Wahab Uddin vs Km. Meenakshi Gahlot

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 6477 of 2021

Wahab Uddin & Ors. …Appellant(s)

Versus

Km. Meenakshi Gahlot & Ors. …Respondent(s)

JUDGMENT

M. R. Shah, J.

1. Feeling aggrieved and dissatisfied with the impugned judgment

and order passed by the High Court of Judicature at Allahabad vide

order dated 23.01.2020 passed in Special Appeal No.638 of 2012 by

Signature Not Verified which the Division Bench of the High Court has dismissed the said Digitally signed by R Natarajan

appeal and has confirmed the judgment and order passed by the Date: 2021.11.13 16:49:43 IST Reason:

learned Single Judge by which the learned Single Judge has allowed

1 the writ petition preferred by the Respondent No.4 herein and

quashed and set aside the appointment of the appellants herein, the

original Respondent Nos. 3 to 5 whose appointments have been

quashed by the High Court have preferred the present appeal.

2. The facts leading to the present appeal in nutshell are as under:

2.1 In the judgeship of Moradabad in the year 1987, a competitive

examination was held for filling up the post of English and Hindi

Stenographers. The appellants herein initially participated for the

post of English Stenographers. Select list of English Stenographers

(containing the names of the appellants herein) and Hindi

Stenographers was prepared on 14.07.1987. However, since there

were no vacancies in the judgeship for the post of English

Stenographers, no appointments were given to the candidates in the

select list of English Stenographers (including the appellants herein).

As per Rule 14(3) of the Subordinate Civil Courts Ministerial

Establishment Rules, 1947 (hereinafter referred to as ‘the Rules,

1947’) select list was to remain valid for one year and the said select

list dated 14.07.1987 came to an end on 13.07.1988. At the same

time, Hindi Stenographers were given appointment as per the select

list. However, since there were some leave vacancies of temporary

2 nature in the post of Hindi Stenographers, the appellants were

appointed on temporary basis against those leave vacancies, for a

period of one month from 14.10.1987 to 15.11.1987. At this stage, it

is required to be noted that in their respective appointment letters it

was specifically stated that their appointments shall be terminated

once the regular employees resume their duties.

That thereafter fresh examination was conducted for the post of

Hindi Stenographers on 24.09.1988. Pursuant thereto Respondent

Nos. 1 to 3 herein were appointed on the substantive post of Hindi

Stenographers as per merit and the select list. Therefore, as such

Respondent Nos. 1 to 3 herein were appointed. As the appellants

herein were appointed on leave vacancies of a temporary nature,

their services were required to be terminated once the regular

employees resume their duties. However, representations were

made by the appellants to the District Judge, Moradabad. The

District Judge, Moradabad forwarded his comments on the same to

the Deputy Registrar, High Court. The Deputy Registrar, High Court

vide administrative order dated 22.05.1990 to District Judge,

Moradabad directed that the approved list of ex-stenos and Hindi

stenos dated 14.07.1987 be prepared and their names be arranged in

3 the order of merit. At this stage, it is required to be noted that in the

communication dated 22.05.1990, it was specifically mentioned that

the appointment of the appellants was temporary and on leave

vacancies. It appears that thereafter a typing/speed test was

conducted for the appellants for the post of Hindi Stenographers.

The Officer-In-charge proceeded and conducted Hindi typing test of

appellants and one more candidate on 29.05.1990. In the said

examination all the three appellants were found not qualified as per

Rule 5(c) of the Rules, 1947 and their typing test was found less than

the prescribed. Thus, the appellants failed in the speed test for the

post of Hindi Stenographers. Despite the above without

communicating to the High Court that the appellants have failed the

speed test, the District Judge, Moradabad terminated the services of

Respondent Nos.1 to 3 herein who were selected after due process

and in compliance of the Rules of 1947 and appointed the appellants

on 05.06.1990, against the post held by Respondent Nos. 1 to 3

herein by terminating the services of Respondent Nos. 1 to 3. The

appointment of the appellants and the termination of Respondent

Nos. 1 to 3 was challenged before the High Court by Respondent

Nos. 1 to 3 herein. The learned Single Judge allowed the said writ

4 petition and quashed and set aside the appointment of the appellants

herein and set aside the orders of termination terminating the

services of Respondent Nos.1 to 3 herein. The special appeal

against the order and judgment passed by the learned Single Judge

has been dismissed by the Division Bench by impugned judgment

and order dated 23.01.2020. Hence, the present appeal.

3. Mr. Pardeep Gupta, learned counsel appearing on behalf of the

appellants has vehemently submitted in the facts and circumstances

of the case more particularly when the appellants worked for almost

29 years and that too after the High Court of Allahabad vide its order

dated 22.05.1990 approved the appointment of the appellants as

Stenographers and directed the District Judge, Moradabad to issue

the appointment letters and in accordance with the same the

appointment letters dated 05.06.1990 were issued, it is not justified to

quash their appointments.

