# Mahesh Kumar and others v. State of U.P. and others

- **Citation:** (2005) 3 ILRA 930
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-10-21
- **Case number:** Civil Misc. Writ Petition No. 57635 of 2005
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahesh-kumar-and-others-v-state-of-u-p-and-others-40521
- **Pages:** 10

## Headnote

Constitution of India, Art. 226-Service
Law-Rights to get appointment-after the
existence of new distt. Baghpat, 10 posts
of clerks and 4 posts of Stenographers
created-the District Judge selected 73
persons
against
vacancy
10
postsappointment made to all of item by
Transfer to other District-administrator
Judge
holding
appointments
of
the
candidates from sl. No. 11 to 71 as illegal
as were made against non existing
posts-recommendation
for
their
removal-after
show
cause
noticetermination
Order
passed-heldappointment beyond notified sanctioned
strength-void-ab
intio-illegal
humanitarian
approach
not
to
be
adopted.

Held: Para 22

In my view, the judgment cited by the
learned counsel for the petitioners is
distinguishable and, in any case, such
directions cannot be issued by this Court
under Article 226 of the Constitution of
India. The decision in the case of H.C.
Puttaswamy (supra) was passed by the
Supreme Court while exercising the
powers
under
Article
141
of
the
Constitution
of
India.
Such
powers
cannot be exercised by the High Court
under Article 226 of the Constitution.
The High Court can only pass such orders
and directions which are within the four
corners of the provisions of the Act or
the Rules. In the present case, the
petitioners were appointed beyond the
notified
sanctioned
strength.
The
petitioners appointment was void ab
initio. After the appointment of 10
persons, the select list came to an end
and could not be used any further.
Consequently, the appointment of the
petitioner being illegal, from the very
inception,
cannot
be
permitted
to
continue.
In
my
opinion,
no
humanitarian approach can be adopted.
Since
the
appointments
of
the
petitioners were illegal, such illegality
cannot be allowed to continue. The law
must take its course.
Case law discussed:
J.T. 1996 (5) SC-219
1994 (2) UPLBEC-1400
AIR 1995 SC-1371
AIR 1988 SC-1531
AIR 2004 SC-2317
AIR 1986 SC-1043
1991 Supp. (2) SCC-421
1995 (Supp.) (4) SCC 706
2005 (4) SCC-209
3 All] Mahesh Kumar and others V. State of U.P. and others
931

## Text

930 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
squarely applicable to the present facts of
the case. Consequently, I hold that the
Sub Divisional Officer had the power to
suspend a collection amin, even though
the
collection
amin
was
initially
appointed by the Collector.

16. In view of the aforesaid, I do not
find any error in the suspension order.
The writ petition fails and is dismissed. In
the circumstances of the case, I direct the
authority concerned to complete the
enquiry proceedings and pass a final order
within four months from the date of the
receipt of a certified copy of the order.
Parties to bear their own cost.
Petition Dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.10.2005

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 57635 of 2005

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

Counsel for the Petitioner:
Sri Ravi Kiran Jain
Sri K.M. Asthana

Counsel for the Respondents:
Sri K.R. Sirohi
Sri Amit Sthalekar

Constitution of India, Art. 226-Service
Law-Rights to get appointment-after the
existence of new distt. Baghpat, 10 posts
of clerks and 4 posts of Stenographers
created-the District Judge selected 73
persons
against
vacancy
10
postsappointment made to all of item by
Transfer to other District-administrator
Judge
holding
appointments
of
the
candidates from sl. No. 11 to 71 as illegal
as were made against non existing
posts-recommendation
for
their
removal-after
show
cause
noticetermination
Order
passed-heldappointment beyond notified sanctioned
strength-void-ab
intio-illegal
humanitarian
approach
not
to
be
adopted.

