JUDGMENT A.K. Yog, J.
1. Above mentioned writ petitions were connected under orders of the Court dated 19.7.2001 in Writ Petition No. 26115 of 2001 since petitioners in the instant petitions had applied in pursuance to an advertisement made by the District Judge, Shahjahanpur in the year 1996 for appointment on the posts of Stenographers and Clerks (Class III posts) governed by the provisions of The Subordinate Civil Courts Ministerial Establishment Rules, 1947 (read with the Uttar Pradesh Rules for the Recruitment of Ministerial Staff of the Subordinate Offices, 1950) to the extent held applicable by the Apex Court in the case of Om Prakash Shukla v. Akhilesh Kumar Shukla and Ors., AIR 1986 SC 1043, wherein it held that Rules 9, 10, 11 and 12 of the Rules, 1947, stood impliedly substituted by Rules 3, 4, 5, and 7 of the Rules, 1950 read with its Schedule under the heading Judicial (A) Department (hereinafter referred to as Rules, 1947 and Rules, 1950 respectively).
2. According to the case of the petitioners, a select list was declared on March 16, 1999 containing 25 candidates (including the petitioners) which was notified on March 19, 1999 and appointment letters issued to all of them. Out of these 25 candidates, only twenty candidates joined whereas five candidates did not join.
3. Names of Suneet Kumar Khandelwal, Mirza Asif All Beg and Rajeev Kumar Srivastava appeared in the wait list (General category) at serial Nos. 1, 6 and 11. Name of Umesh Chandra Gangwar and Sanjeev Kumar Sharma appeared at serial Nos. 2 and 4 in the wait list (Backward category). The name of Rajeev Kumar appeared at serial No. 5 in the wait list of the candidates of Schedule Caste.
4. The petitioners made representations claiming appointment on the ground that their names were on waiting list, hence entitled to appointment but to no avail, hence these writ petitions.
5. Writ Petition No. 26115 of 2001, Mirza Asif Ali Beg v. District Judge, Shahjahanpur and Anr.. Mirza Asif Ali Beg had approached earlier through W.P. No. 13540 of 2000 praying for a writ of mandamus to issue appointment letter in his favour and treat the petitioner in service.
The said writ petition was finally disposed of by learned single Judge vide judgment and order dated 15.3.2000, observing that :
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With regard to his grievance the petitioner wants to make a fresh representation before the respondent. In case such a representation is made by the petitioner before the respondent within one month from today, the same shall be decided by him by a speaking and reasoned order within a period of three months from the date a certified copy of this order is produced before him.
As per aforementioned order of the High Court dated 15.3.2000, Mirza Asif Ali Beg submitted representation on 7,4.2000 along with aforesaid order of the High Court before the District Judge, Shahjahanpur.
The said representation was, however, dismissed by the then District Judge, Shahjahanpur vide order dated May 25, 2,000 and communicated to the petitioner through letter dated 25.5.2000 issued by Senior Administrative Officer, District Court, Shahjahanpur (Annexure-1 to the Writ Petition No. 26115 of 2001). The date of the receipt of the aforesaid order of the District Judge dated 25.5.2000 has not been disclosed in the writ petition.
6. Mirza, Asif Ali Beg (petitioner), it is evident, did not file the present petition promptly. As per record, the petitioner filed present petition supported by an affidavit dated 11.7.2001 when fresh advertisement had already been issued on 29.6.2001 (Annexure-2 to the writ petition). Learned counsel for the petitioner, Sri Neeraj Pandey stated that application form was submitted after filing of the petition in this Court. The petitioner thus did manipulate and initially did not mention about his intentions to apply in pursuance to the aforesaid advertisement dated 29.6.2001. If the statement of the learned counsel for the petitioner is correct, the petitioner must have obtained and filled in his application form on or before 12th July, 2001 and submitted the same on or before 13.7.2001 as required under the advertisement dated 29.6.2001. The application of the petitioner was entertained, he admittedly appeared in the examination (held in pursuance of the said advertisement dated 29.6.2001). The only initial relief claimed in the writ petition is to quash the advertisement dated 29.6.2001. Further relief to quash the order dated 25.5.2000 (Annexure-1 to the writ petition) has been added vide Court order dated 11.1.2002.
