Heard Shri Ashok Khare, Senior Advocate assisted by Shri Siddharth Khare, Advocate on behalf of the petitioners, Shri Rajiv Gupta, Advocate on behalf of the Judicial Officers and the High Court and Shri C.B. Yadav, Senior Advocate assisted by Shri Anoop Trivedi, Advocate for the respondents.
This writ petition has been filed by 19 petitioners with the prayer that the select panel as notified by District Judge, Gautam Budh Nagar dated 11.03.2008 for the posts of Stenographers, Clerk-cum-typist and the Clerk, be quashed and the petitioners be permitted to function on their respective posts as before. It is further prayed that the respondents may be directed to consider the regularization/absorption of the petitioners against suitable posts.
Facts in short leading to the present petition are as follows.
In the State of Uttar Pradesh 242 Fast Track Courts were created by the State Government vide Government Orders dated 23.03.2001, 29.12.2001 and 21.01.2002. Along with creation of the Fast Track Courts, posts of Stenographers, Clerk, Peon and Drivers were also created on ad-hoc basis to man these Fast Tract Courts.
The extension to the Fast Track Courts and posts created therefor was granted by the State Government on year to year basis. In the year 2005 there was delay in issuance of the Government Order for extension of the Fast Track Courts. On the administrative side the High Court resolved pending final decision on the Fast Track Courts for rehabilitation of the Class III and Class IV employees of the Fast Track Courts. The High Court, therefore, issued a circular dated 15th April, 2005, which provided that promotion on the next higher post on the regular establishment should be made immediately and against the vacancies which became available after such promotion, the ex ad-hoc employees, on the basis of seniority and suitability, may be offered reemployment on ad-hoc basis in concerned District Judgeship where they were earlier working in the Fast Track Courts for a fix term in the initial stage of the pay-scale applicable. It was further provided that if there is no vacancy available in the same Judgeship, the ex ad-hoc employees be adjusted against the vacancies, which may be available in Judgeships within the same administrative zone and thereafter in the Judgeships of adjoining administrative zone. It was lastly provided that while filling up the vacancies in regular establishment, ad-hoc employees may be provided an opportunity to compete after providing relaxation in the matter of age. In the last paragraph of the circular, it was provided that no fresh advertisement be published as the persons to be employed are already on the list and that no reservation regarding caste etc. be made, for the same reasons.
It appears that the said circular was kept in abeyance under another circular of the High Court dated 24th May, 2005 inasmuch as on 10th May, 2005, the term of the Fast Track Courts was further extended for a period of one year i.e. up to 28.02.2006. The circular dated 24.05.2005 further provided that ex-employees of the Fast Track Courts , who were earlier working shall continue on same terms and conditions but they shall be paid salary only from the date they join their duties. The period between 01.03.2005 till the date of fresh joining shall be counted for all other purposes except for salary. In respect of employees who were to be affected because of shifting of the Fast Track Courts, their claim for absorption was directed to considered as per circular dated 22.07.1994.
The term of Fast Track Courts continued to be xtended on year to year basis till 2010 and lastly under the Government Order dated 28.02.2011.
Under the apprehension that there should be no further extension of Fast Track Courts after the year 2010, the High Court on the administrative side approved the re-issuance of the circular dated 15.04.2005 for adjustment of Fast Track Court' employees in same Judgeship or other Judgeship subject to the condition that if the Fast Track Courts are revived the circular will be kept in abeyance.
Another important fact to be noticed here is that the State Government while granting extension to the Fast Track Courts under notification dated 28.02.2011 decided that such extension would be applicable to only 156 Courts. Therefore, the remaining 86 Fast Track Courts stood abolish. The employees of such Fast Track Courts by name (178 in number) have been decided to be adjusted against vacancy on regular establishment. After the abolition of all the Fast Track Courts subsequent to the year 2011 employees of the Fast Track Courts have become surplus. In the matter of continuance/regularisation of the Fast Track Court employees a note was put up by the Registrar General dated 01.03.2011 before the Hon'ble the Chief Justice asking the District Judges to ensure that while advertising the regular vacancies or additional posts created, to keep such number of posts vacant as may be necessary for adjustment of Fast Track Court employees. This note has been approved by Hon'ble the Chief Justice and ratified by the Administrative Committee on 11.03.2011. A circular dated 01.04.2011 has been issued asking the District Judges to adjust the Fast Track Court employees on regular posts/posts created for new Courts of Additional District and Sessions Judges although for present on ad-hoc basis.
