Heard Sri S.K.Mishra, learned counsel for the petitioner, learned Standing Counsel appearing on behalf of respondent no.1 and Sri Yashwant Verma, learned counsel appearing on behalf of respondent nos.2 and 3.
For the purpose of filling up of 14 vacancies in Class III category in Banda Judgeship, a selection process was initiated in pursuant to which the Selection Committee drew up its minutes and the same was accepted by the District Judge in pursuance of which advertisement was issued and examination was held on 27.02.2011. The Selection Committee has been constituted to complete the selection process, get the copies of the examinees examined and get the result declared. The petitioner was selected in Class III cadre in general category of the candidates. An appointment letter was issued on 30.03.2011 by the District Judge, Banda appointing the petitioner on temporary basis. The petitioner was asked to report for joining within fifteen days and further asked to bring medical certificate, issued by Chief Medical Officer, Banda and the original educational certificates. When the petitioner appeared for joining, she has not been allowed to join.
A letter dated 07.04.2011 was issued by Senior Administrative Officer, Banda to the petitioner stating therein that he has been asked by the District Judge, Banda to inform you that you have been selected in Class III post but since by the order of Hon'ble High Court, one Sri Arun Kumar Singh has been transferred from Etawah Judgeship to Banda Judgeship, one post has been filled by the transfer and the total vacancy has been reduced by one post, therefore, it is not possible to appoint you and in case in future if any vacancy will be available you will be given appointment. According to the petitioner, subsequently five posts of Class III posts fallen vacant due to the reasons mentioned in paragraph no.12 of the writ petition, which is not disputed but in paragraph no.13 of the counter affidavit, it is stated that it relates to the future vacancies which came into existence after the culmination of the selection process. When the vacancy was occurred, the petitioner wrote several letters annexed along with the writ petition claiming her appointment. When the petitioner could not be given appointment, the petitioner filed the present writ petition seeking a direction to the District Judge, Banda permitting the petitioner to join in pursuance of the order dated 30.03.2011 further to count his seniority since 05.04.2011. In paragraph no.4 of the counter affidavit, it is stated that by letter dated 29.03.2011 issued by High Court, a Class III employee of Etawah Judgeship was relieved from Etawah on 31.03.2011 and joined at Banda Judgeship on 01.04.2011.
Learned counsel for the petitioner submitted that once for filling up of 14 existing vacancies in respect of which there is no dispute, the process of selection has been started and the petitioner has been selected and the appointment letter has been issued, the petitioner's appointment can not be denied on the ground that one vacancy has been reduced on account of the transfer of a Class III employee from Etawah Judgeship to Banda Judgeship. He submitted that once the selection process has been initiated and culminated by the completion of selection process and by issuance of appointment letter, the post can not be reduced by transferring one of the employee to Banda Judgeship and such transfer is illegal and unjustified and could not be given effect to. He further submitted that the petitioner has been issued appointment letter on 30.03.2011 while Arun Kumar Singh has been relieved on 31.03.2011 from Etawah Judgeship. After the issue of appointment letter to the petitioner, such transfer could not be given effect to and the total vacancies could not be reduced by one post on account of transfer. Therefore, the petitioner is entitled to be permitted to join in pursuance of the appointment letter dated 30.03.2011.
In support of the contention he relied upon the decision of the learned Single Judge of this Court in the case of Raja Ram etc. Vs. State of U.P. and others, reported in 2010 (1) ESC, 250 (All), wherein it has been held that once process of selection by direct recruitment has begun by issuance of an advertisement inviting applications, same can not be filled by transfer and also on the Division Bench decision in the case of Smt. Amita Sinha Vs. State of U.P. and others, reported in 2008 (4) ESC, 2799 (All) (DB).
Sri Yashwant Verma, learned counsel appearing on behalf of respondent nos.2 and 3 submitted that mere by issuance of appointment letter, the right to join did not occur in case there was no vacancy. He submitted that it is true that the petitioner was selected and the appointment letter was issued but meanwhile Arun Kumar Singh has been transferred from Etawah Judgeship to Banda Judgeship and, therefore, one vacancy was reduced and the petitioner's claim of appointment has rightly been denied. He further submitted that after the completion of selection process, the petitioner can not claim her appointment against future vacancy.
In support of his argument, he relied upon the Division Bench decision of this Court in the case of District Judge, Baghpat and another Vs. Anurag Kumar and others, reported in 2006 (5) AWC, 4682.
I have considered the rival submissions. The pleading in the writ petition are not very sound but in sum and substance the relief claimed by the petitioner is that in pursuance of selection and appointment letter, she should be allowed to join. The Division Bench of this Court in the case of Smt. Amita Sinha (Supra) passed in Special Appeal upheld the view of the learned Single Judge, who has held that once the process of selection by Commission has begun by issuance of advertisement inviting applications, the vacancy can not be filled by transfer. Subsequent appointment by transfer after the issue of advertisement was held invalid by learned Single Judge. The Division Bench of this Court has held that upto the stage of computation of vacancies, appointment by transfer can be made and after the advertisement of the vacancy by Commission, such vacancy can not be filled up by transfer.
The learned Single Judge in the case of Raja Ram etc. Vs. State of U.P. and others (Supra) has held as follows:
"So far as the second issue qua appointment by way of transfer of a teacher against advertised vacancy is concerned, a Division Bench of this Court in the case of Smt. Amita Sinha Vs. State of U.P. And others (Supra) has held that once the process of selection by direct recruitment has begun by issuance of an advertisement inviting applications, the same can not be filled by transfer. Hence in view of the said Division Bench judgment, appointments made by transfer against an advertised vacancy of Advertisement No.1 of 2005 is rendered illegal and of no consequence."
Respectfully following the aforesaid two decisions, I am of the view that the filling up vacancy by transfer of Arun Kumar Singh from Etawah Judgeship to Banda Judgeship after the advertisement for filling up the 14 vacancies and on completion of the selection process and the issue of appointment letter to the petitioner being selected was not justified and has no consequence and, therefore, the petitioner is entitled to be appointed in pursuance of the vacancy advertised.
The decision cited by learned counsel appearing on behalf of respondent nos.2 and 3 in the case of District Judge, Baghpat and another Vs. Anurag Kumar and others (Supra) is of no help. It does not decide the issue involved in the present case. It only provides, 1) the advertisement of number of post not existing on the day of advertisement, was de hors the Rules, and 2) the selection of the persons against future vacancy which occurred after advertisement is illegal.
In the circumstances, the writ petition is allowed and the District Judge, Banda is directed to permit the petitioner to join within a period of one month from the date of presentation of the certified copy of this order. It is further directed that the District Judge, Banda may request the Hon'ble High Court to transfer Arun Kumar Singh to any other place or to adjust him against future vacancy.
Dt.17.10.2011.
R./