# G.S v. D.D.C. 1990 A.L.J. 366 that land

- **Citation:** (2005) 2 ILRA 628
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-07-07
- **Case number:** Civil Misc. Writ Petition No. 32158 of 2002
- **Bench:** Sunil Ambwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/g-s-v-d-d-c-1990-a-l-j-366-that-land-40500
- **Pages:** 4

## Headnote

Sri Sudhir Agrawal
Sri Amit Sthelkar
Sri K.R. Sirohi
S.C.

U.P. Subordinate Civil Courts Ministerial
Establishment Rules, 1947 Rule-14 (3)-
Short term appointment-petitioner being
candidate of waiting list-appointed on
the vacancy caused by a regular Class III
employee
during
the
period
of
supervision-with condition specifically
provided in the appointment letter-that
if the suspended employee reinstatedthe service of petitioner shall come to an
end-after joining of suspended person on
reinstatement-the
termination
order
challenged on ground that under similar
circumstances
another
employee
approached before the administrative
judge and has been regularised-heldextraordinary
powers
can
not
be
exercised for giving parity to an illegal
order- particularly when such illegal
appointee is not before the court-
2 All] A.K. Singh V. High Court of Judicature at Allahabad through R.G. and another 629
practice of sh0ort terms appointment
from waiting list highly depreciated.

Held: Para 6 and 7

The extraordinary powers under Article
226 of the Constitution of India cannot
be exercised for such purpose. Why
examining another person's case in his
absence, rather that examining the case
of the petitioner, who is present before
the Court seeking relief. Giving effect to
such a plea will be pre-judicial to the
interest of law and will be against the
public interest. Each case must be
decided on its own merit both factual
and legal.

The
writ
petition
is
accordingly
dismissed, with directions that in future
no appointment shall be made by the
District Judges from out of the waiting
list on any short term vacancies. The
Rules clearly do not provide for any such
appointments which not only cause
serious administrative difficulties, but
also engages time and energy of this
Court. No order as to costs.
Case law discussed:
1995 (1) SCC-745
1995 (3) SCC-486

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2005
628

7. It has been held by this Court in
G.S. Vs. D.D.C. 1990 A.L.J. 366 that land
reserved for artisans to dig out the earth
for preparing earthen ware is also a public
purpose.

8. Learned counsel for the petitioner
has very vehemently argued that the
authority of Lalji Vs. Board of Revenue
does not lay down correct law as under
Section 161 of U.P.Z.A. & L.R. Act it is
specifically provided that Gaon Sabha
land
may
be
exchanged
with
the
Bhoomidhari land of a private person.

9. I do not see any reason to doubt
the correctness of the view taken in Lalji's
case and refer the same to Larger Bench.
In the said authority it has clearly been
held that "the Gaon Sabha has no
authority in law to divert the use of land
earmarked for a public purpose."

10. Under Section 132 (VI) of
U.P.Z.A. & L.R. Act it has been provided
that Bhoomidhari rights shall not accrue
in any land set apart for public purpose
under U.P. Consolidations of Holdings
Act. It is correct that under Section 161 of
U.P.Z.A. & L.R. Act exchange of Gaon
Sabha land is permissible. However,
reading the said section alongwith Section
132 U.P.Z.A. & L.R. Act makes it quite
clear that such exchange is permissible
only when Gaon Sabha land sought to be
exchanged is not covered by Section 132
of U.P.Z.A. & L.R. Act.

11. Accordingly, there is no error in
the judgment of Board of Revenue
holding that as the land comprised in plot
nos. 506 and 507 was reserved for public
purpose (digging) hence exchange was
not permissible.

Writ petition is therefore dismissed.
Petition Dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.07.2005

BEFORE
THE HON'BLE SUNIL AMBWANI, J.

Civil Misc. Writ Petition No. 32158 of 2002

Ajai Kumar Singh

...Petitioner
Versus
High Court of Judicature at Allahabad
through Registrar General and another

 ...Respondents

Counsel for the Petitioner:
Sri A.P. Tiwari
Sri Sada Nand Shukla
Sri Sheo Shanker Tripathi

Counsel for the Respondents:
Sri Sudhir Agrawal
Sri Amit Sthelkar
Sri K.R. Sirohi
S.C.