Now turning to the facts of this case:
Petitioner nos. 1 to 10 in the present petition were appointed on ad-hoc basis as Class-III employees against vacancies in the regular establishment of the Judgeship of Gautam Budh Nagar between 19th September, 1998 to 6th November, 2001. Petitioner nos. 11 to 13 were appointed as Clerk-cum-typist agaist the post created for Fast Track Court in the same Judgeship on 15.01.2002, 01.04.2002 and 07.11.2002 respectively. Petitioner nos. 14 to 17 were appointed as Stenographers against the posts created for the Fast Track Court in same Judgeship between 12.01.2000 to 21.11.2003 and the petitioner nos. 18 and 19 were appointed as Stenographers on ad-hoc basis against the vacancies in the regular establishment of same Judgeship on 21.11.2003. All the petitioners claim that they had continued in employment after appointment uninterruptedly till the date of impugned selections i.e. up to 11.03.2008.
For the Judgeship of Gautam Budh Nagar, an advertisement was published by the District Judge dated 31.01.2007 inviting applications for following posts.
i. Hindi Steno against the regular establishment - 3 posts Hindi Steno against Fast Track Courts - 5 posts ii. Clerk against regular establishment - 20 posts Clerk against Fast Track Courts - 5 posts iii. Clerk-cum-typist for Fast Track Courts - 5 posts A specific note was added to the advertisement that posts in respect of Fast Track Courts were temporary and coterminous with the Fast Track Courts. The District Judge constituted a committee of Judicial Officers for the selections. Norms in respect of the said selections, both in the matter of holding of the examination as well as in the matter of preparation of the select panel were finalized in the meeting dated 22.10.2007. It is worthwhile to reproduce the relevant part of the decisions taken in the meeting which read as follows:
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The petitioners before this Court along with respondents and other candidates made their applications for various posts, which had been advertised and had participated in the selections.
On the basis of criteria laid down in the minutes of the meeting held on 22.10.2007, referred to above, select panel has been notified by the District Judge for the post of stenographers, clerk and clerk-cum-typist on 11.03.2008, which is under challenge in this writ petition. It would be worthwhile to reproduce the select list as notified by the District Judge, it reads as follows.
"List of candidates selected for the post of Clerk on the basis of examination held on 25th November, 2007 for District Court G.B. Nagar according with roster per G.P. Dated 25 June 2002.
dze la0 jksy ua0 Ukke dSVsfxjh 1-
2-
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iwue flag v'kksd dqekj xqIrk lat; dqekj eksfudk 'kekZ fodkl ckcw fxjh'k foany 'kks;K esgnh jkds'k dqekj oekZ 'kSdsUnz dqekj 'kSysUnz flag rksej lksgu ohj eqds'k dqekj lat; dqekj eerk frokjh dqlqe yrk eks0 vkf'ke [kku vuqjkx dqekj v'kksd dqekj latho dqekj fjrs'k R;kxh vatuk flag latho lDlsuk dqlqe yrk fu'kar jkt 'kekZ ehuw ,l0lh0 tujy vks0ch0lh0 tujy ,l0lh0 tujy tujy vks0ch0lh0 vks0ch0lh0 tujy ,l0lh0 tujy vks0ch0lh0 tujy ,l0lh0 tujy vks0ch0lh0 tujy vks0ch0lh0 tujy ,l0lh0 tujy vks0ch0lh0 tujy tujy fnukad%& 11-03-2008 [email protected]& ¼,l0 ,u0 ,p0 tSnh½ tuin U;k;k/kh'k xkSrecq)uxjA List of candidates selected for the post of Clerk cum typist on the basis of examination held on 25th November 2007 for the District Court G.B. Nagar in according with Roster per G.O. dated 25 June 2002.
dze la0 jksy ua0 Ukke dSVsfxjh 1 2334 jktsUnz flag ,l0lh0 2 2500 latho dqekj lDlsuk tujy 3 2438 vkyksd dqekj vks0ch0lh0 4 2429 fo'kky feRry tujy 5 2267 eathrk jkuh tujy fnukad%& 11-03-2008 [email protected]& ¼,l0 ,u0 ,p0 tSnh½ tuin U;k;k/kh'k xkSrecq)uxjA List of candidates selected for the post of steno on the basis of examination held on 25th November 2007 for District Court G.B. Nagar in according with Roster per G.O. dated 25 June 2002.
