Devendra Nath Srivastava vs State of U.P. and Others

U.P. Singh, J.—The short question involved in the writ petition is as to whether the Petitioner is entitled to be absorbed in Class III service in the ministerial staff of Judgeship of Allahabad district on the basis of a short term appointment.

Briefly, the facts are that the District Judge, Allahabad issued an advertisement on 30.11.1980 in the newspaper for recruitment in class III posts and Hindi and English stenographer in Allahabad Judgeship. The Petitioner and various other candidates in pursuance of the said advertisement applied for appointment to the post.

On 18th January, 1981, written test of the candidates was taken and they were interviewed between 20.5.1981 and 22.5.1981. On the basis of the written test and interview, the list of the successful approved candidates was published on 29th June, 1981 containing the name of 150 candidates. The name of the Petitioner was at serial No. 78 bearing Roll No. 494. On or about 1st July, 1981, candidates at serial Nos. 1 to 28 of the list were offerred appointment and except the candidates at serial Nos. 2 and 27, all others joined. In the approved list dated 29th June, 1981, certain conditions were prescribed. Condition No. 1 provided that the candidates will be offered appointment on the basis of the seniority whenever the vacancy occurs. Condition No. 2 provided that the candidates will have to take departmental training for six weeks and thereafter they have to appear in the departmental examination which was compulsory to be passed. In case, the candidate''s performance was found unsatisfactory during the training or they failed to pass departmental examination, their names shall be removed from the approved list. It was further provided that the inter se seniority of the candidates shall be determined after the candidates taken training and departmental examination. It appears that all the candidates who were on the approved list of the successful candidates dated 29th June, 1981, were required to obtain departmental training though they have not been offered appointment to any vacant post except the candidates who were at serial Nos. 1 to 28. Almost all the candidates of the approved list took departmental training for six months between the period 15th July, 1981 to 31st August, 1981 and thereafter appeared in departmental examination.

The District Judge on the basis of the departmental examination prepared another list on 30th June, 1982. In this list, candidates were mentioned in three categories A, B and C. Under category ''A'', the candidates who secured 60 percent and above marks were mentioned. Those who obtained above 45 percent and below 60 percent were mentioned in category ''B'' and those who obtained below 45 percent marks were mentioned in category V. In the list, 31 candidates were shown in grade ''A'', 32 candidates in grade ''B'' and 78 candidates in grade ''C The Petitioner was shown at serial No. 4 in grade ''B''.

On 1st December, 1982, the succeeding District Judge took the view that the first list published on 29th June, 1981 shall be taken to be a valid one for the purpose of recruitment under the Rules of the Subordinate Civil Courts Ministerial Establishment Rules, 1947 (hereinafter referred to as the Rules). The second list was prepared on 30th June, 1982. On 16.12.1982, he was of the opinion that Rule 14 of the Rules contemplates only one list and after the list was prepared, the second list could not be prepared merely on the ground that the candidates were to undergo a departmental training and examination. The period of the first list expired after one year under Sub-rule (3) of Rule 14 of the Rules. He further found that some candidates were given short-term appointment on the basis of the list approved by his predecessor and he decided to interview all the candidates who were given short-term appointment so that the appointment of some candidates could be made on ad hoc basis.

On 16.12.1982, he prepared the list of 18 persons and on 5th August, 1983, list of 13 persons and they were given short-term ad hoc appointment. On 9th August, 1983, he passed the order that there are 15 vacant posts of class III employees and the examination will be conducted on 23rd October, 1983 and invited the applications for that purpose. On 11th August, 1983, he passed the order that all candidates who were in earlier list approved by his predecessor and were allowed to work for a certain period, shall be permitted to appear in the examination.

The Petitioner claims that he was permitted to work for a period between 27.6.1982 to 26.7.1982 and from 17.12.1982 to 16.7.1983 as additional copyist on ad hoc basis. He filed the instant writ petition for a writ of mandamus commanding the District Judge to fill up the substantive vacancies in the Judgeship on the basis of the selection list dated 30th June, 1982 and not to resort to fresh proceedings of advertisement and selection unless the final select list dated 30.6.1982 is exhausted. He also prayed that the persons who have been appointed in the Judgeship by a transfer from other Judgeship may be directed to be transferred back to the Judgeship where they were initially appointed and lastly the District Judge be directed to appoint the Petitioner in 20 substantive vacancies as he is duly selected candidate.

The writ petition was heard by a learned Single Judge. It was contended before the learned Single Judge that the Petitioner having been given short-term appointment within one year from the select list dated 29th June, 1981 for a period of one month between 27.6.1982 to 26.7.1982 and from 17.12.1982 to 16.7.1983, he was entitled to the benefit of second proviso to Rule 15 of the Rules and he should be absorbed in service.

