JUDGMENT
Abhay Gohil, J.
1. The State of Madhya Pradesh being aggrieved by the order dated 30th January, 2006 whereby the writ petition filed by the respondents has been allowed, has filed this writ appeal under Section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyay Peeth Ko Appeal) Adhiniyam, 2005.
2. Brief facts of the case are that the appellant/State had issued an advertisement on 25.7.1985 whereby six posts of law officers in Jail Department were advertised. The recruitment was to be made through Madhya Pradesh Public Service Commission(in short referred to be as the “Commission”). The qualification for the recruitment on the post of law officer was Bachelors’ Degree in Law with five years experience as an advocate. The respondent No. 1 & 2 had applied in response to such advertisement. Thereafter following due procedure by the Commission, a Panel of the selected employees was issued on 25.10.1986 the respondent No. 1 and 2 were also selected and the orders of appointment were issued on 2.7.1987. Prior to the issuance of the appointment order the respondents No. 3 to 6 filed a writ petition No. 339/86 before the High Court at Jabalpur Bench, in which validity of the advertisement dated 25.7.1985 was challenged and relief of regularization was sought as they were working on the post of law officer on ad hoc basis. In the aforesaid writ petition the interim relief was granted in their favour to maintain status quo.
3. In writ petition No. 339/86, the respondents No. 1 & 2 filed an application for intervention and also prayed for vacation of the stay order. By order dated 28.4.1987, the stay order was vacated. While vacating the stay order, this Court has observed that the State Government shall be competent to give effect to the selection made by the Commission and appoint the person selected. In all six persons were selected. Thereafter State Government only appointed two candidates, namely, Radhey Shyam Vijayvargiya and Nisar Ahmed, who were at Serial No. 1 & 2 of the selection list and the names of the respondents were found at Serial No. 3 & 5. Subsequently, the aforesaid writ petition No. 339/86 was transferred to the State Administrative Tribunal(for short referred to as the “SAT”) and registered as T.A. No. 587/98 and final order was passed by the Tribunal on 15.1.1998 and the writ petition was rejected. Against which the respondent No. 3 to 6 filed writ petition challenging the aforesaid order of the SAT, which was registered as W.P. No. 2062/98 but no interim relief was granted in their favour, however, subsequently, the aforesaid writ petition was also dismissed. Thereafter respondent No. 1 & 2 also filed an original application before the SAT which was numbered as O.A. No. 1711/99 against the non-action on the part of the appellant/State, for not issuing the appointment orders. That Original Application remained pending and after abolition of the SAT the Original application was transferred to High Court, which was registered as W.P. No. 4525/03.
4. Learned Single Judge after considering the various questions involved in the matter allowed the writ petition of the respondents No. 1 & 2 and directed the State Government to grant appointment to the respondents either on the vacant posts or in case the posts are not available then by creating supernumerary post. The learned Single Judge has considered that the State Government has regularized the ad hoc appointment of respondents No. 3 to 6 after giving relaxation in the rules vide order dated 29.4.2003 (Annexure-A/9) and thereafter submitted that there is no post available for giving appointment to respondents No. 1 & 2, who were selected by P.S.C. on vacant post and list prepared in the year 1986 has lapsed after a period of 18 months, and, therefore, no relief can be granted to the respondents No. 1 & 2, but learned Single Judge placing reliance on a decision in the case of Santosh Kumar Dubey v. State of M.P. and Ors. 1998 MPLSR 348 and on a decision of the Supreme Court in the case of State of U.P. v. Ramsaroj 2000 (2) SC 162 rejected the contention of the State Government and held that the action of the State Government was discriminatory and mala fide. If the State Government has granted relaxation in the recruitment rules in favour of ad hoc employees even after dismissal of their case by the Tribunal as well as by the High Court then how the State Government can stop the appointment of employees those who were directly selected by the Public Service Commission and in the aforesaid context the learned Single Judge directed the Government for creating supernumerary post and granting appointment to the respondents No. 1 & 2, against which the State Government has preferred this writ appeal.
5. We have heard the learned Counsel for the appellant/State as well as counsel for the respondents No. 1 & 2.
6. Learned Government Advocate raised a similar plea that the list was lapsed after the period of 18 months and the respondents No. 1 & 2 had not agitated their right and they have filed O.A. No. 1711/99 in the year of 1999 whereas the stay order was vacated on 28.4.1987 and the two appointments were already given by the State out of the aforesaid list and more so, the High Court cannot direct the State Government to create supernumerary post and give the appointment. The only direction to consider their cases can be given.
