JUDGMENT O.P. Garg, J.
1. The dispute in the present writ petition under Article 226 of the Constitution of India pertains to appointment on the posts of Junior Clerk/Paid Apprentice in the ministerial establishment of District Judgeship of Gorakhpur on the basis of selection held by the District Judge in pursuance of an advertisement dated 8.4.1990, by which 51 vacancies were notified to be filled in by recruitment under the Subordinate Civil Court Ministerial Establishment Rules, 1947 (hereinafter referred to as the 'Rules of 1947'). There were two types of rival candidates who claimed consideration for appointment against the notified vacancies--firstly, who were already working in the Judgeship (hereinafter called as 'ad hoc employees'), and secondly, those who applied for the first time in pursuance of the advertisement and they are referred to, for the sake of clarity and brevity, as 'outsiders'.
2. The petitioners, who are 13 in number, alongwith other outsiders were the candidates who applied for the post. After the advertisement of the vacancies and receipt of applications from outsiders, a spate of writ petitions came to be filed by ad hoc employees who were also required to compete with the outsiders in the regular recruitment test. The leading writ petition of the ad hoc employees is CM! Misc. Writ No. 9913 of 1990. Interim orders were passed in the writ petitions of the ad hoc employees that though the selection process may go on and be completed but the re suits/select-list shall not be declared /published. The written examination was held on 9.9.1991 and after completion of the selection process, the select list was kept in a sealed cover. Two of the present petitioners alongwith four others filed Civil Misc. Writ No. 34562 of 1993 with the prayer that since process of selection has been concluded, it may be brought to a logical end by publishing/declaring the results. All the writ petitions of the ad hoc employees as well as Civil Misc Writ No. 34562 of 1993 were clubbed together and were decided by a common judgment on 24.3.1994 by Hon'ble A. S. Tripathi, J. The said decision in Adya Prasad Misra and others v. State of U. P. and others, 1994 (3) UPLBEC 1670. Certain directions were issued with regard to the regularization of the ad hoc employees as well as appointment of the outsiders whose names found place in the select list which was a part of the judgment itself, it was by means of the aforesaid judgment that the select list which was kept in sealed cover, saw the light of the day. In the aforesaid case, it was held in Para 80A that the benefit of the regularization policy be further extended by this judicial pronouncement that all the employees who have put in three years of service in civil courts shall be considered for regularisation subject to their eligibility for the post and their work and conduct being found satisfactory. A mandamus was issued for consideration of regularization besides the employees who had been appointed before 7.8.1989 also the employees who were appointed before 21.5.1992, the moment they complete three years of service. A further mandamus was Issued that ad hoc appointees who were appointed after 21.5.1992 and if continuing in service may also be retained and their regularization may also be considered if they continued for more than three years before any regular test is held in the meantime. If a regular test is held in the meantime, they shall appear in the test and their fate shall depend upon the result of that test. Thus, by this judgment all the employees Irrespective of the date of appointment were held entitled to be considered for regularization in terms of the directions issued. As regards the outsiders who were finally selected, the following direction was made:
"4. The select list prepared on the basis of regular test held on 9.9.1990 is declared and a copy of the same is attached with the Judgment. The appointment in the existing vacancies shall be made from this list in order of merit and this list shall remain in operation till it is exhausted."
Against the aforesaid decision, a Special Appeal No. 412 of 1994 was filed in which an interim order was passed on 10.4.1994 staying the operation of the judgment. This special appeal was dismissed as not pressed on 4.5.1997. Thereafter applications were made to recall the order passed in special appeal but all such applications were dismissed. A special leave petition was also filed before the Supreme Court which too was dismissed with the result that the decision rendered in Adya Prasad Misra's case (supra) became final and the directions issued therein were required to be implemented both in letter and spirit. Consequently, the District Judge. Gorakhpur regularised the services of the ad hoc appointees and in the remaining vacancies, appointed selectees in order of merit. The first appointment from the select list was made on 5.10.1995 and the last appointment of the candidate at serial number 15 in the select list was made on 30.4.1996. Out of the 15 selectees who were appointed, one did not Join meaning thereby 14 persons from the select list have been appointed and are working in Gorakhpur Judgeship. Since after 30.4.1996 no appointment has been made by the District Judge, Gorakhpur out of the select list. The petitioners are placed at serial numbers 16. 24, 27. 21, 30. 31, 32, 38, 40, 41, 64, 55 and 17 respectively. They approached the District Judge, Gorakhpur to appoint them in their turn in the light of the directions issued in Adya Prasad Misra's case (supra). They also made representations in this regard. The District Judge did not appoint anybody from the select list after 30.4.1996 solely on the ground that the select' list which became effective on the dismissal of the special appeal on 4.5.1995 has lost its 'one years' life' in view of the decision of the Full Bench of this Court in Devendra Nath Srivastava v. State of U. P. and others. (1996) 2 UPLBEC 1037, in which provisions of Rule 14 (3) of the Rules of 1947 came to be interpreted. It appears that the District Judge made a reference on the administrative side of this Court and he was informed that in view of the decision of the Full Bench in Devendra Nath Srivastava's case (supra), the directions contained in Adya Prasad Misra's case (supra) do not survive ; consequently, the life of the select list after the expiry of the period of one year has come to an end.