The learned Single Judge found that some of the candidates who were on the approved list dated 29th June, 1981 and having been appointed for short-term had filed writ petition No. 11893 of 1983 Vijai Bahadur Yadav and Anr. v. High Court of Judicature at Allahabad and Ors. and other connected writ petitions and their claims were rejected. But in that case, the Court was not invited attention to second proviso to Sub-rule (2) of Rule 15 which provides that nothing in the Rule shall operate to the disadvantage of any person on the approved list of the candidates who had already got an officiating chance and not otherwise disqualified at the time these rules came into force and relied upon a decision of the Division Bench of this Court in Satendra Prasad Sharma and Ors. v. District Judge, Ghazipur and Ors. 1987 UPLBEC 56, wherein the Court gave benefit of the second proviso to Rule 15 (2) of the Rules to the persons who were given officiating chance to work on the post on which they were selected. On reference being made, the writ petition has been placed before this Bench for disposal.

We have heard Sri A.N. Tripathi, learned Counsel for the Petitioner and learned standing counsel for the Respondents.

The first submission of learned Counsel for the Petitioner is that the District Judge had prepared the list of the selected candidates on 29th June, 1981. In this list, however, it was mentioned that mutual seniority amongst the candidates shall be determined in future. One of the conditions mentioned was that all the candidates had to go for training for six weeks including two weeks practical training. After completion of the training period, there will be a departmental examination and the candidates must be successful in the same. The candidates will not be entitled for any emolument or stipend during the period of training.

All the candidates whose names were shown in the list dated 29th June, 1981, were asked to undergo departmental training of six weeks. Almost all the candidates took departmental training and also appeared in departmental examination after completion of the training. The District Judge prepared a list of successful candidates in the departmental examination on 30.6.1982. He classified the candidates in three categories. In grade ''A'' he selected 31 candidates who had obtained 60 per cent marks or above, in grade ''B'' 30 candidates who had secured marks between 45 to 59 per cent and 70 candidates in grade ''C who had secured less than 45 per cent. It is contended that the first list was only a tentative list and the second list was the final list.

The period of recruitment from such list is one year under Sub-rule (3) of Rule 14. All the vacancies had to be filled up within one year from the second list, i.e., within 29th June, 1983. It is contended that the view taken by the District Judge by his order dated 1.12.1982 that the period of one year shall be taken from the first list which was prepared on 29th June, 1981 and not from the date 30.6.1982, is erroneous.

It is necessary to examine the scheme of the Rules. Rule 5 provides for academic qualification, Rule 6 is regarding age, Rule 7 for character and Rule 8 for physical fitness. Rule 9 provides for method of recruitment. It provides that early in each year or as the circumstances may require, each District Judge shall recruit as many candidates for his Judgeship as are required for the vacancies likely to occur in the course of the year. Rule 10 provides for invitation of applications for recruitment. Rule 11 provided that the recruitment shall be based on the results of the competitive examination and an interview by the District Judge at the Head Quarters of the Judgeship. The examination and interview shall be held in the manner laid down in Appendix II. Rule 14 (1) provides that the name of candidates recruited in accordance with Rule 12 shall be entered in order of merit in a bound register in form (B) prescribed in Appendix I. Sub-rule (2) provides that the name of any candidate entered under Sub-rule (1) may be removed for inefficiency or misconduct, offered in strict order of seniority according to list in the bound register prescribed under Sub-rule (1) within one year from the date of his recruitment, his name shall be automatically removed from the register of recruited candidates and he must take his chance with others for recruitment again in a subsequent year.

Rules 9, 10, 11, 12 and 13 have been superseded by a letter issued by the High Court on the administrative side by a circular letter dated January 2, 1987 and it was clarified that the rules for the recruitment of ministerial staff to the Subordinate Offices, 1950 as amended from time to time should be followed taking in view the decision of the Supreme Court in the Om Prakash Shukla Vs. Akhilesh Kumar Shukla and Others, .

Rule 14 (1) contemplates only one list. Rule 11 provided that the recruitment shall be based on the results of the competitive examination and interview by the District Judge at the Headquarters of the Judgeship and the examination and the interview shall be held in the manner laid down in Appendix II. After such list is prepared, the District Judge was not required to prepare a second list for the purpose of recruitment after taking departmental examination of the candidates on the basis of the first list. The appointment was to be made strictly in order of seniority according to the list prepared on the interview and the written test. The District Judge could have removed the name of any candidate for inefficiency or misconduct under Sub-rule (2) of Rule 14. He could not, after preparing the first list on the basis of the written test and interview, prepare the second list after the departmental examination for the purpose of offering appointment under Sub-rule (3) of Rule 14. The Supreme Court in Om Prakash''s case (supra) held that examination was to be conducted in accordance with the syllabus as prescribed by the rules known as ''Rules for the Recruitment of Ministerial staff to the Subordinate Offices (in short the 1950 Rules)''. The 1950 Rules also did not contemplate any procedure for holding;any other test after the selection has taken place on the basis of written test and interview.