dze la0 jksy ua0 Ukke dSVsfxjh 1 2219 xkSjo xkSre ,l0lh0 2 2521 vk'kqrks"k feJk Tkujy 3 2251 fdju vks0ch0lh0 4 2426 fofiu dqekj Tkujy 5 2334 jktsUnz flag ,l0lh0 6 2263 egsUnz iky flag Tkujy 7 2222 xksfoUn flag vks0ch0lh0 8 2582 jk[kh Tkujy fnukad%& 11-03-2008 [email protected]& ¼,l0 ,u0 ,p0 tSnh½ tuin U;k;k/kh'k xkSrecq)uxjA On behalf of the petitioners, Shri Siddharth Khare contends that the select panel is liable to be quashed for following reasons:
a. The District Judge and the committee constituted by him for the purpose did not have the competence to modify the rules for preparation of the select panel in respect of the post of stenographers insofar as it directed that the main examination, which was of 200 marks was to be treated as qualifying examination and every candidate within general category on achieving 25% marks in the said main examination i.e. 50 marks and the candidates under reserved category on achieving 20% marks i.e. 40 marks would be entitled to be called for stenography test. The merit shall be prepared only on the basis of marks obtained in the stenography test. He submits that such preparation of select list runs contrary to Rule 7 of the Recruitment of Ministerial Staffs of the Subordinate Offices in Uttar Pradesh, Rules, 1947 as amended in 1950 and 1973.
b. For the post of Clerk-cum-typist, the Committee had wrongly decided that only such candidates would be considered for appointment, who achieve the minimum speed of 30 words per minute in typewriting test. According to the petitioners, the rules do not contemplate any such restrictions and the select list has to be prepared irrespective of the speed achieved during type test. The select list has to be prepared on the basis of the total marks secured in the examination conducted under the 1973 Rules, which do not lay down any minimum speed for type test.
c. With regard to the post of Clerk, it is stated that the examination had been held only in first four papers as provided under 1973 Rules. The maximum whereof marks out to 200. There has been no examination in any of the optional subjects. Therefore, the entire selection is vitiated for non-compliance of the statutory provisions.
d. A common ground has been raised in respect of the select list prepared for all the three posts namely that the District Judge has committed a manifest error in applying the reservation and thereafter the roster by clubbing the posts available within the regular establishment of the Judgeship and those created for limited duration for the Fast Track Courts. For the said purpose he has referred to the advertisement itself, which specifically mentions that the post available in respect of the Fast Track Courts were coterminous with the Fast Track Courts themselves, which according to the petitioners in the facts of the case have ceased in the year 2011. He submits that the posts within the regular establishment are cadre post while the post created for Fast Track Courts are limited duration post for specific purpose and which cannot be clubbed with the regular cadre. Therefore, application of reservation after clubbing the posts and application of roster thereafter is vitiated.
e. Lastly, it is contended that from the various circulars issued by the High Court on administrative side as produced by the counsel for the High Court before this Court, it is apparently clear that a decision has been taken on the administrative side by the High Court that all those who have been working against the posts created for the Fast Track Courts even after abolition of the Fast Track Courts partially shall not be removed from the service and they shall be adjusted against the vacancies available in same Judgeship and thereafter in neighbouring Judgeships. Now after abolition of the Fast Track Courts completely, the Fast Track Court employees have been directed to be adjusted against the additional posts, which have been created or against vacancies available in the regular establishment. Such adjustment however has to be on ad-hoc basis only.
Petitioners' counsel, therefore, submits that the District Judge could not have held fresh selections by direct recruitment for appointment against the vacancies, which were available in respect of the Fast Track Courts, inasmuch as the petitioners were already working on ad-hoc basis against the posts, which were meant for Fast Track Courts. It is a case of replacement of Fast Track Court employees, who were already working and were engaged for limited duration i.e. till the existence of the Fast Track Courts, by another set of employees to be similarly appointed on ad-hoc basis for the Fast Track Courts, which were of limited duration. Such practice is patently arbitrary and in violation of Article 14 of Constitution of India.
He further informs the Court that a decision was taken by High Court on the administrative side to remove all such employees, who had been appointed without due advertisement and selection, but such decision on the administrative side despite being upheld by Hon'ble Single Judge, had been stayed by a Division Bench of this Court in Special Appeal No. 65 of 2010 (Anjani Kumar Dubey and others Vs. High Court of Judicature at Allahabad and another).
