JUDGMENT
A.K. Yog, J.
1. Three petitioners, Jagdishwar Prasad, Shesh Narain Pandey and Om Prakash preferred this petition against impugned order dated 26th July. 1997 (Annexure-2 to the writ petition) rejecting petitioners’ representation claiming right of consideration of their candidature for the post of Assistant Registar Kanoongo on the basis of eligibility list (said to have been prepared in the year 1982), (copy filed as Anncxure-1 to the petition).
2. Learned counsel for the respondents raised preliminary objection regarding alternative remedy of appeal contemplated under statutory Rule 9 (3) U. P. Avar Rajaswa Lipik (Registrar Kanoongo and Assistant Registar Kanoongo) Sewa Niyamawali. 1958. hereinafter called Rules, 1958.
3. The preliminary objection regarding availability of alternative remedy cannot be entertained for two reasons.
4. One. it is now too late to ask the parties to go back to avail alternative remedy as the parties have already exchanged counter and rejoinder-affidavits and there appears to be no dispute on facts required to be considered for deciding the writ petition.
See JT 1995 (1) SC 471 ; (1992) 2 UPLBEC 982 : 1971 SC 33 and (1993) 2 UPLBEC 1313 (Para 7).
Otherwise also alternative remedy is not an absolute bar (1998) 8 SCC I and 1991 ACJ 392.
5. Second, hearing of the appeal will be mere formality in the facts of the instant case inasmuch as decision of the appellate authority is foreclosed since the impugned order/decision is as a consequence of Government Order dated 4.10.1994 as
mentioned in the impugned order (dated 26th July, 1997, Annexure-2 to the writ petition) itself.
In 1979 UPTC 857 (Para 4) and 1979 UPTC 517 (Para 5), this Court observed that alternative remedy will not be a bar when Government view is already known.
6. The submission regarding maintainability of the writ petition as preliminary objection of the respondents has no force.
Writ petition is. therefore, after hearing the learned counsel for the parlies, decided on merits.
7. Learned counsel for the
petitioners submits that once the names of the petitioners were in the eligibility list [Annexure-1 to the writ petition) they ought to have been considered and appointed as Assistant Rcgislrar Kanoongo.
8. Mere fact that name of a person finds place in the eligibility list, (from which promotion is to be made) does not confer a vested legal right (enforceable by a law Court) when there is no such conferment in the relevant Rules. Relevant Rules, 1958 (placed by the learned counsel for the petitioner and disputed by the other side to be amended up to date) shows that the list is not sacrosanct in the sense that names of the persons included in the said eligibility list are liable to be removed and/or altered. I am, hence, not in agreement with the petitioners.
9. Name of Mustaq Ahmad and two others (in respect of which it is alleged that they were promoted from the said list) are at SI. Nos. 1, 2 and 3 in the list. There is no arbitrariness on the part of the respondents on this score. No case of arbitrary action by concerned authority is made out.
10. Petitioners then contend that their names are not being ignored arbitrarily for no valid cause.
11. Copy of the Government Order dated 4,10.1994 has been filed as Annexure-2 to the Respondents’ Counter-affidavit. The said Government Order does not require cancelling of the statutory eligibility list as contemplated under
aforementioned Rule, 1958. No subsequent Government Order or amendment of Rule has been placed on record on behalf of the Respondent to indicate that the list became non-existent on expiry of certain period. Rules, 1958 also do not contemplate that list will become non-existent on expiry of a certain period.
12. There is no logical explanation or material to justify for not making promotion from the eligibility list. More so, when it is not the stand of the respondents that posts of Assistant Registrar Kanoongo had not fallen vacant and were/are not available.
13. The statutory eligibility list prepared cannot be given goodbye by “Executive Instructions’ as has been sought to be done in the present case by placing reliance upon Government Order dated 17.6.1994 and Board of Revenue Order dated 4.10.1994 referred to in the impugned order dated 26.7.1992 (Annexure-2 to the writ petition). If such a situation is allowed to prevail or perpetuate, it would encourage respondents and its authorities to make appointment of their choice one. according to merit but ignore others who may not be for reasons (non-conducive and relevant for the purpose) in good book of these authorities.
14. Secondly, respondents cannot be permitted to avoid or escape the statutory Rules and from accepting the eligibility list and give effect to the same provided posts of Assistant Registrar Kanoongo are available.
15. No appointment from outside the list, in the past (or in future). could/can be made unless list stood exhausted (after eliminating overage, etc.) As otherwise there is no purpose in preparing the list or having the Rules. 1958. It gives scope for arbitrary pick and choose–may be eliminating those lower in merit–and subsequently opening flood gate for back door entry like Daily Wager, Muster Roll, Stop-Gap. Ad hoc, and Purely Temporary Officiating work-charge, etc. See 1997 (3) E&SC 1579.
16. Petitioners and all similarly
situated persons in the eligibility list
shall be entitled to similar treatment as the petitioners and they shall all be given seniority above all who have been appointed from outside the list against vacancies which existed when list was prepared or thereafter and said tenure shall be reckoned for post retiral benefit if it becomes relevant. They shall not, however, be entitled to the difference of pay, if any, for non-working period on the post of Assistant Registrar Kanoongo.
17. Order dated 26th July, 1997 (Annexure-2 to the writ petition) is quashed and respondent No. 1 and concerned authorities are directed to make appointment in accordance with statutory Rules against the vacant posts of Assistant Registrar Kanoongo, which were existing when eligibility list was prepared and those which came into existence thereafter unless the said list is being exhausted (deleting the names under Rules, 1958 and particularly Rule 9 (3) of said Rules. 1958) in accordance with the merit of the list in question.
18. Within three weeks from the date of receiving of a certified copy of this order before respondent Nos. 1 and 5 the competent authority shall ensure to process compliance of this judgment.
19. Writ petition stands allowed subject to the direction and observation made above.