JUDGMENT
Sunil Ambwani, J.
1. Heard Shri Yogesh Agrawal, learned Counsel for Smt. Vishnu Priya in writ petition No. 5031103 and 38718/04, Shri K.S. Rathore for Shri Kalyan Saini in writ petition No. 34709/03, Shri P.S. Yadav for Murari Lal Pandey in writ petition No. 34640/03 and Shri Madhusudan Dixit for Shri Amit Trivedi in writ petition No. 45879/2004.
2. In writ petition No. 5031 of 2003, Smt. Vishnu Priya has challenged the order by which her appointment dated 15.7.2003 was converted into adhoc appointment; and in her second writ petition No. 38718 of 2004 she has challenged the order dated 11.8.2004 by which her services were ceased as the junior most employee on the ground that one Shri Bhawanideen, a Daftari, who was earlier dismissed was reinstated, by orders of the High Court.
3. Shri Kalyan Saini has prayed for his appointment in terms of the order passed by this Court on 28.8.2002, in writ petition No. 19643/02 Jaikaran Singh v. State of U.P. and Ors.; in which his appointment out of the wait list on the ground that he was poor and experienced Mali, was set aside. He has prayed for a direction to adjust him in the next available vacancy.
4. Shri Murari Lal Pandey at Sl. No. 18 of the roaster has prayed in his writ petition No. 34640/2003, for his appointment on the ground that juniors to him including Smt. Vishnu Priya at Sl. No. 22 on the bottom of the roaster list have been appointed. He has alleged discrimination in the matter of appointments out of the select list dated 19.9.2000.
5. Shri Amit Trivedi placed at Sl. No. 16 in the roaster and appointed on 28.8.2001, and thereafter, ceased on 11.8.2004 on the ground that the select list had exhausted its life on 19.9.2001 has in the writ petition No. 45879 of 2004, challenged the order dated 11.8.2004 dispensing with his services on the ground that there was a clear vacancy and that persons below him in the roaster were appqinted.
6. The writ petition No. 46527/03 Jai Karan Singh has challenged the order dated 23.10.2002 passed by the District Judge, Mahoba, by which his temporary appointment was converted into adhoc appointment, on the ground that the conditions of his service could not be changed, contrary to service rules and in Violation of principles of natural justice.
7. The brief facts giving rise to these petitions are that the District Judge, Mahoba published an advertisement in Dainik Jagran dated 17.8.2000, calling for applications for appointment on the posts of Process server, Orderly, Peons and Farrash in the pay scale of Rs. 2550-3200 in the Judgeship at Mahoba. The number of vacancies were not specified in the advertisement. In the Supplementary Counter Affidavit of Shri Balendu Singh, Ist Additional District Judge, Mahoba, filed on behalf of the District Judge, Mahoba, it is stated there existed six vacancies in the category of Orderly, Peons, Process server and Farrash and one more vacancy, which occurred on 14.8.2000, when the advertisement was published. The interviews were held between 11.9.2000 to 15.9.2000 and a select list/ wait list under Rule 12 of the U.P. Subordinate Civil Court Inferior Establishment Rules, 1955 (In short, the Rules of 1955) was published on 19.9.2000. Three separate lists, each for General category (ten candidates), Other Backward Class category (six candidates) and Scheduled Castes/ Scheduled Tribes category (four candidates) were drawn and published. On 20.9.2000 Shri Ram Swarup Sahu was promoted as Daftari. Appointment letters were issued to six persons, including Shri Shital Prasad, Anand Kumar Shukla, Santosh Kumar Saini, Ravi Ranjan Kumar Gautarn. Vinod Kumar Paliwal and Sri Raj Kumar. Out of these Santosh Kumar Sami and Raj Kumar were taken from the list of Other Backward Class category and Shri Shital Prasad from the Scheduled Caste category.
8. The Senior Administrative Officer, Mahoba submitted a report on 6.11.2000 drawing attention of the District Judge, that 20% quota of women has not been provided in the appointments. The District Judge directed the Chief Judicial Magistrate, a member of the Selection Committee to scrutinize the result sheet. On the same day after scrutiny of result sheet Smt. Vishnu Priya, a General category women candidate, was directed to be included in the list of General category candidate and one Shri Phool Singh was directed to be added in the list of S.C./S.T. category candidates. One more vacancy became available on promotion of one Raj Kumar, which was filled by appointing Shri Prem Narain from the list of Scheduled Caste candidate. Another vacancy occurred on 13.2.2001 on account of promotion of one Shri Hitesh Kumar, which was filled up by appointing Smt. Mamta Devi, a General category candidate in the list, purportedly placing her on roaster position No. 8, keeping in view the reservation for women.