7. The initial relief (before amendment) in the present petition to quash the advertisement dated 29.6.2001 runs contrary to the object of the petitioner which he desired to be achieved by submitting his application form in pursuance to the advertisement dated 29.6.2001.
8. This Court at the admission stage while perusing the advertisement dated 29.6.2001 found that Clause 1 prescribed last date of issuance of application forms as 12.7.2001 and 13.7.2001 as the last date for submitting application forms, which was unusual. Further, the advertisement did not indicate the number of vacant posts of clerks and stenographers proposed to be filled up. The advertisement also required the candidates to collect their admit cards personally on 17th and 18th July, 2001 during office hours. It did not provide for admit cards to be sent to the candidates through Registered Post (as was done earlier in the past).
9. The Court called for the record of Writ Petition No, 13540 of 2000, Mirza Asif Ali Beg v. District Judge, Shahjahanpur, and found glaring variance in the two advertisements of 1996 and 2001, as well as the instructions issued in the matter.
10. It has also come on record that in spite of an interim order dated 19.7.2001 passed on the stay application in the writ petition, selection process in pursuance to the said advertisement was carried on though on the pretext of ignorance of ft. The interim order reads :
"Until further orders respondents and all the concerned authorities/ officers are restrained not to proceed with the selection process/ appointment on the basis of advertisement dated 29th June, 2001 'Amar Ujala, Bareilly', (Annexure-2 to the writ petition) including on the basis similar advertisement made in any other newspapers."
11. The then District Judge Shri Om Pal as per record had admittedly come to know of the pendency of the writ petition as he had received the order passed on the writ petition which reads :
"................In view of the averments made in paras 6 and 7 to the writ petition, I direct the present petition to be listed along with record of Writ Petition Nos. 13540 of 2000, Mirza Astf Ali Beg v. District Judge, Shahjahanpur ; 13089 of 2000, Sumit Kumar Khandelwal and Ors. v. District Judge, Shahjahanpur and 24613 of 2000, Umesh Chandra Gangwar v. District Judge, Shahjahanpur, as jointly suggested by the learned counsels for the parties on 13th August, 2001.
Learned counsel for the respondents may file counter-affidavit before the next date fixed. Learned counsel for the respondents may also ensure to produce original record of the examination held on 12th January, 1997 as well as present selection process in question....."
12. This Court had fixed date after a few weeks, but the said District Judge did not care to collect the papers and the information of the writ petition so as to make him aware of the correct position on record. He, thus, exhibited lack of due caution on his part.
13. The petitioner's relief is twofold :
(i) He wants appointment on the basis of his name being on wait list of the select list notified on 16th/19th March, 1999.
(ii) He wants the advertisement dated 29.6.2001 (Annexure-2 to the writ petition) also to be quashed.
14. Respondents contest claim of the petitioner on the basis of the select list dated 16th/19th March, 1999 as given below on the ground of the said list having lapsed by passage of time.
15. In para 18 of the counter-affidavit, it is mentioned that life of the Select List dated 16.3.2000 (along with the wait list) was valid for one year i.e., upto 16th/17th March, 2001 under Rule 14 (3) of the Rules, 1947 which reads :
"(3) If any such candidate has not been given an appointment (offered in strict order of seniority according to the list in the bound register prescribed under Sub-rule (1) within one year from the date of his recruitment, his name shall be automatically removed from the register of recruited candidates and he must then take his chance with others for recruitment again in a subsequent year."
16. In para 18 counter-affidavit (sworn by Sri Rahul Mishra, Additional District Judge, Shahjahanpur), it is stated that the representation of the petitioner requesting to extend the period of validity of the Select List declared on 16th/19th March, 1999 (i.e., beyond one year as prescribed under relevant rules) was forwarded vide letter dated 27.5.2000 by the then District Judge, Shahjahanpur to the High Court. The District Judge, Shahjahanpur also informed the Deputy Registrar, High Court that no appointment was done from the wait list because of want of work in view of the fact that Courts were lying vacant (Annexure-C.A. II to the counter-affidavit). The request to extend the life of the select list did not find favour with and High Court and its decision communicated by the Deputy Registrar vide High Court letter dated 28.8.2000 (Annexure-C.A. I to the counter-affidavit) addressed to the concerned District Judge.