It is vehemently submitted that as such Rule 14(3) of the Rules,

1947 shall not be applicable to the recruitment list on merit under

Rule 11 and can be made applicable only to the reserved category

candidates under Rule 12. It is submitted that the High Court has

5 erred in relying upon the said rule for setting aside the appointment of

the appellants.

It is further submitted that the High Court has erred in treating

the appellants’ appointment against leave vacancy vide orders dated

14.10.1987, 15.10.1987 etc. and has failed to consider that the

appellants have continuously worked for more than 30 years.

The High Court has not properly appreciated the fact that

though the appointment of the Respondent Nos. 1 to 3 were

approved on the basis of the selection list dated 29.11.1988, they

were given appointment only in the year 2012, i.e., after a lapse of

more than 24 years of select list dated 29.11.1988. It is submitted

that therefore there is no justification to approve the appointment of

the respondents when they were already become age barred, i.e., 50

years old.

4. Making the above submissions, it is prayed to allow the present

appeal and protect the services of the appellants.

5. Present appeal is opposed by Ms. Preetika Dwivedi, learned

counsel appearing on behalf of Respondent No.4 – High Court of

Judicature at Allahabad. It is submitted that the appellants initially

participated for the post of English Stenographers in the year 1987.

6 However, since there were no vacancies, their names were placed on

the select list on 14.07.1987. It is submitted that the select list was

valid only for one year and came to an end on 13.07.1988, in view of

the provisions contained in Rule 14(3) of the Rules, 1947. It is

submitted that no appointments were given to the appellants to the

post of English Stenographers for want of vacancies for the post of

English Stenographers. It is submitted that however in the year 1987,

there were some leave vacancies of a temporary nature, in the post

of Hindi Stenographers and therefore the appellants were appointed

on temporary basis against leave vacancies for a period of one month

from 14.10.1987 to 15.11.1987. It is submitted that in the

appointment letter it was specifically stated that their appointment

shall be terminated once the regular employees resume their duties.

It is submitted that thereafter fresh recruitment process was initiated

and the fresh examination was conducted for the post of Hindi

Stenographers on 24.09.1988 and pursuant thereto, Respondent

Nos. 1 to 3 were appointed. It is submitted that however thereafter

the representations were made by the appellants to the District

Judge, Moradabad which was forwarded to the High Court and the

Deputy Registrar, High Court vide administrative order dated

7 22.05.1990 though noted that the appellants were appointed

temporarily, directed that the approved list of ex-stenos and Hindi

Stenos dated 14.07.1987 be prepared and their names be arranged

in the order of merit. It is submitted that pursuant thereto a speed

test was conducted for the appellants in accordance with the Rules

and the appellants failed to achieve and possess the minimum speed

required for the post of Hindi Stenographers, the fact which was not

communicated to the High Court thereafter. It is submitted that

despite the above the District Judge, Moradabad continued the

appellants and terminated the services of Respondent Nos. 1 to 3

who were appointed after due process and in compliance to the

Rules of 1947 and appointed the appellants against the post held by

Respondent Nos.1 to 3. It is submitted that therefore, the High Court

has rightly quashed the appointment of the appellants and has rightly

quashed the termination of Respondent Nos. 1 to 3.

6. It is submitted that the appellants are not entitled to any relief

as they were never appointed to the post of Hindi Stenographers,

after following due selection procedure. It is submitted that on the

contrary the respondents were appointed after following proper

selection procedure. It is submitted that the appointment of

8 Respondent Nos. 1 to 3 was on the substantive sanctioned posts. It

is submitted that there cannot be two persons working on one

sanctioned post. It is submitted that therefore once the Respondent

Nos. 1 to 3 were selected and appointed after following due selection

procedure on the post of Hindi Stenographers and the appellants

were appointed on leave vacancies, as a consequence the

Respondent Nos. 1 to 3 have to be appointed and the appellants

have to give way to those who are duly selected after following

selection procedure. It is submitted that therefore, the High Court has

not committed any error in passing the impugned judgment and order.

It is submitted that no interference of this Court in exercise of powers

under Article 136 of the Constitution of India is called for.

7. Dr. Ashutosh Garg, learned Counsel appearing on behalf of the

Respondent Nos. 1 to 3 have supported the impugned judgment and

order passed by the learned Single Judge and confirmed by the

Division Bench by adopting the submissions made by the counsel on

behalf of the High Court.