Held: Para 22

In my view, the judgment cited by the
learned counsel for the petitioners is
distinguishable and, in any case, such
directions cannot be issued by this Court
under Article 226 of the Constitution of
India. The decision in the case of H.C.
Puttaswamy (supra) was passed by the
Supreme Court while exercising the
powers
under
Article
141
of
the
Constitution
of
India.
Such
powers
cannot be exercised by the High Court
under Article 226 of the Constitution.
The High Court can only pass such orders
and directions which are within the four
corners of the provisions of the Act or
the Rules. In the present case, the
petitioners were appointed beyond the
notified
sanctioned
strength.
The
petitioners appointment was void ab
initio. After the appointment of 10
persons, the select list came to an end
and could not be used any further.
Consequently, the appointment of the
petitioner being illegal, from the very
inception,
cannot
be
permitted
to
continue.
In
my
opinion,
no
humanitarian approach can be adopted.
Since
the
appointments
of
the
petitioners were illegal, such illegality
cannot be allowed to continue. The law
must take its course.
Case law discussed:
J.T. 1996 (5) SC-219
1994 (2) UPLBEC-1400
AIR 1995 SC-1371
AIR 1988 SC-1531
AIR 2004 SC-2317
AIR 1986 SC-1043
1991 Supp. (2) SCC-421
1995 (Supp.) (4) SCC 706
2005 (4) SCC-209
3 All] Mahesh Kumar and others V. State of U.P. and others
931
(Delivered by Tarun Agarwala, J.)

1. On 15.6.1999 a new judgeship of
Baghpat was carved out from district
Meerut. New posts were created in the
judgeship of Baghpat and, on 23.12.1999,
an advertisement was issued inviting
applications for 10 posts of clerks and
four
posts
of
stenographers.
The
advertisement also indicated that the
number of posts may increase or decrease.
Pursuant to the aforesaid advertisement,
the petitioner's applied and sat in the
examination in which they qualified. On
5th April, 2000, a select list of 73 persons
was issued by the District Judge.
Petitioner Nos.1 to 7 were at Sl.Nos.11 to
18 of the select list. Petitioner Nos.8 to 20
were at Sl.Nos.21 to 42 of the select list
and petitioner Nos.30 to 35 were at
Sl.Nos.45 to 47 and 49 to 51 of the select
list. The petitioners were given an
appointment as a clerk on a temporary
basis on various dates between 6.4.2000
and 3.1.2001. The said appointments were
made within one year of the issuance of
the select list. On 4.4.2001, the District
Judge extended the life of the select list
for one more year and candidates
appearing from Sl. Nos.52-A to Sl.No.71
were also appointed as clerks on various
dates.

2. On 5.4.2003, the High Court
issued a letter to the District Judge asking
for an explanation as to how the life of the
select list was extended after the expiry of
one year and on what basis the
appointments were given from the select
list after the expiry of the period of the
select list. It further transpires that the
Administrative Judge of the judgeship of
Baghpat
submitted
a
report
dated
28.7.2003 holding that the appointments
of the candidates from Sl.Nos.11 to
Sl.No.71 were illegal and that these
appointments were made on non-existing
posts and recommended the removal of
these candidates and directed the District
Judge to take action as per his report.
Based on the aforesaid report of the
Administrative Judge, the District Judge
by an order dated 22.11.2003 terminated
the services of 15 clerks. By another order
dated 28.2.2005, the District Judge
terminated the services of 4 clerks.

3. These 19 clerks whose services
were terminated, as stated aforesaid, were
those persons who were appointed after
the select list was extended by the District
Judge. Against the order dated 27.9.2003,
15 clerks filed Writ Petition No.52654 of
2003 and an interim order was passed
allowing these 15 clerks to continue in the
service during the pendency of the writ
petition.
Against
the
order
dated
28.2.2005, the remaining 4 clerks filed
Writ Petition No.34546 of 2005 in which
an interim order dated 28.2.2005 was
passed staying the order of dismissal. It
further transpires that a Special Appeal
No.702 of 2005 was filed against the
interim order dated 28.2.2005. The
appellate court, while hearing the appeal
against the interim order, called for the
record of both the writ petitions and
decided the same on merits. The appellate
court by a judgement dated 31.5.2005,
while allowing the Special Appeal, also
allowed both the writ petitions and
quashed the order of termination and
remanded the matter back to the District
Judge to pass fresh orders in accordance
with the observations and directions given
in the judgement. The appellate court
while
setting
aside
the
order
of
termination,
issued
the
following
directions:-
932 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
"(a) The decision in respect of the
respondent- petitioners shall be
taken by a speaking and reasoned
order as per directions contained
hereinabove by the District Judge,
Baghpat.