17. In paras 8 to 12 of this counter-affidavit, detailed facts have been given to show that various Courts (namely 11 Courts at the relevant time) were lying vacant suggesting that there was no work and hence no appointment was made when 5 candidates from the main list did not join and that no offer was made to the candidates on the basis of the said waiting list also. In para 23 of the counter-affidavit, further defence taken is that the list lapsed automatically per force of the statutory Rules 14 (3) of Rules, 1947, Paras 8 to 12 and 18 of the counter-affidavit have been replied by the petitioner vide Paras 6 and 11 of the rejoinder-affidavit.
18. The plea of the respondents vide Paras 8 to 12 and 18 of the counter-affidavit, namely. Courts were vacant and there was no work, has not been specifically denied and rather a vague and evasive reply has been given by referring to the proviso-2 appended to Rule 3 and the notes attached to Rule 3 of the Rules, 1947 :
Provided that the District Judge may from time to time with the concurrence of the High Court or the Chief Court, as the case may be, leave unfilled or the Governor may hold in abeyance or abolish any vacant post without entitling any person to any compensation."
19. The petitioner has filed a supplementary affidavit annexing therewith (i) a copy of the instructions relating to the advertisement and examination of 1996 ; (ii) copy of the select list dated 16th March, 1999 (date as given in para 3 of the supplementary-affidavit) ; (iii) the copy of the High Court order dated 15.3.2000 passed in earlier Writ Petition No. 13540 of 2000 ; (iv) copy of the representations dated 19.8.1999 and 16.2.2000 (Annexures-4 and 5 to the supplementary-affidavit) and (v) photo copy of the application form for competitive examination, 2000-2001.
20. The application form (Annexures-S.A. 6 to the supplementary-affidavit) shows that in the declaration form, there is a note in which it has been mentioned that complete application forms were to be submitted to the District Judge, Saharanpur through Registered Post or personally on or before the prescribed date. The photo copy of the blank admit card annexed as part of Annexure-6A to the supplementary-affidavit contains certain directions. Direction at serial No. 2 requires that except columns at serial Nos. 5, 6 and 7 (i.e., date of the examination, place of examination and time of examination) were all to be filled up by the candidates. Direction No. 3 indicates that candidates were supplied envelops also upon which candidate was required to mention his full name and address so that admit card could be sent to him by registered post.
Facts of Writ Petition No. 13089 of 2000, Suneet Kumar Khandelwal v. District Judge, Shahjahanpur.
21. The relevant facts, for deciding the controversy raised by the petitioners, cases are more or less similar, except the fact that in the instant case the petitioner had not approached the Court earlier. The counter-affidavit filed on behalf of the respondent also contains more or less similar facts except that in para 3 Clause (e) to (i), the respondents have furnished details regarding Court lying vacant strengthening their defence to the fact that there was no work and that the respondents did not act arbitrarily when they did not issue appointment letters to the candidates in the wait list and also that select list (including wait list) had lapsed on the expiry of the one year under relevant Rules, 1947. In para 9 it is also explained that two persons, namely, S.K. Srivastava and Subhash Singh (who were at serial Nos. 11 and 13 respectively in the select list) were transferred on their representation being allowed by the High Court, as they were surplus, considering the existing work load at that point of time. It is not disputed that such a transfer is permissible under Rule 23 of Rules 1947, which reads :
"The High Court or the Chief Court, as the case may be, may for special reasons transfer any member of ministerial establishment from any judgeship to another."
22. In para 10 of counter-affidavit it is reiterated that very large number of posts are lying vacant and even the existing staff is not only sufficient but in excess.
23. The main contention in the rejoinder-affidavit filed in reply to the said counter-affidavit is that District Judge did not seek permission from the High Court to keep the post unfilled.
Facts of the Writ Petition No. 24617 of 2001, Umesh Chand Gangwar v. District Judge, Shahjahanpur and Anr..
24. Petitioner was shown in the wait list of the Backward Class candidates at serial No. 2. The vital facts of the case as stated in this petition are also same as in the above connected writ petitions.
