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2005 Supreme(All) 1057
IN THE HIGH COURT OF ALLAHABAD
B. S. Chauhan and Arun Tandon, JJ.
DISTRICT JUDGE AND THE HONble HIGH COURT OF JUDICATURE - Appellant
Versus
ANURAG KUMAR, SRI G. B. SINHA, DEEPAK NIGAM, L. P. NIGAM - Respondents
Special Appeal 702 Of 2005
Decided On : 05/31/2005
AMIT STHALEKAR, Anup Trivedi, Sudhir Agarwal, VIKRANT RANA
The main legal point established in the judgment is that appointments made dehors the Rules are unenforceable and inexecutable. The Court emphasized the need for appointments to be made in accordance with the relevant rules and highlighted the importance of recording reasons for administrative decisions.
Headnote:
Appointment - Subordinate Judiciary - The Subordinate Civil Courts Ministerial Establishment Rules, 1947 - Rules 9, 10, 11, 14 and 15 - The Uttar Pradesh Rules for the Recruitment of Ministerial Staff of the Subordinate Offices in Uttar Pradesh, 1950 - The appointments in respect of the posts in question are governed by The Subordinate Civil Courts Ministerial Establishment Rules, 1947 read with the Uttar Pradesh Rules for the Recruitment of Ministerial Staff of the Subordinate Offices in Uttar Pradesh, 1950. The select list, which was prepared on 5th April, 2000, was in flagrant violation of the Rules. The District Judge proceeded to place 52 persons in the select list in excess of 20 names, including that of the petitioners, and subsequently appointed them which appointments are also invalid, as they are from the same invalid list. The Court held that the preparation of the select list in excess of 20 names was absolutely illegal and contrary to the Rules applicable. The question of appointment dehors the Rules has been considered by the Honble Supreme court time and again and the Court held that such appointments are unenforceable and inexecutable. The Court further set aside the interim order and allowed the appeal and the writ petition to the extent indicated. The Court further directed that the petitioners of the writ petition shall be entitled to benefits which they are entitled in law as a consequence of the setting aside of the termination orders only till the final orders are passed by the District Judge, as directed. The Court further quashed the termination orders and directed the District Judge to decide the matter again within a period of one month from the date of the judgment and after affording an opportunity to the petitioners-respondents. The Court further commanded the District Judge to withdraw all such similar termination orders in respect of such class-III employees whose appointments were pursuant to the selections dated 05. 04. 2000, including those which are under challenge in various writ petitions before the High Court, and thereafter shall proceed to take a decision in the matter afresh after giving opportunity to the concerned employees in the same way as in the case of the respondents herein. This exercise shall be completed within one month and compliance report shall be submitted immediately thereafter. The appeal as well as the writ petition giving rise to this appeal are allowed and stand disposed off finally in accordance with directions contained hereinabove.
Fact of the Case:
The District Judgeship of Baghpat has been the subject of unending controversies surrounding the appointments made in the Ministerial Cadre. The present litigation is the second in the series of the recent controversial appointments made which have been scrutinized on the judicial side of this Court. The appointments in respect of the posts in question are governed by The Subordinate Civil Courts Ministerial Establishment Rules, 1947 read with the Uttar Pradesh Rules for the Recruitment of Ministerial Staff of the Subordinate Offices in Uttar Pradesh, 1950. The appointments in respect of the posts in question are governed by The Subordinate Civil Courts Ministerial Establishment Rules, 1947 read with the Uttar Pradesh Rules for the Recruitment of Ministerial Staff of the Subordinate Offices in Uttar Pradesh, 1950. The select list, which was prepared on 5th April, 2000, was in flagrant violation of the Rules. The District Judge proceeded to place 52 persons in the select list in excess of 20 names, including that of the petitioners, and subsequently appointed them which appointments are also invalid, as they are from the same invalid list.
Finding of the Court:
The select list, which was prepared on 5th April, 2000, was in flagrant violation of the Rules. The District Judge proceeded to place 52 persons in the select list in excess of 20 names, including that of the petitioners, and subsequently appointed them which appointments are also invalid, as they are from the same invalid list. The Court held that the preparation of the select list in excess of 20 names was absolutely illegal and contrary to the Rules applicable. The question of appointment dehors the Rules has been considered by the Honble Supreme court time and again and the Court held that such appointments are unenforceable and inexecutable. The Court further set aside the interim order and allowed the appeal and the writ petition to the extent indicated. The Court further directed that the petitioners of the writ petition shall be entitled to benefits which they are entitled in law as a consequence of the setting aside of the termination orders only till the final orders are passed by the District Judge, as directed. The Court further quashed the termination orders and directed the District Judge to decide the matter again within a period of one month from the date of the judgment and after affording an opportunity to the petitioners-respondents. The Court further commanded the District Judge to withdraw all such similar termination orders in respect of such class-III employees whose appointments were pursuant to the selections dated 05. 04. 2000, including those which are under challenge in various writ petitions before the High Court, and thereafter shall proceed to take a decision in the matter afresh after giving opportunity to the concerned employees in the same way as in the case of the respondents herein. This exercise shall be completed within one month and compliance report shall be submitted immediately thereafter. The appeal as well as the writ petition giving rise to this appeal are allowed and stand disposed off finally in accordance with directions contained hereinabove.