8. Heard learned counsel for the respective parties at length.

9. At the outset, it is required to be noted that initially the

appellants participated in the selection process for the post of English

9 Stenographers in the year 1987. They never applied for the post of

Hindi Stenographers in the year 1987. Since there were no

vacancies of English Stenographers in the District Court, Moradabad

no appointments were made and appellants were not appointed on

the post of English Stenographers of which they applied. However,

they were placed on the select list on 14.07.1987. As per Rule 14(3)

of the Rules, 1947 the validity of the select list was for one year and

therefore, the said select list dated 14.07.1987 came to an end on

13.07.1988. Thereafter the appellants could not have claimed any

appointment on the basis of the expired select list. However, it

appears that there were some leave vacancies of temporary nature in

the post of Hindi Stenographers and therefore, the appellants were

appointed purely on temporary basis on the said leave vacancies, for

a period of one month from 14.10.1987 to 15.11.1987. At this stage,

it is required to be noted that in the appointment letter itself it was

stated that their appointment shall be terminated once the regular

employees resume their duties. It is not in dispute that thereafter a

fresh examination was conducted for the post of Hindi Stenographers

on 24.09.1988 and Respondent Nos. 1 to 3 were appointed.

However, thereafter though the services of the appellants were

10 required to be terminated on the Respondent Nos. 1 to 3 being

selected for the post of Hindi Stenographers, pursuant to the

communication dated 22.05.1990 by the Deputy Registrar, High Court

by which it was directed that the approved list of ex-stenos and Hindi

Stenos dated 14.07.1987 be prepared and their names be arranged

in the order of merit, and though the appellants failed to clear the

speed test for the post of Hindi Stenographers as required as per

Rule 5(c) of the Rules, 1947, the District Judge, Moradabad

appointed the appellants and terminated the services of Respondent

Nos. 1 to 3. The appointment of the appellants and the termination of

the Respondent Nos. 1 to 3 has been rightly quashed and set aside

by the High Court, firstly on the ground that in the year 1990 no

direction could have been issued to make the appointment on the

basis of the select list dated 14.07.1987 as the select list dated

14.07.1987 expired and came to an end on 13.07.1988; secondly, the

appellants failed to clear/pass the speed test for the post of Hindi

Stenographers; thirdly, the appellants were never appointed after

following due procedure of selection, against which the Respondent

Nos. 1 to 3 were selected and appointed pursuant to the fresh

examination which was conducted for the post of Hindi

11 Stenographers on 24.09.1988 and thereafter they were appointed

after following due procedure of selection and that the appointment of

the appellants in the year 1987 was against the leave vacancies and

in the appointment order itself it was specifically mentioned that their

appointment shall be terminated once the regular employees resume

their duties. Considering the aforesaid facts and circumstances, the

High Court has rightly quashed and set aside the appointment of the

appellants and has rightly quashed and set aside the orders

terminating the services of Respondent Nos. 1 to 3 who were

selected after due process and in accordance with the Rules, 1947.

The submission on behalf of the appellants that the

Respondent Nos. 1 to 3 were appointed in the year 2012 is factually

incorrect as in the year 1988 itself Respondent Nos. 1 to 3 were

appointed and their services were terminated in the year 1990 by the

District Judge, Moradabad and the appellants were appointed and

thereafter pursuant to the interim orders passed by the Division

Bench of the High Court, the Respondent Nos. 1 to 3 were also

accommodated in the year 2012. Therefore, as such the Respondent

Nos. 1 to 3 have suffered for the period between 1992 - 2012 for no

fault of them and though they were selected and appointed after

12 following due procedure of selection. In fact, the appellants have

gained illegally and they were continued in service pursuant to the

interim order of the High Court. Once the appellants continued on the

aforementioned post pursuant to the interim order passed by the High

Court and their appointment is subsequently held to be bad in law

and not only that their continuation in service is also held to be bad in

law, thereafter they cannot be permitted to submit that as they worked

for a long time their services should be protected, though their

appointments are not legally tenable. Once their appointments are

held to be illegal and it is held that they have no right to continue on

the post to be occupied by other eligible candidates, the necessary

consequences shall follow. Once the Respondent Nos.1 to 3 are to

be accommodated and/or appointed who were selected after due

process and the appointment of the appellants were on leave

vacancies with a specific condition in the appointment order that their

appointment shall be terminated once the regular employees resume

their duties, necessary consequences shall follow and the services of

the appellants are to be terminated and/or put to an end.

Unfortunately, it has so happened that after 2012 on the post of Hindi

Stenographers the appellants as well as Respondent Nos. 1 to 3 are

13 working, which is not permissible. There cannot be appointment of

two persons on one sanctioned post. Otherwise, there will be

financial burden on the State of two persons on one sanctioned post.

Under the circumstances the prayer of the appellants to continue

them in services and to pay them pensionary benefits etc. also

cannot be granted. Appellants are not entitled to any relief. In fact,

they are benefitted by continuing in the service after 1988 though

their services were required to be put to an end after the fresh

selection in the year 1988 and after the Respondent Nos. 1 to 3 were

appointed after following due process and procedure as per Rules,

1947.

In view of the above and for the reasons stated hereinabove,

the present appeal fails and the same deserves to be dismissed and

is accordingly dismissed.

There shall be no order as to costs.

..………………………………….J. [M. R. Shah]

……………………………………J. [A.S. BOPANNA]

New Delhi, November 13, 2021.

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