Kripa Shanker and another vs State Of U.P.and others

K. C. Bhargava, J.—The petitioners have approached this Court for a writ in the nature of certiorari quashing the impugned select list dated 11290, order dated 11290 passed by the opposite party no. 3 and order dated 101290 passed by opposite party no. 2, contained in Annexures Nos. 8, 9 & 10 respectively. Further direction has been sought directing the opposite parties to appoint the petitioners with immediate effect on the post of junior clerks on the basis of the select list contained in Annexure1.

The facts stated in brief are that for the posts of junior clerk in the ministerial establishment of Collectorate, Barabanki a recruitment test was held for filling permanent vacancies. A select list was announced on 2101987 and the names of the petitioners were indicated at serial Nos. 25 & 26 in that list. This list was not allowed to expire, hence the same is still operative and the persons have to be appointed from this list. On the basis of the said select list the petitioners were given short term appointments from 181189 to 311289 vide Annexure2. These appointments were made on the post of Assistant Wasil Baqi Navis/junior clerk. The vacancies were still lying but the opposite parties on account of arbitrariness and highhandedness have not given appointments to the petitioners on the said posts.

The District Magistrate in his letter dated 20989 (Annexure3) has indicated that six posts of junior clerk were vacant. Thereafter the Government by its order dated 161089 created two new Tahsils, namely, Ram Nagar and Rudauli in district Barabanki. Several posts of Assistant Wasil Waqi Navis, six posts of Senior Assistants and eight posts of junior Assistants along with other posts have been created. That Govt order is Annexure4 to the writ petition. The Government was bound to give appointments to the petitioners. The petitioner no. 1 made a representation on 131190 and petitioner no. 2 made a representation on 141190 which are contained in Annexures Nos. 5 & 6 respectively. On 91190 the District Magistrate. Barabanki appointed six persons whose names were indicated at serial nos. 10, 13, 14, 17, 19 and 20 in the select list (Annexure1). Copy of the said appointment letter is Annexure7 to the writ petition.

There are Government orders to the effect that if candidates of any select list have been given appointment even in short vacancies then those persons have to be given appointments.

5 On the creation of new Tahsils, names of certain persons were forwarded by the Employment Exchange, but the name of petitioner no. 2, whose name was also registered in the employment exchange, was not sent when the requisition was sent by the District Magistrate. The names of persons who were registered after the name of petitioner no. 2 in the Employment Exchange were sent Thereafter a test was held in the month of November. 1990 for selection of junior clerk. A merit list was prepared on 11290 and 14 persons of that list have been appointed Thereafter another 7 persons of that list were appointed on 101290. True copies of that select list and orders dated 11290 and 101290 are Annexures Nos. 8, 9 & 10 respectively to the writ petition. The opposite parties have made appointments illegally and arbitrarily in order to appoint their own persons. The Rules under which the recruitments are to be made are known as "The Uttar Pradesh District Officers (Collectorate) Ministerial Service Rules, 1980" (hereinafter referred to as the Service Rules, 1980). It is further alleged that the selection committee was not constituted in accordance with rules and the persons in the selection committee were close relatives to the candidates, who have been given appointments and the list which has been prepared on 11290 should be quashed on this ground alone. The selection committee has also not followed the rules and regulations of the Service Rules. It is further alleged that the opposite parties 2 & 3 have continued to make appointments from the select list contained in Annexure1 till 91190, hence there is no reason or justification to deny the appointments of the petitioners from that list.

Opposite parties 1 and 2 have filed counteraffidavits. In this counteraffidavit it is alleged that no select list was published on 2101987 as alleged in para 2 of the writ petition, but it was published on 8101987. The petitioners were appointed on 181189 on seasonal basis on the basis of select list of 1987. This appointment was upto 311289 because in view of the order of the Commissioner, Faizabad, seasonal staff was to work upto 311289. The list which was prepared in the year 1987 is not valid list now and it has been superseded after coming into force of the Rules of 1986 relating to direct recruitment. This list was valid upto 71088 for a period of one year from the date of publication i. e. 8101987. The Rules framed in 1986 is contained in AnnexureA1. Since the period of petitioners'' appointment has not been extended, it has come to an end on 311289 and they could not claim further appointment. As the Government has imposed ban on appointments, therefore, appointments of the petitioners could not be made and the ban was still in force. On 161089 two new Tahsils were created, but as there was ban on appointments, therefore, the petitioners could not be given any appointment. The copy of this letter is contained in AnnexureA2.