25. The record of the petition in the case of Umesh Chand Gangwar shows that appointment letters were issued on 18th March, 1999 (Annexure-5 to the said petition). He did nothing from 1999 till 2001 and waited till the issuance of advertisement dated 29.6.2001.
26. In this respect, this petition stands on different footing. And the petitioner can be denied relief on the ground of laches. It may be stated that petitioner Umesh Chand Gangwar is also one of the petitioners in Second Writ Petition No. 13089 of 2000 in which petitioners had merely claimed their right on the basis of selection held in 1999. Umesh Chand Gangwar in the present petition has claimed a writ of certiorari to quash the selection proceedings held in pursuant to the advertisement dated 29.6.2001 on the same ground as contained in the writ petition of S.K. Khandelwal and others.
27. There are two aspects in all the three petitions, namely :
(i) Whether the present petitioners before this Court have a right to seek an appointment on the basis of their names appearing in the wait list dated 16.3.1999 which had automatically lapsed or the select list/wait list cannot be utilised after expiry of period of one year for any reason, including the fact that one of the candidates had filed writ petition wherein he was directed to file representation which has been decided on 25.5.2000 or the list automatically lapsed and stood exhausted automatically.
(ii) Whether the advertisement dated 29th June, 2001 and the process of selection held in pursuance thereto is legal and valid and/or it is illegal/arbitrary being in contravention of the mandatory Statutory Rules, 1947 read with rules, 1950.
28. In the instant case. Court summoned original record which was placed before this Court in sealed envelopes.
29. The Court in original papers in sealed envelops, found that 'merit list was proposed separately for each category of the candidates (i.e., General Category Candidates, Scheduled Caste Category and Backward Category) was prepared in different handwriting without bearing serial numbers, without being authenticated and signed by any authority.
30. Since the then District Judge (Om Pal) was under suspension, the records were sent by the subsequent incumbent holding office as the District Judge after preparing an inventory under counter signatures of Sri S.K. Srivastava, Additional District Judge, Chairman Selection Committee and Senior Administrative Officer on 22.12.2001. The members of the selection committee, who were present in person before the Court during the course of argument, admitted that they were not taken into confidence on any vital matter during the said examination except doing clerical/ supervisory work. It is admitted by the Selection Committee members that they did not participate in coding-decoding preparation of question papers, settlement of Centres appointment of Examiners, Invigilators, evaluation of answer books, etc.
31. Four members, including Chairman of the Selection Committee, present in Court, categorically submitted that copies were corrected at the residence of the then District Judge, Om Pal, and that they had no knowledge whatsoever about any register or document, coding or decoding, tabulation, etc.
32. On 15.1.2002, this Court passed order, on the order sheet, which is reproduced :
"Supplementary-affidavit was filed earlier in Court after serving its copy on the learned standing counsel representing the respondents on July 31, 2001.
Sri Sudhir Agrawal, advocate submits that since the Court has already requisitioned the original record and that supplementary affidavit contains document relating to the original record itself, no supplementary counter-affidavit is proposed to be filed against the same.
A counter-affidavit after serving its copy on the learned counsel for the petitioner on 7.12.2001, was filed on behalf of respondent No. 2.
Learned counsel for the petitioner states that no rejoinder-affidavit is proposed to be filed since entire original record is before the Court.
The then District Judge, Shahjahanpur, Sri Om Pal (now under suspension on the charge of indecent conduct and behaviour with a lady Judicial Officer under him) constituted a Selection Committee for holding an examination to select candidates for Class III posts in the District Judgeship of Shahjahanpur on 30th June, 2001 (i.e., after having issued advertisement in question dated 29.6.2001 under order No. 47 of 2001) dated 30th June, 2001 (on record).
Sri Sudhir Agarwal, advocate, learned counsel representing the respondents has placed a copy of the said order No. 47 of 2001, dated 30th June, 2001. It shall be retained on the file. Selection Committee consisted of the following :
Mr. S. K. Srivastava Additional District Judge.