7. In reply the learned Counsel for the respondents No. 1 & 2 supported the impugned order passed by the learned Single Judge and submitted that the High Court is fully empowered to issue such a diction regarding creation of post and particularly in the circumstances when the State Government has acted malafide, not followed the rule of law and accommodated the persons those who acquired employment through backdoor entry even after granting relaxation in the rules in their favour and placed reliance on a decision in the case of State of U.P. v. Ramsaroj (supra) and submitted that the lis was pending in the writ petition before the lapse of select list and the contention was rejected by the Supreme Court as the operating list expired due to filing of the petition.
8. In the case of Rameswar and Ors. v. Jot Ram and Ors. , the Supreme court as has under:
It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date of suit or institutes the legal proceedings. This is an emphatic statement that the right of a party is determined by the facts as they exist on the date the action is instituted. Granting the presence of such facts, then he is entitled to its enforcement. Later developments cannot defeat his right. The Court’s procedural delays cannot deprive him or legal justice or rights crystallized in the initial cause of action.
Courts can, however, take note of subsequent events and mould the relief accordingly, but this can be done only in exceptional circumstances. Rights vested by statute cannot be divested by this equitable doctrine.
9. In the case of R.C. Sahi and Ors. v. Union of India and Ors. , the Supreme Court exercising jurisdiction under Article 142 for doing complete justice in any cause or matter, directed for creation of supernumerary post and while doing so, precedents in earlier similar matters were also taken into consideration in which similar directions were given.
10. Learned Counsel for the appellant cited a decision in the case of A.P.S.R.T.C and Anr. v. Dennina Rajeswari reported in 1999 AIR SCW 4940, in which it was held that direction to create supernumerary post should not be granted. It was directed by the Apex Court that if any vacant post becomes available in near future then the Corporation shall consider the case of the appellant and appoint her as early as possible. But, this matter relates to compassionate appointment which is not at par with the case in hand. Another case of H.R.T.C. v. Dinesh Kumar was cited to say that direction to create supernumerary post cannot be granted, but, that case is also not at par with the facts of the present case. In that case appointment was sought under the “kith and kin policy” of the employer and particular post was not available. That case is also not at par with the facts of present case. The case of Hindustan Aeronautics Ltd. v. A. Radhika Thirumalai , which has also been relied on by the counsel for the appellant/State is also not helpful to the State, as it is also the case of the recruitment on compassionate ground. The facts of the present case are quite different. Here in this case, the post was vacant, and advertisement was issued and respondents No. 1 & 2 were selected by the Public Service Commission and list expired during the pendency of litigation. When the State has granted benefit to the employees those who were appointed on ad hoc basis under back door entries after relaxation in rules and have denied the appointment to the legitimate persons those who were selected on merits through Public Service Commission. The action of the State cannot be held to be legal and proper. In such circumstances, the order for creation of supernumerary post can be passed and, in our considered opinion, the Single Judge has not committed any illegality in passing the impugned order. Supreme Court has clearly held that while granting relief original cause of action may be considered. As argued, even after vacating stay order, the petition was not finally decided and only two appointments were made. The respondents were waiting for the disposal of the writ petition, in which orders were passed against them. When even after the dismissal of writ petition State acted contrary to the interest of the respondents and in favour of those who were involved in getting wrong benefit, ultimately the respondents No. 1 and 2 had filed O.A. No. 1711/99.
11. Under the facts and circumstances of the case, we are also of the view that in this case Rule of Law should prevail. In a case where appellant State acted in discriminatory manner with malafide intention and granted benefit to ad hoc employees and regularized them after providing relaxation in rules, even after dismissal of their case by SAT as well as by High Court, the directions can be given to the State to create supernumerary post for the respondents No. 1 & 2, those who are directly selected on merits by Public Service Commission, as their cases were on better footings and their rights can not be infringed by the State by merely taking a plea that the validity of the period of list was 18 months or they had filed the O.A. after some delay. In our opinion, in such circumstances, the learned Single Judge had no option but to protect the interest of those righteous persons, who were selected on merits by Public Service Commission and in these circumstances if learned Single Judge has directed to appoint them either on vacant post, if available, or to create supernumerary post, he has not committed any illegality in passing the order.
12. As discussed above and under the facts and circumstances of the case, we do not find that any case is made out warranting any interference in the impugned order and in this writ appeal. Consequently, this appeal fails and is hereby dismissed. Parties to bear their own costs.