JUDGMENT Sunil Ambwani, J.
1. Heard Sri A.P. Tiwari, learned counsel for the petitioner and Sri Amit Sthelkar for respondents.
2. The District Judge, Deoria advertised 48 vacancies of Class III employees to be filled up by selections vide advertisement published on 13.9.1999. Out of these 48 vacancies, 36 were on the post of Clerks in Grade III, 05 on Paid Apprentices and 07 on Stenographers. The petitioner was placed in the waiting list of paid apprentices it serial No. 2. All the selected persons joined. There was no further vacancies on which the petitioner could be appointed within a period of one year i.e. The validity of the select list in terms of Rule 14 (3) of the U.P. Subordinate civil Courts Ministerial Establishment Rules 1947. It appears that four employees of the Judgeship were suspended and consequently District Judge appointed some of the persons out of the waiting list on these short term vacancies. The petitioner was given the short term appointment caused on suspension of One of such employee. The appointment letter dated 7.7.2000 clearly mentioned at the end, that the appointment is on a vacancy caused on the suspension of an employee and that if the employee is reinstated, the petitioner's services will come to an end. Sri Ajai Kumar Srivastava, the suspended employee was reinstated. Consequently the petitioner's services came to an end by order dated 14.11.2000.
3. Learned counsel for the petitioner submits that similarly placed person at serial No. 1 in the waiting list, who was also appointed in short term vacancy, name a representation to High Court, which was allowed and that he was given regular appointment vide order of the High Court dated 23.5.2001. The petitioner has claimed parity with Sri Dharmendra Kumar Chaudhari and submits that rejection of his representation violates the equality before law guaranteed by Article 16 of the Constitution of India.
4. A person in the waiting lift does not have a right to be appointed unless the advertised vacancies are not filled up by the selected persons. It is only when any selected person does not join, that the vacancies can be offered to the person in waiting list in accordance with merit position within the period of validity of the select list. In the present case, it is admitted that no vacancies were caused on account of non-joining of any of the persons selected and placed in the main list. This Court has time and again and repeatedly requested the District Judges not to make appointments on short term vacancies out of waiting list prepared after regular selection. This not only causes complications but raises hopes of the wait listed candidates who are later on engaged in litigation for decades altogether. In Madan Lal v. State of J & K and Prem Singh v. State of Haryana the Supreme Court held that appointments from the waiting list, beyond advertised vacancies can be made only in exceptional circumstances, and in emergent situation, and that too by taking a policy decision, which should be free from arbitrariness
5. The object and purpose of the waiting list is to avoid another selection for the same vacancies which cannot be filled up from the selected candidates. The petitioner was not appointed on any clear vacancy. He was appointed on a vacancy caused on account of suspension of an employee of the judgeship. It was a short term vacancy which should not have been filled up from the waiting list. In any case the appointment letter clearly stipulated that the appointment is conditional upon reinstatement of suspended employee. Sri A.P. Tiwari, learned counsel for the petitioner made an attempt to state that this condition was not incorporated in the appointment letter and was added subsequently. This ground appears to have been taken for the first time in the rejoinder affidavit. In the writ petition the petitioner has relied upon his appointment dated 7.7.2000 which clearly stipulate that the appointment is subject to reinstatement of the suspended employee. It is apparent that the petitioner is trying to create a new ground in rejoinder affidavit, which cannot be accepted.
6. Sri Dharmendra Kumar Chaudhari has not been, impleaded in the writ petition. I am not inclined to go into the question of the validity of the appointment of Sri Dharmendra Kumar Chaudhari or to examine the circumstances in which he was appointed out of the wait list and given appointment in the absence of any vacancy caused on account of non-joining of any candidate. The operative portion of the order quoted in the letter of Deputy Registrar dated 23.5..2001 proceeds with the statement that the applicant was 'appointed', after due selection. The question whether this statement is correct, is not a subject matter to be decided in this writ petition. In any case, the person whose appointment is a cited for claiming parity, has not been impleaded. This Court will not cause a futile enquiry into the circumstances in which such appointment was made. An irregular appointment does not discriminate the similarity situate person. In Chandigarh Administration v. Jagjeet Singh , the Supreme Court held that an illegal order with which comparison is made can not be the basis to issue a writ compelling respondents to do the same illegality. The extraordinary powers under Article 226 of the Constitution of India cannot be exercised for such purpose. Why examining another person's case in his absence, rather than examining the case of the petitioner, who is present before the Court seeking relief. Giving effect to such a plea will be prejudicial to the interest of law and will be against the public interest. Each case must be decided on its own merit both factual and legal.
7. The writ petition is accordingly dismissed, with directions that in future no appointment shall be made by the District Judges from out of the wait list on any short term vacancies. The Rules clearly do not provide for any such appointments I which not only cause serious administrative difficulties, but also engages time and energy of this Court. No order as to costs.