The view taken by the District Judge in his order dated 1st December, 1982 that for the purpose of recruitment the list dated 29th June, 1981 shall be taken into account, does not suffer from any illegality. The period of such list expired after one year as provided under Sub-rule (3) of Rule 14 on 28th June, 1982.

The second submission of learned Counsel for the Petitioner is that the Petitioner had been offered appointment on ad hoc basis on 27th June, 1982 for one month which expired on 27th July, 1982. It was within one year from the date the first list was published on 29th June, 1981 and even thereafter, he was given appointment for the period between 17.12.1982 to 16.7.1983. It is contended that he is entitled to be appointed on the substantive vacancy which is existing. The Petitioner was at Serial No. 78 in the list dated 29th June, 1981. The District Judge had offered appointment to the candidates bearing serial Nos. 1 to 28 by his order dated 1st July, 1981. The Petitioner has not shown that he was given appointment in accordance with order of seniority as mentioned in the list. Such appointment of the Petitioner cannot be taken to have been given in accordance with Sub-rule (3) of Rule 14 of the Rules. The Petitioner has not filed any copy of the appointment letter. He has only filed a certificate issued on behalf of the District Judge indicating that the Petitioner had worked as Additional Copyist on ad hoc basis between the period 27.6.1982 to 26.7.1982. In case such appointment has been made on the basis of the requirement as a copyist in the Judgeship, such appointment cannot be taken to be a regular appointment.

The Division Bench in Civil Misc. Writ Petition No. 11893 of 1983, Vijai Bahadur Yadav and Anr. v. High Court of Judicature at Allahabad and Ors. held that short-term appointments which are not in accordance with seniority, cannot be taken to have been made on the basis of an approved select-list.

As regards the appointment of the Petitioner for the period between 17.12.1982 to 16.7.1983 as additional copyist on ad hoc basis, it is clear from the order of the District Judge dated 1.12.1982 that he required additional copyist to work on ad hoc basis till the regular selection is to be made. He invited persons to work as additional copyist on ad hoc basis. In pursuance of the said order, various persons were appointed on ad hoc basis as additional copyist. The Petitioner was also appointed on the basis of the said order. He cannot claim any right for a regular appointment merely on the basis that he had worked as additional copyist for seven months between the period 17.12.1982 to 16.7.1983.

Learned Counsel for the Petitioner urged that the Petitioner is entitled to the benefit of second proviso to Rule 15 (2) which provides that nothing in the Rules shall operate to the disadvantage of any person on the approved list of candidates who have already got an officiating chance and not otherwise disqualified at the time the Rules came into force whether such person has in fact been appointed or not. The proviso has to be read in context to the Rule 15 which reads as under:

Appointment--All appointments to the ministerial establishment shall be made by the District Judge. Except in the case of stenographer, first appointment shall, subject to the provisions of Rule 12 be made to the lowest posts (other posts being filled in by promotion) from amongst the candidates recruited under Rule 11 in order of merit.

(2) In filling the posts of stenographers preference shall be given to officials possessing the prescribed qualifications who are already working in the Judgeship in which the vacancy has occurred:

Provided that any person aggrieved by any order or appointment made otherwise than in accordance with these rules shall have a right of appeal to the High Court or the Chief Court as the case may be;

Provided also that nothing in these rules shall operate to the disadvantage of any person on the approved list of candidates who have already got an officiating chance and not otherwise disqualified at the time these rules came into force, whether such person has In fact been appointed or not.

Sub-rule (1) of Rule 15 provides that the recruitment shall be made from amongst the candidates recruited under Rule 11 in order of merit. The second proviso does not confer power on the District Judge to give appointment to any person on ad hoc basis as to confer a right on the candidate to claim appointment under the second proviso. The second proviso contemplates a situation where a person got an officiating chance to work on the post for which the list has been prepared and his name appears in such approved list. There is distinction between ad hoc appointments and officiating appointments.

