# Mahendra Kumar Gaur v. District

- **Citation:** (2010) 1 ILRA 297
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-03-30
- **Case number:** Civil Misc. Writ Petition No. 41816 of 2005
- **Bench:** Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahendra-kumar-gaur-v-district-41610
- **Pages:** 5

## Headnote

Constitution
of
India,
Art.
226Cancellation of appointment-petitioner
were
selected
on
the
post
of
stenographer-3 poser advertised-against
that
7
appointment
made-noticing
irregularity-four
excess
appointments
cancelled-on direction of administrative
judge to accommodate join vacancy in
fast
Track
Court-working
as
such-
298 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

demand of salary-Registrar General filed
its reply with contention of salary be
paid from fast track courts fund-without
considering
the
validity
of
excess
appointment-held-public exchequer can
not be burdened with liability of salary
for omission of authorities-the moment
on which all three post full filled-District
judge ought to have cancel the list of
selection-let
Registrar
General
give
salary from its own pocket.

Held: Para 15 & 16

Any appointment made beyond the
number
of
vacancies
advertised,
is
without jurisdiction, therefore, a nullity,
in-executable and un-enforceable in law.

In my opinion, the stand of the Registrar
General is patently a negation of rule of
law, which applies to the employees of
the Courts under the superintendence of
the High Court like to any other citizens
of the Country. Public money cannot be
permitted to be used for payment of
salary to such void appointees.
Case law discussed:
2005 (2) ESC 1509, AIR 1996 SC 976, AIR
2001 SC 2900.

## Text

1 All] Phool Chand Tiwari V. Joint Director of Education and others

297
party), there is no other option but to hold
that since there are only three post in
Class-III cadre in the institution, no post
can be reserved for scheduled caste
category candidate. Consequently, Sri
Ram Dhani can have no claim in respect
of said post on account of reservation.

14. Since the vacancy is within 50%
quota for promotion and there is a
candidate available for such promotion in
the category of Class-IV employee,
namely Sri Phool Chand Tiwari, this
Court holds that the promotion granted in
his favour, as approved by the District
Inspector of Schools under order dated
06th June, 2002, is strictly in accordance
with law.

15. Counsel for the petitioner-Ram
Dhani, however, brought to the notice of
this
Court
another
Division
Bench
judgment of this Court in the case of
Mahendra Kumar Gaur vs. District
Inspector of Schools (2009) 4 UPLBEC
3066, wherein it has been held that in the
institution if there are only three post and
no person of scheduled caste has been
appointed, the vacancy caused shall stand
reserved for scheduled caste as per the
roster and shall be filled by such reserve
category of the candidate only.

16. The Division Bench in its
judgment in the case of Mahendra Kumar
Gaur (supra) has not noticed the earlier
Division Bench judgment of this Court in
the case of Dr. Vishwajeet Singh (supra)
and therefore there is absolutely no
conflicting opinion qua the law viz-a-viz
the applicability of reservation to the
cadre which does not have minimum 5
post. This Court finds that the judgment in
the case of Mahendra Kumar Gaur
(supra) is clearly distinguishable.

17. The writ petition filed by Sri
Phool Chand Tiwari (i. e. Writ Petition
No. 36379 of 2003) is allowed and it is
held that his promotion is strictly in
accordance with law. The authorities shall
take appropriate action accordingly. Order
dated 29.07.2003 is hereby quashed. The
writ petition filed by Sri Ram Dhani (i. e.
wpon 13104 of 2003) is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.03.2010

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 41816 of 2005
Connected with
Civil Misc. Writ Petition No. 43168 of 2005

Pankaj Kumar

...Petitioner
Versus
Hon'ble High Court of Judicature at
Allahabad Thru Registrar General and
others

 ...Respondents

Counsel for the Petitioner:
Sri Ashok Khare
Sri K. Shahi,

Counsel for the Respondents:
Sri Amit Sthalekar
Sri K.R. Sirohi
Sri Rajeev Gupta
C.S.C.,

Constitution
of
India,
Art.
226Cancellation of appointment-petitioner
were
selected
on
the
post
of
stenographer-3 poser advertised-against
that
7
appointment
made-noticing
irregularity-four
excess
appointments
cancelled-on direction of administrative
judge to accommodate join vacancy in
fast
Track
Court-working
as
such-
298 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

demand of salary-Registrar General filed
its reply with contention of salary be
paid from fast track courts fund-without
considering
the
validity
of
excess
appointment-held-public exchequer can
not be burdened with liability of salary
for omission of authorities-the moment
on which all three post full filled-District
judge ought to have cancel the list of
selection-let
Registrar
General
give
salary from its own pocket.

Held: Para 15 & 16

Any appointment made beyond the
number
of
vacancies
advertised,
is
without jurisdiction, therefore, a nullity,
in-executable and un-enforceable in law.

In my opinion, the stand of the Registrar
General is patently a negation of rule of
law, which applies to the employees of
the Courts under the superintendence of
the High Court like to any other citizens
of the Country. Public money cannot be
permitted to be used for payment of
salary to such void appointees.
Case law discussed:
2005 (2) ESC 1509, AIR 1996 SC 976, AIR
2001 SC 2900.

