appointed

after a period of one year from the date of their selection by

select list dated 19.09.2000, in terms of Government Order as

well as Rule 12, their appointment cannot be sustained since

the wait list stood exhausted on the appointments being made

against the available vacancies on the date of advertisement

i.e., 6 + 1, and therefore, they have no right to claim any

appointment. We are unable to accept the said contention.

We have already noted the date of advertisement and the

vacancies available. The material placed as well as the details

1 available in the order of the learned Single Judge of the High

Court clearly shows that on 20.09.2000, the District Judge

appointed six persons, namely, Sri Shitla Prasad, Shri Anand

Kumar Shukla, Shri Santosh Kumar Saini, Shri Ravi Ranjan

Kumar Gautam and Shri Vinod Kumar Paliwal on these

available six vacancies on the thirty five sanctioned posts (31

at Mahoba and 4 at Charkhari) in the Judgeship. These

factual details were extracted by the learned single Judge in

the order dated 26.11.2005 based on the information supplied

in the counter affidavit of Shri Balendu Singh, Ist Additional

District Judge, Mahoba. The same order further shows that

Shri Prem Narayan at S.No. 7 was left out and was given

appointment as SC candidate on 23.12.2000. Smt. Mamta

Devi at S.No. 8 of the list drawn according to roster was given

appointment on 13.02.2001. It is further recorded that the

candidates at S.Nos. 9 to 12, namely, Shri Naseem Ahmad,

Shri Prakash Chandra, Shri Sohan Lal, (appellants herein),

Shri Rajendra Prasad Gautam were given appointments as

against four vacancies at the outlying court at Charkhari.

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10) It is clear from the information furnished before the

learned single Judge that the select list of the appellants was

dated 19.09.2000 whereas they were appointed by order dated

13.08.2001 i.e. within one year of the declaration of results.

The order dated 19.09.2003 provides that only the

appointments made after 19.09.2001 were ad hoc. As all the

appellants have been given appointment within one year of

publication of select list dated 19.09.2000, their services

cannot be termed as ad hoc. Even if it is accepted that wait

list is valid only for one year, since the appellants were

appointed well prior to the expiry of the one year, the said

objection cannot be countenanced.

11) About the validity of wait list and the claim of the

respondents that it is valid only for one year, we have already

pointed out that the relevant Rule applicable is Rule 12 which

admittedly does not prescribe any such limitation. Even

though, the High Court has adverted to clarification said to

have been issued by the Government, the fact remains, the

statutory rule i.e. Rule 12, as it existed on the relevant date

did not provide any time limit in regard to the operation of the

1 waiting list. In such circumstances, the claim of the official

respondents that a waiting list of candidates contemplated

under Rule 12 cannot be deemed to be subsisting for a period

beyond the filling up of the notified vacancies for the filling

whereof the list has to be prepared and maintained is not

supported by any statutory Rule and liable to be rejected. It is

true that it cannot be deemed to be operative for an indefinite

period. We have already pointed out that even if we accept

that the life of the wait list is only for one year, inasmuch as

these appellants were appointed by order dated 13.08.2001,

within one year of their selection by the select list dated

19.09.2000, the stand of the respondents is to be rejected and

the service of the appellants has to be treated as regular

service and no adverse order can be passed against them. As

discussed above, the construction of Rule 12 as per

interpretation of the statute would be that its life is not limited

for a particular year since the Rule is very specific and

unambiguous. Wait list gets exhausted only when all duly

selected candidates are given appointments in the light of

Rule 12. As long as the wait list was not exhausted, a fresh

1 list could not be prepared under Rule 12 and the process

initiated by the respondents for advertising fresh posts and

cancelling the wait list by making it as ad hoc is against the

provisions of the Rules.

12) The waiting list was prepared as per Rule 12 and had to

be operated as per Rule 12. The aforesaid Rule 12

contemplates that the waiting list should be of "reasonable

dimension" and be revised from time to time with a view to

removing therefrom the names of such candidates who are

found guilty of insubordination, misbehaviour or dishonesty in

the discharge of their duties in temporary or officiating

vacancies. The wait list is neither a selection list prepared with

reference to specific number of vacancies notified. It is

somewhat peculiar and special. The expression "reasonable

dimension" used in Rule 12 of the aforesaid Rules signifies

that the wait list should be a moderate one containing that

number of candidates which is adequate to meet the vacancies

which might be available within a reasonable period in the

year of recruitment or the year succeeding thereto and this list

should be in reasonable proportion to the notified vacancies.

1 To be more precise, this waiting list should broadly be

correlated to the number of vacancies either available in the

year of recruitment or likely to become available in the

succeeding year and the proportion qua the existing and

anticipated vacancies. It is only in order to obviate the

possibility of the waiting list becoming vitiated on account of

the vice of arbitrariness or illegal discrimination that the

provision contains the Rules which specifically provides for

maintaining a waiting list of a reasonable dimension. The

word `dimension' has to be understood to emphasise the

proportion qua the vacancies which are sought to be filled up.

It is relevant to mention that we have already noted the factual

materials furnished before the learned Judge which was noted

in the order and shows that the sanctioned posts at the

relevant time were 35 i.e. 31 at Mahoba and 4 at Charkhari in

Judgeship. In this factual position, the contrary conclusion

and the interpretation as to expression "reasonable dimension"

cannot be accepted.

13) Under these circumstances, the claim of the appellants

has to be accepted. In the course of hearing, it is brought to

1 our notice that appellant Nos. 1 and 3 i.e., Naseem Ahmad

and Sohan Lal were once again appointed temporarily for one

year by order dated 30.11.2007 as Class IV employees.

However, the appellant No. 2 -Prakash Chandra was not re-

appointed since at that time he was over aged.

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14) In these circumstances, we hold that appellant Nos. 1 to

3 are deemed to continue in service from the date of initial

selection i.e., 13.08.2001 and for all purpose and service

benefits, the relevant date is date of their initial selection i.e.,

13.08.2001 and they are permitted to continue as per the

Rules applicable. The impugned order of the High Court is set

aside. The appeal is allowed to the extent mentioned above.

No costs.

..........................................J. (R.V. RAVEENDRAN)

..........................................J. (P. SATHASIVAM)

..........................................J. (A.K. PATNAIK)

NEW DELHI;

DECEMBER 10, 2010.

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