Ram Babu and Another vs District Judge

S.P. Srivastava, J.—The provisions contained in the U.P. Subordinate Civil Courts Inferior Establishment Rules, 1955 hereinafter referred to as Rules regulate the recruitment to posts in and conditions of service of persons appointed to the Inferior Establishment of the civil courts in the State of Uttar Pradesh consisting of Government Servants classed as inferior staff in a Judgeship which is paid from the establishment section of the budget of each Judgeship, Rule 12 of the aforesaid Rules requires that a waiting list of candidates which means the list of candidates approved under the aforesaid Rules for appointment to the posts of Process Servers, Orderlies, Office Peons and Farrashes in the establishment shall be maintained for each Judgeship.

The District Judge, Banda vide his order dated 26.5.1990, prepared a waiting list contemplated under Rule 12 of the Rules indicated above which consisted of the names of 12 persons. In the aforesaid order, while declaring the aforesaid list, it was indicated that the said list shall remain valid for a period of three years only and shall automatically stand lapsed on the expiry of the said period. It was also indicated that the persons whose names had been brought on the list as approved candidates shall not be entitled to an appointment merely on the ground that their names have been brought on the list and further that a person whose name had been brought on the list will be offered an appointment only as against a substantive vacancy, provided he satisfied the prescribed eligibility criteria on the date of appointment. The aforesaid waiting list was cancelled vide the impugned order dated 29.1.1994 so far as it related to the persons whose names appeared therein at serial Nos. 5, 6, 7, 8, 9, 10, 11 and 12 observing that there was no immediate vacancy to employ the aforesaid candidates on the waiting list who had been granted short term engagements in the manipulated vacancies and further as the list had lapsed and stood cancelled on the expiry of the period of three years calculated from 26.5.1990. It was also observed that the persons whose names appeared in the list at serial Nos. 5 to 12 were not technicals and their employment, if made, would be an unproductive liability on the department.

Feeling aggrieved by the aforesaid order passed by the District Judge, Banda, Ram Babu, Battan Singh and Sarwar Beg, the Petitioners in Civil Misc. Writ Petition No. 5857 of 1994 whose names appeared in the aforesaid waiting list at serial Nos. 7, 6 and 11 respectively have approached this Court seeking the quashing of the order dated 29.1.1994.

I have heard the learned Counsel for the Petitioners and the learned Standing Counsel representing the Respondent and have carefully perused the record.

Sri Ram Das Pal, the Petitioner in Civil Misc. Writ Petition No. 5913 of 1994, whose name appeared at serial No. 5 in the aforesaid wailing list has also approached this Court seeking the quashing of the order dated 29th January, 1994 passed by the District Judge, Banda. He has further prayed for a direction requiring the District Judge, Banda to appoint him on a vacant post in the Inferior Establishment of the Judgeship at Banda.

Both the aforesaid writ petitions are directed against the common order passed by the District Judge, Banda and taking into account the nature of the controversy involved in these cases, both the writ petitions were heard together and are being disposed of by a common order.

From the perusal of the documents on the record of Civil Misc. Writ Petition No. 5857 of 1994, it appears that Ram Babu had been granted an appointment on temporary/officiating basis on 4.1.1991 as against a leave vacancy which had occurred on account of an orderly having gone on medical leave. He worked as against this casual vacancy upto 31.1.1991. Thereafter he was allowed to work against a casual vacancy on account of the grant of medical leave to a court peon during the period 19.2.1991 to 26.3.1992. Similarly Battan Singh worked against a casual vacancy during the period 18.8.1990 to 10.9.1990 and 1.10.1990 lo 10.10.1990 and Sarwar Beg worked as such during the period 1.2.1991 to 31.3.1991 as against a casual vacancy which had occurred on account of grant of medical leave.