(Delivered by Hon'ble Arun Tandon, J.)

1. Supplementary counter affidavit
filed today on behalf of respondent nos. 1
to 3 be taken on record.

2. Heard Sri K. Shahi, learned
counsel for the petitioners, Sri Rajiv
Gupta, learned counsel for High Court
and District Court at Saharanpur and
learned Standing Counsel for the Staterespondent.

3. These two writ petitions have
been filed by four petitioners in all. The
facts of both the writ petitions with regard
to appointment of all the petitioners are
identical. Therefore, a common order is
being passed. The facts on record of Civil
Misc. Writ Petition No. 41816 of 2005 are
being treated to be the leading case.

4. Petitioner before this Court seek
quashing
of
the
order
dated
28th
February, 2010 passed by the District &
Sessions Judge, Saharanpur, where-under
he has relieved the petitioner from the
post of Stenographer on the ground that
such appointment was made in excess of
the sanctioned posts available in the
Judgeship, Shaharanpur. Petitioner further
prays for quashing of the order dated 16th
May, 2005 where-under respondent no.4
was attached to the Fast Track Court No.
1 as stenographer on deputation.

5. The facts in short leading to the
present writ petition are as follows:

6. There were three vacant posts of
Stenographers available in the judgeship
of District Saharanpur. The said three
posts were advertised for appointment.
The then District Judge actually appointed
seven persons as against three advertised
and actual vacancies available. Thus, four
persons were appointed as Stenographers
against non non-advertised and nonexisting posts.

7. The subsequent District Judge on
being made aware of the aforesaid
situation passed an order 28.2.2005,
whereby the appointment of the excess
appointees i.e. four Stenographers was
ceased. It appears that the aforesaid four
persons approached the Administrative
Judge of Saharanpur at the relevant time
by
way
of
representation.
The
Administrative Judge passed an order
dated 10th July, 2005 directing that the
aforesaid four persons be adjusted against
the posts, which have been made
1 All] Pankaj Kumar V. Hon'ble High Court of Judicature at Allahabad and others

299
available for the Fast Track Court's. The
order on the administrative side passed by
the Hon'ble High Court is not on record,
only the letter indicating the said direction
has been annexed as Annexure No.RA-1
to the rejoinder affidavit. The four
persons claim to be working in terms of
the order passed by the Administrative
Judge.

8. They were not paid their salary in
absence of suitable posts against which
their salary could be drawn. The District
Judge, Saharanpur forwarded a letter to
the High Court on administrative side
dated 19.7.2005 (Annexure No.R.A.-2)
seeking a direction as to under which
head the salary of the aforesaid four
persons is to be released.

9. From the record, it appears that no
reply was sent by the High Court to said
query. The aforesaid four persons have,
therefore, approached this Court by means
of these two petitions for a mandamus
commanding the respondents to ensure
payment of salary as well as for quashing
of the order dated 28.2.2005, which has
since
been
modified
by
the
Administrative
Judge
on
the
representation made by the petitioner as
stated above. On behalf of the petitioner it
is vehemently contended that since they
are
working
in
the
judgeship
at
Saharanpur, the respondent authorities are
under legal obligation to make payment of
salary for the work which has been taken
from them. It is alleged that begar is
prohibited under the Constitution of India.

10. This Court vide order dated 17th
March, 2010 required the Registrar
General of this Court to examine the
grievance of the petitioner and to take a
stand on administrative side either in
favour of petitioner or against him.

11. Today a supplementary counter
affidavit has been filed by the Registrar
General of this Court enclosing the
decision taken qua the claim of the
petitioner. A copy whereof has been
enclosed
as
Annexure-SC-1
to
the
supplementary counter affidavit. The
Registrar General has held that if the
petitioners are working as Stenographers
in Fast Track Court, their salary be
released from the Fast Track Courts'
Account and if they are working on the
civil side then their salary be drawn from
"03-District & Sessions Judge" head.

12. It is worthwhile to reproduce
paragraph-8 of the counter affidavit filed
on behalf of District Judge in Civil Misc.
Writ Petition No. 41816 of 2005 by the
Additional District Judge, Court No.8,
Saharanpur, which reads as follows:

"8. That in reply to the contents of
para 6 of the writ petition it is stated that
the selection of 7 posts of Stenographer
was illegal and unauthorized. When there
was advertisement of only 3 posts, the
then District Judge, Saharanpur was not
authorized to select/appoint more than 3
candidates. The variation clause in the
advertisement is immaterial as opined by
the Apex Court."

It is also worthwhile to reproduce
paragraphs-12 and 13 of the Counter
Affidavit filed by the Deputy Registrar
(General), High Court, Allahabad on
behalf of the High Court, which reads as
follows:

"12. That the answering respondent
submits most humbly that it appears that
300 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

the aforesaid facts could not be placed for
the consideration of or notice of the
Hon'ble Administrative Judge of this
Hon'ble Court and because of this, His
Lordship proceeded on the assumption
that the Petitioners had been appointed in
vacancies in Fast Track Courts. The
order dated 11.7.2005 came to be passed
by the Registrar General of this Hon'ble
Court in implementation of the above
order made by the Hon'ble Administrative
Judge.
13. That the appointment of the
petitioner is a nullity in light of the
judgment of this Hon'ble Court rendered
in the case of District Judge, Baghpat
versus Anurag Kumar, reported in 2005
(2) ESC 1509."

