PETITIONER: STATE OF UP & ORS. Vs. RESPONDENT: HARISH CHANDRA & ORS. DATE OF JUDGMENT: 12/04/1996 BENCH: G.B. PATTANAIK (J) BENCH: G.B. PATTANAIK (J) RAMASWAMY, K. CITATION: JT 1996 (4) 414 1996 SCALE (3)730 ACT: HEADNOTE: JUDGMENT:
J U D G M E N T
PATTANAIK, J.
Leave granted.
The impugned direction of the learned Single Judge of
the Allahabad High Court in Civil Misc. Writ Petition No.
25696 of 1990 is being challenged-in the first case and a
similar direction of a learned Single Judge of Allahabad
High Court dated 2.4.1993 passed in Civil Misc. Writ
Petition No. 28719 of 1992 following the earlier judgment is
being assailed in the second case. The question of law
involved in both these appeals is one and the same. namely,
is the High court justified in issuing a mandamus to the
appellant to make recruitment of the respondents who were in
the Select List of the year 1987 even after the expiry of
the said list, the list under the Recruitment Rules having
the force only for a period of one year from the date of
selection.
The Recruitment/Selection to the posts in class III and
class IV is made under a Statutory Rule called the Sub-
ordinate Officers Clerical Staff (Direct Recruitment) Rules,
1985 (hereinafter referred to as “Recruitment Rules”). Under
the Rules the Appointing Authority is required to determine
the number of vacancies to be filled during the course of
year and notify the same to the Employment Exchange for
sponsoring candidates. The Appointing Authority is also
entitled to invite applications directly by issuing an
advertisement in a local daily newspaper. on receipt of the
names of the candidates the Selection Committee prepares a
merit list in the manner prescribed under Rule 23. The
Selection Committee then forwards the list thus prepared to
the Appointing Authority under Rule 26 mentioning the
aggregate marks obtained at the selection by each candidate.
The names of the candidates are arranged by the Appointing
Authority in accordance with the merit of the candidates and
thereafter the appointments are offered in the order in
which the names are arranged.
The respondents approached the High Court alleging,
inter alia, that though there existed vacancies during the
year 1987 and the select list was prepared on 4.4.87 but the
Appointing Authority arbitrarily did not fill up the
vacancies and the respondents having failed in their attempt
by filing representations approached the Court for issuance
of mandamus, It was also alleged that the Appointing
Authority ignoring the select list prepared by the Statutory
Selection Committee has been filling up the vacancies in
accordance with its own sweet will and the right of the
candidates in the select list is thereby being infringed.
The appellant filed counter affidavit controverting the
allegations made in the Writ Applications and took the
positive stand that the select list of the year 1987 became
inoperative after lapse of one year from the date of
selection and, therefore, the applicants who claimed to be
in the select list prepared on 4.4.87 do not have any right
to be appointed as the life of the list has expired by
4.4.88. It was also pleaded before the High Court that there
did not exist any vacancy during the year as contended in
the Writ application. The High Court by The impugned order
instead of focussing its attention to the relevant
provisions of the Statutory Rules, relying upon certain
earlier decisions of the Court came to hold that the select
list does not lapse on the expiry of one year from the
preparation of the list. The High Court also came to the
conclusion that several vacancies having occurred after
4.4.87 on account of superannuation of many of the existing
employees the stand of the State that there existed only one
vacancy cannot be accepted. With this conclusion direction
having been issued to appoint the Writ Petitioners the same
is being assailed in these appeals.
Learned counsel for the appellant contended that in
view of the provisions of Rule 26 of the Recruitment Rules
the High Court erred in law that the select list does not
expire after expiry of one year. He further contended that
the vacancy position as was indicated by the State
Government is correct and the High Court erroneously came to
the conclusion about the existing of more number of
vacancies during the year without examining the peculiar
circumstances where some appointments have been made.
Learned counsel appearing for the respondents do not dispute
the position that under the Statutory Rule the select list
remains valid for one year from the date of the preparation
of list. But they contended that in the past on several
occasions the Appointing Authority have been appointing the
persons from the select list even after expiry of one year
and in support of that they placed reliance on the
appointments made in the year 1992 of persons who were
selected in the year 1985. The learned counsel also urged
that under the Recruitment Rules the Appointing Authority is
duty bound to calculate and notify The number of vacancies
as it existed and likely to occur during the year and,
therefore. the contentions that there will be only one
vacancy in the year 1987 is wholly unsustainable. Apart from
the aforesaid contention, on merit the learned counsel also
urged that there has been delay of 480 days in preferring
the Special Leave Petition and no justifiable ground having
been given the delay should not be condoned. The learned
counsel also urged that against the judgment of the Single
Judge a special appeal lies to the Division Bench and the
appellant not having taken recourse to alternative remedy of
approaching the Division Bench this Court should not
interfere in exercise of power under Article 136 of the
Constitution.
Before going into the merits of the matter we would
first dispose of the two technical objections raised by the
learned counsel for the respondents.