(b) The District Judge shall withdraw
all such similar termination orders
in
respect
of
such
Class-III
employees
whose
appointments
were pursuant to the selections
dated 5.4.2000, including those
which are under challenge in
various writ petitions before the
High Court, and thereafter shall
proceed to take a decision in the
matter
afresh
after
giving
opportunity
to
the
concerned
employees in the same way as in
the case of the respondents herein.
This exercise shall be completed
within one month and compliance
report
shall
be
submitted
immediately thereafter.

4. While passing the aforesaid
directions, the appellate court further
held-

"In view of the above, we are of
the considered opinion that as only
ten vacancies had been advertised,
there could be no justification for the
authority concerned to fill up more
than ten vacancies as it included the
then existing as well as vacancies
likely to occur in the course of the
year. Once ten vacancies had been
filled up, the selection process stood
exhausted,
and
the
authority
concerned become functus officio.
Any appointment made by him
beyond that number, is without
jurisdiction,
therefore
a
nullity,
inexecutable and un-enforceable in
law.

In such an eventuality after
issuing appointment letters to ten
candidates, the select list/ waiting list
stood exhausted and could not have
been used as perennial source for
appointment
against
any
other
vacancy.
There
can
be
no
controversy to the settled legal
proposition that even if a successful
candidate joins the post and resigns
or dies or stands transferred, his
vacancy stands exhausted merely by
his joining and the post could not be
filled up from the waiting list as the
statutory rules do not provide for
such a course.

In
the
instant
case,
the
candidates appointed against those
vacancies had been transferred to
different judgeships and vacancies
were
created
time
and
again
artificially and the select list which
could not have been for more than 20
names, had been used as a reservoir
by the statutory authority for making
illegal
appointments.
The Court
being the custodian of law cannot
close its eyes where the facts are so
startling that it shocks the conscience
of the Court. However, we restrain
ourselves to hold that appointments
could have been made on extraneous
considerations only for the reason
that the then District Judge is not a
party by name before us. We are told
that though the officer has retired but
he is facing Departmental Enquiry on
such charges."

The Court further held-
3 All] Mahesh Kumar and others V. State of U.P. and others
933
"On the basis of the aforesaid
provisions and the Circular, referred
to hereinabove, it is explicit that the
select list, which was prepared on 5th
April, 2000 was in flagrant violation
of the Rules, referred to above. The
then District Judge has proceeded to
prepare the list in an absolute
arbitrary
and
whimsical
fashion
which list could not have included,
by any means, more than 20 names.
The first step of derailment of the
process of selection seals the fate of
all such candidates who are claiming
themselves to have been appointed
under the said list in excess of first
twenty names and leave no room for
doubt that the select list was prepared
with some oblique and ulterior
motive.

The petitioners are admittedly
much below the 20 candidates in the
merit list dated 5.4.2000 and as such
they could not have been included in
the list prepared by the District
Judge.
Their
very
inclusion
is
invalid. The same is the position with
regard to such other candidates who
stand on a similar footing. The
District Judge proceeded to place 52
persons in the select list in excess of
20 names, including that of the
petitioners,
and
subsequently
appointed them which appointments
are also invalid, as they are from the
same invalid list. We, therefore, hold
that the preparation of the select list
in excess of 20 names was absolutely
illegal and contrary to the Rules
applicable. The question of preparing
the select of more than 20 or filling
up the vacancies against more than
10 posts is in contravention of
Articles
14
and
16
of
the
Constitution of India."

5. Based on the aforesaid directions
and observations of the appellate court,
the District Judge issued a show cause
notice dated 14.6.2005 to the petitioners
to show cause why their services should
not be terminated as their appointments
were made beyond the notified vacancies.
The
said
show
cause
notice
was
challenged by a number of the petitioners
in Writ Petition No.46867 of 2005. This
Court by a judgement dated 7.7.2005
dismissed the writ petition as premature
and directed the petitioners to file a reply
to the show cause notice which would be
considered and decided by the authority.
It transpires that the petitioner filed the
reply and, eventually by the impugned
order dated 1.8.2005, the services of the
petitioners
were
terminated.
The
petitioners have again filed the present
writ petition challenging their order of
termination.

6.