13. This Court is sorry to record that
the Registrar General has not cared to
examine as to whether the appointment of
the petitioner was in accordance with law
or not and as to how any person appointed
in excess of sanctioned posts in the
judgeship at Saharanpur, can be paid
salary from the State Funds.

From the facts, which have been noticed
herein above, it is apparently clear that
there were only 3 posts of Stenographer
actually vacant within the sanctioned
strength in the Judgeship of Saharanpur.
Advertisement published for the purpose
also mentioned that there were three
vacant posts, yet the District Judge
concerned passed an order appointing 7
persons.
The
High
Court
on
the
administrative side should have cancelled
such appointment, inasmuch as the
Hon'ble Supreme Court of India has
repeatedly held that (a) once the number
of vacancies advertised have been filled,
the select list became non est and cannot
be utilized for any purpose whatsoever,
(b) any appointment in excess of the
sanctioned posts would be void ab nitio.

In the case of Ashok Kumar & Ors.
versus Chairman, Banking Service
Recruitment Board & Ors., reported in
AIR 1996 SC 976, the Hon'ble Supreme
Court of India has held as follows:

"5. Article 14 read with Article 16
(1)
of
the
Constitution
enshrines
fundamental right to every citizen to claim
consideration for appointment to a post
under the State. Therefore, 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 recruitment of the candidates in
excess of the notified vacancies is a denial
and deprivation of the constitutional right
under Article 14 read with Article 16 (1)
of
the
Constitution.............................
Boards should notify the existing and
excepted vacancies and the Recruitment
Board should get advertisement published
and recruitment should strictly be made
by the respective Boards in accordance
with the procedure to the notified
vacancies but not to any vacancies that
may arise during the process of selection.
(Emphasis added)

14. In the case of State of Punjab
Vs. Raghbir Chand Sharma & Ors.,
reported in AIR 2001 SC 2900, the Apex
Court examined the case where only one
post was advertised and the candidate
whose name appeared at Serial No. 1 in
the select list joined the post, but
subsequently resigned. The Court rejected
the contention that post can be filled up
offering the appointment to the next
candidate in the select list observing as
follows:
1 All] Pankaj Kumar V. Hon'ble High Court of Judicature at Allahabad and others

301

"With the appointment of the first
candidate for the only post in respect of
which the consideration came to be made
and select list prepared, the panel ceased
to exist and has outlived its utility and at
any rate, no one else in the panel can
legitimately contend that he should have
been offered appointment either in the
vacancy arising on account of the
subsequent resignation of the person
appointed from the panel or any other
vacancies arising subsequently."

15. Any appointment made beyond
the number of vacancies advertised, is
without jurisdiction, therefore, a nullity,
in-executable and un-enforceable in law.

16. The factual situation in this case
is worst, as there was no vacancy against
any sanctioned post qua which the four
persons could be appointed.

17. This Court may clarify that
petitioner relied upon an order passed by
the Administrative Judge of the Judgeship
of Saharanpur at the relevant time,
wherein petitioner was directed to be
adjusted in the Fast Track Courts. I am of
the prima facie opinion that such orders of
the Administrative Judge will not infuse
life in void appointment of the petitioner
and the High Court should have normally
taken appropriate action to ensure that any
person appointed in excess of the
sanctioned and advertised post, is not
permitted to work. Mistake, if any, should
have been corrected, but such is not the
practice in the High Court. For five years,
the Registrar General has slept over the
file and today an affidavit is being filed
on his behalf that since the petitioners are
working, they should be paid salary.

18. In my opinion, the stand of the
Registrar General is patently a negation of
rule of law, which applies to the
employees of the Courts under the
superintendence of the High Court like to
any other citizens of the Country. Public
money cannot be permitted to be used for
payment
of
salary
to
such
void
appointees.

19. However, if the Registrar
General of the High Court has taken a
decision to pay salary to such class of
appointees, let him do so from his own
pocket. It is made clear that Government
money shall not be utilized for the
purposes of payment of salary to the
petitioners, whose appointment, prima
facie, has been made in excess of the
sanctioned
post
and
in
excess
of
advertised
posts.
He
must
transmit
requisite money to the District Judge,
Sahanpur for the purpose from his
personal account within four weeks from
today.

20. List this matter for further orders
after four weeks. In the meantime,
petitioners are at liberty to file an affidavit
justifying their appointment.
---------
ORIGINAL JURISDCITION
CIVIL SIDE
DATED: ALLAHABAD 15.03.2010

BEFORE
THE HON'BLE B.K. NARAYANA, J.

Civil Misc. Writ Petition No. 61111 of 2008

Smt. Somawati and others ...Petitioners
Versus
The District Magistrate, Bareilly and
others

 ...Respondents