JUDGMENT
Satyabrata Sinha, J.
1. Although this matter was listed under the heading “To be mantioned”, in view of the fact that the matter was directed to be listed for hearing and with the consent of the parties, it is treated to be on the day’s list and the appeal as also the application for stay of operation of the impugned order were taken up for hearing and are being disposed of.
2. The fact of the matter lies in a very narrow compass. This High Court maintains a list commonly known as “List of Outsiders” for the purpose of their engagement in leave vacancy by way of stop gap arrangement. The name of the appellant was entered in the aforementioned list and appeared at serial No. 7 thereof. He allegedly worked by way of stop gap arrangement in the years 1974 and 1975. According to the appellant, his name for permanent absorption as a Class IV staff of this High Court was to be considered sometimes in the year 1989-90. But, when he was not appointed and the persons whose names appeared below him in the said list were so appointed, he filed a writ petition in this High Court, inter alia, praying for the following reliefs:–
“a) A Writ of and/or in the nature of Mandamus commanding the respondents, each one of them and/or their subordinates/servants/assigns, to forthwith consider the representation of the petitioner dated 3rd September, 1993, being annexure ‘A’ to this petition and restore the name of the petitioner in the list of Outsiders and give him appointment on permanent basis in the post of Peon under the Original Side Department of High Court, Calcutta, on the basis of the petitioner’s position in the List of Outsiders as prepared in the year 1976.
b) A writ of and/or in the nature of Mandamus commanding the respondents, each one of them and/or their subordinates/servants/assigns, to forbear themselves from giving any further appointment on permanent basis in the post of Peon in the Original Side Department of High Court, Calcutta, on the basis of the List of Outsiders as prepared in the year 1976 without first considering the case of the petitioner for such appointment and without offering such permanent appointment, in any manner whatsoever.”
3. By an order dated 29.9.91. Susanta Chatterjee, J. passed the following Interim order:–
"X X X
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The pendency of the petition will not prevent the respondent No. 1, the Registrar, to consider the representation of the petitioner, copy whereof is Annexure ‘A’ to the writ petition within a period of 4 weeks from the date of communication of the order by giving a chance of personal hearing to the petitioner and by passing a speaking order without prejudice and subject to the result of the writ petition. One post may be kept vacant in the meantime.”
X X X
X X X
4. Pursuant to the said interim order, the appellant was given an opportunity of hearing by the respondent No. 1, who passed an order on 14.10.93. In the said order, the respondent No. 1, inter alia, recorded that the prayer of the appellant to the effect that his name should be recorded at serial No. 7 cannot be acceded to but he opined that on proper application his name may again be included in the list of Badli workers, but not at serial No. 7.
5. The respondent No. 1 had filed an affidavit-in-opposition before the learned trial Judge, wherein it has, inter alia, been stated that the appellant’s father, Agani Charan Das was a Darwan in the High Court, Original Side. He sought for a voluntary retirement on completion of 60 years of age with effect from 1.7.87 and recommended the name of Ajoy Kumar Das, his second son, as an unlisted outsider to be appointed in terms of the then existing rules and practice of the High Court. The said Ajoy Kumar Das had been appointed. It has further been averred that the said list is reviewed from time to time and with that end in view 20 unlisted outsiders by a notice dated 7.5.76 were asked to appear before the Deputy Registrar on 29.5.76. The said notice was sent under Certificate of Posting. On or around 29.5.76 all the said 19 candidate appeared before the Deputy Registrar but the petitioner did not. The then Deputy Registrar made an endorsement as also recorded his opinion in the note sheet to the effect that the father of the petitioner, Agani Charan Das, appeared before him on 19.6.76 and made a statement to the effect that his son (the petitioner) does not intend to join the High Court. The petitioner’s name was, therefore, struck off from the rolls in 1976.
6. The writ petition was heard by a learned Single Judge of this Court, who disposed of the writ application by a short and cryptic order directing:–
“Having considered the matter, I dispose of this writ petition by directing the Registrar, O.S., to include the name of the petitioner on proper application and at such place in the list as may be determined by him.
The writ petition stands disposed of accordingly.
There will be no order as to costs.
Registrar, O.S. and all parties to act on a signed copy of the minutes of this order on the usual undertaking.”
7. The appellant, thereafter, preferred the instant appeal against the said order.
8. Mr. Aloke Kumar Roy, learned Counsel appearing for the petitioner inter alia, submitted that keeping in view the admitted fact that the name of the petitioner appeared at serial No. 7 of the said list and the same was struck off without giving any notice to him or without communicating the order, the same must be held to be illegal. The learned Counsel submitted that the appellant’s father had no authority to make a statement on his behalf nor such a statement is believable keeping in view of the fact that the petitioner was at all material times and still is an unemployed youth. The learned Counsel further submitted that in view of the long standing practice of this Court, the appellant should have been appointed on permanent basis by way of absorption and, in view of the fact that the persons whose names appeared below the petitioner had been so appointed, this Court should issue an appropriate Writ.
