JUDGMENT :

Dhiraj Singh Thakur, J.

In the present petition, the Petitioners challenge the Rule 53(c) of the Bombay High Court Appellate Side Service Rules, 2000 (“the Rules”) as ultra-virus Article 14 and 16 of the Constitution of India, 1950. A further mandamus is sought for quashing the decision as communicated vide Communications dated 30th October, 2021 and 15th November, 2021 issued by the Registrar (Administration), High Court of Judicature at Bombay, Nagpur Bench, whereby the remaining waiting list for the posts of clerk was cancelled.

2. With a view to understand the controversy in its correct perspective, it is deemed appropriate to briefly state the material facts.

An advertisement dated 01st August, 2019 was issued by the High Court of Judicature at Bombay, Nagpur Bench, inviting applications from eligible candidates for the post of clerks in the pay scale of S-6 : Rs. 19900 -63200/-. According to the advertisement, a select list of 64 candidates had to be prepared. In addition to this, there would also be a wait list of another 64 candidates. Out of the above 64 advertised posts, three posts were to be reserved for persons with disability in the light of directions issued by the Court in the pending petitions before the High Court.

For purposes of clarity, the relevant portion of the advertisement is being reproduced hereunder:

“The High Court of Bombay Bench at Nagpur has been granted permission to prepare Select List of 64 candidates and Wait List of 64 candidates, total 128 candidates, for the post of Clerk, [by keeping 4%, i.e. 3 posts reserved for persons with disabilities in the light of directions issued in Writ Petition (L) No. 1137/2018 with P.I.L. No. 72 of 2018 (P.I.L. No. 46 of 2018 Aurangabad Bench) and these posts will be filled in near future as per the Notification of the High Court]. By this advertisement, online applications are invited from eligible candidates, who fulfill eligibility criteria on the date of publication of this advertisement, in the pay scale of S-6 : Rs. 19900-63200/- plus allowances as per the Rules.

Eligibility Criteria:-………….”

Clause 22 of the said advertisement further prescribed as under:

“The Selection and Wait List so approved shall be valid for a period of two years from the date of publication. The lists shall stand lapsed thereafter, unless period is extended by the Hon’ble the Chief Justice.”

3. Based upon the selection process, the Registrar (Administration), Nagpur Bench, published a select list consisting of 64 candidates as also a wait list consisting of another 64 candidates for the post of clerk on 29th November, 2019. It is stated that High Court appointed 64 candidates from the select list and 34 candidates from the waiting list as clerks till the end of July, 2021 and that the remaining wait list was not operated, despite the fact that several posts of clerks were lying vacant in the High Court since July, 2021. It is stated that even when the select list and the wait list published on 29th November, 2019 was valid for two years from the date of its publication i.e. till 28th November, 2021, the same was declared as cancelled as was communicated vide Notification dated 15th November, 2021.

It is further sated that even when there was no provision under the Bombay High Court Appellate Side Service Rules, 2000 to prepare a separate wait list, the High Court proceeded to prepare a separate wait list in addition to the select list. It is stated that the Rules 52 and 53 of the Rules were amended vide Notification dated 27th November, 2021, which would only operate prospectively without any retrospective effect and that the recruitment rules as they existed at the time of the publication of the select list on 29th November, 2019, would be the only relevant rules. It was contended that as per Rule 53(a) as it stood then the requirement was to prepare a select list in the