As has already been noticed above, Ram Babu stood placed at serial No. 7 in the waiting list, while Battan Singh and Sarwar Beg were placed at serial Nos. 6 and 11. These Petitioners have asserted that the District Judge had granted appointments to persons from the waiting list even subsequent to 26.5.93 by which date it had lapsed as provided for in the order dated 26.5.1990. In this connection, reliance was placed on the order dated 17.11.1993, where under Badri Prasad who stood placed at serial No. 3 in the list had been appointed as orderly vide the order dated 15.11.1993. It has been contended in this connection that even in the supplementary affidavit filed by the Respondents, it has been indicated that this waiting list had not been specifically cancelled upto 15.11.1993 when Badri Prasad had been appointed. It is claimed that the District Judge had been adopting a method of pick and choose and in an arbitrary manner was treating the waiting list to be alive for the purposes of accommodating some persons from that list even after the expiry of three years but inspite of vacancies being available against which the Petitioners could be adjusted by granting appointments to them, without any justification, the waiting list was being treated as inoperative for them.

In this connection, it has also been pointed out that Badri Prasad and Nirbhan who stood placed at serial Nos. 3 and 4 had been granted appointments in November, 1993 which also indicates that the list was kept alive at least till November, 1993 inspite of the clear stipulation in the order dated 26.5.1990 that the list will automatically lapse with effect from 26.5.93. In the circumstances, it is claimed that the impugned order cancelling the list in part and striking off from the same, the names of approved candidates which appeared in that list at serial Nos. 5 to 12 without giving any opportunity of hearing to the Petitioners is manifestly illegal. The assertion is that the waiting list could not be deemed to be time-bound and had to be treated as operative and subsisting till it was exhausted on the grant of appointment to all the 12 persons accommodating them on the future vacancies whenever it became available. It is also contended that in any view of the matter, the order of cancellation of the list is void as it has been passed without affording any opportunity of hearing to the Petitioners.

On behalf of the Respondents, while denying the claim of the Petitioners, it has been asserted that the waiting list dated 26.5.1990 stood automatically cancelled on 26.5.1993 and the order dated 29.1.1994 was only a formality. It has also been asserted that the names of Badri Prasad and Nirbhan were placed at serial Nos. 3 and 4. While, the names of the Petitioners were much below in the list and they cannot claim any parity with Badri Prasad or Nirbhan. It has also been indicated that the Petitioners had been granted only intermittent appointments as against casual vacancies and they having never been given any appointment as against a substantive vacancy they had no right to claim an appointment on the basis of the waiting list in question. Respondents assert that the impugned action is not in any manner discriminatory as claimed and the Petitioners have no subsisting right to get an appointment as against the available vacancies. In his Writ Petition No. 5913 of 1994, Ram Das Pal has asserted that he had been granted appointment on the post of Peon under the order of the District Judge dated 19.7.1990 which continued up to March, 1991. From his application dated 28.1.1994, it is apparent that he had been granted an appointment as against a casual vacancy and not against a substantive vacancy. This Petitioner claims that he had already been granted an appointment and having been placed at serial No. 5 in the waiting list had a right to get adjusted against the available vacancy. The contention is that once an appointment is granted to a candidate on the basis of the waiting list, the list cannot be deemed to have ceased to be operative so far as that appointee is concerned whatever the nature of the appointment be.

This Petitioner also claims that the District Judge has been making appointments adopting the rule of pick and choose and treating the waiting list to operative for some persons on the waiting list and has cancelled the same for the persons whose names find place there at serial Nos. 5 to 12.

It has been strenuously urged by the learned Counsel for the Petitioner that the waiting list contemplated under Rule 12 of the rules has to be treated as subsisting and operative till it gets exhausted with the appointment of the last candidate on the list and it was not open to the appointing authority to treat or make it time bound in any manner. It is further contended that in any view of the matter, the appointing authority having itself granted appointments on the basis of the waiting list prepared on 26.5.1990 much after the date of its expiry as stipulated in the order dated 26.5.1990, the time-limit prescribed therein will be deemed to have been uplifted and consequently the appointments sought for could not be refused under the law cancelling the waiting list in part which had the effect of depriving them of a valuable right secured under the statutory rules and that too without affording them an opportunity of being heard in the matter.