He submits that the High Court cannot adopt two different standards, one for Fast Track Court employees working on ad-hoc basis in other districts, irrespective of the mode and manner of the selection and have even permitted to continue with a direction to be absorbed on ad-hoc basis against the additional posts created/vacancy available in the regular establishment even after abolition of the Fast Track Courts. The petitioners have been similarly appointed but are being removed only because the District Judge, Gautam Budh Nagar decided to advertise the vacancies for making ad-hoc appointment against the vacancies available in the Fast Track Courts.
The High Court has to lay down a uniform policy in respect of the employees working in Fast Track Courts throughout the State. There can be no liberty with the District Judge to pick and choose and to adopt the procedures, as per his convenience.
Shri Rajiv Gupta, learned counsel for the High Court contended that the selections on the posts, which were created specifically for the Fast Track Courts had to be made in accordance with the procedure prescribed for appointment against regular establishment posts and to such posts also reservation would apply. He has placed reliance on the judgment of the High Court in the case of Vijay Kumar Jain Vs. District Judge, Aligarh and others (C.M.W.P. No. 42802 of 2001 decided on 31st October, 2002). He then submitted that the petitioners before this Court had all been appointed without following any procedure known to law and, therefore, if the District Judge had decided to hold fresh selections after due advertisement i.e. to follow the law, the petitioners can have no valid grievance. It is stated that the petitioners have participated in the selections, but they having not been selected, therefore, they cannot now be permitted to turn around and challenge the selections itself.
With regard to the selection on the post of Stenographers, it is stated that the Committee constituted by the District Judge had adopted a uniform policy of treating the marks obtained in respect of the main examination only for the purposes of inviting the candidates to participate in the stenography test. Thereafter merit list has been prepared only on the basis of marks achieved in the stenography test. This was done in order to have the best talent available as stenographers.
In respect of the selections held for the post of Clerk, it is stated that it is not necessary to hold any test in respect of the optional papers and, therefore, the District Judge has not committed any illegality in not holding any examination in respect of the optional papers as provided for under the rules and to have confined the selections on the basis of 4 papers, which were compulsory. So far as the post of Clerk-cum-typist is concerned, it is submitted that a typist must have the minimum speed of 30 words per minute in Hindi typewriting, therefore, the Selection Committee did not commit any mistake in prescribing that only such candidate will be considered, who achieved the speed of 30 words per minute during type test. Lastly it is contended that the application of reservation and the roster after clubbing of the post of various categories available in the regular establishment and those available in the Fast Track Courts may be a technical error, if required the mistake can be corrected even now.
Shri C.B. Yadav, Senior Advocate assisted by Shri Anoop Trivedi, Advocate adopts all the contentions raised on behalf of the learned counsel for the District Judge. He however added that in all the Judgeships of State of Uttar Pradesh, appointment on the post of clerk is being made, as a matter of fact only on the basis of the examination held for 4 compulsory papers only and in none of the Judgeship, any examination in respect of the optional papers, is being held. For the purposes he submits that the records are available with Registrar General of this Court and this Court may summon the same, if required.
It is also his case that although circulars were issued by the High Court addressed to all the District Judges that the employees of Fast Track Courts may not be removed even after abolition of the Fast Track Courts and they may be adjusted against other vacancies, yet in the facts of the case permission was granted by the High Court to hold regular selection for appointment against the posts, which were available both in the regular establishment as well as against those created for Fast Track Courts to the District Judge, Gautam Budh Nagar. He therefore submits that the general circular will not come in the way because of the specific directions issued for the Judgeship of Gautam Budh Nagar (NOIDA). All the petitioners have taken their chance by participating in the selections and they now want to turn around and challenge the selections.
In the rejoinder affidavit, Shri Sidharth Khare, Advocate has stated that the petitioners had challenged the advertisement published for the selections itself by means of Writ Petition No. 43585 of 2007, which is connected with this petition and it is incorrect on behalf of the respondents to contend that the petitioners had participated without protest in the selections, result whereof is under challenge.
I have heard learned counsel for the parties and have examined the records.
The Court shall consider the plea which is common to the selections held for all the posts first. From the facts as noticed herein above, it is apparently clear that the vacancies were advertised by the District Judge in respect of the various categories of post available separately both in the regular establishment and those which were ex-cadre and available for Fast Track Courts. In respect of the vacancies, which were available for Fast Track Courts, a specific note was made in the advertisement that the posts were co-terminus with the Fast Track Courts. It is admitted to all the parties that the posts, which were created for Fast Track Courts were all ex-cadre posts created for specific purposes i.e. Fast Track Courts. These posts for Fast Track Courts were not added to the cadre strength of class-III posts, which were available for the particular Judgeship on the regular establishment.