9. In paragraph 13 of the Supplementary Counter Affidavit of Shri Balendu Singh it is stated that the total sanctioned strength of Class IV employee in the Judgeship of Mahoba on the date of advertisement was 31. In 2001 four more posts were created in the Judgeship of Mahoba for outlying Court in Tehsil Charkhari. In anticipation of these four posts, appointment letters were issued on 13.8.2001 to Shri Naseem Ahmad, Prakash Chandra, Sohan Lal and Rajendra Prasad, at Sl Nos. 9, 10, 11 and 12 in the select list, to be effective from the date they take charge at Charkhari. Shri Kalyan Saini was offered appointment on 27.8.2001, on the vacancy on account of voluntary retirement of one Binda Prasad, an Orderly. Shri Amit Kumar Trivedi at roaster point 16 was given appointment on 28.8.2001 on the post, which fell vacant on account of promotion of Amar Singh, the Orderly. Shri Kalyan Saini and Amit Kumar Trivedi were appointed ignoring the claim of Jai Karan Singh, Gauri Shankar Shukla and Shri Subhash Chandra Srivastava at roaster point 13, 14 and 15. Thus Shri Jai Karan Singh filed writ petition No. 19643 of 2002, which was allowed and while quashing the order of appointment of Shri Kalyan Saini challenged in the writ petition a direction was issued that the Jai Karan Singh the petitioner may be given appointment on the next vacancy, The order was passed in the absence of full facts as have been detailed in this writ petition. Accordingly, Shri Kalyan Saini was ceased to work.
10. In the meantime one Bhawani Deen, working as Daftari was dismissed from service, and Shri Ravi Karan, an Orderly was promoted in his vacancy, and his vacancy on Class IV post was tilled by Shri Gauri Shankar Shukla at Sl. No. 14 in the roaster. Another vacancy arose on account of transfer of one Pankaj Sharma on which Subhash Chandra Srivastava at Sl. No. 15 was appointed. On 15.7.2003 one Shri Ram Bhawan. the Process server was dismissed and the vacancy was filled by Smt. Vishnu Priya at Sl. No.22.
11. In paragraph 22 of the Supplementary Counter Affidavit it is stated that one Court of Addl. District Judge was transferred from Hamirpur to Mahoba increasing the sanctioned strength of Class IV employee in Mahoba (including the outlying Court of Charkhari) to 37. The District Judge found that when Smt. Vishnu Priya was appointed, all the posts were filled up and that there was no vacancy on any Class IV posts. In the meantime Administrative Appeal of Bhawani Deen, a Daftari, was allowed by the High Court and he was reinstated by Deputy Registrar’s letter dated 30.7.2004, consequently Shri Ravi Karan, who was promoted on his vacancy was reverted and Smt. Vishnu Priya, the junior most employee in the cadre and the last on the roaster was ceased. Similarly Shri Ram Bhawan was reinstated by an order passed by the High Court on account of which Shri Amit Kumar Trivedi was ceased.
12. In order to appreciating the manner in which the vacancies were filled, the roaster prepared by the District Judge, Banda is reproduced as below:
1. Shri Shitala Prasad S.C. 2. Shri Aland Kumar Shukla General 3. Shri Santosh Kumar Saini O.B.C. 4. Shri Ravi Ranjan Kumar Gautam General 5. Shri Prem Narain S.C. 6. Shri Vinod Kumar Paliwal General 7. Shri Raj Kumar O.B.C. 8. Smt. Mamta Devi General (women) 9. Shri Naseem Ahmad O.B.C. 10.Shri Prakash Chand General 11.Shri Sohan Lal S.C. 12.Shri Rajendra Prasad Gauram General 13.Shri Jaikaran Singh O.B.C. 14. Shri Gauri Shankar Shukla General 15. Shri Subhash Chand Srivas S.C. 16. Shri Amit Rumar Trivedi General 17. Shri Kalyan O.B.C. 18. Shri Murari Lal Pandey General 19. Shri Hashmat Ullah O.B.C. 20. Shri Laxman Singh Chauhan General 21. Shri Phool Singh S.C. 22.Vishnu Priya General 13. On 13.9.2005 the Court has passed the following order: Sri K.R. Sirohi, learned Special Counsel for the District Judge has filed a supplementary counter affidavit today in Court and produced the records.
According to this supplementary counter affidavit of Sri Balendu Singh, Ist Additional District Judge, Mahoba there were five vacancies on 17.8.2000 when an advertisement was made by the District Judge, Mahoba for inviting applications for appointment on the post of Farras/Office Peons. After the selection, a select list was published on 19.9.2000 with 10 persons in general category; 06 in OBC and 04 in SC/ST (total 20).
