Syed Abdul Kareem vs District Judge, Guntur

T. Ch. Surya Rao, J.—The petitioner seeks in this writ petition a direction in the nature of mandamus directing the respondent to appoint him as Process-Server in the existing vacancies in the unit of the District Judge, Guntur, by declaring the inaction of the respondent in not appointing the petitioner as Process-Server in the existing vacancies, as arbitrary and discriminatory.

According to the petitioner, he applied for the post of Process-Server in the year 1996 when notified by the respondent, and in the selection process he passed the written test and he was called for the interview and in the merit list prepared ultimately, he was No.4, which list was approved by the High Court in the month of December, 1997. It is his further case that three vacancies pertaining to OC category having been filled up from the merit list he is No.1 in the waiting list. The petitioner further claims that he possessed driving licence for driving the heavy goods vehicle and proficiency certificate issued by the Bharat Scouts and Guides and Readers Research Modern Institute, Bajajnagar, Jaipur. His grievance is, although there were several vacancies of Process-Servers in the Unit of the 1st respondent, despite several representations made by him, he has not been appointed and instead the respondent is going to call for fresh applications for filling up the vacancies of Process-Servers.

The respondent in his counter-affidavit while denying the allegations of the petitioner inter alia has stated that as against three vacancies of OC category and two vacancies of SC category, altogether five vacancies of Process-Servers, candidates have been selected on merit basis and the petitioner has not been selected. It has been further stated that it has not been notified that there would be a waiting list and that the same would be in force for one year, nor it has been affixed in the notice board nor communicated to the petitioner and that the petitioner who has secured only 36 marks has not been selected.

The learned Standing Counsel for the High Court has made available the record pertaining to the selection process. We have gone through the record. The District Judge, Guntur issued Notification dated 2-11-1996 calling for applications for various categories of posts including five posts of Process-Servers. After conducting written as well as oral tests the District Judge submitted the list of the selected candidates to the High Court for approval. According to the merit list prepared by the Committee consisting of the District Judge, I Additional District Judge and the II Additional District Judge 15 candidates have been selected as against three vacancies of Process-Servers in the category of OC at the rate of five candidates per each vacancy. The High Court by its proceedings in ROC No.3879/ 96-RC, dated 20-12-1997 approved the merit list as submitted by the respondent. According to these proceedings, the High Court approved the selection of five candidates for appointment as Process-Servers i.e., three in the category of OC and two in the category of SCs and at the same time the High Court also approved the waiting list of 12 candidates in the OC category and eight candidates in the SC category prepared in the order of merit. Obviously, the petitioner''s name has been mentioned as No.1 in the waiting list among the OC category and the marks he secured have also been mentioned as 36. Hence, the statement in the counter that the petitioner was not selected is not correct. The learned Standing Counsel, however, clarifies that what the deponent meant was that the petitioner did not get sufficient ranking so as to qualify for appointment against one of the 3 vacancies of OCs. The District Judge by his proceedings dated 8-1-1998 issued appointment orders to the five persons whose names had been approved by the High Court.

The selection process has been undertaken by the respondent in accordance with the circular issued by the High Court in ROC No.2318/96-C.I(i) dated 1-7-1996. It has been mentioned in the said circular as against Clause 10(f) at page 9 that the panel of selected candidates will be valid for one year and vacancies arising during that period shall be filled up by appointing the candidates from the list.

It is now the contention of the learned Counsel for the petitioner that 15 vacancies of Process-Servers have been there by the date of filing of the writ petition i.e., on 26-11-1998 and the case of the petitioner has not been considered. The respondent in his additional counter-affidavit has denied the said allegation. It has been further mentioned in the reply counter-affidavit that the Government has abolished 147 posts of Junior Assistants, 34 posts of Record Assistants, and 172 posts of Attenders in existing Courts in the State and has directed to absorb those persons. In the unit of District Judge, Guntur, 9 posts of Junior Assistants and 9 plots of Attenders have been abolished, and therefore, those persons have been absorbed in the existing vacancies with effect from 1-3-1998 and consequently the services of some of the Attenders who have put in more than 10 to 12 years have been absorbed as Process-Servers as per the proceedings of the District Court in Dis. No.270, dated 8-1-1998. Thus, it is the contention of the respondent that there have been no vacancies in the category of Process-Servers so as to appoint the petitioner.

Even as per the guidelines referred to supra, the panel would be in vogue for a period of one year. Since the High Court approved the panel on 20-12-1997, after 20-12-1998 the panel ceased to be in vogue. Obviously the petitioner being No.1 in the waiting list can legitimately claim to be absorbed against a vacancy that would arise in the course of one year. But, in the present case, even on facts, since it has been explained by the respondent that certain persons whose posts have been abolished by the Government had to be absorbed as Attendees and consequently some of the Attenders who have put in 10 to 12 years of service have been taken as Process-Servers, there remains no vacancy to be filled up. The details furnished by the petitioner in his affidavit about the retirement of certain Process-Servers cannot afford a valid ground to conclude that there are physical vacancies in the unit available within the period from 20-12-1997 to 20-12-1998.

The process of selection and selection for the purpose of recruitment against anticipated vacancies does not create a right to be appointed to the post which can be enforced by a mandamus under Article 226 of the Constitution of India. It is always open to the appointing authority to decide how many appointments shall be made. The fact that the petitioner is No.1 in the waiting list and he is eligible to be appointed does not clothe the petitioner with any right of appointment. Of course, it is not open to the appointing authority to appoint any person who is down below in the merit list, vis-a-vis the petitioner. But certainly it is open to the appointing authority to decide how many appointments shall be made and who are to be absorbed, subject however to the rider that the action of the appointing authority shall not be arbitrary, nor discriminatory. The petitioner cannot legitimately complain that he is discriminated against, since it is a clear case that none has been appointed who is down below in the merit list qua the petitioner. The instructions given by the High Court cannot also clothe the petitioner with any right of appointment. The above view is reinforced by a decision of the Apex Court in Jatinder Kumar and Others Vs. State of Punjab and Others, . That is a case where the Service Commission pursuant to the request of the Government conducted the selection process for filling 57 vacancies of Assistant Sub-Inspectors. Later at the request of the Government which anticipated 144 more posts prepared a merit list of 144 candidates and recommended for appointment. Subsequently, the anticipated vacancies could not be available. Nine posts were offered to the wards of the deceased police officers, and ultimately the Government appointed 48 candidates only out of the total list. The remaining persons in the merit list questioned the action of the Government. The Apex Court ultimately held that the process for selection for the purpose of recruitment against anticipated vacancies does not create a right to be appointed to the post which can be enforced by a mandamus. On that score, the petitioner cannot maintain the present writ.

For the above reasons, the petitioner cannot succeed in the present writ petition. The writ petition is, therefore, dismissed. Under the circumstances. No costs.