This Court has no hesitation to record that the posts, which were created for Fast Track Courts under various Government Orders were not an addition to the cadre strength on the regular establishment. They were ex-cadre posts created for particular purpose and were all coterminous with the term of the Fast Track court itself. It is also admitted on record that extension to the Fast Track Court and the posts created, therefor was granted by State Government on year to year basis. What logical follows is that the post created for Fast Track Court were temporary and were created on year to year basis not to be treated as cadre posts.
Two categories of posts i.e. the post on the regular establishment and those for Fast Track Courts, therefore, do not form a hemogenious group so as to be clubbed for determination of the reservation and in respect whereof a common roster could be applied. Thus application of reservation and the roster after clubbing both the categories of posts together is bad. Even, it is accepted that for appointment against posts for Fast Track Courts, the same procedure including reservation as is applicable in respect of the posts which are on the regular establishment, has to be followed in view of the judgment of this Court in the case of Vijay Kumar Jain (Supra) the cadre and ex-cadre posts could not have been clubbed together for determination of reservation and for application of the roster. This Court holds that the application of reservation and the roster after clubbing the posts of Fast Track Courts with those available on the regular establishment is patently illegal. The preparation of the select panel as reproduced above is therefore rendered illegal.
The Court may now examine the issue pertaining to particular posts. Appointment on the ministerial posts in establishment of the Civil Courts subordinate to the High Court is governed by a set of rules called the Subordinate Civil Courts Ministerial Establishment Rules, 1947. Rules 9 to 12 of the Subordinate Civil Courts' Ministerial Establishment Rules, 1947 were superseded by the Rules for the Recruitment of Ministerial Staff to the Subordinate Offices, 1950, which were made by the Governor under Article 309 of the Constitution vide Notification No. O-1119/II-B-50 dated 11.07.1950. The Supreme Court in the case of Om Prakash Shukla AIR 1986 SC 1043, has held that the provisions made under the Rules for the Recruitment of Ministerial Staff to the Subordinate Offices, 1950, as amended from time to time, still hold good in so far as recruitment to the ministerial establishments in the subordinate courts is concerned.
The Rules for the recruitment of Ministerial Staff to the Subordinate Offices, 1950, were amended vide notification no. 27/I-72-Appointment-4 dated November 1, 1973 published in the U.P. Gazette, Part I-A, dated November 17, 1973 only in so far as the subjects and the maximum marks provided under Rule 6 (2) were concerned in respect of the tests to be held. The amended Rule 6 and Rule 7 of the said Rules, relevant for our purpose, read as follows:
"6. Subject of the tests-(1) The competitive tests shall comprise a written test as well as an oral test.
(2)The subject of the tests and the maximum marks on each subject shall be as follows.
Subjects Marks Written (1) Simple Drafting (in Hindi) (2) Essay and Precis writing (in Hindi) (3) Simple Drafting and Precis writing (in English) (4) General Knowledge 50 50 50 50 Optional (1) Typewriting in English and Hindi (2) Shorthand in Hindi and English 50 50 Notes (1)Candidates must take one of the above mentioned optional subjects.
(2)Physically handicapped persons who are certified as being unable to type by the Medical Boards attached to Special Employment Exchange for the handicapped or by a Civil Surgeon shall be exempted from the type-writing test.
7. Selection of candidates- (1) On the result of the test the head of the subordinate office shall select a number of candidates sufficient to fill the number of vacancies as ascertained in Rule 4 and offer to them appointment as and when the vacancies occur according to the order of merit disclosed at the test.
(2) No one who has not been selected in accordance with sub-rule (1) shall be appointed to any vacancy unless the list of selected candidates is exhausted.
(3) Casual vacancies may be filled up by appointing persons who have not taken the test, but their further retention shall depend on their taking the next test and being selected in it."
For the post of Stenographers, the Committee constituted for holding the selections had resolved to treat the marks obtained in the written examination in respect of the compulsory papers (4 in number) total marks 200, only for qualifying purposes. The persons who achieved the cut of marks in the written examination i.e. 50 marks (for general category) and 40 marks (for reserved category) were invited for stenography test. The select list for stenographers has been prepared both in respect of the regular establishment as well as in respect of the Fast Track Courts only with reference to the marks obtained in the stenography test. Such procedure adopted by the Selection Committee is patently illegal and contrary to the Recruitment of Ministerial Staffs of the Subordinate Offices in Uttar Pradesh, Rules, 1947 as amended in 1950 and 1973. Rule 7 whereof specifically provides for selections of the candidates on the basis of the result of the test held as per Rule 6.