So far as the question of delay is concerned the
learned counsel for the respondents placed reliance on the
decision of this court in the case of Commissioner of Income
Tax, Bombay vs. Amateur Riders Club, Bombay (1994 Supp. (2)
Supreme Court Cases 603) and urged that the grounds taken
for condonation is due to the delay in processing the matter
through official channel and cannot be held to be good
ground for condonation. It is undoubtedly true that the
applicant seeking for condonation of delay is duty bound to
explain the reasons for the delay but as has been held by
this Court in several cases. the very manner in which the
bureaucratic process moves, if the case deserves merit the
Court should consider the question of condonation from that
perspective. That apart the respondents themselves
approached the High Court in the year 1990 making a
grievance that they had not been appointed even though they
are included in the Select List of 1987 and 1987 list itself
expired under the Rules on 4.4.1988. in this view of the
matter and in view of the merits of the case we are of the
opinion that sufficient cause has been shown for condoning
the delay and accordingly we have condoned the delay.
So far as the other contention, namely, availability of
an appeal to the Division Bench, we are of the opinion that
would not stand on the way of this Court in exercise of
power under Article 136 of the Constitution. Ordinarily
where an appeal lies to the Division Bench from the
Judgement of a learned Single Judge this court refrains from
invoking power under Article 136 of the Constitution but
this is a self-imposed restriction and not a matter ousting
the jurisdiction of the Court. The matter having been
pending for more than 2 years and in view of the patent
error committed by the High Court we do not think it
appropriate to non suit the appellant merely on the ground
that the appellant could have approached the Division Bench
against the judgment of the learned Single Judge. In the
larger interest of all concerned we think it appropriate in
the facts and circumstances of this case to invoke our
jurisdiction under Article 136 of the Constitution.
Coming to the merits of the matter, in view of the
Statutory Rules contained in the Rule 26 of the Recruitment
Rules the conclusion is irresistible that a select list
prepared under the Recruitment Rules has its life only for
one year from the date of the preparation of the list and it
expires thereafter. Rule 26 is extracted hereinbelow in
extenso;
“26. Appointment by appointing
authority.-
The select list referred to in
sub-rules (b) and (7) of Rule 23
shall be forwarded by the Selection
Committees to the appointing
authority mentioning the aggregate
marks obtained at the selection by
each candidates. The name of
general and reserve candidates
shall be arranged by the appointing
authority in a common list
according to the merit of the
candidates and the appointment
shall be offered in the order in
which the names are arranged in the
list shall hold good for a period
of one year from the date of
selection.”
Notwithstanding the aforesaid Statutory Rule and
without applying the mind to the aforesaid Rule the High
Court relying upon some earlier decisions of the Court came
to hold that the list does not expire after a period of one
year which on the face of it is erroneous. Further question
that arises in this context is whether the High Court was
justified in issuing the mandamus to the appellant to make
recruitment of the Writ Petitioners. Under the Constitution
a mandamus can be issued by the Court when the applicant
establishes that he has a legal right to the performance of
legal duty by the party against whom the mandamus is sought
and said right was subsisting on the date of the petition.
The duty that may be enjoined by mandamus may be one imposed
by the Constitution or a Statute or by Rules or orders
having the force of law. But so mandamus can be issued to
direct the Government to refrain from enforcing the
provision of law or to do something which is contrary to
law. This being the position and in view of the Statutory
Rules contained in Rule 26 of the Recruitment Rules we
really fail to understand how the High Court could issue the
impugned direction to recruit the respondents who were
included in the select list prepared on 4.4.87 and the list
no longer survived after one year and the rights, it any, of
persons included in the list did not subsist. In the course
of hearing the learned counsel for the respondents, no doubt
have pointed out some materials which indicate that the
Administrative Authorities have made the appointments from a
list beyond the period of one year from its preparation. The
learned counsel appearing for the appellants submitted that
in some cases pursuance to the direction of the Court some
appointments have been made but in some other cases it might
have been done by the Appointing Authority. Even though we
are persuaded to accept the submission of the learned
counsel for the respondents that on some occasion
appointments have been made by the Appointing Authority from
a select list even after the expiry of one year from the
data of selection but such illegal action of the Appointing
Authority does not confer a right on an applicant to be
enforced by a Court under Article 226 of the Constitution.
We have no hesitation in coming to the conclusion that such
appointments by the Appointing Authority have been made
contrary to the provisions of the Statutory Rules for some
unknown reason and we deprecate the practice adopted by the
Appointing Authority in making such appointments contrary to
the Statutory Rules. But at the same time it is difficult
for us to sustain the direction given by the High Court
since, admittedly, the life of the select list prepared on
4.4.87 had expired long since and the respondents who claim
their rights to be appointed on the basis of such list did
not have a subsisting right on the date they approached the
High Court. We may not be understood to imply that the High
Court must issue such direction, if the writ Petition was
filed before the expiry of the period of one year and the
same was disposed of after the expiry of the statutory
period. In view of the aforesaid conclusion of ours it is
not necessary to deal with the question whether the stand of
the State Government that there existed one vacancy in the
year 1987 is correct or not.
In the aforesaid premises the appeals are allowed. The
impugned judgments are set aside and the Writ Petitions
filed by the respondents stand dismissed. But in the
circumstances there will be no order as to costs.