In view of the Govt. order dated 24990 when the ban was lifted only those persons were given appointment who had worked for certain period during the validity of the list of 1987. There is no illegality or irregularity in making appointments of those persons. The petitioners have not worked at all during the validity of the list prepared in 1987.

In view of creation of two Tahsils, no appointment could be made on account of the fact that new appointments were banned; moreover the period of the list prepared in 1987 has also expired by that time and there was no arbitrary and illegal appointment "made by the opposite parties. There was also no malafide on behalf of the selection committee in making these recruitments or selections.

Learned counsel for the petitioner and the learned Standing counsel have been heard.

Learned Counsel for the petitioner has argued that the list according to the petitioners was published on 21087 while according to the opposite parties this list was published on 81087. Learned counsel for the petitioner has argued that the ban which was alleged to be imposed was from 131187 to 24990. Therefore, the appointment of the petitioners could have been made after the ban was lifted. He has further argued that from the lift Annexure1, seven persons were lateron appointed after lifting of the ban. He has further argued that in the year 1990 another recruitment was made On 11290, fourteen persons were appointed out of that list and thereafter 7 persons were appointed on 101290. He has further argued that the petitioners could have been appointed in these vacancies after lifting of the ban because petitioners had worked for a period of more than one month from 181189 to 311289.

Now according to the facts appearing on the record, the list out of which appointments were made and copy of which is Annexure1 to the writ petition, was published on 21087 according to the petitioners and according to the opposite parties this list was published on 81087. The date disclosed by the opposite parties as 81087 is taken to the correct for the purposes of this case. Now this list continued upto one year i. e. 71088. According to the allegations of the petitioners, their appointments were made for a fixed term from 181189 to 311289 which fact is verifiable by means of Annexure2, which is the copy of the appointment letter issued by the office of the District Magistrate, Barabanki. The petitioners were also appointed in pursuance of this letter of appointment. This letter clearly goes to show that they were appointed for the period 181189 to 311289 and their appointments were purely temporary and their services could be terminated at any time without giving any prior notice.

It is an admitted fact which also finds place in para 13 of the counteraffidavit that the Government had imposed ban on fresh appointments on 131187 and this ban continued till 23990. The ban on fresh appointments was lifted on 24990. This means that no fresh appointments could have been made by any department between 131187 to 23990 during the period the ban continued to remain in operation.

It may be recalled that the list Annexure1 through which the petitioners were selected, was published on 81087 and only after one month five days of publication of the list Government had imposed the ban. No appointments could have been made from this list after coming into force the ban imposed by the Government and only temporary appointments could have been made. It has not been indicated by the opposite parties who were in the knowledge as to whether there existed any vacancy on the date when the ban was imposed on 131187 or all the vacancies were filled up before imposition of the ban.

It is also an admitted fact that the list which was published on 810.87 contained in Annexure1 would be valid for a period of one year. The rules provide that the validity of the list will be one year from the date of publication. Therefore, this list remained in operation before the ban was imposed only for a period of one month five days. The remaining period of validity of the list expired during continuance of the ban.

Now the question arises as to whether the term of the list which is one year will expire during the period of ban or whether the period Covered by the ban will be excluded from the period of one year for which the list survives according to rules It has been provided in certain Acts that the period during which any action or proceeding is to be taken if stay order is passed by a court then the period during which the action or proceeding was to be taken gets extended by the period the stay order remained in operation, that is, the period during which the stay order was in operation is to be excluded from that particular period. These provisions are to be found as under the Land Acquisition Act etc. If the period during which the ban was imposed is not excluded then it will cause irreparable loss to the persons who were selected, but could not be appointed of offered appointment on account of imposition of ban. Therefore, the principle of natural justice also demands that the period during which, the ban was in operation, should be excluded from the period of validity of the list.