In Arun Kumar Chatterjee Vs. South Eastern Railway and Others, , their Lordships of the Supreme Court have drawn a distinction between an officiating and temporary appointment while interpreting the term officialing in Rule 312 of the Railway Establishment Manual. It was observed as under:

That apart, the Railway Board''s interpretation in the aforesaid Circular dated December 31, 1966, of the term ''officiating'' in Rule 312 of the Railway Establishment Manual, as including both officiating as well as temporary staff, was apparently wrong. According to its ordinary connotation, the word ''officiating'' is generally used when a servant having held. one post permanently or substantively is appointed to a post in a higher rank, but not permanently or substantively, while still retaining his lien on his substantive post, i.e., officiating in that post till his confirmation. Such officiating appointment may be made when there is a temporary vacancy in a higher post due to the death or retirement of the incumbent or otherwise. In contrast, the word ''temporary'' usually denotes a person appointed in the civil service for the first time and the appointment Is not permanent but temporary, i.e., for the time being, with no right to the post.

Ad hoc appointments are made due to exigency of a particular situation without considering either the merit of the candidate or the order of seniority. It is a temporary arrangement till a regular appointment is made to the post. Such appointment may be for the fixed period or till particular situation arises.

The Supreme Court in Khagesh Kumar and others Vs. Inspector General of Registration and others, held that for the purpose of regularisation even the workers appointed on daily wages ran be treated to have been appointed on ad hoc basis and can be considered for regularisation under U.P. Regularisation on ad hoc Basis Appointments (On Posts Outside the Purview of Public Service Commission) Rules, 1979. A person who has been appointed on ad hoc basis cannot claim that he was working on officiating capacity. A person who was working in officiating capacity must have been earlier appointed to some other post otherwise there will be no distinction between a person who is appointed on ad hoc basis and the person who is working in officiating capacity.

Second proviso to Rule 15 (2) only confers the right on such person who had been working on the date the Rules came Into force and working in the Judgeship in some capacity and he had appeared for the selection and his name finds place in select list. Any other interpretation would lead to perplexing results. Rule 14 (3) provides that if a candidate who has not been given an appointment in strict order of seniority according to the list in the bound register prescribed under Sub-rule (1) within one year from the date of his recruitment, his name shall be automatically removed from the register of recruited candidates. In case the Appointing Authority makes any appointment on ad hoc basis after the expiry of the said period, he shall be acting in total disregard of Sub-rule (3) of Rule 14. A person cannot claim any right on the basis of such appointments claiming the benefit under the second proviso to Rule 15 (2). This proviso cannot be given the meaning to enlarge the period of one year provided under Rule 14 (3) of the Rules. The proviso cannot enlarge the period which has been given in the substantive provision unless there is an express intention to the contrary in the context of the provision of the Statute. A proviso must prima facie be read and considered in relation to principal matter to which it is a proviso.

In Tribhovandas Haribhai Tamboli Vs. Gujarat Revenue Tribunal and others, , it was observed that the scope of the proviso is to carve out an exception to the enactment and excludes something which otherwise would have been within the Rule. It has to operate in the same field and if the language of the enactment is clear, the proviso cannot torn apart from the main enactment nor it can use to nullify by implication what the enactment clearly says nor set at naught the real object to the main enactment, unless the words of the proviso are such that it is its necessary effect.

In A.N. Sehgal and others Vs. Raje Ram Sheoram and others, , the Supreme Court was Interpreting Rule 5 of Haryana Service of Engineers, Class I, P.W.D. (Roads and Building) Rules, 1960. Rule 5 (1) provides recruitment to the service from three sources, namely, direct recruitment, by transfer and promotion from Class II service. Sub-rule (2) thereof prescribed the ratio between the promotees and others to the extent of 50 per cent. But the proviso to the Rule provided that till adequate number of Assistant Executive Engineers were available, the rigour of 50 per cent quota may be relaxed. The persons who were promoted claimed the right to continue in service even to the posts which were to be filled by direct recruitment claiming the benefit under the proviso. Their Lordships of the Supreme Court held that the promotions could be made but the moment direct recruitees are available, they alone are entitled to occupy 50 per cent of their quota posts and the promotee shall give place to the direct recruits. The Court observed as under:

It is cardinal rule of interpretation that a proviso to a particular provision of a statute only embraces the field which is covered by the main provision. It carves out an exception to the main provision to which it has been enacted by the proviso and to no other. The proper function of a proviso is to except and deal with a case which would otherwise fall within the general language of the main enactment, and its effect is to confine to that case. Where the language of the main enactment is explicit and unambiguous, the proviso can have no repercussion on the interpretation of the main enactment, so as to exclude from it, by implication what clearly falls within its express terms.