9. Mr. Sircar, learned Counsel on behalf of the respondents on the other hand, produced before us the original records and submitted that from a perusal thereof it would appear that the then Deputy Registrar had recorded the fact in the note sheet that the petitioner’s father had stated before him that his son was not interested in the job of the High Court, such a statement appears to have been made also in the copy of the list of persons to whom the notices had been issued for their appearance before the Dy. Registrar on 19.7.1976. According to Mr. Sircar, keeping in view of the fact that the administrative side of this Court had been maintaining the records of the matter in ordinary course and no malice could have been and has not been attributed by the petitioner against the then Deputy Registrar; in this view of the matter, the petitioner is not entitled to any relief.
10. We are aghast to find that this Court has adopted a procedure of maintaining such a list and also granting permanent employment to persons out of the said list without making any advertisement for the post and without complying with the principles engrafted in Articles 14 and 16 of the Constitution of India. Nobody has a right of employment but each citizen who is eligible for appointment in the post concerned has a right to be considered therefor. In terms of Article 16 of the Constitution of India, each citizen of India, who is otherwise eligible for being considered for appointment, should be considered for appointment and, thus, it is obligatory on the part of all employers to advertise such employments so that all persons who are eligible therefor can file such application for consideration of their appointment. The Supreme Court in numerous cases has noticed that lately an employment market has grown up and employment is arbitrarily being given on various considerations including money consideration without complying with mandatory provisions of the recruitment rules and in violation of the provisions contained in Article 16 of the Constitution of India. Reference in this connection may be made to Delhi Development Horticulture Employees’ Union v. Delhi Administrations, and State of U.P. v. U.P. State Officers’ Associations, reported in (1994) 2 SCC 630.
11. Moreover, such a list which is not a select list should not be kept alive for such a long time.
12. Be that as it may, in this case it is not disputed that the appellant’s name was struck off in 1976. It is also not disputed that the list of outsiders was to be reviewed from time to time and notices have been issued to all concerned including the petitioner as far back as on 7.5.76. Although there is nothing to show that the said notice was served upon the petitioner, but, as Mr. Sircar has rightly pointed out that the said notice had been addressed to him under the care of the father of the petitioner, who was then working as Darwan in the Original Side of this Court. Even from the cause-title of the writ petition it would appear that the petitioner has been residing within the precinct of this Court.
The said notice had been sent under Certificate of Posting and in terms of Section 114 of the Indian Evidence Act a presumption of valid service thereof arises. Moreover, keeping in view of the contemporaneous records maintained in the registry of the Original Side of this Court, we do not disbelieve the minutes recorded by the then Deputy Registrar, which had also been placed by him before the competent authority. In this view of the matter, although the said Agani Charan Das, father of the petitioner, might not have been authorised in writing by the petitioner to make a statement on his behalf, evidently he was competent to do so. In any event, as it appears from that the petitioner did not appear before the Deputy Registrar on 29.5.76 pursuant to the aforementioned notice dated 7.5.76 the same was itself a sufficient ground for striking off the name of the appellant from the said list of outsiders. The appellant did not make any complaint thereabout for a long time. Even assuming that no notice was served upon the petitioner, there was absolutely no reason as to why the petitioner did not make any enquiry with regard to the fact that he had not been summoned for the purpose of reviewing of the list, which admittedly, is done by the High Court at regular intervals. It is also surprising to note that the petitioner also did not raise any complaint for a long time to the effect that he had not been employed even by way of stop gap arrangement after 1976.
13. Apart from the aforementioned facts, in our opinion Mr. Sircar has also rightly drawn our attention to the fact that the circumstantial evidences obtaining in this case, viz., the nomination of the second brother of the appellant by his father at the time of his voluntary retirement, do indicate that the petitioner was not interested in service at the relevant time, as otherwise there was absolutely no reason as to why the father of the appellant would not nominate the name of his eldest son therefor. The appellant had, therefore, no legal right to obtain a writ of or in the nature of mandamus as has been prayed for by him.
14. For the reasons aforementioned, we are of the opinion that no case has been made out for interfering with the order passed by the learned Trial Judge.
15. This appeal and the application are, therefore, dismissed and the order and judgment passed by the learned Trial Judge is hereby affirmed. However, in the facts and circumstances of the case, there will be no order as to costs.
16. All parties to act on a signed copy of the operative part of this Judgment on usual undertaking.
Basudeva Panigrahi, J.
17. I agree