WAHAB UDDIN & ORS. versus KM. MEENAKSHI GAHLOT & ORS. on 13 November 2021

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court of Judicature at Allahabad videorder dated 23.01.2020 passed in Special Appeal No. 638 of 2012 bywhich the Division Bench of the High Court has dismissed the said appealand has confirmed the judgment and order passed by the learned SingleJudge by which the learned Single Judge has allowed the writ petitionpreferred by the Respondent No. 4 herein and quashed and set aside theappointment of the appellants herein, the original Respondent Nos. 3 to5 whose appointments have been quashed by the High Court havepreferred the present appeal.

2. The facts leading to the present appeal in nutshell are as under:

2.1 In the judgeship of Moradabad in the year 1987, a competitiveexamination was held for filling up the post of English and HindiStenographers. The appellants herein initially participated for the post ofEnglish Stenographers. Select list of English Stenographers (containingthe names of the appellants herein) and Hindi Stenographers wasprepared on 14.07.1987. However, since there were no vacancies in thejudgeship for the post of English Stenographers, no appointments weregiven to the candidates in the select list of English Stenographers (includingthe appellants herein). As per Rule 14(3) of the Subordinate Civil CourtsMinisterial Establishment Rules, 1947 (hereinafter referred to as ‘theRules, 1947’) select list was to remain valid for one year and the saidselect list dated 14.07.1987 came to an end on 13.07.1988. At the sametime, Hindi Stenographers were given appointment as per the select list.However, since there were some leave vacancies of temporary naturein the post of Hindi Stenographers, the appellants were appointed ontemporary basis against those leave vacancies, for a period of one monthfrom 14.10.1987 to 15.11.1987. At this stage, it is required to be notedthat in their respective appointment letters it was specifically stated thattheir appointments shall be terminated once the regular employees resumetheir duties.

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AThat thereafter fresh examination was conducted for the post ofHindi Stenographers on 24.09.1988. Pursuant thereto Respondent Nos.1 to 3 herein were appointed on the substantive post of HindiStenographers as per merit and the select list. Therefore, as suchRespondent Nos. 1 to 3 herein were appointed. As the appellants hereinwere appointed on leave vacancies of a temporary nature, their servicesBwere required to be terminated once the regular employees resume theirduties. However, representations were made by the appellants to theDistrict Judge, Moradabad. The District Judge, Moradabad forwardedhis comments on the same to the Deputy Registrar, High Court. TheDeputy Registrar, High Court vide administrative order dated 22.05.1990Cto District Judge, Moradabad directed that the approved list of ex-stenosand Hindi stenos dated 14.07.1987 be prepared and their names bearranged in the order of merit. At this stage, it is required to be notedthat in the communication dated 22.05.1990, it was specifically mentionedthat the appointment of the appellants was temporary and on leavevacancies. It appears that thereafter a typing/speed test was conductedDfor the appellants for the post of Hindi Stenographers. The Officer-In-charge proceeded and conducted Hindi typing test of appellants and onemore candidate on 29.05.1990. In the said examination all the threeappellants were found not qualified as per Rule 5(c) of the Rules, 1947and their typing test was found less than the prescribed. Thus, theEappellants failed in the speed test for the post of Hindi Stenographers.Despite the above without communicating to the High Court that theappellants have failed the speed test, the District Judge, Moradabadterminated the services of Respondent Nos. 1 to 3 herein who wereselected after due process and in compliance of the Rules of 1947 andappointed the appellants on 05.06.1990, against the post held byFRespondent Nos. 1 to 3 herein by terminating the services of RespondentNos. 1 to 3. The appointment of the appellants and the termination ofRespondent Nos. 1 to 3 was challenged before the High Court byRespondent Nos. 1 to 3 herein. The learned Single Judge allowed thesaid writ petition and quashed and set aside the appointment of theGappellants herein and set aside the orders of termination terminating theservices of Respondent Nos. 1 to 3 herein. The special appeal againstthe order and judgment passed by the learned Single Judge has beendismissed by the Division Bench by impugned judgment and order dated23.01.2020. Hence, the present appeal.

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3. Mr. Pardeep Gupta, learned counsel appearing on behalf of theappellants has vehemently submitted in the facts and circumstances ofthe case more particularly when the appellants worked for almost 29years and that too after the High Court of Allahabad vide its order dated22.05.1990 approved the appointment of the appellants as Stenographersand directed the District Judge, Moradabad to issue the appointmentletters and in accordance with the same the appointment letters dated05.06.1990 were issued, it is not justified to quash their appointments.