Shahjahanpur, Chairman (2) Mr. P. K. Goel Additional District Judge. Shahjahanpur. Member (3) Mr. A. K. Jain Additional District Judge, Shahjahanpur, Member (4) Mr. S. L. Rajvanshi Additional District Judge. Shahjahanpur. Member (5) Mr. Shahid Raja Additional District Judge. Saharanpur. Member Sri S.K. Srivastava, Chairman has made a voluntary statement in open Court : (i) the Committee was constituted on June 30, 2001 after advertisement in question was published in one Newspaper dated 29th June, 2001 (Annexure-2 to the writ petition) ; (ii) that members of the Selection, Committee, were required only to conduct the examination in different centres as per direction of the then District Judge, Shri Om ,Pal ; (iii) 'list of centres' was prepared by the Selection Committee ; (iv) that all other relevant decisions were taken by the then District Judge from time to time ; (v) that all other matters were finalised by the then District Judge ; (vi) that after examination was held/conducted the copies were collected, sealed and submitted to the then District Judge. Sri Om Pal, who kept them in his custody and later gave the copies, on his own without taking the Committee into confidence to different officers under him, that coding and decoding work was done by the then learned District Judge without taking members of the Selection Committee into confidence : (vii) that no Register was prepared in from B of Appendix-1 to the Rules, 1947, within the knowledge of the members of the Selection Committee and if any such Register is found in existence the same must have been got prepared by the then learned District Judge, Shahjahanpur, which is again not within the knowledge of the members of the Selection Committee ; (viii) that Selection Committee prepared no merit list or select list and if merit list exists then it is got prepared by the then learned District Judge, Shri Om Pal.
All other members of the Selection Committee, on specific query by the Court, whether they agree or disagree with the statement of Shri S.K. Srivastava, Chairman of the Selection Committee, adopted the aforesaid facts and endorsed to be correct.
This order is dictated in the open Court in presence of the members of Selection Committee aforesaid, Sri Sudhir Agarwal, learned counsel representing respondents and the learned counsel for the petitioner. This statement shall form part of the final judgment.
Sri S.K. Srivastava, Chairman of the Selection Committee, in view of the above, directed to find out from the present District Judge about the existence of the Register, if any, as contemplated in Form B Appendix-1 under Rule 14 of the Subordinate Civil Courts Ministerial Establishment Rules, 1947 and if such a Register is available the same shall be produced on the next date fixed, but if no such Register exists, an affidavit to that effect shall be filed in the Court before the next date.
Sri S.K. Srivastava, Chairman of the Selection Committee is further directed to produce tabulated Marksheets, Register indicating dispatch of admit cards to the respective candidates by Registered Post (as mentioned in the advertisement), or otherwise the Original Application Forms and corresponding answersheets of the candidates whose names appear in the merit list of different categories of the candidates (submitted by the District Judge to the then Administrative Judge). Sri T.M. Khan, Officer on Special Duty, High Court, Allahabad shall make available photocopies of the front pages of those Merit List compilations to Sri. S.K. Srivastava to enable him to comply this order and get entire original record sealed in his presence.
Put up for further hearing tomorrow."
33. There is no explanation, as far as the advertisement dated 29.6.2001 is concerned, as to why no gap was left between the last date for obtaining application (i.e., 12th July, 2001) and the last date for submitting application forms i.e., 13th July, 2001. In the earlier advertisement of 1996, there was considerable time between obtaining and submitting the application forms. Secondly, the advertisement did not disclose as to whether the applicant was entitled to submit application forms through post even though it had such indication in the relevant instructions. The advertisement also did not mention the date for examination.
34. The advertisement, however, also did not disclose the number of vacancies though statutorily required under Rule 9 of Rules 1947, which reads :
"9. Method of Recruitment.--Early in each year, or as the circumstances may require, each District Judge shall recruit as many candidates for his judgeship as are required for the vacancies likely to occur in the course of the year."
35. Further, the advertisement was not published in more than one local newspapers even though required under Rule 10 of Rules, 1947 which reads :
" 10. Application of recruitment. -- Applications for recruitment shall be invited by the District Judge in Form A in Appendix-I by advertising in the papers, circulating in the locality, the number of candidates to be recruited and the date of the examination. Every such application shall be put up before the District Judge and its receipt acknowledged.
The expression "local papers" in Rule 10 of the Rules, 1947, definitely indicate that advertisement has to be made in more than one paper.
The Advertisement dated 29.6.2001 is thus in clear breach of above statutory rules.