Keeping in view the above principle, second proviso to Rule 15 (2) of the Rules cannot be taken to have enlarged the period of one year as provided under Rule 14 (3). What the Appointing Authority cannot do directly under Sub-rule (3) of Rule 14 cannot do by making appointment after expiry of the period of one year under the second proviso to Rule 15 (2). This provision is only an exception to the person who has been already working in any capacity in the ministerial establishment and has been given officiating chance to the post on which he had been selected and his name finds place in the select list, he may be permitted to continue on the said post. This proviso does not contemplate any appointment made on ad hoc basis on the basis of select list prepared under Rule 14(1) of the Rules.

It may further be noticed that second proviso to Rule 15 (2) lays down two conditions--firstly, that the person has already got an officiating chance and secondly, he is not otherwise disqualified at the time the Rules came into force. This proviso is applicable in a situation when this Rule came into force. It contemplates a situation that those persons who had been working on officiating capacity and were also on the approved select list and were qualified at the time the Rule came into force, may be permitted to continue on that post. It does not contemplate the situation that in future whenever the select list is prepared after the enforcement of the Rules, if a person gets an officiating chance after expiry of one year, he shall be permanently absorbed in service on the basis of select list. Rule 14 (3) contemplates that the vacancy is to be filled within a year and a person on the select list does not get chance for appointment, he is to appear again for selection. It is with a view that in the next selection better candidates may be available. If the intention of the Legislature would have been that the same list would continue, it would have made the provision that till the list is exhausted, no fresh selection shall take place.

Learned Counsel for the Petitioner has placed reliance upon the decision in Satendra Prasad Sharma and Ors. v. District Judge, Ghazipur and Anr. 1987 UPLBEC 56, wherein the Court relying upon the second proviso to Rule 15 (2) held that the person who had been given officiating chance shall be entitled to continue in service. The Court did not consider the meaning of the word ''officiating'' in the case. The Court, however, distinguished the decision of the Division Bench In Vijai Bahadur Yadav''s case (supra) on the ground that in that case appointment was not made strictly in order of seniority as contemplated under Rule 14 (3). We are, however, unable to accept the view that the Appointing Authority has a right to make ad hoc appointment after the expiry of one year of the select list as contemplated under Rule 11(3) of the Rules and such person will get a right to continue on the post on the basis of the proviso to Rule 15 (2).

In the present case, even on merits the Petitioner is not entitled to the benefit of the second proviso to Rule 15 (2) of the Rules as his appointment was not made strictly in order of merit. The Petitioner was at serial No. 78 in the first list dated 29th June, 1981. In the counter-affidavit, it has been mentioned that the various candidates, who were above the Petitioner, were not given appointments. The number of those candidates have been given in paragraph 23 of the writ petition. The Petitioner has not denied this fact in the rejoinder affidavit. The Petitioner has thus no right to claim appointment merely for the reason that he has worked for one month between 27.6.1982 to 27.7.1982 and for seven months between 17.12.1982 to 17.3.1983.

Learned Counsel for the Petitioner then urged that certain persons have been appointed bearing serial Nos. 29 to 45 from the select list dated 29th June, 1981, after the expiry of one year. The Petitioner has not impleaded those persons as parties in the writ petition. It appears that the District Judge appointed those persons on the basis that the vacancies were existing within the year but they were not issued any appointment letter. As those persons have not been impleaded in this petition nor their selection has been challenged, it is not necessary to examine this aspect of the matter. The Petitioner was admittedly at serial No. 78 and even on the appointments of the candidates between serial Nos. 29 to 45, his right of appointment in order of seniority has not been affected.

Learned Counsel for the Petitioner further urged that certain persons who were on the select list were also appointed on ad hoc basis and subsequently their services have been regularised and the Petitioner has been discriminated. The Petitioner in the writ petition has not given the details about the discrimination. The regularisation in service was to be made in accordance with the provisions of Uttar Pradesh Regulation of Ad Hoc Appointments on Posts outside the Purview of Public Service Commission Rules, 1979. A supplementary rejoinder affidavit has been filed on behalf of the Respondents and order of the District Judge dated 24.9.1988 has been filed indicating that he has considered the representation of various persons for regularisation on the basis of the direction given in the order dated 16.9.1988 by Hon''ble the then Administrative Judge of this Hon''ble Court. This order has not been challenged in this petition. The Petitioner has otherwise not shown that he has any right of regularisation under any law.

It may further be noted that the District Judge by his order dated 11.8.1983 has given the right to appear in the examination to all the candidates who were in earlier list dated 29th June, 1981 and allowed to work for certain period. In view of this order, the Petitioner is entitled to appear in the examination which may take place in the Judgeship of Allahabad for Class III post.

In the result, the writ petition is dismissed.