The
impugned
order
of
termination indicates that 10 posts of
clerks were advertised and that only 10
posts could be filled up which were filled
up from the candidates from Sl.Nos.1 to
10 of the select list and upon the filling up
of the 10 posts, the select list came to an
end and that no further appointment could
have been made from the said select list.
The District Judge further held that the
select list could not become a perennial
source
of
appointment.
Since
the
petitioners were appointed on nonexisting posts and beyond the notified 10
vacancies, their initial appointment was
illegal and, therefore the District Judge by
the impugned order terminated their
services.
934 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
Heard Sri Ravi Kiran Jain, the
learned Senior Counsel assisted by Sri
K.M. Asthana, the learned counsel for the
petitioner and Sri Amit Sthaleker, the
learned
counsel
appearing
for
the
respondents.

7. The learned counsel for the
petitioner submitted that the recruitment
process
was
not
confined
to
the
recruitment
of
10
posts
of
clerks
inasmuch as, the advertisement indicated
that the number of posts were likely to
increase or decrease. Since the number of
posts had increased during the course of
the selection process, consequently, the
District Judge had rightly appointed the
petitioners from the select list. The
learned
counsel
submitted
that
the
appointments of the petitioners was made
against the vacancies existing in the
judgeship of Baghpat. In support of this
contention, the learned counsel for the
petitioner has relied upon a decision in
Prem Singh and others vs. Haryana
State Electricity Board and others, JT
1996 (5) SC 219, and in the case of
Rakesh Kumar Trivedi vs. High Court
of
Judicature
at
Allahabad
and
another, (1994) 2 UPLBEC 1400, in
which it was held that since the
advertisement itself indicated that there
may be a variation in the number of
vacancies, hence it was within the powers
of the authority to recalculate the
vacancies which occurred between the
date of the advertisement till the date of
the final selection.

8. On the other hand, Sri Amit
Sthaleker, the learned counsel for the
respondents contended that the judgeship
of Baghpat was created in the year 1999
itself and new posts were sanctioned
which were 10 in number. The question of
increase or decrease in the number of
vacancies, thus, could not arise and, at
best, the number of posts could have
increased or decreased. In the present
case, no further posts were created or
sanctioned during the selection process
and, therefore, only 10 posts were
required to be filled up and thereafter no
further appointments could be made.

9. In the case of Prem Shanker
Singh (supra), the Supreme Court held
that the selection process by way of
requisition and advertisement could be
started for the clear vacancies and also for
the anticipated vacancies but not for
future vacancies. The Supreme Court
further held:-

"The State can deviate from the
advertisement
and
make
appointments on posts falling vacant
thereafter
in
exceptional
circumstances only or in an emergent
situation and that too by taking a
policy decision in that behalf. Even
when filling up of more posts than
advertised is challenged the Court
may not, while exercising its extraordinary jurisdiction, invalidate the
excess appointments and may mould
the relie in such a manner as to strike
a just balance between the interest of
the State and the interest of persons
seeking public employment. What
relief should be granted in such cases
would depend upon the facts and
circumstances of each case."

and further held-

"However,
the
appointments
which were made against future
vacancies- in this case on posts
3 All] Mahesh Kumar and others V. State of U.P. and others
935
which were newly created- must be
regarded as invalid."

10. In the case of Rakesh Kumar
Trivedi (supra), a Division Bench of this
Court held that since the advertisement
itself indicated that there could be a
variation in the number of vacancies,
consequently making appointments in
excess of the vacancies advertised was
valid.

11. In my opinion, the judgments
cited by the learned counsel for the
petitioners are distinguishable and are
also not applicable to the present facts of
the case.

In R.K. Sabharwal and others vs.
State of Punjab and others, A.I.R. 1995
SC 1371, the Supreme Court held as
under:-

"The
expression
"posts"
and
"vacancies" often used in the executive
instructions providing for reservations,
are rather problematical. The word "post"
means as appointment, job, office or
employment. A position to which a
person is appointed. "Vacancy" means an
unoccupied post or office. The plain
meaning of the two expressions make it
clear that there must be a 'post' in
existence to enable the 'vacancy' to occur.
The cadre-strength is always measured by
the number of posts comprising the cadre.
Right to be considered for appointment
can only be claimed in respect of a post in
a cadre."

