Sanjay Kumar Mishra vs District Judge, Ambedkar Nagar

Class IV vacancies in the District Judgeship of Ambedkar Nagar

were terminated in the year 2008. The ground on which the

termination was effected was that six appointments were made,

in excess of vacancies notified, of which four were of the

petitioners. The termination was effected on 05.05.2008 after

which the appellants were out of employment.

3. The learned Single Judge and the Division Bench of the

High Court of Allahabad found the termination to be justified

Page 1 of 8 C.A. @ SLP(C) No.14980 of 2024 since the appointments were made beyond the number of

vacancies advertised.

4. Sh. M.C. Dhingra, learned Senior Counsel appearing for

the appellants submitted that the vacancies advertised were

twelve, but with a rider that it could increase or decrease.

Reliance was placed on Naseem Ahmad and Others v. State of

Uttar Pradesh and Another1 wherein Rule 12 was found to

provide for recruitment to Class IV posts from the wait list

prepared; interpreted as permitting appointment to the

vacancies arising in excess of that advertised, if it is done within

a reasonable period. This Court according to the appellants

found that appointments could be made in excess of vacancies

that were advertised, which vacancies arose in the same

recruitment year or the immediately succeeding year.

5. Sh.Yashvardhan, learned counsel appearing for the

respondent, however, took us to the judgment to assert that as

on the date of the advertisement there were only twelve

vacancies and any further appointments made cannot be

justified.

1 (2011) 2 SCC 734

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6. The advertisement made by the District Judge of

Ambedkar Nagar is produced as Annexure P1, wherein the

vacant posts are shown to be twelve, but with the rider that the

number of posts may be increased or decreased. This is in

consonance with the interpretation of Rule 12 as has been

arrived at in Naseem Ahmed1. In Naseem Ahmed1, there were

six vacancies advertised and a select list was prepared wherein

the general candidates and reserved candidates were shown

separately. After adjusting the roster, the appointments were

made and the appellants therein, who were in the wait list, were

appointed within one year. The additional vacancies arose

when an Additional District Judge was transferred from

Hamirpur to Mahoba, increasing the sanctioned strength of

Class IV employees by four more posts. In the several writ

petitions filed challenging the appointments made from the

wait list, this Court found that Rule 12 permits a waiting list of

candidates to be maintained for each judgeship for the post of

process servers, orderlies and office peons and farashes. The

rule provided that the waiting list should be of ‘reasonable

dimensions’ and was possible of revision from time to time,

removing the names of persons who would not be entitled to be

Page 3 of 8 C.A. @ SLP(C) No.14980 of 2024 appointed by reason of being over aged or having been found

guilty of any misconduct during continuance in a temporary or

officiating vacancy, when the vacancies actually occurred.

7. The word ‘reasonable dimension’ was interpreted in

paragraph 23, as extracted below:

“23. 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. 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 Rule which specifically provides for maintaining a waiting list of a reasonable dimension.” [underlining by us for emphasis]

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8. The situation is almost identical here, and so is Rule 12

squarely applicable. In the select list prepared based on the

advertisement of 18.10.2010, produced as Annexure P2, the

appellants herein were at serial No.8 and 9 of the general

category, serial No.6 of the backward class and serial No.5 of

the SC/ST. The appellants were appointed vide appointment

letter dated 12.02.2001 and 03.07.2001 and two of them,

appellants 1 and 2 were given temporary promotions in the

Ministerial Cadre. It was later after 8 years, that the termination

was effected on the ground of appointments having been made

in excess of vacancies.

9. Learned Government Advocate has specifically taken us

to paragraph 14 of the impugned judgment, which referred to

the counter affidavit filed by the State. It is contended that the

State had asserted before Court that as on 18.10.2000, the date

of advertisement, there were only twelve posts, and the

subsequent advertisement was made on 06.06.2008 and later

on 14.09.2015; which subsequent advertisements 29 and 2

vacancies were notified respectively. So obviously 29

vacancies were between 2000 and 2008, when the appellants

were working in the judgeship.

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10. As we noticed, the advertisement specifically indicated

that there could be an increase or decrease of vacancies, which

as on the date of advertisement was also indicated as twelve

posts. The said recital in the advertisement would clearly

indicate that the Appointing Authority intended that a wait list

be maintained so as to fill up the vacancies arising in excess of

those notified, which was permissible as per the rules. As has

been pointed out from the counter affidavit after the

advertisement of 2000, the next advertisement was only in 2008

and then in 2015. Definitely vacancies arose within the said

period, and this is the reason why the appellants were

appointed on various dates subsequent to the appointment to

the twelve vacancies advertised. We are definite that the very

same situation arose in Naseem Ahmed1 and the learned Single

Judge as also the Division Bench erred in not accepting the said

contention, especially having ignored the clear recital of the

notification that the vacancies could be increased or decreased

from twelve, as notified.

11. We cannot but find the termination to be unjustified.

However, the fact remains that the appellants have been out of

employment for almost 17 years. We also see from the select

Page 6 of 8 C.A. @ SLP(C) No.14980 of 2024 list that the date of birth of 2nd and 4th appellants indicate the

said appellants having passed the age of 60, while the others

have little more time to superannuate, if the age of

superannuation is 60. In the above circumstances especially

when the appellants have not taken any efforts to pinpoint the

substantive vacancies to which they were appointed and the

appointment itself having been made temporarily, we issue the

following directions; reckoning the fact that all the appellants

have worked for eight years:

i) The appellants if not having completed the age of superannuation shall be accommodated in the existing vacancies of Class IV in the District Judgeship of Ambedkar Nagar. If there are no vacancies existing, they shall be appointed in a supernumerary post, which shall be adjusted against the future vacancies or shall seize on their retirement, whichever occurs earlier.

ii) If any of the appellants have crossed the age of superannuation, they shall be entitled to minimum pension dehors the fact that they have completed only 8 years in employment and not entitled to an appointment as of now.

iii) Those appellants who are appointed shall be continued without any seniority but reckoning the period already spent in service also for determining

Page 7 of 8 C.A. @ SLP(C) No.14980 of 2024 pensionable service and in any event shall be granted pension at the minimum.

iv) The appellants shall not be entitled to treat the intervening period of 17 years in which they have not worked, for any purpose, neither as notional service nor even for computing pensionable service.

v) The above directions shall apply only to the four appellants herein.

12. The appeal is disposed of with the above directions

making it clear that the directions issued are in the peculiar

circumstances of this case and shall not be a precedent.

13. Pending application(s), if any, shall also stand disposed

of.

………….………………… CJI.

(B. R. GAVAI)

………….……………………. J.

(K. VINOD CHANDRAN) New Delhi;

October 17, 2025.

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