U.P. Subordinate Civil Courts Ministerial
Establishment Rules, 1947 Rule-14 (3)-
Short term appointment-petitioner being
candidate of waiting list-appointed on
the vacancy caused by a regular Class III
employee
during
the
period
of
supervision-with condition specifically
provided in the appointment letter-that
if the suspended employee reinstatedthe service of petitioner shall come to an
end-after joining of suspended person on
reinstatement-the
termination
order
challenged on ground that under similar
circumstances
another
employee
approached before the administrative
judge and has been regularised-heldextraordinary
powers
can
not
be
exercised for giving parity to an illegal
order- particularly when such illegal
appointee is not before the court-
2 All] A.K. Singh V. High Court of Judicature at Allahabad through R.G. and another 629
practice of sh0ort terms appointment
from waiting list highly depreciated.

Held: Para 6 and 7

The extraordinary powers under Article
226 of the Constitution of India cannot
be exercised for such purpose. Why
examining another person's case in his
absence, rather that examining the case
of the petitioner, who is present before
the Court seeking relief. Giving effect to
such a plea will be pre-judicial to the
interest of law and will be against the
public interest. Each case must be
decided on its own merit both factual
and legal.

The
writ
petition
is
accordingly
dismissed, with directions that in future
no appointment shall be made by the
District Judges from out of the waiting
list on any short term vacancies. The
Rules clearly do not provide for any such
appointments which not only cause
serious administrative difficulties, but
also engages time and energy of this
Court. No order as to costs.
Case law discussed:
1995 (1) SCC-745
1995 (3) SCC-486

(Delivered by Hon'ble Sunil Ambwani, J.)

1. Heard Sri A.P. Tiwari, learned
counsel for the petitioner and Sri Amit
Sthelkar for respondents.

2. The District Judge, Deoria
advertised 48 vacancies of Class III
employees to be filled up by selection
vide
advertisement
published
on
13.9.1999. Out of these 48 vacancies, 36
were on the post of Clerks in Grade III, 05
on
Paid
Apprentices
and
07
on
Stenographers. The petitioner was placed
in the waiting list of paid apprentices at
serial no. 2. All the selected persons
joined. There was no further vacancies on
which the petitioner could be appointed
within a period of one year i.e. The
validity of the select list in terms of Rule
14 (3) of the U.P. Subordinate civil
Courts Ministerial Establishment Rules
1947. It appears that four employees of
the
Judgeship
were
suspended
and
consequently District Judge appointed
some of the persons out of the waiting list
on these short term vacancies. The
petitioner was given the short term
appointment caused on suspension of one
of
such
suspended
employee.
The
appointment letter dated 7.7.2000 clearly
mentioned
at
the
end,
that
the
appointment is on a vacancy caused on
the suspension of an employee and that if
the employee is reinstated, the petitioner's
services will come to an end. Sri Ajai
Kumar
Srivastava,
the
suspended
employee was reinstated. Consequently
the petitioner's services came to an end by
order dated 14.11.2000.

3. Learned counsel for the petitioner
submits that similarly placed person at
serial no. 1 in the waiting list, who was
also appointed in short term vacancy,
made a representation to High Court,
which was allowed and that he was given
regular appointment vide order of the
High
Court
dated
23.5.2001.
The
petitioner has claimed parity with Sri
Dharmendra
Kumar
Chaudhari
and
submits
that
rejection
of
his
representation violates the equality before
law guaranteed by Article 16 of the
Constitution of India.

4. A person in the waiting list does
not have a right to be appointed unless the
advertised vacancies are not filled up by
the selected persons. It is only when any
selected person does not join, that the
vacancies can be offered to the person in
INDIAN LAW REPORTS ALLAHABAD SERIES [2005
630
waiting list in accordance with merit
position within the period of validity of
the select list. In the present case, it is
admitted that no vacancies were caused
on account of non-joining of any of the
persons selected and placed in the main
list. This Court has time and again and
repeatedly requested the District Judges
not to make appointments on short term
vacancies out of waiting list prepared
after regular selection. This not only
causes complications but raises hopes of
the wait listed candidates who are later on
engaged
in
litigation
for
decades
altogether. In Madan Lal Vs. State of J
& K 1995 (3) SCC 486 and Prem Singh
vs. State of Haryana 1996 (4) SCC 319
(para 25) the Supreme Court held that
appointments from the waiting list,
beyond advertised vacancies can be made
only in exceptional circumstances, and in
emergent situation, and that too by taking
a policy decision, which should be free
from arbitrariness.