Section 11A of the Land Acquisition Act may be considered. This Section provides that the award is to be made by the Collector within a period of two years from the date of publication of the declaration. There is an explanation appended to the section which provides that in computing the period of two years referred to in this section, the period during which any action or proceeding to be taken in pursuance of the said declaration is stayed by an order of a court shall be excluded. Thus on this analogy it can safely be said that the period during which the ban on fresh appointments was imposed, has to be excluded from the period of validity of the list.

According to the averments made in para 6 of the counteraffidavit the petitioners who were selected in the list Annexure1 were given short term appointment from 181189 to 311289. It has further been alleged by the opposite parties that these appointments were made on the seasonal basis and the sanction for appointment was only upto 311289. When this period expired the appointments came to an end. In para 13 of the counteraffidavit it has been mentioned that after the ban was lifted on 24990, the persons who had worked for some time during the period of one year, were given appointments. This fact has also been pleaded by the petitioners and on this analogy the petitioners were entitled to get appointments. It has not been mentioned in the counteraffidavit as to for what period those persons out of the list published in the year 1987, had worked in the establishment. According to rules a person who had worked for more than one month during validity of the list could get appointment even if the period of list has expired. Therefore, it is apparent that the opposite parties made appointments from the list published in the year 1987 after the ban was lifted and these appointments were made on 91190. The names of these persons who were appointed by the opposite parties from the list prepared in 1987 contained in Annexure1 are to be found in Annexure7,

18, Learned counsel for the petitioners has further argued that two Tahsils were created by the Government on 161090. This fact is admitted in para 10 of the counteraffidavit. According to the learned counsel for the petitioners, the petitioners had approached for their appointments on the newly created posts in these two Tahsils. According to the learned Standing counsel, no appointment could be made on account of the ban which was imposed by the Govt. No doubt it is correct that during the continuance of the ban no fresh appointments could have been made; but appointments from the list could have been made by the opposite parties in view of the fact that the validity of the list published on 81087 continued till one year is completed excluding the period the ban remained in force. Therefore, after lifting of the ban on 24890 the vacancies which were existing in the establishment should have been filled from the list published on 81087. The opposite parties have not made appointments out of this list but have prepared afresh list in the year 1990. The petitioners have preferential rights to be appointed on the vacant posts in the establishment than the persons of the newly published list in the year 1990.

Learned Standing Counsel has argued that Rule 26 has been changed. Copy of this amended rules is to be found in AnnexureC. A.l of the counteraffidavit. Those amendments do not have any bearing on the appointments of the petitioners. This only relates to the manner of preparation of list of general and reserved category candidates to be appointed.

Therefore, in view of what has been discussed above, it is apparent that the list which was published on 81087 (Annexure1) will continue to operate for full one year excluding the period of ban which was imposed on 131187. The period of one year will be computed after deducting one month and five days from 24990. Therefore, this list will expire sometimes in August, 1991. Hence, appointments out of the list contained in Annexure1 could have been made upto that date. The petitioners had made representations to the opposite parties for their appointments. Annexure5 is the representation made by petitioner no. 1 Kripashanker on 131190 and Annexure6 is the representation made by petitioner no, 2 Guru Prasad on 141190. These representations were made during validity of the list but inspite of this fact the petitioners were not absorbed by the opposite parties.

The petitioners were, therefore, entitled to be appointed in the vacancies which were existing in the establishment on the date of lifting of the ban and within the period of validity of the list published on 81087 contained in Annexure1 in the manner as mentioned above.

The writ petition is partly allowed. It is directed that opposite parties 1 and 2 shall appoint the petitioners within a period of one month from the date a certified copy of this judgment is served on opposite party no. 2. No orders as to costs.

(Petition allowed partly.)