12. Admittedly, only 10 posts for the
appointment of clerks was sanctioned
which was advertised. Therefore, only 10
persons could be appointed on the post of
clerks. Since no further posts were
available, no further appointments could
be made over and above the notified
posts. The contention of the petitioners
that since the advertisement indicated that
the
posts
could
be
increased,
the
appointments so issued were perfectly
valid, is patently misconceived. No
foundation has been laid by the petitioners
in the writ petition to the effect that more
posts were created beyond the 10 notified
posts during the selection process or that
vacancies occurred during that period.
The fact that there existed only 10 posts
of clerk is clear from the report of the
Administrative Judge, who had clearly
indicated that after the creation of the
Judgeship of Baghpat, only 10 posts of
clerk were sanctioned in the scale of
Rs.3050-4590 and, therefore, only 10
persons could have been appointed.

13. The Division Bench in the
Special Appeal has also held that only 10
posts could be filled up. Consequently,
the submission of the learned counsel for
the petitioner that the posts were created
in which the petitioners were appointed is
patently misconceived. In my opinion, the
petitioners were appointed on nonexisting posts over and above the notified
vacancies. At this stage, I may point out
that the Administrative Judge in his report
submitted that the clerks appointed in
excess of the sanctioned 10 posts were
working against the vacant posts in the
pay scale of Rs.4000-7000 and in the pay
scale of Rs.4500-7000/- and further
artificial vacancies were created by
transfering the newly appointed clerks to
another
judgeship
or
promoting
an
employee to the next higher grade. The
Administrative Judge in his report has
also indicated that the appointments of all
the persons in excess of the 10 posts was
illegal and that the District Judge had
936 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
committed
financial
irregularities
in
making such appointments. I am in
complete agreement with the report of the
Administrative Judge. Consequently, in
my opinion, only 10 posts could have
been
filled
up
and
no
further
appointments could have been made
thereafter from the select list.

14. Sri Ravi Kiran Jain, the learned
Senior Counsel, for the petitioner, next
submitted that the judgement of the
Division Bench in Special Appeal was per
incurium and was liable to be ignored.
The Division Bench while giving the
findings and directions, had relied upon
certain provisions of The Subordinate
Civil Courts Ministerial Establishment
Rules, 1947 which had already been
repealed. The learned counsel for the
petitioner submitted that the Division
Bench proceeded to lay down the law
while interpreting Rules 9 to 12 of the
Rules of 1947 which had already been
repealed. Therefore, the judgment given
by the Division Bench, relying upon the
provisions of the Rules of 1947, which
had already been repealed was, therefore
per incurium and, such judgment can be
ignored by this Court. The learned
counsel
for
the
petitioner
further
submitted that the petitioners were not
parties to that judgment and, therefore, the
said judgement was not binding upon the
petitioners. In support of this submission,
the petitioners have relied upon a decision
of the Supreme Court in the case of A.R.
Antulay vs. R.S. Nayak and another,
AIR 1988 SC 1531, in which it was held
as under:-

"Per incuriam" are those decisions
given in ignorance or forgetfulness of
some inconsistent statutory provision or
of some authority binding on the Court
concerned, so that in such cases some part
of the decision or some step in the
reasoning on which it is based, is found,
on that account to be demonstrably
wrong."

and further held-

"It is a settled rule that if a decision
has been given per incurium the Court can
ignore it."

The learned counsel further placed
reliance on the meaning given in Law
Lexicon which defines "per incurium" as-

"though inadvertence or through
want of care; a decision of the Court
which is mistaken. A decision of the
Court is not a binding precedent if given
per incurium, i.e. Without the Courts
attention having been drawn to the
relevant authorities, or statutes"

The learned counsel also placed
reliance on a decision of the Supreme
Court in N. Bhargavan Pillai vs. State of
Kerala, A.I.R. 2004 SC 2317, in which it
was held that-

"the view, if any, expressed without
analysing the statutory provisions cannot
in our view be treated as a binding
precedent and at the most is to be
considered as having been rendered per
incurium."

15. On the other hand, the learned
counsel for the respondents submitted that
the Division Bench in the Special Appeal
had only laid down the law while
considering the validity of the select list
and, therefore, the said decision was not a
nullity nor was it per incurium. The
learned
counsel
submitted
that
the
3 All] Mahesh Kumar and others V. State of U.P. and others
937
judgment of the Division Bench is not
inconsistent with the statutory provisions
nor was the decision given in ignorance of
a statutory provision.

