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2007 Supreme(All) 1928
[2007(7) ADJ 280]
ALLAHABAD HIGH COURT
BEFORE : ARUN TANDON, J.
BHUPENDRA AND OTHERS ........Petitioners
Versus
STATE OF U.P. AND OTHERS ..........Respondents
(Civil Misc. Writ Petition Nos. 1297, 9351 and 7105 of 2006,
decided on 16th July, 2007)
Counsel :
Vikash Budhwar, Anand Kumar Singh and S.P. Pandey for the Petitioners; Ashok Khare, V.K. Tripathi, K.R. Sirohi, M.K. Nigam, Navin Kumar, Devendra Kumar for the Respondents.
Headnote:(A) Selection—Select list—Quashing of—Appointment—Post of—Stenographer/Clerk in the Judgeship of Bhadohi—Procedure prescribed not followed—Irregularities in conducting examination and checking answer books—Selection not found to be free and fair—Hence, selection/appointments made on the post of Stenographers and Clerks in pursuance of the advertisements dated 24th December, 2003 quashed in their entirety. [Paras 51 to 55]
(B) Appointment—Legality of—Appointments made in excess of the advertised vacancies is per se illegal and unsustainable in the eyes of law. [Para 42]
(C) Recruitment—Non-compliance of statutory provision—In view of non-compliance of statutory provision and procedure prescribed therein, qua recruitment, render the selection illegal. [Para 38]
(D) Subordinate Civil Courts Ministerial Establishment Rules, 1947—Rule 5(c)—Appointment—Prescribed minimum qualification—Requirement of—Rule 5(c) make it mandatory for a candidate to be possessed of the prescribed minimum speed in shorthand and typing before he can be offered appointment. [Para 27]
Hon’ble Arun Tandon, J.—Heard Sri Vikash Budhwar, Advocate on behalf of petitioners in writ petition No. 1297 of 2006, Sri Anand Kumar Singh, Advocate on behalf of petitioners in writ petition No. 9351 of 2006, Sri S.P. Pandey, Advocate on behalf of petitioners in writ petition No. 7105 of 2006, Sri Ashok Khare, Senior Advocate assisted by Sri V.K. Tripathi, Advocate on behalf of selected candidates (respondents) in all the writ petitions, Sri K.R. Sirohi, Advocate on behalf of High Court and District Judge, Bhadohi and learned Standing Counsel on behalf of State-respondent in all these matters.
2. These three writ petitions have been filed for quashing the select list dated 13th January, 2006 prepared for appointment on the post of Stenographer/Clerk in the judgeship of Bhadohi, as well as appointment letters issued in favour of selected candidates in pursuance thereof. Some of the petitioners were working in the same judgeship on ad-hoc basis and had appeared in the examinations. Their names, however, have not been included in the select list, under challenge. These petitioners, therefore, further seek a writ of mandamus commanding the respondents to permit the petitioners to continue till regular selections, are held in accordance with law.
3. Facts relevant for the purposes of present writ petitions are as follows :
In the judgeship of Bhadohi, sanctioned strength of clerical cadre posts is 96. In terms of the High Court Circular dated 26th May, 1999, which adopts the Government Order dated 3rd September, 1995, 20% of the sanctioned Class-Ill posts are required to be filled by way of promotion from amongst permanent Class-IV employees of the judgeship. Calculated on the said basis 19 Class-Ill posts in all are required to be filled by way of promotion.
An advertisement was published on 24th December, 2003 by the District Judge, Bhadohi inviting applications from eligible candidates against 15 posts of Clerk and 3 posts of Stenographers, said to be vacant in the judgeship.
Bineet Kumar Mishra and another, who were working as Class-IV employees in the judgeship, filed Civil Misc. Writ Petition No. 164 of 2005 (which was connected with other writ petition Nos. 16410 of 2004 and 38803 of 2004 filed by other Class-IV employees of the judgeship), challenging the advertisement, as published by the District Judge on the ground that direct recruitment could not be resorted to against vacancies, which were within the promotion quota of 20% referred to above. Under interim order of this Court dated 23rd July, 2004, the District Judge was permitted to hold the selections, in pursuance to the advertisement, however, it was provided that immediately after the examinations are held, the answer books should be sealed and forwarded to the Hon’ble High Court, which in turn were to be kept in the safe custody of the Registrar General.
4. The aforesaid writ petitions were finally decided vide judgment and order dated 21st October, 2005. The Hon’ble High Court held as follows :
“From the assertions made in the supplementary counter-affidavit extracted above, it is clear that there were 96 posts in the clerical cadre and the total number of vacancies available for promotion as per the total strength of the clerical cadre was 19. Out of these 19 posts, 9 persons had been promoted in 1997 and the total number of vacancies available for promotion in the year 1999 was 10. These 10 vacancies which were available for promotion quota continued to remain vacant till the select list of 39 class IV employees was prepared on 30.4.2003. The names of first 6 candidates were in the order of merit and was approved by the then District Judge and two candidates at Sl. Nos. 1 and 2 were appointed and thereafter the list was kept in sealed cover which was opened on 30.10.2003 by the successor District Judge. The remaining 8 vacancies are yet to be filled by promotion as per the select list dated 30.4.2003. The order of District Judge dated 4.2.2005 by which repr