The statutory rules are not in dispute. It is therefore clear that under the statutory rules select panel had to be prepared on the basis of marks achieved by the candidates in the test provided under Rule 6 as a whole. It was not open to the Selection Committee to have departed from the method laid down under the statutory rules and to have provided that the marks obtained in first 4 papers of the test would be treated only for the purpose of qualification to appear in the stenography test and thereafter to prepare the select panel on the basis of marks obtained in the stenography test only. Such procedure is in teeth of Rule 7 read with Rule 6. Therefore, the select panel prepared in respect of the stenographers has to be held to be bad.
So far as the selections on the post of clerk are concerned, this Court may again reiterate that under Rule 6, four papers have been provided as compulsory with maximum marks 50 each. Two papers have been provided as optional with 50 marks each. The Selection Committee could not have done away with the optional papers as a whole specifically in view of the note added to Rule 6. In the opinion of the Court the Rules do not contemplate any such exclusion of the optional papers.
Sri Rajiv Gupta learned counsel for the High Court, however, explains that for the post of Clerks it is not necessary that the candidate must know typing and shorthand and, therefore, holding of examination in optional papers was not necessary. Reference has been made by the learned counsel for the District Judge to the circular issued by the High Court on 09th February, 1995 which reads as follows:-
"C.L. No. 8/Ve-4/Admn. (D) dated 9th February, 1995 Ambiguity regarding marks obtained in optional subjects and compulsory subjects in the recruitment test under the U.P. Suboridnate civil Courts Ministerial Establishment Rules, 1947 Hon'ble the Chief Justice and Judges have considered the matter of marks' obtained by candidates appearing in optional subjects in addition to the compulsory subjects, in recruitment tests held under the U.P. Subordinate Courts Ministerial Establishment Rules, 1947 as amended from time to time and it has been decided that the marks obtained by a candidate appearing in the optional subjects on his possessing the prescribed speed in shorthand and typewriting, may not be added to the marks obtained in the written test for the purpose of the merit list, which shall be prepared after conducting examination both in compulsory and optional papers, but while preparing the Register of selected candidates under Rule 14 (1) of the U.P. Subordinate Courts Ministerial Establishment Rules, 1947, an entry be made in remarks column against the name of the candidate who has qualified as a stenographer or as a typist.
I am, therefore, to ask you to kindly ensure strict compliance of the Court's decision in the matter in connection with all recruitment tests held under the U.P. Subordinate Courts Ministerial Establishment Rules, 1947, as amended from time to time."
Note 1 to Rule 6 makes holding of examination in one of the optional papers mandatory. It is important to refer to the note 2 appended to Rule 6 of 1950 Rules, which provides for exemption in favour of only physically handicapped persons from undertaking the type test to be held for the purposes of appointment under the ministerial staff rule and for no other category any exemption from type test has been provided.
From the reading of the said circular dated 09.02.1995 it is apparently clear that test had to be held both in compulsory papers and optional papers and merit list had to be prepared on the basis of marks obtained in the compulsory papers while marks obtained in respect of optional papers were not to be included for the purposes of preparation of merit list. The District Judge and his Committee had taken a decision contrary to the rules and circular. They decided not to hold any test in the optional papers.
The competence of the High Court to issue such a circular which overreaches Rule 7 of the 1950 Rules itself is in doubt.
It may be emphasised that if law requires something to be done in a particular manner it has to be so done or not at all reference 1998(8) SCC 266 Chandrika Jha Vs. Madhav Prasad. Other manner and following other course is not permissible reference AIR 2004 SC 486 Prabha Shankar Dubey Vs. State of Madhya Pradesh.
I am of the considered opinion that Rule 6 as amended in 1973, does not in any way do away with the holding of examination in optional papers. The inference drawn from amendment to the Column part of Rule 6 (2) under Rules, 1973, by the District Judge or for that purpose by the Selection Committee is totally unfounded.
A Clerk must know typing either in Hindi or English specifically when he is required to discharge duties in a Civil Court cannot be but emphasised. It is in this background that the rule framing authority had provided for holding of an examination in either (a) typing in Hindi or English or shorthand in Hindi or in English, as the optional papers.
In any view of the matter, the District Judge and his Committee being bound by the statutory rules could not have taken a decision on mere inference to exclude the holding of the examination in atleast one of the optional papers for the post of Clerk and to prepare the merit list only on the basis of examination held for 4 compulsory papers.