16. In my view, the submission of
the learned counsel for the petitioners is
devoid of any merit. No doubt the
provisions of Rules 9, 10, 11 and 12 of
the Rules of 1947 have been repealed
upon the promulgation of The Uttar
Pradesh Rules for the Recruitment of
Ministerial Staff of the Subordinate
Office in Uttar Pradesh, 1950. However,
the entire Rules of 1947 has not been
repealed, as held by the Supreme Court in
O.P. Shukla vs. A.K. Shukla, A.I.R.
1986 SC. 1043 in which it was held that
Rules 9 to 12 of the Rules of 1947 were
superseded by the Rules of 1950 and that
the other provisions of the Rules of 1947
continued to remain in force.

17. Even though the Division Bench
in its judgment has adverted to the
aforesaid Rules 9 to 12 of the Rules of
1947, the findings on the issues in
question was not based on the said Rules.
The law laid down is in consequence with
the Rules of 1950. The finding of the
Division Bench that the vacancy was
advertised cannot increase or decrease
and that only 10 posts, which were
advertised, could only be filled up, was in
inconsonance with Rule 4 of the Rules of
1950. Rule 4 of the Rules of 1950
indicates that the probable number of
vacancies should be ascertained before
filling up the vacancies. The said rule
clearly indicates that the posts so
advertised could only be filled up. The
advertising of the posts indicates the
ascertainment of the number of posts or
vacancies. Therefore, the usage of words
"posts are likely to increase or decrease"
becomes redundant or superfluous, as the
case may be.

18. Further the decision of the
Division Bench that the select list should
contain not more than double the number
of the vacancies advertised was also in
consonance with the circular dated
29.4.1999 issued by the High Court, and
which is, also in conformity with Rule 7
of the Rules of 1950. Rule 7 of the Rules
of 1950 indicates that a select list should
be of such number of candidates which
would be sufficient to fill the number of
vacancies as ascertained in Rule 4. The
circular of the High Court indicates that
the select list should contain the number
of candidates which should not be more
than double the number of the vacancies
advertised.
Since
10
posts
were
advertised, the select list could not be
more than 20 candidates. In view of the
aforesaid, the mere fact that the Division
Bench had adverted to certain provisions
of the Rules of 1947 which had been
superseded, in my opinion, does not make
the judgment per incurium nor the said
decision of the Division Bench could be
said to be inconsistent with the statutory
provisions.

19. In my view, the Division Bench
while considering the validity of the select
list only interpreted the law. It is
immaterial whether the petitioners were
party to that decision or not. It is settled
law that where the Court has laid down
the law, the judgment is binding on coordinate or subordinate courts howsoever
the construction may be unless it falls
within the parameters of "per incurium".
In my view, the judgment of the Division
Bench is binding on the learned Single
Judge.
The
Division
Bench
has
interpreted the law which is binding to all
938 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
in relation to those issues. The contention
of the learned counsel for the petitioner
that the decision of the judgement of the
Division Bench was not binding and was
void and a nullity in the eyes of law and
could be ignored is patently erroneous. In
view of the aforesaid, the submission of
the learned counsel for the petitioners is
devoid of merit and is rejected.

20. The learned counsel for the
petitioners lastly submitted that the
petitioners had worked continuously since
their appointments and having worked
continuously for a number of years, a
humanitarian approach should be taken
and the petitioners should be allowed to
continue
even
though
their
initial
appointment may have been illegal. The
learned counsel for the petitioners further
submitted that there is a requirement of
work in the judgeship of Baghpat and
further there are no grievances against any
of the petitioners with regard to their
performance
of
work.
Further,
the
petitioners have become over age and that
the petitioners would find it difficult to
get another job of a similar nature, at this
stage. Therefore, a humanitarian approach
should be taken by the respondents and, in
the given circumstances, the petitioner
should be permitted to continue in
service. In support of his submission, the
learned counsel for the petitioners has
relied upon a decision of the Supreme
Court in H.C. Puttaswamy and others
vs. The Hon'ble Chief Justice of
Karnataka High Court, Bangalore and
others, 1991 Supp.(2)SCC 421, in which
it was held that where the appointment
was made against the provisions of the
statutory Rules and that the appointees
continued to work continuously for a
number of years, the Supreme Court
while adopting a humanitarian approach,
directed
their
appointments
to
be
regularised.