The learned Standing Counsel has, on the other hand, urged that the wailing list envisaged under the Rule 12 of the Rules, under the law, taking into consideration the intrinsic restrictions, contained therein and the necessary legal implications arising there under, has to be treated as time-bound so as to exhaust and lapse with the serving of the purpose for which it is meant and that is the filling up of the substantive vacancies arising in the year of recruitment. It is urged that a waiting list as contemplated under the Rules cannot be deemed to be operative as to cover uncertain number of vacancies likely to occur in future during an indefinite period. It is contended that the expression ''Reasonable Dimension'' as used in the rules in question itself puts a limit which has to be interpreted in consonance with the principles underlying Articles 14 and 16 of the Constitution. Considering the circumstances brought on record, it is urged that no ground for interference is made out and the writ petitions are liable to be dismissed.

Pursuant to the order of this Court dated 10.2.1995, the Respondent District Judge filed a supplementary counter-affidavit giving the details of the existing and anticipated vacancies in the years 1990-91, 1991-92 and 1992-93. It was indicated that in the year 1990, the total number of substantive vacancies which became available for being filled up was only 3. Similarly in the year 1991, the number of substantive vacancy was only one. In the year 1992, there was no vacancy but in the year 1993, however, three substantive vacancies became available. It has also been indicated that in the year 1990 as against three substantive vacancies a waiting list of 12 candidates had been prepared on 26.5.1990. From this list with the appointment of Badri Prasad on 15.11.1993, the substantive vacancies which had become available in the years 1990 and 1991 stood filled up.

By an interim order dated 23.2.1994, this Court had directed that until further orders, no further appointment shall be made on Class IV post. This order was, however, vacated on 6.12.1995, providing that one post in Class IV category be kept reserved until further orders for accommodating the Petitioner in Civil Misc. Writ Petition No. 5913 of 1994 in the event of success of the writ petition.

There is, however, nothing on the record which may in any manner indicate that the District Judge, while preparing the waiting list had ever notified the number of vacancies for filling up whereof the said list was being prepared and was to be maintained. Even in the order dated 26.5.1990, this number has not been disclosed, but since this order specifically provides that the list will remain valid only for a period of three years whereupon it will lapse automatically and appointments as against substantive vacancies occurring during this period may be offered to the selectees, it can safely be presumed that the District Judge had prepared this list for being utilised against the subsisting vacancies which were available in the year of recruitment or were to become available up to 26.5.1993. Considering the number of substantive vacancies during the aforesaid period as disclosed in the counter-affidavit filed by the Respondent, the list of 12 persons was clearly much in excess of the requirement.

I have given my anxious consideration to the rival contentions and have examined various provisions of the Rules and the legal implications arising there under.

Rule 12 of the U.P. Subordinate Civil Courts Inferior Establishment Rules, 1955 is to the following effect:

12, Waiting List.-

(i) A waiting list of candidates shall be maintained for each Judgeship for the posts of Process-servers, Orderlies, Office Peons and Farrashes.

No waiting list shall be maintained for chauktdars, mails, sweepers and waterman.

(ii) The waiting list should be of reasonable dimensions and be revised from time to time with a view to removing there from the names of:

(a) all such candidates as are not likely to receive appointments before attaining the maximum age prescribed in Rule 8, and

(b) such candidates as are found guilty of insubordination, misbehaviour or dishonesty in the discharge of their duties in temporary or officiating vacancies, after giving them necessary opportunities to explain their conduct.

The scheme underlying the provisions of the Rules of 1955 contemplates that the inferior staff on each Judgeship shall be divided into three different categories/cadres. The first category provided for is that of Daftaries and Bundle lifters, the second category provided for is that of Orderlies, Office Peons, Process Servers and Famishes and the third category provided for is that of chaukidars, malies, sweepers and whole time waterman. All these categories of inferior staff are to be paid from the establishment section of the budget sanctioned for each Judgeship.

