JUDGMENT Sudhir Agarwal, J.
1. Heard Shri S.C. Mishra, learned Counsel for the petitioner and Shri Amit Sthalekar, learned Counsel for the respondents.
2. The petitioner has sought a mandamus commanding the respondents to appoint the petitioner on class-IV post in the Judgeship of district Azamgarh, by virtue of inclusion of his name in the waiting list prepared for class-IV post and published on 16.10.2002.
3. The brief facts as disclosed in the pleadings by the parties are that an advertisement on 30.9.2002 for two vacancies in class IV in Judgeship, Azamgarh was published. After holding selection; under Rule 12 of the U.P. Subordinate Civil Courts Inferior Establishment Rules, 1955 (hereinafter referred to as 1955 Rules) select list and waiting list were prepared on 16.10.2002 wherein name of the petitioner was at serial No. 2 of the waiting list. The two candidates namely Ram Milan Yadav and Vipin Kumar Singh were at serial Nos. 1 and 2 in the select list, and they were appointed by the District Judge. Shri Virendra Kumar was first in the waiting list belonging to scheduled caste category and petitioner was second in the waiting list being a general candidate. The candidates in waiting list including the petitioner were also given short term appointment in leave vacancies vide order dated 29.10.2002.
4. It appears that another substantive vacancy occurred on account of retirement of one Shri Sibte Hasan in May 2003 and in the aforesaid vacancy Shri Virendra Kumar who was at serial No. 1 in the waiting list was given appointment in class-IV post Subsequently two vacancies occurred due to retirement of Shri Dashrath Yadav on 31.10.2003 and Shri Paras Nath on 30.11.2003 where against the petitioner claimed regular appointment on the basis of waiting list dated 16.10.2002 failing which he has approached this Court by means of the present writ petition.
5. Learned Counsel for the petitioner submitted that from waiting list one candidate was given appointment against the vacancy, which was not advertised. Since two more vacancies occurred on 30.10.2003 and 30.11.2003 and therefore he is also entitled for appointment in class-IV post from the aforesaid list against the aforesaid vacancies.
6. Learned Counsel for respondents, however contended that in class IV category, two vacancies occurred after expiry of the validity period of the select list. He further contended that the subsequent vacancies, which, have not been notified/advertised could not have been filled in from the aforesaid list and therefore the claim of the petitioner for appointment against two subsequent vacancies cannot be accepted.
7. Heard learned Counsel for the parties and perused the record.
8. Admittedly, recruitment in this case is governed by 1955 Rules. I do not need to discuss the aforesaid Rules in detail since they have already been considered by this Court and it would be appropriate to refer law laid down by this Court in Ram Babu and Anr. v. District Judge, Banda 1996 AWC (1) 516 wherein after considering 1955 Rules in detail, the following directions were issued by the Court for making appointment under 1955 Rules:
(a) All the a vailable substantive vacancies in the posts covered by Rule 12 of the Rules or such vacancies which are likely to become available in the year of recruitment and the year succeeding to it be notified inviting applications before the preparation of the waiting list contemplated therein;
(b) The waiting list indicated above shall consist of the names of the candidates in the proportion of 1:3 qua the notified number of vacancies;
(c) The waiting list shall cease to be operative and stand exhausted on the filling up of the last notified vacancy;
(d) The fresh waiting list shall invariably be prepared before the accrual of the vacancies so that there may not be any unnecessary delay in its being filled up;
(e) All the existing 'waiting lists' prepared under Rule 12 of the Rules, which have served their purpose as indicated hereinabove shall cease to be operative forthwith. The appointments already made shall, however, remain undisturbed.
9. The aforesaid directions were general in nature and the Hon'ble Court also directed for issuance of a circular to all the District Judges communicating the said directions.
10. Again the matter came up for consideration in Muqeem Ahmad and ors v. District Judge, Sultanpur reported in 1999 (1) AWC 748 (LB.) and this Court held that the waiting list prepared under Rule 12 of 1955. Rules shall stand exhausted the moment the last notified vacancy is filled from the said list and it is not permissible to appoint all the candidates whose names have been incorporated in the waiting list over and above the vacancy notified.