It is vehemently submitted that as such Rule 14(3) of the Rules,1947 shall not be applicable to the recruitment list on merit under Rule 11and can be made applicable only to the reserved category candidatesunder Rule 12. It is submitted that the High Court has erred in relyingupon the said rule for setting aside the appointment of the appellants.

It is further submitted that the High Court has erred in treating theappellants’ appointment against leave vacancy vide orders dated14.10.1987, 15.10.1987 etc. and has failed to consider that the appellantshave continuously worked for more than 30 years.

The High Court has not properly appreciated the fact that thoughthe appointment of the Respondent Nos. 1 to 3 were approved on thebasis of the selection list dated 29.11.1988, they were given appointmentonly in the year 2012, i.e., after a lapse of more than 24 years of selectlist dated 29.11.1988. It is submitted that therefore there is no justificationto approve the appointment of the respondents when they were alreadybecome age barred, i.e., 50 years old.

4. Making the above submissions, it is prayed to allow the presentappeal and protect the services of the appellants.

5. Present appeal is opposed by Ms. Preetika Dwivedi, learnedcounsel appearing on behalf of Respondent No.4 – High Court ofJudicature at Allahabad. It is submitted that the appellants initiallyparticipated for the post of English Stenographers in the year 1987.However, since there were no vacancies, their names were placed onthe select list on 14.07.1987. It is submitted that the select list was validonly for one year and came to an end on 13.07.1988, in view of theprovisions contained in Rule 14(3) of the Rules, 1947. It is submitted thatno appointments were given to the appellants to the post of EnglishStenographers for want of vacancies for the post of EnglishStenographers. It is submitted that however in the year 1987, there were AB

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Asome leave vacancies of a temporary nature, in the post of HindiStenographers and therefore the appellants were appointed on temporarybasis against leave vacancies for a period of one month from 14.10.1987to 15.11.1987. It is submitted that in the appointment letter it wasspecifically stated that their appointment shall be terminated once theregular employees resume their duties. It is submitted that thereafterBfresh recruitment process was initiated and the fresh examination wasconducted for the post of Hindi Stenographers on 24.09.1988 and pursuantthereto, Respondent Nos. 1 to 3 were appointed. It is submitted thathowever thereafter the representations were made by the appellants tothe District Judge, Moradabad which was forwarded to the High CourtCand the Deputy Registrar, High Court vide administrative order dated22.05.1990 though noted that the appellants were appointed temporarily,directed that the approved list of ex-stenos and Hindi Stenos dated14.07.1987 be prepared and their names be arranged in the order ofmerit. It is submitted that pursuant thereto a speed test was conductedfor the appellants in accordance with the Rules and the appellants failedDto achieve and possess the minimum speed required for the post of HindiStenographers, the fact which was not communicated to the High Courtthereafter. It is submitted that despite the above the District Judge,Moradabad continued the appellants and terminated the services ofRespondent Nos. 1 to 3 who were appointed after due process and inEcompliance to the Rules of 1947 and appointed the appellants againstthe post held by Respondent Nos.1 to 3. It is submitted that therefore,the High Court has rightly quashed the appointment of the appellantsand has rightly quashed the termination of Respondent Nos. 1 to 3.

6. It is submitted that the appellants are not entitled to any reliefFas they were never appointed to the post of Hindi Stenographers, afterfollowing due selection procedure. It is submitted that on the contrarythe respondents were appointed after following proper selectionprocedure. It is submitted that the appointment of Respondent Nos. 1 to3 was on the substantive sanctioned posts. It is submitted that there

cannot be two persons working on one sanctioned post. It is submittedGthat therefore once the Respondent Nos. 1 to 3 were selected andappointed after following due selection procedure on the post of HindiStenographers and the appellants were appointed on leave vacancies,as a consequence the Respondent Nos. 1 to 3 have to be appointed andthe appellants have to give way to those who are duly selected afterHfollowing selection procedure. It is submitted that therefore, the High Court has not committed any error in passing the impugned judgmentand order. It is submitted that no interference of this Court in exercise ofpowers under Article 136 of the Constitution of India is called for.

7. Dr. Ashutosh Garg, learned Counsel appearing on behalf of theRespondent Nos. 1 to 3 have supported the impugned judgment andorder passed by the learned Single Judge and confirmed by the DivisionBench by adopting the submissions made by the counsel on behalf of theHigh Court.