The aforesaid scheme further stipulates that the vacancies in the posts of Daftaries and Bundle Lifters could be filled in by promotion from the cadre of Process Servers, Orderlies, Office Peons and Farrashes who satisfy the prescribed eligibility criteria and the vacancies in the posts falling in the second category, that is of the cadre of Orderlies, Office Peons, Process Servers and Farrashes, have to be filled up by appointment of the candidates whose names are brought on the waiting list prepared under Rule 12 of the Rules or by transfer from one post to another according to the suitability. The vacancies in the posts falling in the third category of the inferior posts of the cadre of the Chaukidar, Mall, Waterman and Sweepers can, however, be filled in by direct recruitment in the discretion of the District Judge who is the appointing authority.

The provisions contained in Rule 12 of the Rules aforesaid mandate that the waiting list shall be maintained for each Judgeship for the posts of Process Servers, Orderlies, Office Peons and Farrashes only and not for Chaukidar, Mali, Sweeper and Waterman. This rule further requires that the waiting list should be of a reasonable dimension and be revised from time to time with a view to removing there from the names of all such candidates who are not likely to receive appointments before their attaining the maximum age prescribed under Rule 8 of the Rules and for removing the names of such candidates as are found guilty of Insubordination, misbehaviour, dishonesty in the discharge of their duties giving them necessary opportunities to explain their conduct.

It may be noticed that under the note appended to Rule 12 of the Rules indicated above, it is also provided that the order of names in the waiting list shall be In the order in which the candidates are admitted to it but the District Judge may, at the time of appointment, choose from the list the most suitable of all the candidates for reasons to be recorded in writing.

The nomenclature of waiting list given to the list required to be maintained for each Judgeship for the posts of Process Servers, Orderlies, Office Peons and Farrashes clearly indicates that this list must be prepared before the occurrence of a vacancy and has to be utilised mainly for the purpose of filling in the substantive vacancies in the posts of Process Servers, Orderlies, Office Peons and Farrashes but in the event of temporary or officiating vacancies becoming available during the currency of the list of the candidates whose names appeared in the list could be given temporary or officiating appointments as against such vacancies. No waiting list has to be prepared or maintained for Chaukidars, Malies, Sweepers and Waterman. Normally, therefore, the waiting list meant for the appointment on the post of the second category should not be utilised for making appointments in the posts falling in the third category, as indicated hereinbefore. Sub-rule (ii) of Rule 12, however, stipulates that the waiting list should be of "reasonable dimensions" and further provides that it should be revised from time to time with a view to removing there from the names of all such candidates who become over age or are found guilty of insubordination, misbehaviour, or dishonesty in the discharge of their duties in temporary or officiating vacancies after giving them necessary opportunities to explain their conduct.

The use of the expression "reasonable dimensions" indicated above is of great significance. It seems to me that the expression "reasonable dimensions" as used in Rule 12 of the rules signifies that the waiting list should be a moderate one containing that number of candidates which is not less than or much in excess of the vacancies which might be available in the year of recruitment or the year succeeding thereto and this list should be in reasonable proportion to the notified vacancies. To be more precise, this waiting list should not be immoderate or excessive and must be co-related to the number of vacancies either available in the year of recruitment or likely to become available in the succeeding year and the proportion qua the existing and anticipated vacancies which must be clear should be in the proportion of 1 : 3 which proportion has to be accepted as a reasonable proportion. It may be emphasised that it is only in order to obviate the possibility of the waiting list becoming vitiated on account of the vice of arbitrariness or illegal discrimination that the provisions contained in Rule 12 of the Rules specifically provide for maintaining a waiting list of a reasonable dimension. The word dimension'' has to be understood to emphasise the proportion qua the vacancies which are sought to be filled up.

In its decision in the case of Hoshiar Singh Vs. State of Haryana and Others, , the Apex Court had clarified that appointments made on the additional posts on the basis of selection and recommendation where it would deprive candidates who were not eligible for appointment to the posts on the last date for submission of applications mentioned in the advertisement and who became eligible for appointment thereafter, of the opportunity of being considered for appointment on the additional posts because if the said additional posts are advertised subsequently those who become eligible for appointment would be entitled to apply for the same is not permissible under the law.