3. Faced with the refusal of the District Judge to abide by the directions contained in Adya Prasad Misra's case (supra), on account of Full Bench decision, referred to above, and the administrative directions of this Court, the petitioners had no alternative but to approach this Court under Article 226 of the Constitution of India with the prayer that the District Judge be commanded to appoint the petitioners against the vacancies which are lying vacant or which may fall vacant in the near future. Counter and rejoinder-affidavits have been filed. In the counter-affidavit, the District Judge has expressed his inability to make the appointments in view of the decision of the Full Bench in Devendra Nath Srivastava's case (supra), and the administrative direction of the High Court.
4. Heard Sri Ashok Khare, learned counsel for the petitioner at considerable length and the learned standing counsel.
5. There is no dispute about the facts of the case. It is an admitted fact that the names of the petitioners are incorporated in order of merit in the select list which form part of the decision in Adya Prasad Misra's case (supra). It is also not disputed that there is clear and specific direction that the appointments are to be made of the selectees till the select list is exhausted, regardless of the time factor. The only point which arises for determination in the present petition is that whether the directions contained in Adya Prasad Misra's case survive after the Full Bench decision of this Court in Deuendra Nath Srivastava's case (supra). which limits the life of the select list for a period of one year and the subsequent decision of the Division Bench, dated 24.2.1997 in Subedar Singh and another v.
District Judge, Mirzapur and others. 1997 (1) ESC 655 (All), in which it was held that decision in Adya Prasad Misra's case "did not lay down law correctly".
6. The decision by the Division Bench of this Court in Subedar Singh's case (supra), was rendered with reference to the controversy raised by certain ad hoc employees of other districts for regularization of their services under the U. P. Regularisation of Ad hoc Appointments, (on posts outside the purview of Public Service Commission) Rules. 1979, in which, by way of subsequent notification, the cut off date was fixed as 1.10.1986. The decisions in Adya Prasad Misra's case (supra) as well as Arvind Kumar Yadav and others v. State of U. P. and others, (1994) 2 UPLBEC 1019, came to be considered and it was held in Para 22 of Subedar Singh's case as under :
"22. In our view the benefit of regulartsation policy crystallised fn statutory rules cannot be extended by judicial pronouncement, since its extension would amount to legislation, which does not fall within the function of the Court. We are, with respect, accordingly, of the view that the decision in Adya Prasad Misra v. State of U. P. also did not lay down the law correctly."
The above observation made in Subedar Singh's case does not completely wipe off or efface the decision in Adya Prasad Misra's case (supra), particularly with reference to the directions made in regard to the outsiders whose names are found in the select list. The observation that Adya Prasad Misra's case (supra), does not lay down the law correctly was made with reference to the variation made about the cut off date and the direction about the regularization of the services of those employees who were appointed on ad hoc basis after the cut off date, i.e., 1.10.1986. The direction with regard to the appointment of the outsiders/selectees was not even touched upon or discussed in Subedar Singh's case (supra). The decision in Adya Prasad Misra's case (supra), therefore, remains intact and totally unaffected by the subsequent decision of Division Bench in Subedar Singh's case (supra) insofar as it relates to the direction made about the appointment of the selectees/outsiders. My considered opinion in the matter is that the decision in Adya Prasad Misra's case with regard to the directions made about the petitioners is not, in any manner, wiped off and the direction No. 4 contained in the decision, as quoted above and which has become final, has to be implemented. Neither expressly nor by implication Adya Prasad Misra's case can be said to have been overruled in all respects by the Division Bench decision in Subedar Singh's case (supra).