11. This view has been followed and reiterated in Narpat Singh and Ors. v. Registrar, High Court of Judicature at Allahabad and Anr. reported in 2004 (3) UPLBEC 2723.
12. The fact is not disputed that only two vacancies were notified before making selection under 1955 Rules and for the aforesaid vacancies the list of selected candidates was prepared. In view of the law laid down in the aforesaid case, since two vacancies notified were filled in from the aforesaid select list, the same stood exhausted and no further appointment could have been made from the aforesaid list on a vacancy not advertised.
13. A Division Bench of this Court in District Judge, Baghpat and Anr. v. Anurag Kumar and Ors. 2005 (2) ESC also held that appointment beyond the number of vacancies advertised from the selection concerned is illegal since selection process stand exhausted when aii the vacancies advertised are filled in and any right of consideration for appointment against the vacancies occurring subsequently is illegal and inexecutable.
14. The Court observed as under:
In view of the above, we are of the considered opinion that as only ten vacancies had been advertised, there could be no justification for the authority concerned to fill up more than ten vacancies as it included the then existing as well as vacancies likely to occur in the course of the year. Once ten vacancies had been filled up, the selection process stood exhausted, and the authority concerned become functus officio. Any appointment made by him beyond that number, is without jurisdiction, therefore, a nullity, in-executable and un-enforceable in law.
In such an eventuality after issuing appointment letters to ten candidates, the select list/waiting list stood exhausted and could not have been used as perennial source for appointment against any other vacancy. There can be no controversy to the settled legal proposition that even if a successful candidate joins the post and resigns or dies or stands transferred, his vacancy stands exhausted merely by his joining and the post could not be filled up from the waiting list as the statutory rules do not provide for such a course.
15. At this stage learned Counsel for the petitioner contended that third vacancy which occurred in May 2003 was already filled in from the waiting list by appointing a person who was at serial No. 1 and once the subsequent vacancy is filled in from the aforesaid selection, it is arbitrary and discriminatory to deny similar treatment to the petitioner by not appointing him against one of the subsequent vacancies occurred on 31.10.2003 and 30.11.2003. In substance, the claim of the petitioner is that once respondents have acted contrary to the legal position, they are bound to commit the same mistake in the case of petitioner also otherwise it would be a case of discrimination. The submission is thoroughly misconceived. Article 14 does not confer any right of equality for perpetuation of illegality. It is a right as conferred upon a person to claim equality in respect to an act, which is legal and not illegal. If something wrong has been done in a matter, no person has a legal right to ask the authorities to commit the same illegality in his case-also. In such eventuality he cannot claim that right of equality has been denied to him. Article 14 does not countenance a repetition of the wrong action to bring both wrongs at par. Two wrongs will not make one right. In Kastha Niwarak G.S.S. Maryadit, Indore v. President, Indore Development Authority , the Apex Court in para 8 of the judgment held as under:
Two wrongs do not make one right. A party cannot claim that since something wrong has been done in another case, direction should be given for doing another wrong. It would not be setting a wrong right, but would be perpetuating another wrong. In such matters, there is no discrimination involved. The concept of equal treatment of the logic of Article 14 of the Constitution cannot be pressed into service in such cases. What the concept of equal treatment presupposes is existence of similar legal foothold. It does not continuance repetition of a wrong action to bring both wrongs on a part. Even if hypothetically it is accepted that a wrong has been committed in some other cases by introducing a concept of negative equality the appellant cannot strengthen its case. It has to establish strength of its case on some other basis and not by claiming negative equality. See Union of India v. International Trading Co. .
16. In view of the aforesaid, I am of the view that the respondent No. 2has not committed any error by not appointing the petitioner against the subsequent vacancies which were not advertised and where against there was no selection. Thus the petitioner is not entitled for appointment in Class-IV post on the basis of the aforesaid selection.
17. The writ petition therefore lacks merit and is accordingly dismissed.