In yet another decision in the case of Madan Lal and Others Vs. State of Jammu and Kashmir and Others, , the Apex Court had observed that while notifying the vacancies not only actual vacancies then existing but also anticipated vacancies during one more year or for a given period of time may be taken into account and in that case, the requisition could cover actual vacancies and the anticipated ones but in a case where the requisition is for only a specified number of posts while the list prepared on merit of suitable candidates may exceed that number, yet the list has to be so operative that only the notified vacancies are filled up because of the requisition being for that number only. Taking notice of the evil consequences which may follow, the Apex Court clearly observed that the list will get exhausted having served its purpose-once the notified vacancies are filled up by candidates taken in order of merit from that list. In the aforesaid decision the Apex Court reiterated its earlier decision in the case of Hoshiar Singh (supra).

In its decision in the case of State of Bihar and another Vs. Madan Mohan Singh and others, , the Apex Court had observed that the process of selection for filling up the notified vacancies gets exhausted and comes to an end on the filling up of the notified vacancies and if the same list has to be kept subsisting for the purpose of filling up other vacancies also that would naturally amount to deprivation of rights of other candidates who would have become eligible subsequent to the advertisement and the selection process.

It may further be noticed that, as observed by the Apex Court in its decision in the case of Ashok Kumar and Ors. v. Chairman, Banking Services Recruitment Board and Ors. JT1995 (8) 276, Article 14 read with Article 16(1) of the Constitution enshrined fundamental right to every citizen to claim consideration for appointment to a post under the State. It was emphasised by the Apex Court that in such a circumstance, vacant posts arising or expected should be notified inviting applications from all eligible candidates to be considered for their selection in accordance with their merit. The Apex Court observed in its aforesaid decision that the recruitment of the candidates in excess of the notified vacancy is a denial and deprivation of the constitutional right secured under Article 14 read with Article 16(1) of the Constitution. While so observing the Hon''ble Supreme Court deprecated a procedure of appointing the persons kept in the waiting list though the vacancies had arisen subsequently without being notified for recruitment holding such a procedure to be unconstitutional.

In the aforesaid view of the matter, a waiting list of candidates contemplated under Rule 12 of the Rules cannot be deemed to be subsisting for a period beyond the filling up of the notified vacancies for the filling whereof the list has to be prepared and maintained. It cannot be deemed to be subsisting or operative for an indefinite period and be utilised for filling up the vacancies which have not been notified before the preparation of such a list. Such list will get exhausted having served its purpose once the notified vacancies are filled up by candidates taken in order of merit from that list.

It should not be lost sight of that the constitutional mandate is that there shall be equality of opportunity for all citizens in mailers relating to employment. If any wailing list as contemplated under Rule 12 is kept subsisting for the purpose of filling up an indefinite number of anticipated vacancies likely to occur in years beyond the year succeeding the year of recruitment without any limit of time, that would not only render such list being of an unreasonable dimension but also would naturally amount to deprivation of the rights of the candidates who would become eligible subsequent to the preparation of the list. Such list as contemplated under Rule 12 of the Rules under consideration is prepared containing the names of the candidates in excess of the number of vacancies to meet the contingencies of some of the candidates, whose names are borne on the list not joining or not becoming available. For meeting such a contingency, a reasonable proportion has to be maintained qua the existing or anticipated vacancies for the filling up whereof this list is prepared and maintained. The proportion of 1 : 3 in this connection cannot, it seems to me, be held to be unreasonable.

In view of the observations of the Apex Court referred to hereinabove, it is permissible to take into account the anticipated vacancies likely to occur in the year succeeding the year of recruitment in addition to the existing vacancies or vacancies likely to become available in the year of recruitment itself for being notified. The requirement referred to hereinabove can be amply satisfied if the waiting list contains the names of selected candidates maintaining a proportion of 1 : 3 qua the notified vacancies. Such a waiting list as contemplated under Rule 12 cannot be permitted to continue or subsist indefinitely and must remain time-bound as any other interpretation would leave unguided power with the District Judge who is the appointing authority which will lead to preposterous results. Once it is ensured that such list remains confined to the notified vacancies and stands exhausted on the filling up of the last notified vacancy whereupon the list gets automatically lapsed, this requirement stands satisfied.