36. The record before this Court does not indicate when admit cards, were issued or delivered to the candidates.
37. The examination register (titled as Class III Employees Selection Year, 2001, details of applications) has several entries from page 1 to page 22 it showing sale of application form from 29th June, 2001 to 12th July, 2001. The condition of the register, however, shows that entries have been made at one stretch. The condition of the register and the pages in different does not indicate that entries were made in due course as and, when forms were sold. It is curious to note that entries are in continuity. The other register containing details of the application forms from Roll Nos. 1 to 1500 were curiously scrutinized by the Court and several entries particularly at serial Nos. 555, 578, 579, 783, 859 and 949 are the application forms of the persons resident of Deoria, Meerut, Sitapur and Hardoi. The chart submitted along with aforementioned register containing details of Form Nos. 1 to 8316 sold between 29th June, 2001 to 12th July, 2001. The aforesaid register bearing details of the candidates along with corresponding form numbers sold to them.
38. The close and deeper scrutiny of the aforesaid register discloses that the three hundred forms were sold to various candidates on 29th June, 2001, i.e., the date of the advertisement itself, who were resident of the districts (other than Shahjahanpur) namely, Mirzapur, Hardoi, Pilibhit.
39. It was noticed by the Court that various relevant records particularly, the sheets containing marks of respective candidates, in order of merit are maintained on loose sheets with various cuttings without having initials of the concerned authority. The alleged merit list does not contain the signature and the names of the respective officer/ authority to establish its authenticity.
40. On behalf of the petitioners, reliance was placed on Rule 3 of the Subordinate Civil Courts Ministerial Establishment Rules, 1947, particularly read with Notes 2 which provides that the District Judge may from time to time with the concurrence of the High Court or the Chief Court, as the case may be, leave unfilled or the Governor may hold in abeyance or abolish any vacant post without entitling any person to any compensation.
41. As already noted above, the District Judge had written to the High Court which did not accord approval to fill up the posts.
42. Petitioners placed reliance on the following decisions :
(1) Ved Prakash Tripathi v. State of U.P. and Ors., 2001 (1) AWC 669 : 2001 (1) UPLBEC 462.
(2) Dvijendra Singh and Ors. v. State of U. P. and Ors., 2001 (2) AWC 1389.
The aforesatd decisions are distinguishable on facts and thus of no help to the petitioners.
43. Learned counsel for the respondents, Sri Sudhir Agarwal, submitted that no right vested in the wait list candidates to seek appointment. He placed reliance upon the following :
(1) Shankarsan Dash v. Union of India, AIR 1991 SC 1612.
(2) All India SC & ST Employees Association and Anr. v. A. Arthur Jeen and Ors., 2001 (6) SCC 380.
I am in agreement with his submission particularly when there is no element of arbitrariness on the part of the respondents.
44. Respondents also argued that no mandamus can be issued for appointment when the life of a select list has already come to an end under rules and referred to :
(1) State of U. P. and Ors. v. Harish Chandra, 1996 (3) AWC 1284 (SC) : AIR 1996 SC 2173 (In Writ Petition No. 13089 of 2000, Sumit Kumar Khandelwal and Ors. v. District Judge).
The submission of learned counsel for the respondents deserves to be accepted.
45. In view of the facts noted above, it is clear that petitioners acquired no vested right which could be statutortly enforced on the basis of their names being in the wait list prepared on the basis of advertisement of 1996.
46. This Court, in view of the discussion above found that advertisement on 29th June, 2001, was issued in contravention of statutory rules. The entire selection process on its basis stands vitiated arid liable to be quashed.
47. Consequently, the relief claimed by the petitioners to seek appointment on the basis of their selection in pursuance to the advertisement of 1996 cannot be granted and the writ petition deserves to be dismissed to this extent.
48. Writ petitions are, however, partly allowed to the extent petitioners claim relief for quashing of the advertisement dated 29th June, 2001, published in "Amar Ujala" Newspaper dally published from Bareilly (Annexure-2 to the leading Writ Petition No. 26115 of 2001), and consequently, entire selection process and the select lists prepared on its basis, if any, also stands quashed being illegal against statutory provisions indicated above as well as against interim order passed by this Court.
49. Parties to bear their own costs.