On 20.9.2000, the District Judge appointed “six persons namely Sri Shitla Prasad, Sri Anand Kumar Shukla, Sri Santosh Kumar Saini, Sri Ravi Ranjan Kumar Gautam, and Sri Vinod Kumar Paliwal on these available six vacancies on the thirty five sanctioned posts (31 at Mahoba and 4 at Charkhari) in the Judgship.
On 6.11.2000 the Senior Administrative Officer reported that there was no representative for woman in 20 % quota of woman. On the same day the District Judge directed the Chief Judicial Magistrate, who was also member of the Selection Committee, to re-consider the matter and on the same day a report was submitted to include one Scheduled Caste and one woman candidate in the select list to complete their quota and accordingly a roster of 22 persons was prepared with Sri Phool Singh, S.C. at serial No. 21 and Ms. Vishnu Priya, the woman candidate at serial No. 22.
Sri Prem Narayan at serial No. 7 was left out. and was given appointment as SC candidate on 23.12.2000. Smt. Mamta Devi at serial No, 8 of the list drawn according to roster was given appointment on 13.2.2001. The candidates at serial No. 9 to 12 namely Sri Nasim Ahmad, Sri Prakash Chand, Sri Sohan Lal, Sri Rajendra Prasad Gautam were given appointments as against four vacancies at the outlying Court at Charkhari.
Sri Kalyan at serial No. 17 was given appointment on 27.8.2002. It is admitted that it was a mistake, as he was OBC candidate at serial No. 17 and that actually the appointments should have been given to Sri Jaikaran Singh at serial No. 13. Sri Jaikaran Singh ”Med a Writ Petition No. 19643 of 2002 which was allowed on 28.8.2002. Consequently, the appointment of Sri Kalyan at serial No. 17 was ceased on 28.8.2002 and Shri Jaikaran was appointed. Thereafter, it appears that ignoring Sri Gauri Shanker at serial No. 14 and Sri Subhash Chand at serial no. 15 the District judge gave appointment to Sri Amit Kumar Trivedi at serial No. 16 on 28.8.2002.
Thereafter again a mistake was committed by giving appointment to Ms. Vishnu Priya at serial No. 22 on 15.7.2003 by jumping over persons from serial no. 16 to 21 giving rise to these writ petitions.
Now in these writ petitions Sri Amit Kumar Trivedi is presented by Sri Madhusudan Dixit, Advocate, Sri Kalyan by Sri Rathor and Sri Rahul Chaturvedi, Advocates; Sri Murari Lal Pahdey by Sri P.S. Yadav, Advocate and Vishnu Priya through Sri Yogesh Agarwal, Advocate.
It is submitted by Shri K.R. Sirohi, that in Ram Babu v. District Judge, Banda reported in 1996 AWC 516 this Court had directed that the select list should not be more than three times in the number of vacancies, and should continue to operate till last person is given appointment. In this case, there were five vacancies on the date of advertisement on 17.8.2000 and thus at best select list of 15 persons could be prepared. Sri K.R. Sirohi submits that the select list from serial No. 16 to 22 was superfluous, and these empanelled after Sl. No. 15 had no right to be given appointment. Sri Amit Kumar Trivedi and Ms. Vishnu Priya were appointed on the vacancies of Sri Bhawani and Sri Ram Bhawan, who have been reinstated and thus their appointments were ceased, and that in any case they could not be appointed as Sri Amit Kumar Trivedi was beyond the 15 persons for which the list could not operate and Ms. Vishnu Priya was down below on the list at Sl. No. 22, and had superseded five persons.
At this stage, objections were raised by Sri Yogesh Agarwal, Sri Rahul Chaturvedi and Sri P.S. Yadav that they have not been provided with copies of the supplementary counter affidavit.
Let the copy of supplementary counter affidavit be given to them today. On their request, list this matter for further hearing on 29.9.2005, along with connected writ petitions as well as writ petition No. 49006 of 2003 filed by Sri Nasim Ahmad and others.
14. The Supplementary Counter Affidavit of Shri Balendu Singh was circulated to all the counsels. They have not filed any reply to the same and have not controverted the facts.
15. Shri Yogesh Agrawal appearing for Smt. Vishnu Priya, who was given appointment from the bottom of the roaster list submits that her appointment was ceased on 11.8.2004 on the ground that one Daftari (which is promotional post) was reinstated. He submits that the order cannot be justified by giving different reasons in the counter affidavit and has relied upon a judgment in Commissioner of Police v. Gordhandas Bhanji and Mahendra Singh Gill’s case. He further submits that the concept of ceasure is not known in the Rules. She was appointed on temporary basis and could not be terminated by an order of ceasure. He has also relied upon the judgment in Asstt. Commissioner of Commercial Taxes, Dharwar and Ors. v. Dharmendr Trading Co. .