In its decision in the case of Shripati Ram and Ors. v. District Judge, Azamgarh C.M.W.P. No. 1081 of 1987 decided on 14.8.1987, a Division Bench of this Court had observed that ''reasonable dimension'' is an expression which leaves ample discretion with the authority empowered to prepare the waiting list contemplated under Rule 12 of the Rules indicating further that whether the exercise of discretion has been proper or improper, reasonable or unreasonable shall depend on facts and no hard and fast principle can be laid down fort it. But, inspite of the aforesaid observation, a waiting list of 43 persons against six notified vacancies was held to be of an unreasonable dimension. However, a waiting list of 43 persons as against more than 20 vacancies was held to be of a reasonable dimension. The Division Bench clearly held that in any case the list has to be much more than the number of vacancies leaving it open for consideration as to whether the expression ''reasonable dimension'' may be substituted with double or one half of the vacancies likely to occur in course of one year.

Although the judgment of the Division Bench was rendered more than eight years ago, the Rule 12 of the Rules under consideration continues to remain as it originally stood without any change.

A learned single Judge of this Court in the decision in the case of Bishambhar and another Vs. IIIrd Additional District Judge, Azamgarh and others, , on a plain reading of the Rule 12 of the Rules observed that since it nowhere limits the life-span of waiting list from the date of its preparation either expressly or impliedly; held that limiting the life-span of the waiting list appeared to be repugnant to the nature of the waiting list which is required to be maintained under that rule and indicated that as the rule stands each and every candidate who is on the waiting list is entitled for appointment on his own turn observing further that the list has to be treated exhausted after the appointment of all the candidates entitled for appointment as the waiting list continues to hold good till last candidate is appointed provided the candidate was not removed or was not liable to be removed by the time his turn came up for appointment.

The learned single Judge drew support for the above conclusion from a stray sentence occurring in the judgment in the case of Pati Ram (supra) to the effect that the rules do not place any time-limit, that is, one or two or three years for the exhaustion of the list.

In the aforesaid connection, it may be usefully noticed that, as observed by the Apex Court in its decision in the case of The State of Orissa Vs. Sudhansu Sekhar Misra and Others, , what is of essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it, observing further that it is not a profitable task to extract a sentence here and there in a judgment and build upon it.

The Division Bench in its decision in the case of Pati Ram (supra) had found that a list of 43 persons against the notified vacancies which were only six could not be held to be of a reasonable dimension. However, a list of 43 persons against more than 20 vacancies was found to be not of ''unreasonable dimension''. The Division Bench had expressed no opinion on the question as to whether the ''reasonable dimension'' should be corelated with the number of vacancies advertised and not to the number of vacancies which might have come to exist on the date when the list was being prepared. The Division Bench further left open the question about the effect of principle in regard to the exclusion of others who might have become eligible after the date of advertisement undecided. The waiting list of 43 persons as against six notified vacancies was upheld by the Division Bench on the finding that although the notified vacancies were six only yet in fact the total number of vacancies was more than twenty and the order dated 9.12.86 cancelling the list prepared in May, 1986 holding the list to be against the norms was quashed.

In determining the meaning of the language or expression in any statutory rule, it is obvious that the intention which appears to be most in accord with convenience, reasons, justice and legal principles should in all cases of doubtful significance be presumed to be the true one. As observed by the Apex Court in its decision in the case of Administrator Municipal Corporation, Bilaspur Vs. Dattatraya Dahankar and another, , a mechanical approach is altogether out of step with the modern positive approach which is to have a purposeful construction, that is, to effectuate the object and purpose of the statutory provision. The construction which would defeat the object of the statutory provision must be avoided taking into account that which is not fair and Just is unreasonable and what is unreasonable is arbitrary.