Issues: The main issue was the validity of the appointments made in the Ministerial Cadre in the District Judgeship of Baghpat. The Court had to determine whether the appointments were made in accordance with the relevant rules and whether the select list prepared was in violation of the Rules.
Ratio Decidendi: The Court held that the preparation of the select list in excess of 20 names was absolutely illegal and contrary to the Rules applicable. The Court further set aside the interim order and allowed the appeal and the writ petition to the extent indicated. The Court further directed that the petitioners of the writ petition shall be entitled to benefits which they are entitled in law as a consequence of the setting aside of the termination orders only till the final orders are passed by the District Judge, as directed. The Court further quashed the termination orders and directed the District Judge to decide the matter again within a period of one month from the date of the judgment and after affording an opportunity to the petitioners-respondents. The Court further commanded the District Judge to withdraw all such similar termination orders in respect of such class-III employees whose appointments were pursuant to the selections dated 05. 04. 2000, including those which are under challenge in various writ petitions before the High Court, and thereafter shall proceed to take a decision in the matter afresh after giving opportunity to the concerned employees in the same way as in the case of the respondents herein. This exercise shall be completed within one month and compliance report shall be submitted immediately thereafter.
( 1 ) THE District Judgeship of Baghpat, which came into existence on account of the newly created district of Baghpat, has engaged the attention of the High Court continuously on account of un-ending controversies surrounding the appointments made in the Ministerial Cadre and has given rise to litigation which, in turn, has been the subject matter of adjudication on the judicial side of this Court. The present litigation is the second in the series of the recent controversial appointments made which have been scrutinized on the [judicial side and we have been again called upon to pronounce a verdict which, as the facts would disclose hereinafter, contain a disclosure of unsavoury acts which are not only unsustainable in the eyes of law but have also provided an opportunity to this Court to again seriously think over to provide for remedial measures in order to prevent any future mishaps which might tarnish the image of our system.
( 2 ) THIS newly created Judgeship has become a site of alternate unlawful invasions, by unscrupulous officers as if it was their favourite hunting resort, which historically Baghpat was during the Moghul period, and which requires an immediate favourable treatment from this court in order to bring to an end this scene of perpetual infamous attempts made to defame the system.
( 3 ) THE genesis of this litigation is to be found with the creation of new posts in the year 1998-1999 in the Ministerial Cadre in the District Judgeship of Baghpat. We are presently concerned with such Class-III posts which carry with them a pay-scale of Rs. 3050-4590/ -. Even though the present controversy is in respect of four persons, yet this decision pronounces upon the legal position that shall be applicable in respect of all such appointments, as that of the four petitioners of the writ petition giving rise to the present Special Appeal.
( 4 ) WE have heard Shri Sudhir Agarwal, learned Additional Advocate General assisted by Shri aimit Sthalekar on behalf of the appellants and Shri Vikrant Rana, holding brief of Shri Anup trivedi, on behalf of the respondents. With the consent of the parties, we have also summoned the records of the writ petition and we are proceeding to decide the fate of the writ petition along with this Special Appeal as well, to which learned counsel for the parties have no objection.
( 5 ) REVERTING back to the facts of this case, the appointments in respect of the posts in question are governed by The Subordinate Civil Courts Ministerial Establishment Rules, 1947 (hereinafter called the 1947 Rules) read with the Uttar Pradesh Rules for the Recruitment of Ministerial Staff of the Subordinate Offices in Uttar Pradesh, 1950 (hereinafter called the 1950 Rules ). The 1950 Rules have been considered by the Apex Court in the case of O. P. Shukla v. A. K. Shukla, air1986 SC 1043 and it has been held that these Rules are complementary to the 1947 Rules and are applicable for the selection of Ministerial posts in Subordinate Judiciary. It is also admitted to the parties that the posts, against which the writ petitioners are claiming continuance, were advertised on 23rd December, 1999. A copy of the advertisement has been appended along with the writ petition as Annexure-1, which indicates the availability of 10 posts of Clerks and four posts of Stenographers with the rider that the posts are likely to increase or decrease. We are presently concerned with the posts of Clerks in the pay scale of Rs. 3050-4590/ -. The records further disclose the undisputed position that the date of examination was 5th March, 2000 and the list of selected candidates which is the subject matter of present controversy was declared on 05. 04. 2000. This list which is the source of all trouble enlists 72 persons against 10 posts of Clerks which were advertised. 32 persons out of these 72 were given immediate appointments on 5th April, 2000. However, the four petitioners, who are before us, were not amongst the