8. Heard learned counsel for the respective parties at length.

9. At the outset, it is required to be noted that initially the appellantsparticipated in the selection process for the post of English Stenographersin the year 1987. They never applied for the post of Hindi Stenographersin the year 1987. Since there were no vacancies of English Stenographersin the District Court, Moradabad no appointments were made andappellants were not appointed on the post of English Stenographers ofwhich they applied. However, they were placed on the select list on14.07.1987. As per Rule 14(3) of the Rules, 1947 the validity of theselect list was for one year and therefore, the said select list dated14.07.1987 came to an end on 13.07.1988. Thereafter the appellantscould not have claimed any appointment on the basis of the expiredselect list. However, it appears that there were some leave vacancies oftemporary nature in the post of Hindi Stenographers and therefore, theappellants were appointed purely on temporary basis on the said leavevacancies, for a period of one month from 14.10.1987 to 15.11.1987. Atthis stage, it is required to be noted that in the appointment letter itself itwas stated that their appointment shall be terminated once the regularemployees resume their duties. It is not in dispute that thereafter a freshexamination was conducted for the post of Hindi Stenographers on24.09.1988 and Respondent Nos. 1 to 3 were appointed. However,thereafter though the services of the appellants were required to beterminated on the Respondent Nos. 1 to 3 being selected for the post ofHindi Stenographers, pursuant to the communication dated 22.05.1990by the Deputy Registrar, High Court by which it was directed that theapproved list of ex-stenos and Hindi Stenos dated 14.07.1987 be preparedand their names be arranged in the order of merit, and though theappellants failed to clear the speed test for the post of Hindi Stenographersas required as per Rule 5(c) of the Rules, 1947, the District Judge,Moradabad appointed the appellants and terminated the services of AB

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Conclusion

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ARespondent Nos. 1 to 3. The appointment of the appellants and thetermination of the Respondent Nos. 1 to 3 has been rightly quashed andset aside by the High Court, firstly on the ground that in the year 1990 nodirection could have been issued to make the appointment on the basisof the select list dated 14.07.1987 as the select list dated 14.07.1987expired and came to an end on 13.07.1988; secondly, the appellantsBfailed to clear/pass the speed test for the post of Hindi Stenographers;thirdly, the appellants were never appointed after following due procedureof selection, against which the Respondent Nos. 1 to 3 were selectedand appointed pursuant to the fresh examination which was conductedfor the post of Hindi Stenographers on 24.09.1988 and thereafter theyCwere appointed after following due procedure of selection and that theappointment of the appellants in the year 1987 was against the leavevacancies and in the appointment order itself it was specifically mentionedthat their appointment shall be terminated once the regular employeesresume their duties. Considering the aforesaid facts and circumstances,the High Court has rightly quashed and set aside the appointment of theDappellants and has rightly quashed and set aside the orders terminatingthe services of Respondent Nos. 1 to 3 who were selected after dueprocess and in accordance with the Rules, 1947.

The submission on behalf of the appellants that the RespondentNos. 1 to 3 were appointed in the year 2012 is factually incorrect as inEthe year 1988 itself Respondent Nos. 1 to 3 were appointed and theirservices were terminated in the year 1990 by the District Judge,Moradabad and the appellants were appointed and thereafter pursuantto the interim orders passed by the Division Bench of the High Court,the Respondent Nos. 1 to 3 were also accommodated in the year 2012.FTherefore, as such the Respondent Nos. 1 to 3 have suffered for theperiod between 1992 - 2012 for no fault of them and though they wereselected and appointed after following due procedure of selection. Infact, the appellants have gained illegally and they were continued inservice pursuant to the interim order of the High Court. Once the appellants continued on the aforementioned post pursuant to the interimGorder passed by the High Court and their appointment is subsequentlyheld to be bad in law and not only that their continuation in service is alsoheld to be bad in law, thereafter they cannot be permitted to submit thatas they worked for a long time their services should be protected, thoughtheir appointments are not legally tenable. Once their appointments areH

held to be illegal and it is held that they have no right to continue on thepost to be occupied by other eligible candidates, the necessaryconsequences shall follow. Once the Respondent Nos.1 to 3 are to beaccommodated and/or appointed who were selected after due processand the appointment of the appellants were on leave vacancies with aspecific condition in the appointment order that their appointment shallbe terminated once the regular employees resume their duties, necessaryconsequences shall follow and the services of the appellants are to beterminated and/or put to an end. Unfortunately, it has so happened thatafter 2012 on the post of Hindi Stenographers the appellants as well asRespondent Nos. 1 to 3 are working, which is not permissible. Therecannot be appointment of two persons on one sanctioned post. Otherwise,there will be financial burden on the State of two persons on one sanctionedpost. Under the circumstances the prayer of the appellants to continuethem in services and to pay them pensionary benefits etc. also cannot begranted. Appellants are not entitled to any relief. In fact, they arebenefitted by continuing in the service after 1988 though their serviceswere required to be put to an end after the fresh selection in the year1988 and after the Respondent Nos. 1 to 3 were appointed after followingdue process and procedure as per Rules, 1947.