The decisions in the cases of Sri Pati Ram and Bhagwan Das (supra) fall in the category of precedents which appear to have been passed sub silentio in the technical sense that has come to be attached to that phrase when the particular point of law involved in the decisions is not perceived by the court or present in its mind. Recourse to this principle can be safely taken to ignore unjust precedents as explained by the Apex Court in its decision in the case of State of U.P. and Another Vs. Synthetics and Chemicals Ltd. and Another, .

The mere fact that a particular order has been passed in the case of another person similarly situated can never be a ground for issuing a writ in favour of the Petitioner on the plea of discrimination. The order in favour of the other person might be legal and valid or it might not be, that has to be investigated first before it can be directed to be followed in case of the Petitioner. As observed by the Apex Court in its decision in the case of Chandigarh Administration v. Jagjeet Singh 1995 (25) ALR 522, if the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the Respondent-authority to repeat the illegality or to pass another unwarranted order. The Apex Court had emphasised that the extraordinary and discretionary power of the High Court cannot be exercised for such a purpose. The illegal/unwarranted action must be corrected. The Hon''ble Supreme Court observed if it can be done according to law, indeed, wherever it is possible, the court should direct the appropriate authority to correct such wrong orders in accordance with law but even if it cannot be corrected, it cannot be made a basis for its repetition. The Apex Court observed that by refusing to direct the Respondent authority to repeat the illegality, the court is not condoning the earlier illegal act/order nor can such Illegal order constitute the basis for a legitimate complaint of discrimination, as giving effect to such pleas would be prejudicial to the interest of law and will do Incalculable mischief to public interest. Further, it was pointed out, it will be a negation of law and the rule of law. In its aforesaid decision, the Apex Court emphasised that the High Court cannot ignore the law and the well-accepted norms governing the writ jurisdiction and say that because in one case a particular order has been passed or a particular action has been taken, the same must be repeated Irrespective of the fact whether such an order or action is contrary to law or otherwise.

In face of the declaration of law by the Apex Court in its decisions in the cases of Ashok Kumar, Hoshiar Singh, Madan Lal, State of Bihar and Chandigarh Administration (supra) covering the aspects noticed hereinabove which this Court is bound to follow, the decisions in the cases of Pati Ram and Bhagwan Das (supra) cannot be deemed to come to the rescue of the Petitioners. I am of the considered opinion that any order on the line of interpretation of Rule 12 as indicated in the decision of Bhagwandas (supra) will be clearly in violation of the law as declared by the Apex Court in its aforesaid decisions which is binding on this Court under Article 141 of the Constitution. Such a course of action in the present proceedings under Article 226 of the Constitution, it seems to me, is not permissible. In such cases, the plea of illegal discrimination cannot be held to be available as explained by the Apex Court.

Taking into consideration the ratio of the decisions of the Apex Court indicated hereinabove, I am of the considered opinion that the waiting list contemplated under Rule 12 of the Rules has to be of a reasonable proportion qua the number of vacancies actually notified and it will not be reasonable to hold that the vacancies which are notified may be of any year beyond the year succeeding to the year of recruitment. A situation ought not to be created where an anticipated vacancy likely to occur beyond the year succeeding the year of recruitment is filled up on the basis of a list maintained under Rule 12 of the Rules which vacancy is neither notified nor ought to be notified for preparing such list in any year of recruitment. It further seems to me that considering the context, there can be no escape from the conclusion that any other interpretation to the expression ''reasonable dimension'' will render the Rule 12 of the Rules constitutionally invalid and a constitutionally invalid provision cannot be saved by being put into an otherwise valid statute. An interpretation of a statutory provision must lean in favour of upholding the statutory provisions as far as possible. In the circumstances, there can be no escape from the conclusion that the waiting list contemplated under Rule 12 must be deemed to have lapsed on the filling up of the notified vacancies, whether existing or likely to become available for being filled up in the year of recruitment or the succeeding year thereto and should not and cannot be deemed to be subsisting so as to cover the vacancies likely to become available during an indefinite period, subsequent thereto. It is not permissible for the District Judge to prepare a waiting list taking into consideration such vacancies which are likely to occur beyond the year succeeding the year of recruitment so as to block the entertainment of applications for appointment against anticipated vacancies likely to occur beyond the succeeding year of the year of recruitment without any specification as such an action will be against the constitutional mandate noticed hereinabove.