7. Now, let us test the direction No. 4, referred to above, in Adya Prasad Misra's case with reference to the decision of the Full Bench of this Court in Devendra Nath Sriuastaua's case. The ratio decidendi in Devendra Nath Srivastava's case (supra) is that the life of the select list prepared under the Rules of 1947 is only for a period of one year and after the expiry of the period of one year, the select list ceases to exist and no appointment can be made from the select list after a period of one year. Learned standing counsel on behalf of the respondents urged that the decision in Devendra Nath Srivastava's case (supra) which has the effect of issuing general binding direction would have the effect of nullifying the direction No. 4 made in Adya Prasad Misra's case (supra), inasmuch as, the select list which formed part of the decision in Adya Prasad Misra's case, has to remain operative only for a period of one year. Sri. Ashok Khare, learned counsel for the petitioners repelled the above submission and painstakingly pointed out that even if the decision in Adya Prasad Misra's case (supra). Is termed to be erroneous and against the later decision of the Full Bench of this Court, directions contained in it have to be given effect to as the said decision, which is inter partes, has become final and on the principle of res judicata, direction No. 4 contained in the decision of Adya Prasad Misra's case (supra), cannot be thwarted. I find considerable force in the contention of Sri Ashok Khare. If the principle of resjudicata has any meaning, direction No. 4 contained in Adya Prasad Misra's case (supra), would be valid and effective. The said direction cannot be rendered illusory and nugatory merely on the ground that subsequently a Full Bench of this Court has ruled that the life of the select list would be only for a period of one year. The decision in Adya Prasad Misra's case was infer partes. Inasmuch as, two of the present petitioners were also petitioners in Civil Misc. Writ No. 34562 of 1993 which was clubbed and decided with leading Writ Petition No. 9913 of 1990, Adya Prasad Misra v. State of U. P. and others. On the basis of direction No. 4 contained in the said judgment, as many as 15 persons from the select list have been extended the benefit of appointment. The petitioners as well as other outsiders, who are placed in the select list, cannot be made the victims of discrimination. It would be unwise, unjustified and unfair to extend a particular type of favourable treatment to one set of persons and to deny the similar treatment to the remaining candidates on the ground that subsequently some general directions have come to be made by a Full Bench. With all respect at my command to the decision made by the Full Bench in Devendra Nath Srivastava's case (supra), I am of the view that direction No. 4 contained in Adya Prasad Misra's case has to be given effect to and the successful candidates in the select list have to be given appointment in order of their merit against the existing vacancies or the vacancies which may arise in near future and this process shall go on till the select list is finally exhausted. There are other reasons which have impelled me to take the above view. This fact cannot be lost sight of that initially 51 posts were advertised. All these 51 posts were, therefore, to go to the selectees. It was on account of the directions about regularization of the ad hoc employees under the 1979 Rules that substantial number of vacancies were consumed by the ad hoc employees leaving outsider selectees in a lurch, without no fault of theirs. There would have been no dispute or controversy if the ad hoc employees had not conjured up substantial number of vacancies in the light of the decision in Adya Prasad Misra's case (supra). Learned single Judge while issuing various directions in Adya Prasad Misra's case was conscious of this fact and it was for this reason that he had, with all awareness and to balance the rights of the parties, issued direction No. 4 and on equitable considerations, commanding that the candidates in the select list shall continue to be appointed till the list is exhausted. The direction to regularise the ad hoc appointees did not only have the effect of reducing the number of vacancies which would otherwise have been available to the outsider selectees, but some of the ad hoc employees who had failed to compete with the outsiders in the written examination too have been able to secure the appointments. Now, when the ad hoc appointees have been regularised in service--whether rightly or wrongly, and they have been continuously working for the last more than a decade, it would be difficult to disturb the vested rights which they have acquired. Therefore, the only via media left was to confer the benefit of appointment on the petitioners and other candidates appearing in the select list even after the expiry of the period of one year during which the select list was to remain in force. If this benefit would not have been conferred, most of the petitioners would have become overage with the result, their chances to seek any other public employment would have been totally marred. It was for all these considerations that Hon'ble A. S. Tripathi, J., has made a conscious direction No. 4 in his decision in Adya Prasad Misra's case (supra).
8. The direction that the petitioners and other selectees shall continue to be appointed as and when the vacancies arise till the list is exhausted is not, in any manner, whittled down by the decision of the Full Bench in Devendra Nath Srivastava's case (supra). The administrative directions issued by this Court to the District Judge have to be ignored as they are clearly against the Judicial direction contained in Adya Prasad Misra's case (supra), which in all respects, has become final insofar as it related to the appointment of the selectees/outsiders.
9. There is, it appears, no dearth of vacancies in District Judgeship of Gorakhpur. Certain posts of Class III cadre have been advertised in the month of October, 1997. Some of the selectees in the list may still be given benefit of the appointment against the vacancies which have been advertised in October, 1997. As a matter of fact. If the petitioners had been appointed against the vacancies in the light of directions contained in Adya Prasad Misra's case, the necessity of making a fresh advertisement would not have arisen.
10. In view of the above discussion, the petitioners are entitled for appointment on Class III Ministerial posts in the Judgeship of Gorakhpur against the existing vacancies or the vacancies which may occur in near future. The petitioners as well as all the candidates whose names appeared in the select list from serial number 16 onwards shall be appointed and continued to be appointed having regard to the vacancies in order of merit till the said list is exhausted.
11. In the result, the writ petition is allowed and the District Judge.
Gorakhpur--respondent No. 3 is hereby commanded and directed to offer appointments in order of merit to the petitioners as well as other selected candidates whose names find place in the select list from serial number 16 (inclusive) onwards till the list is exhausted against the existing vacancies or the vacancies which may occur in future. No fresh recruitment shall be made till the select list is exhausted.