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Allahabad High Court dismisses an appeal stating no claim for appointment once life on waiting list expires

The Allahabad High Court while dismissing an appeal said that no claim for appointment survives once life on the waiting list expires.

The Division Bench of Justice Devendra Kumar Upadhyaya and Justice Om Prakash Shukla passed this order while hearing a Special Appeal filed by Devendra Yadav.

The Special Appeal filed under Chapter VIII Rule 5 of the Rules of the Court challenges the order dated 07.04.2023 passed by the Single Judge in Writ whereby the writ petition has been dismissed and the claim of the appellant-petitioner for appointment against a Class IV post in Gonda Judgeship has been declined.

The submission of the Counsel for the appellant petitioner is that the Single Judge has wrongly dismissed the petition without appreciating the exact purport of the provisions contained in Rule 12 of Uttar Pradesh Subordinate Civil Courts Inferior Establishment Rules, 1955.

He has also argued that various individuals similarly situated as the appellant petitioner whose names also figured in the select/waiting list dated 21.12.1996 and also in the recommendation made by the Central Nazir, have been given appointment, whereas the said right to the appellant-petitioner has been denied.

The submission, thus, is that the Single Judge appears to have lost sight of all the aforesaid aspects of the matter while passing the judgment and order under appeal herein, hence the Special Appeal is liable to be allowed and accordingly, a direction also needs to be issued to the District Judge, Gonda to issue appointment order to the appellant-petitioner against a Class – IV post.

On the other hand, State Counsel and Gaurav Mehrotra, Counsel representing the District Judge, Gonda have vehemently opposed the prayers made in the Special Appeal and have submitted that the judgment and order dated 07.04.2023 passed by the Single Judge does not suffer from any infirmity, hence is not liable to be interfered with.

Gaurav Mehrotra has also argued that the waiting list as prepared under Rule 12 of the 1955 Rules stood exhausted once the appointments against all the advertised vacancies were made as the said list was prepared with a number of vacancies advertised.

His further argument is that the claim of any appointment beyond the number of vacancies advertised is not tenable being violative of Article 16 of the Constitution of India. Thus, it has been urged by Gaurav Mehrotra, Counsel representing the District Judge, Gonda that the appeal is liable to be dismissed at its threshold.

The Court noted that,

The District Judge, Gonda published an advertisement on 01.09.1996 for filling-up 11 vacancies of Class IV posts and 5 vacancies on the post of Driver. The appellant-petitioner alongwith other candidates participated in the selection and on the basis of the selection held pursuant to the said advertisement a list of 40 successful candidates was prepared on 21.12.1996. Out of the said list of successful candidates, the persons mentioned at Serial Nos 1 to 19 were given appointments.

However, rest of the candidates whose names were mentioned in the said list of successful candidates were not given appointment. It is to be emphatically noticed that as per the case set-up by the District Judge, Gonda, the said list of successful candidates dated 21.12.1996 was valid for three years, that is to say, its life expired on 20.12.1999.

However, in the meantime, the Central Nazair, Gonda Judgeship appears to have made certain recommendations for making appointments from the said select list dated 21.12.1996 on account of occurrence of certain vacancies. In the said recommendation, the name of the appellant-petitioner was mentioned at Sl No 4.

The fact, though, remains that the said recommendations were never acted upon by the District Judge. Even otherwise, on the basis of such a recommendation, no right can be said to have accrued on the appellant-petitioner for appointment against a Class IV post.

In the meantime, one Suresh Kumar Srivastava, whose name appeared in the list of successful candidates dated 21.12.1996 at Sl No 28 and in the recommendation made in the year 1999 by the Central Nazir, Gonda, it was mentioned that since the said Suresh Kumar Srivastava had become overage, as such he was not to be appointed; rather, in his place, the candidate mentioned after him in the select dated 21.12.1996 be given appointment, filed Writ Petition before the Court wherein an interim order dated 19.05.2000 was passed providing therein that in case the said Suresh Kumar Srivastava was between the age of 18-32 years on 01.08.1996, he shall not be denied his appointment on the ground that he was overage on 30.08.1999. The interim order dated 19.05.2000 passed by the Court further directed the District Judge, Gonda to look into the matter and issue appointment orders accordingly subject to further orders of the Court.

In pursuance of the said order dated 19.05.2000, Suresh Kumar Srivastava was issued an appointment order on 02.06.2000. The appellant-petitioner also instituted Writ Petition with the prayer for issuing a direction to the District Judge, Gonda for appointing him on the post of Peon Group ‘D’/Class IV on the ground that he had wrongly been denied appointment having been included in the list of successful candidates dated 21.12.1996. The Single Judge while deciding the said writ petition has not acceded to the claim of the appellant-petitioner and has dismissed the writ petition by means of the order dated 07.04.2023 which is under appeal herein before us.

The Court opined that any appointment made against a vacancy which is not advertised will be violative of Article 16 of the Constitution of India, inasmuch as such an appointment will result in depriving the fundamental rights of other eligible candidates who could not participate against the unadvertised vacancies and who may become eligible in case unadvertised vacancy is advertised later on. Any appointment against a vacancy which is not advertised thus cannot be approved of at all. Such a claim is not only against public policy but will clearly be hit by the provisions of Article 16 of the Constitution of India which guarantees equality selection in public employment.

The Court observed that,

It is also to be noticed that the waiting list dated 21.12.1996 was for a period of three years and as such it’s life expired on 20.12.1999 and hence in this view of the matter also, in our opinion, no claim of appointment against the selection held pursuant to the advertisement dated 01.09.1996 after 20.12.1999 can be entertained.

So far as the list prepared by the Central Nazir of Gonda Judgeship in the year 1999 is concerned, it can safely be concluded by us that it was only a recommendation and thus no right can be said to have accrued to the appellant-petitioner to claim appointment on the basis of such a recommendation which clearly runs against the settled law as has been held by a Single Judge of the Court in the case of V. K Gupta (supra). For the aforesaid reasons, the submission of the Counsel for the appellant-petitioner based on the interpretation of Rule 12 of the 1955 Rules, in our opinion, merits rejection which is hereby rejected.

“So far as the appointment of various other persons, who are said to be similarly situated from the list of successful candidates dated 21.12.1996 is concerned, all such appointments were made under the orders passed by the Court and in the Supplementary Counter Affidavit filed on 01.03.2021 by the District Judge, Gonda in the writ proceedings, details of such petitions have been given wherein some of the writ petitions were even dismissed for non-prosecution. Continuance of any appointment on the strength of interim order passed by the Court, in our opinion, does not strengthen the case of the appellant-petitioner. The appellant-petitioner has to stand on his own legs and as observed above, once against all the vacancies advertised by means of an advertisement dated 01.09.1996 appointments were made, in our opinion, any further appointment from the same select list dated 21.12.1996 against a vacancy which was not advertised cannot be permitted to be made.

The Single Judge has thus rightly not accepted the contention put forth before him on behalf of the appellant petitioner. The view taken by the Single Judge, in our opinion, does not require any interference”, the Court further observed while dismissing the appeal.

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