JUDGMENT Y.R. Tripathi, J.
1. These special appeals raising common questions of law and facts arise out of the judgment and order dated 20th August, 2001 passed by learned single Judge of this Court in Civil Misc. Writ Petition No. 17432 of 1999, Rajesh Sharma v. Advocate General, U. P. and Ors., whereby he having partly allowed the writ petition has set aside the selection of Shri K. K. Shastri, respondent No. 2 to the writ petition, on the post of Routine Grade Clerk/Typist in the State Law Officers Establishment and has given a direction that the vacancy caused as a consequence of setting aside selection of Shri K. K. Shastri be filled from the next candidate in the merit list and if the next in the merit list is not available or does not choose to take appointment, then from next to next in the merit list.
2. Skeleton facts necessary to get hang of the real controversy as also to appreciate the discussions hereinafter are that there were certain vacancies of Routine Grade Clerks/Typists in the State Law Officers Establishment against which certain appointments were made by the Advocate General on ad hoc basis by way of stop-gap arrangement. This arrangement was questioned in Writ Petition No. 42506 of 1993, Shiv Pratap and Anr. v. State of U. P. and Ors., on the grounds of mala fide, bias and arbitrariness praying, in substance, for issuance of directions to the respondents to the writ petition to remove the ad hoc appointees and fill up the vacancies by permanent appointments in accordance with law. This Court while finally disposing of that writ petition rejected the relief of removal of ad hoc appointees holding it as stop-gap arrangement to cope with the pressure of work in Advocate General Office but directed regular appointments to be made after sanction of the strength of the establishment by the State Government in the light of suggestions made by the Advocate General after giving equal opportunities to all concerned. It appears that subsequent to the disposal of Writ Petition No. 42506 of 1993, in the year 1996 some steps for selection and appointment to fill up the vacancies in State Law Officers Establishment were initiated and call letters for interview were issued to certain candidates which came up in controversy again before this Court in Writ Petition No. 37054 of 1996, Narain Dutt Tripathi v. State of U. P. and Ors.. The Advocate General, Uttar Pradesh in the aforesaid writ petition, gave an undertaking to follow the procedure prescribed under law. In view of the said undertaking of the Advocate General, U. P., the writ petition was disposed of with certain directions as to the manner of advertisement of vacancies ignoring the call letters already issued. It was also made clear by this Court in the said writ petition that the candidates to whom call letters had been issued could have right to make applications, if they so choose, in response to the advertisement.
3. As it transpires from the perusal of the record, twenty posts of Routine Grade Clerks/Typists, four to be filled from amongst candidates of Scheduled Castes/Tribes, six from the candidates belonging to Other Backward Classes of citizens and ten from General Classes, were advertised inviting applications from candidates fulfilling the requisite qualifications. In response to the advertisement, as many as 3,107 candidates including the petitioner and respondent No. 2 to the writ petition and 7 others, who were already working as ad hoc appointees in the office of State Law Officers Establishment, made their applications and appeared at the written test held on 30.8.1998 and the petitioner and 110 other candidates, in all, including the candidates belonging to Scheduled Castes/Tribes and Other Backward Classes of citizens were declared successful at the written examination and were called for type test and interview scheduled to be held on 24th and 25th October, 1998. The roll numbers of respondent No. 2 Shri K. K. Shastri and Shri Kailash Nath Prajapati who were working in the State Law Officers Establishment as ad hoc appointees did not figure in the declared list of successful candidates at the written examination. They were, however, called for the test and interview and on the basis of marks obtained by each candidate, a select list of twenty candidates, according to their merit, ten from amongst general candidates, four from amongst candidates belonging to Scheduled Castes/Tribes and six from amongst the candidates belonging to Other Backward Classes was prepared to fill up twenty existing vacancies of R.G.C.'s/typists and the candidates so selected were given appointments. The petitioner having failed to find place in the final select list of twenty candidates challenged the selection and appointment of respondent No. 2 Shri K. K. Shastri on grounds, inter alia of bias, discrimination, arbitrariness, foul play, etc. and prayed for inclusion of his name in the select list and consequently for his being appointed in the vacancy created as a consequence of setting aside the appointment of Shri Shastri. It is worth mentioning that the petitioner is down in merit to fifteen other candidates who neither did figure in the select list nor could be appointed.
4. The respondents contested the writ petition by filing their counter-affidavits denying allegations of mala fide, foul-play, discrimination and arbitrariness and claiming fair selection of candidates on merits in accordance with law and the rules. The learned single Judge, however, on appraisal of materials before him found the selection of Shri K. K. Shastri illegal and violative of Article 16 of the Constitution and passed the impugned judgment and order. The petitioner dissatisfied from the direction of the learned single Judge to fill up the vacancy created as a consequence of setting aside the appointment of Shri Shastri from candidate next in merit and the respondents aggrieved from the finding of Shri Shastri's appointment being declared illegal and violative of Article 16 of the Constitution have come up in these special appeals.