21. On the other hand, Sri Amit
Sthaleker, has placed reliance upon a
decision of the Supreme Court in Harpal
Kaur Chahal (Smt.) vs. Director,
Punjab
Instructions,
Punjab
and
another, 1995 Supp. (4) SCC 706, in
which the appointment was found to be
illegal and was set aside even though the
incumbent was working for 15 years.
Similar view was upheld by the Supreme
Court in the case of Binod Kumar Gupta
and others vs. Ram Ashray Mahoto
and others, (2005) 4 SCC 209.

22. In my view, the judgment cited
by the learned counsel for the petitioners
is distinguishable and, in any case, such
directions cannot be issued by this Court
under Article 226 of the Constitution of
India. The decision in the case of
H.C.Puttaswamy (supra) was passed by
the Supreme Court while exercising the
powers
under
Article
141
of
the
Constitution of India. Such powers cannot
be exercised by the High Court under
Article 226 of the Constitution. The High
Court can only pass such orders and
directions which are within the four
corners of the provisions of the Act or the
Rules. In the present case, the petitioners
were appointed beyond the notified
sanctioned
strength.
The
petitioners
appointment was void ab initio. After the
appointment of 10 persons, the select list
came to an end and could not be used any
further. Consequently, the appointment of
the petitioner being illegal, from the very
inception,
cannot
be
permitted
to
continue. In my opinion, no humanitarian
approach can be adopted. Since the
appointments of the petitioners were
3 All] Manjeet Singh V. D.I.O.S., Ghazipur and others
939
illegal, such illegality cannot be allowed
to continue. The law must take its course.

23. Consequently, the order passed
by the District Judge terminating the
services of the petitioner does not suffer
from any error of law. In view of the
aforesaid, the writ petition is dismissed.
However, in the circumstances of the case
there shall be no order as to cost.

 Petition dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.10.2005

BEFORE
THE HON'BLE A.P. SAHI, J.

Civil Misc. Writ Petition No. 67651 of 2005

Manjeet Singh

...Petitioner
Versus
District Inspector of Schools, Ghazipur
and others

 ...Respondents

Counsel for the Petitioner:
Sri Prakash Padia

Counsel for the Respondents:
Sri. K.R. Singh.
S.C.

U.P. Intermediate Education Act 1921Schedue-II-Prohibited
category
appointment-petitioner
being
the
grandson of the brother of the principal
in concerned institution-appointed on
the post of Class IV employee-rejection
by DIOS held illegal-petitioner does not
fall within 21 categories of prohibition as
defined in schedule-approval cannot be
denied.

Case law discussed:
2005 (2) ESC-1199

(Delivered by Hon'ble A.P. Sahi, J.)

The petitioner has challenged the
order dated 10-10-2005 passed by the
District inspector of schools, Ghazipur,
rejecting the claim of the petitioner of his
appointment on the post of a class-IV
employee on the ground the brother of
Principal of the institution and, as such,
he falls within the prohibited category of
relative referred to in the Schedule II
appended
to
the
U.P.Intermediate
Education Act, 1921.

Since the issue is one of law,
therefore, this Court does not find it
necessary to invite any counter-affidavit
on behalf of the respondents and learned
Standing Counsel Sri K.R. Singh has very
ably assisted the Court on the aforesaid
issue by inviting the attention of the Court
to the IInd Schedule referred to herein
above. A perusal of the said Schedule
indicates that a brother's son is included
in the prohibited category. The Schedule
clearly defines 27 categories of relations
which fall within the prohibited category
for the purpose of appointment in an
institution. The Schedule as well as the
provisions under which the said schedule
has been framed clearly indicates that the
list is exhaustive and not illustrative. In
this view of the matter, no other relative
can be said to be included within the
prohibited category as defined under the
IInd Schedule. The aforesaid position of
law stands squarely supported by a recent
decision of this Court in the case of G.P.
Singh Vs. State of U.P. and others, 2005
(2) ECS 1199. The Impugned order,
therefore, proceeds on an erroneous
assumption
of
law
inasmuch
as
admittedly the petitioner is the grand son
of the brother and therefore, he does not
fall within the prohibited category as