5. The object and purpose of the
waiting list is to avoid another selection
for the same vacancies which cannot be
filled up from the selected candidates.
The petitioner was not appointed on any
clear vacancy. He was appointed on a
vacancy caused on account of suspension
of an employee of the judgeship. It was a
short term vacancy which should not have
been filed up from the waiting list. In any
case
the
appointment
letter
clearly
stipulated
that
the
appointment
is
conditional
upon
reinstatement
of
suspended employee. Sri A.P. Tiwari,
learned counsel for the petitioner made an
attempt to state that this condition was not
incorporated in the appointment letter and
was added subsequently. This ground
appears to have been taken for the first
time in the rejoinder affidavit. In the writ
petition the petitioner has relied upon his
appointment dated 7.7.2000 which clearly
stipulated that the appointment is subject
to
reinstatement
of
the
suspended
employee. It is apparent that the petitioner
is trying to create a new ground in
rejoinder affidavit, which cannot be
accepted.

6.

Sri
Dharmendra
Kumar
Chaudhari has not been impleaded in the
writ petition. I am not inclined to go into
the question of the validity of the
appointment of Sri Dharmendra Kumar
Chaudhari
or
to
examine
the
circumstances in which he was appointed
out of the waiting list and given
appointment in the absence of any
vacancy caused on account of non-joining
of any candidate. The operative portion of
the order quoted in the letter of Deputy
Registrar dated 23.5.2001 proceeds with
the statement that the applicant was
'appointed', after due selection. The
question whether this statement is correct,
is not a subject matter to be decided in
this writ petition. In any case, the person
whose appointment is a cited for claiming
parity, has not been impleaded. This
Court will not cause a futile enquiry into
the
circumstances
in
which
such
appointment was made. An irregular
appointment does not discriminate the
similarity situate person. In Chandigarh
Administration vs. Jagjeet Singh 1995
(1) SCC 745, the Supreme Court held that
an illegal order with which comparison is
made can not be the basis to issue a writ
compelling respondents to do the same
illegality. The extraordinary powers under
Article 226 of the Constitution of India
cannot be exercised for such purpose.
Why examining another person's case in
his absence, rather that examining the
case of the petitioner, who is present
2 All] Mohd. Ehteshamul Hasan V. State of U.P. and others 631
before the Court seeking relief. Giving
effect to such a plea will be pre-judicial to
the interest of law and will be against the
public interest. Each case must be decided
on its own merit both factual and legal.

7. The writ petition is accordingly
dismissed, with directions that in future
no appointment shall be made by the
District Judges from out of the waiting list
on any short term vacancies. The Rules
clearly do not provide for any such
appointments which not only cause
serious administrative difficulties, but
also engages time and energy of this
Court. No order as to costs. Petition
Dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.07.2005

BEFORE
THE HON'BLE VINEET SARAN, J.

Civil Misc. Writ Petition No.47817 of 2005

Mohammad Ehteshamul Hasan

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Jai Prakash Rai

Counsel for the Respondents:
Sri K.C. Sinha
Sri D.S. Shukla
Sri V.K. Singh
S.C.

Constitution of India, Art. 226-Service
Law-Right to appointment-Vacancies of
Tuberculosis Health visitors-advertised
on
2.3.05
prescribing
the
essential
Qualification-Interview-by
subsequent
advertisement the requisite qualification
prescribed Intermediate with Biologychallenged on the ground once the
petitioner participated in the interview
as per earlier advertisement-it can not
be denied by the change of requisite
qualification-held-the
subsequent
advertisement issued as per guide lines
of State Govt.-in absence of essential
qualification petitioner has no right to
challenge the subsequent advertisement.

Held: Para 6

Considering the aforesaid facts and
circumstances and keeping in view that
the subsequent advertisement has been
issued on the basis of the guidelines
issued by the State Government and also
considering that the petitioner does not
possess the essential qualification for
appointment on the post T.B.H.V. even
according to the guidelines of the Central
Government as have been relied by the
petitioner and also keeping in view the
law laid down by the Supreme Court in
the aforesaid two cases relied upon by
the learned counsel for the respondents,
the prayer made in this writ petition is
not liable to be granted.
Case law discussed:
J.T. 1991 (2) SC-380
1994 (6) SCC-151

(Delivered by Hon'ble Vineet Saran, J.)

1. Heard learned counsel for the
petitioner as well as learned Standing
Counsel
appearing
for
the
Staterespondents no. 1,2 and 3, Sri V.K. Singh,
learned counsel appearing for respondent
no. 4 and Sri D.S. Shukla, learned
Additional Standing Counsel for the
Union of India appearing for respondent
no. 5.

2. The facts in brief are that in
response to an advertisement issued on
2.3.2005 by respondent no. 4, the District
Tuberculosis
Officer
as
Member
Secretary of the District Tuberculosis