Similarly for the post of Clerk-cum-Typist, the decision taken by the Selection Committee that only such candidates would be held entitled to be considered for selection for the said post, who have achieved the minimum speed of 30 words per minute in the typing test, is not so provided for under the statutory rules. Statutory rules contemplate selection on the basis of the marks obtained in the examinations and for the post of Clerk-cum-Typist, no minimum marks or minimum speed in respect of typing in Hindi or in English has been provided for under the Rules.
This Court may further emphasis that the rules contemplate a typing test either in Hindi or English at the option of the candidate concerned. Examination in both the optional papers has to be held leaving it open to the candidate to opt for one of them. The Committee did not held any test in English typewriting or in the second optional paper i.e. Shorthand. The procedure followed is held to be contrary to Rule 6.
It is, therefore, clear that the Selection Committee has framed its own procedure in the matter of selection on all the three posts namely Stenographer, Clerk and Clerk-cum-typist contrary to the rules of 1947 as amended in 1950 and 1973.
The preparation of the select panel for all the three posts is vitiated for the reasons which have been noticed herein above.
The Court finds that the plea, that since the petitioners have participated in the said selections and therefore they cannot question the selections has only been stated to be rejected in the facts of this case. The petitioners had filed a writ petition immediately on the advertisement being published being writ petition no. 43585 of 2007 which is being decided today alongwith this petition. Therefore, it cannot be said that petitioners participate in the selection without protest. Even otherwise there is a right in every candidate who has participated in the selection to see that the selections are held and select panel is prepared strictly in accordance with statutory rules applicable and not de hors the same. Therefore, irrespective of the participation of the petitioners in the selection process, their right to challenge the select panel is not lost in the facts of this case.
This Court may not turn to the larger issue which has emerged in the present petition, namely, can the High Court issue circulars for the continuation of Fast Track Courts employees even after the Fast Track Courts stand abolished and for them to be adjusted against other vacancies available on regular establishment or newly created posts in the same Judgeship and if not in the neighbouring judgeships. At the same time can the High Court on administrative side in respect of a particular district direct that all such Fast Track Court employees who have not been appointed after due selection must cease to work and fresh selection be held, when similarly situate employees of Fast Track Court in other districts have been permitted to work despite being appointed in similar manner.
It would be worthwhile to refer to the administrative decision of the High Court as per circular dated 5.11.2009, it directs that all such employees who have been appointed without following the procedure prescribed for appointment on Class-III and Class-IV posts subsequent to the cut off date i.e. 31st December, 2001 must be ceased to work. Under the subsequent circular dated 11.11.2009 it has been clarified that the earlier circular dated 05.11.2009 shall not apply to the employees working against the posts for Fast Track Courts. Both the circulars are being quoted herein below:-
" From, Dinesh Gupta, HJS Registrar General, High Court of Judicature at Allahabad To, All the District Judges, Subordinate to the Hon'ble High Court Letter No. 14763/Admin. (D) Section/Allahabad: Dated 05.11.2009 Subject: Matter of irregular appointments of ad-hoc class III and IV employees.
Sir, I have been directed to inform you on the above subject that the Hon'ble High Court has been pleased to direct that in order to restore back the procedure for appointment of Class III and Class IV employees in your Judgeship, all such ad-hoc/daily wage appointees who have so appointed subsequent to 31st of December, 2001 (cut of date under the provisions of Uttar Pradesh Regularization of Daily Wages Appointments on Group 'D' Posts Rules, 2001) without following any procedure known to law, must be ceased to work immediately and to submit a compliance report immediately.
The Hon'ble Court has further required you to submit details of the existing vacancies alongwith reservation applicable and to initiate henceforth the procedure, prescribed by law, for filling up of all these vacancies and to complete within two months. You are further directed to make no further ad-hoc/daily wage/tenure appointment.
You are therefore, communicated to make necessary compliance, as above, and submit report immediately.
Yours faithfully, Registrar General From, Dinesh Gupta, HJS Registrar General, High Court of Judicature at Allahabad To, All the District Judges, Subordinate to the High Court of Judicature at Allahabad Letter No. 15119/Admin. (D) Section/Allahabad: Dated 11.11.2009 Subject: Matter of irregular appointments of ad-hoc class III and IV employees.
Sir, I continuation of Court's earlier Letter No. 14763/Admn. (D) Section, dated 05.11.2009 issued on the above subject, I have been directed to inform you that the said Court's letter does not apply to the employees of Fast Track Courts.
You are therefore, communicated to make necessary compliance.