16. In Ram Babu v. District Judge Banda 1996 AWC 516 this Court had an occasion to consider the provisions of U.P. Subordinate Civil Court Inferior Establishment Rules, 1955. The High Court interpreted Rule 12 and held that the words “reasonable dimensions” in Rule 12(2) have to be read in the light of Supreme Court decisions, in respect of size and life of waiting list. It was held that the list should not be twice the number of vacancies and should not last for more than one year.
17. In Prem Singh v. Haryana State Electricity Board , the Supreme Court after considering the entire case law on subject and its earlier judgments in State of Bihar v. Madan Mohan Singh 1994 (Supp-3) SCC 30 and Madan Lal v. State of J & K , held that a wait list should operate and may be governed by the rules. It is linked with the selection or examination for which it is prepared. The appointment in future vacancies from wait list should be an exception rather than the rule. A select list may not be perennial in nature and should not be used for future vacancies, which takes away the chances of the candidates, who become eligible subsequently for being considered for such vacancies. The State can deviate from the advertisement and make appointments on posts falling vacant, thereafter, in exceptional circumstances only or in an emergent situation, and that too by taking a policy decision in that behalf.
18. In Pradip Gogoi and Ors. v. State of Assam and and Ors. the Supreme Court held that preparation of waiting list, should not become a spinning ground for corruption and denial of constitutional right to equality to eligible candidates awaiting recruitment. It should not become an endemic spectacle to witness. The delay in process of selection and to fill up future vacancies beyond the recruitment year from the never ending wait list has a deleterious effect on the psyche of the people, which erodes the constitutional right under Article 16(1) of the Constitution of India. The sympathetic vibrations are also responsible for this sagging problem and moral degeneration.
19. The facts in this case clearly demonstrates that the roaster was not drawn in accordance with the reservation and government orders for giving special previsions for women and other categories of employees, and thereafter, the District Judge used the list to fill up future and unanticipated vacancy as well, creating a total confusion.
20. Rule 12 of the U.P. Subordinate Civil Courts Inferior Establishment Rules, 1955 is reproduced as below:
Waiting list- (i) A waiting list of candidates shall be maintained for each Judgeship for the posts of process servers, orderlies, office peons and far rashes.
No waiting list shall be maintained for chaukidars, malis, sweepers and waterman.
(ii) The waiting list should be of reasonable dimensions and be revised from time to time with a view to removing there from the names of-
(a) all such candidates as are not likely to receive appointments before attaining the maximum age prescribed in Rule 8, and
(b) such candidates as are found guilty of insubordination, misbehaviour or dishonesty in the discharge of their duties in temporary or officiating vacancies, after giving them necessary opportunities to explain their conduct.
Note-The order of names in the waiting list shall be in the order in which the candidates are admitted to it but the District Judge may at the time of appointment, choose from the list the most suitable of all the candidates for reasons to be recorded in writing.
21. A fair and reasonable interpretation of Rule 12, in the light of the aforesaid judgment is that the wait list should not be drawn for more than twice the number qf anticipated vacancies in the recruitment year, and should come to an end as soon as the last vacancy on the date of advertisement is filled up. It is always open to the District Judge to anticipate the vacancies due to superannuation or likely promotions, but having determined number of vacancies, for which the advertisement is made, and drawing a wait list of equal number of candidates, he is not permitted under the Rules to go on appointing persons from the wait list on unanticipated vacancies. Any other interpretation will only give rise to serious irregularities, as in the present case, and will also violate the rights of those persons, who become eligible in the meantime for being considered for such vacancies in future.
22. Smt. Vishnu Priya, at the bottom of the list had absolutely no chance of being appointed to the six clear vacancies for which the selections were held. She was the second women candidate in General category at Sl. No. 22 of the select list and her placement gives her no right to be considered for appointment. Shri Kalyan Saini at Sl. No. 17, Shri Amit Kumar Trivedi at Sl. No. 16, Shri Murari Lal Pandey at Sl. No. 18 and Shri Jaikaran Singh at Sl. No. 13 also did not have any right to claim appointment on the vacancies on the waiting list. They were far in excess of the vacancies for which advertisements were made. The list came to an end after the appointment of the last available vacancy and in any case after one year of the preparation of the select list i.e. on 18.9.2001.
23. The petitioners as such do not have any right to be appointed and since their appointments were in excess of the available vacancies within the year of currency of the select list, they were rightly ceased by the District Judge, Where a person is appointed in excess of the available vacancies, his appointment is invalid and thus the word ‘ceasure’ even if is not provided in the Rules, is the correct method of terminating his appointment.
24. All the writ petitions are, consequently, dismissed, with no order as to costs.