The mere fact that the rule provides for the revision of the list from time to time does not and cannot indicate that the list will be deemed to be subsisting till exhausted as this revision becomes necessary as the list has to be utilised for filling up temporary or officiating vacancies as well during the currency of the list as indicated hereinabove.

It has been strenuously urged that the impugned order has been passed without affording an opportunity of hearing to the Petitioners. In this, connection, suffice it to say that as pointed out by the Apex Court in its decision in the case of S.L. Kapoor Vs. Jagmohan and Others, , while non-observance of natural Justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural Justice is unnecessary, yet where on the admitted or undisputable facts only one conclusion is possible, the court may not issue its writ to compel the observance of natural justice not because it is necessary to observe natural Justice but because the courts do not issue futile writs.

On the facts and circumstances brought on record, the question about failure to observe the principle of natural Justice is not of much consequence. In this connection, it should not be lost sight of that in matters where observance of the principles of natural Justice would have made no difference and the admitted or undisputable or irrefutable facts speaking for themselves lead to a situation where only one conclusion is possible under the law, the issuing of a writ to compel the observance of natural justice is not at all called for.

In view of my conclusions indicated hereinabove, the contentions raised on behalf of the Petitioners are totally devoid of merit and not acceptable at all. On the facts and circumstances brought on record, there can be no escape from the conclusion that the waiting list prepared on 26.5.90 had not been prepared according to the norms envisaged under Rule 12 of the Rules of 1955. In any view of the matter, after filling up of the vacancies available in the years 1990 and 1991 which were four in number, the list got exhausted having served its purpose and had to be treated as having lapsed. The Petitioners consequently have no subsisting right to claim appointment as against the vacancies which became available subsequent to the year 1991.

In the present case, I further find that although the order dated 26.5.90 indicated that the waiting list shall lapse after three years, the appointments of the candidate appearing at serial No. 4 of the list was granted subsequent to that period. On the facts disclosed in the counter-affidavit, this appointment appears to have been made against the 4th vacancy which had become available within the year succeeding the year of recruitment. The appointment of Nirbhan, the candidate whose name appeared at Serial No. 4 of the list has already been made. He has not been impleaded as Respondent in the writ petition. I am not inclined to interfere adversely affecting his appointment. His appointment, therefore, shall remain undisturbed.

In the result, these writ petitions deserve to be and are hereby dismissed.

Before parting with this judgment, this Court considers it to be appropriate that in order to ensure that the provisions contained in the Rule 12 of the U.P. Subordinate Civil Courts Inferior Establishment Rules, 1955 be uniformally followed according to law and the authority vesting in the District Judge of a Judgeship be not exercised in any arbitrary manner resulting in miscarriage of justice and further the mistakes committed in the past be not repeated and perpetuated, necessary requisite directions be issued to all the District Judges referred to in Rule 2(h) of the Rules who are the appointing authorities in respect of the posts covered under Rule 12 of the Rules in question.

Accordingly, let a direction issue requiring the District Judges referred to hereinabove to ensure that:

(a) all the available substantive vacancies in the posts covered by Rule 12 of the Rules or such vacancies which are likely to become available in the year of recruitment and the year succeeding to it be notified inviting applications before the preparation of the waiting list contemplated therein;

(b) the waiting list indicated above shall consist of the names of the candidates in the proportion of 1 : 3 qua the notified number of vacancies;

(c) the waiting list shall cease to be operative and stand exhausted on the filling up of the last notified vacancy;

(d) the fresh waiting list shall invariably be prepared before the accrual of the vacancies so that there may not be any unnecessary delay In its being filled up;

(e) all the existing ''waiting lists'' prepared under Rule 12 of the Rules which have served their purpose as indicated hereinabove shall cease to be operative forthwith. The appointments already made shall, however, remain undisturbed.

The Registrar of this Court shall ensure that the directions indicated above are communicated to all the District Judges referred to hereinbefore within two weeks for strict compliance.