Yours faithfully, Registrar General"
It is further important to record that even those employees who had been ceased under High Court circular dated 05.11.2009 because of they having been appointed through back door has been provided interim protection under the order of a Division Bench of this court in Special Appeal No. 65 of 2010 dated 21.01.2010 and all such employees are still working.
How is it that it is only for the Judgeship at Gautam Budh Nagar (NOIDA) that the High Court on administrative side has decided that the Fast Track Court employees working in the Judgeship must be ceased, having being appointed without following due procedure, and fresh appointments by direct recruitment be made. While vide general circular dated 11.11.2009 the direction issued for same purpose has been stated to be not applicable to Fact Track Court employees.
Appointment on Class-III and Class-IV posts in the Subordinate Courts is regulated by statutory rules framed under Article 309 of the Constitution of India. State is the employer and the Rule framing authority, the High Court is only a recommendatory authority. The High Court cannot issue circular which may interfere with statutory provisions applicable in the matter of appointment on Class-III and Class-IV posts. The High Court can issue circulars only in aid and to assist the District Judge in understanding the real intent of the existing Rules. High Court cannot amend the procedure provided under the statutory rules by issuing administrative circulars. If any deviation from the statutory rules is required, the High Court can only make recommendations to the State Government to amend the statutory rules framed under Article 309 of the Constitution of India.
High Court on its own cannot issue directions either for adjustment of the employees working in the Subordinate Courts or in the matter of their continuance contrary to the statutory rules framed by the State Government. Nor the High Court on the administrative side can issue a direction to the District Judges to deviate from the provisions of the statutory rules in the matter of selections or preparation of select list as has been done under the Circular dated 09.02.1995. The same is declared as invalid and inoperative.
The High Court has to adopt a uniform policy in respect of employees working on posts created for Fast Track Courts in various Judgeships without any discrimination with reference to the place where the Judgeship is situate. District Judge, Gautam Budh Nagar (NOIDA) cannot hold fresh selections for appointment on the post pertaining to Fast Track Court while at the same time for other Judgeships, the general circular is issued to not to dislodge the Fast Track Court employees and to permit them to continue against other vacancies if not in the same Judgeship, then in the neighbouring Judgeship and if not in the neighbouring Judgeship then in the Judgeship within the administrative zone.
All employees of Subordinate Courts have to be treated at par as their appointment and other service conditions are regulated by the same statutory rules and are under supervision of the same High Court.
Learned counsel for the High Court has produced the proposal of Registrar General in respect of employees working in the Fast Track Courts as on 01.03.2011 i.e. when Fast Track Courts have been ceased. It was recommended that the District Judges may be asked to make fresh recruitment on posts in the regular establishment of the Judgeship after leaving vacant requisite number of posts for adjustment of employees of Fast Track Courts, working in the Judgeship. Such proposal of the High Court has duly been approved by Hon'ble the Chief Justice on 07.3.2011 which has since been ratified in the meeting of the Administrative Committee of the Hon'ble High court on 11.3.2011. Accordingly, the High Court has issued another circular on 01.4.2011 informing all the District Judges that Class-III and Class-IV employees working in the Fast Track Court up to 31.3.2011 be adjusted against vacancies on regular establishment or posts created for new Courts of Additional District and Sessions Judges although at present on ad-hoc basis.
The circular is not being quashed as none of the parties have questioned the same. This Court however observes that the competence of the High Court to issue such directions, which are contrary to statutory rules must be revisited before any such ciruclars are enforced.
In view of the aforesaid the writ petition is allowed. The select panel notified by the District Judge, Gautam Budh Nagar (NOIDA) dated 11.3.2008 for the post of Clerk, Stenographer and Clerk-cum-Typist is hereby quashed.
Respondents are directed to permit the petitioner to continue on their respective posts as they were working prior to 11.03.2008. Their continuance shall be in terms of the circulars issued by the High Court as referred to above or as may be issued from time to time, however, subject to the powers of the State Government to take a decision otherwise.
So far as the posts of stenographer available against regular establishment is concerned, it is left open for the District Judge to prepare a fresh select list on the basis of over all marks received in the examination including those obtained in the compulsory papers. Similarly, in respect of the vacancies available on the post of Clerk-cum-Typist against regular establishment it is left open for the District Judge to re-prepare the select list in accordance with rules if it is so possible but so far as the posts of Clerk are concerned, since no examination in respect of optional papers has been held, the entire selection stand set aside.
The Original records may be returned to the District Court.
Order date:- 25.04.2012 Shekhar