5. We have heard the learned counsel for the parties in extenso and have gone through the records.
6. It is undisputed that the persons employed as R.G.C.'s/Typists in the State Law Officers Establishment work in connection with the affairs of the State and hold civil posts within the meaning of Article 311 of the Constitution. Such incumbents are paid their salaries from the budget passed by the State Legislature and allocated by the State Government. The constitutional position of Advocate General hardly has any relevance so far as the status of such employees is concerned. The State Legislature, therefore, under Article 309 of the Constitution has the power to regulate the recruitment and conditions of service of person appointed to the State Law Officers Establishment and in absence of any law made by the State Legislature, the Governor of the State or such other person as he may authorise has the power to make rules regulating the recruitment and conditions of service of such persons and any rules so made have the effect subject to any law made by the State Legislature. In the writ petition in question, it would appear, that the correct facts were not brought to the notice of the Court evidently because the State of Uttar Pradesh having ultimate administrative control over State Law Officers Establishment and being necessary party was not impleaded. During the course of arguments our attention was drawn towards Karmik Anubhag-2, Notification No. 20/1/91/T.C.-97, dated June 9, 1998, published in the U. P. Gazette, Extra. Part (4) Section (ka) dated 9th June, 1998 whereby Uttar Pradesh Procedure for Direct Recruitment for group "C" posts (Outside the purview of the Uttar Pradesh Public Service Commission) Rules, 1998, have been notified. These Rules, according to the Gazette Notification, came into force at once. Rule (2) of these rules provides that these rules shall have effect notwithstanding anything to the contrary contained in any other rules or orders. Sub-rule (3) of Rule 1 of these rules excludes from its operation certain posts and departments mentioned therein. It is not disputed that the posts of R.G.C.'s/Typists fall within group "C". This being the position, the aforesaid rules appear to have been applicable to the recruitment of R.G.C.'s/Typists in the State Law Officers Establishment and had the effect of law, but none of the parties to the writ petition referred to the said rules and instead, a reference was made about the applicability of the United Provinces Legal Remembrancer's and Law Officers Establishment Rules, 1942, which were pre-Constitution rules and even if they were applicable to the recruitment of R.G.C.'s/Typists in State Law Officers Establishment at any point of time, stood superseded by Rule (2) of the Uttar Pradesh Procedure for Direct Recruitment for Group "C" posts (Outside the purview of the Uttar Pradesh Public Service Commission) Rules, 1998, which provides for those rules having overriding effect. The said Rules of 1998 having been published in Uttar Pradesh Extra Ordinary Gazette can be taken judicial notice of and they having come into force on 9th of June, 1998, were applicable to the disputed selection of R.G.C.'s/Typists.
7. It would also be pertinent to point out that any direction of this Court in writ petition cannot be enforced or implemented in absence of the State of Uttar Pradesh as a party to the writ petition. A person removed from the State Law Officers Establishment has right to appeal to the State Government, and, therefore, the Advocate General being the appointing authority is not the final authority in the matter of removal or dismissal of the employees of State Law Officers Establishment and the State Government has the power to reverse his orders in appeal. Besides, it is the State Government which allocates the budget from which the employees of the State Law Officers Establishment draw their salaries and other allowances. Therefore, no effective direction could be made and order passed in the writ petition in absence of State of Uttar Pradesh, which is a necessary party. In the Writ Petition Nos. 42506 of 1993 and 37054 of 1996 filed earlier, the State of U. P. had been arrayed as one of the respondents and a direction had also been made to it by this Court to sanction the strength of ministerial staff in the State Law Officers Establishment in the light of suggestions of Advocate General.
8. It would then next be found that Article 226 confers an extraordinary jurisdiction on the High Courts, to be resorted to only when exceptional circumstances warrant it. The grant of writ under Article 226 of the Constitution is purely discretionary and can seldom be claimed as of right. The provisions contained under Article 226 are for advancement of ex debito justitiae and can be invoked only on equitable considerations. In the writ petition in question, the petitioner had challenged the select list on the ground of bias, discrimination, mala fides, etc., and had originally sought the relief for declaring the selection of respondent No. 2 and one Shri Kailash Nath Prajapati in whose cases discrimination had allegedly been made, bad in law, but during the proceedings, the name of Sri Kailash Nath Prajapati, whose case almost stands on the same footing as that of the respondent No. 2, was deleted from the array of respondents. Thus, even if the petitioner succeeded in proving illegality in the selection and appointment of respondent No. 2 that infirmity cannot be done away with by declaring the selection and appointment of only respondent No. 2 as illegal as even after such a declaration, the said illegality will exist in the case of selection and appointment of other candidates. The relief under Article 226 of the Constitution being discretionary could be granted for removing the illegality, if any, and not for perpetuating it. In this case even after declaring the selection and appointment of respondent No. 2, as illegal, some other candidates having been selected and appointed in the same manner will still continue in service because of their not being made parties. The grant of relief to the petitioner, thus will shake public faith in dispensation of justice and also impair the credibility of judicial system in the country. There is, therefore, no justification for setting aside the selection of respondent No. 2 only when some similarly selected and appointed candidates shall still continue on their posts.
9. It is also worthwhile to point out that the petitioner's name appears at 26th position in the merit list of the candidates. Fifteen candidates thus stand higher in position to the petitioner. Even after declaring the selection and appointment of respondent No. 2 as illegal, it would be quite unjust, unfair and improper to make a direction for his appointment as a consequence of vacancy created by setting aside the selection and appointment of respondent No. 2. The candidates holding positions above the petitioner in the merit list have not been made parties and no order can legally be passed against them either in the writ petition or in the appeal in their absence.
10. True, the Apex Court in various cases has expressed its concern over increasing disregard and by-passing of statutory rules in recruitment proceedings and this case also appears to be one of such cases but we are constrained to observe that the petitioner having neither impleaded necessary and proper parties nor having come up with correct facts has squarely to blame himself. To our mind, therefore, it was not a fit case for exercise of extraordinary writ Jurisdiction under Article 226 of the Constitution.
11. For the reasons stated above, we find that the impugned order passed by the learned single Judge in Writ Petition No. 17432 of 1999 cannot be sustained and has to be set aside.
12. We, accordingly, find force in the Special Appeal Nos. 1054 of 2001 and 1100 of 2001 and setting aside the order impugned in these special appeals dismiss the Writ Petition No. 17432 of 1999. The Special Appeal No. 1038 of 2001 being devoid of merit is, hereby, dismissed.
13. In view of the facts and circumstances of the case, we make no order as to costs.