# Manoj Kumar & Ors v. State of U.P. & Ors

- **Citation:** (2019) 3 ILRA 235
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-09
- **Case number:** Civil Misc .Writ Petition No. 35705 of 2013
- **Bench:** Mrs. Sunita Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/manoj-kumar-ors-v-state-of-u-p-ors-44839
- **Pages:** 11

## Headnote

Rules, 1953: Rule 5, 12, 14, 15 - 'Wait
list' is not 'wait list in perpetuity'.

Petitioners approached the Court in the year
2013-14
for
appointment
against
four
vacancies which occurred in the year 2012-13,
on the basis of a 'wait list' dated 21.10.2011.
High Court held that the expression "wait list"
(wait list of approved candidates) used in Rule
14 to the list which is prepared for the
purpose of appointment under sub-rule (1) &
(2) of Rule 15 cannot be given the meaning as
contended by the petitioners, of being a "wait
list in perpetuity" for substantive appointment
against the future vacancies. (Para 33, 36)
236 INDIAN LAW REPORTS ALLAHABAD SERIES
B. Service Law - Appointment - Wait
List- Under the statutory scheme though
the "wait list" prepared under Rule 14
(kha) of "approved candidate" has not
been given a limited life but it cannot be
accepted that the said "wait list" is to be
used
for
filling
the
vacancies
not
available in the year of recruitment.
 (Para 35)

By the reading of 15(1), (2) and (3) together,
there remains no doubt that "wait list" as
contemplated in Rule 14 (kha) is to be used
for the purpose of permanent appointment
against existing or anticipated vacancies, and
may be used for any adhoc or temporary
appointment against substantive vacancies,
which may occur in the department at a later
point of time. The purpose of keeping the
"wait list" is, thus, for making stop-gaparrangement. (Para 40, 41)

C. General Rule of construction od
statute is not only to look at the words
but to look at the context. The Court
must have regard to the aim, object and
scope of statute in its entirety.
 (Para 44-47)

Petition dismissed (E-4)

Precedent followed: -

## Text

3 All. Manoj Kumar & Ors. Vs. State of U.P. & Ors.
235
submitted by the petitioner. In the case of
Allahabad Bank & others v. Krishna
Narayan Tewari (2017) 2 SCC 308, the
Court has already held that if there is no
proper appreciation at the end of the
Disciplinary Authority and if it has failed
to record any reason for the conclusion
drawn by it and if the appellate authority
has simply referred to the findings
returned by the Disciplinary Authority
and Inquiry Committee, such authority
has also faulted in discharge of its duty
resulting
in
miscarriage
of
justice.
Further, in the case of Mohammad
Yunus Khan v. State of U.P. (2010) 10
SCC 539, the Court has already held that
if there is a defect at the initial stage
rendering proceedings bad, null and void,
such an inherent defect with which the
order suffers, cannot be cured at the
appellate stage. So also, in my view, the
orders passed by the authority in revision
and representation are bad and deserves to
be set aside.

16. In view of the above, the writ
petition succeeds and is hereby allowed.
The orders passed by the Disciplinary
Authority dated 29th April, 2011 and of
the appellate authority dated 27th July,
2011 and of the authority deciding the
revision dated 3rd October, 2012 and 2nd
May, 2016, Annexures- 2, 3, 5 and 7
respectively are hereby quashed.

17. The matter is remitted to the
Disciplinary Authority to revisit the
matter from the stage of show cause
notice and explanation already submitted
by the petitioner. The status of the
petitioner shall be that of the suspended
employee in the light the of judgment of
the Apex Court in the case of Managing
Director,
Ecil,
Hyderabad
v.
B.
Karunakar (1993) 4 SCC 727, and shall
be abide by the ultimate decision to be
taken by the Disciplinary Authority as
directed hereinabove within a period of
three months from the date of production
of certified copy of this order.
----------

(2019)11ILR A235

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.09.2019

BEFORE
THE HON'BLE MRS. SUNITA AGARWAL , J.

Civil Misc .Writ Petition No. 35705 of 2013
Connected with
WRIT -A No.43960 of 2012

Manoj Kumar & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Irshad Ali, Sri Ashok Khare, Sri Deepak
Kumar Srivastava, Sri Sidharth Khare, Sri
Utkarsh Birla.

Counsel for the Respondents:
C.S.C., Sri Vishal Tandon.

A.ServiceLaw-Appointment/Recruitment
- Irrigation Department Patrols Service
Rules, 1953: Rule 5, 12, 14, 15 - 'Wait
list' is not 'wait list in perpetuity'.

Petitioners approached the Court in the year
2013-14
for
appointment
against
four
vacancies which occurred in the year 2012-13,
on the basis of a 'wait list' dated 21.10.2011.
High Court held that the expression "wait list"
(wait list of approved candidates) used in Rule
14 to the list which is prepared for the
purpose of appointment under sub-rule (1) &
(2) of Rule 15 cannot be given the meaning as
contended by the petitioners, of being a "wait
list in perpetuity" for substantive appointment
against the future vacancies. (Para 33, 36)
236 INDIAN LAW REPORTS ALLAHABAD SERIES
B. Service Law - Appointment - Wait
List- Under the statutory scheme though
the "wait list" prepared under Rule 14
(kha) of "approved candidate" has not
been given a limited life but it cannot be
accepted that the said "wait list" is to be
used
for
filling
the
vacancies
not
available in the year of recruitment.
 (Para 35)

By the reading of 15(1), (2) and (3) together,
there remains no doubt that "wait list" as
contemplated in Rule 14 (kha) is to be used
for the purpose of permanent appointment
against existing or anticipated vacancies, and
may be used for any adhoc or temporary
appointment against substantive vacancies,
which may occur in the department at a later
point of time. The purpose of keeping the
"wait list" is, thus, for making stop-gaparrangement. (Para 40, 41)

C. General Rule of construction od
statute is not only to look at the words
but to look at the context. The Court
must have regard to the aim, object and
scope of statute in its entirety.
 (Para 44-47)

Petition dismissed (E-4)

Precedent followed: -

1. Jagir Singh & ors. Vs St. of Bihar & anr. AIR
(1976) SC 997 (Para 44)

2. St. of W.B. Vs U.O.I. AIR (1963) SC 1241
(Para 45)

3. U.O.I. Vs Elphinstone Spinning & Weaving
Co. Ltd. & ors. (2001) 4 SCC 139 (Para 46)

4. Corocraft Ltd. Vs Pan American Airways Inc.
(1968) 2 ALL E R 1059 (Para 46)

5. St. of Haryana Vs Sampuran Singh (1975) 2
SCC 810 (Para 46)

6. National Insurance Co. Ltd. Vs Anjana
Shyam & ors. (2007) 7 SCC 445 (Para 47)
Precedent referred: -

1. Naseem Ahmad & ors. Vs St. of U.P. & anr.
(2011) 2 SCC 734 (Para 18)
(Delivered by Hon'ble Mrs. Sunita
Agarwal, J. )

1. Heard Sri Ashok Khare learned
Senior Advocate assisted by Sri Utkarsh
Birla learned Advocate for the petitioners
and Sri Vishal Tandon learned Brief
Holder for the State-respondents.

2. The two connected writ petitions
have been filed in the months of August,
2012
and
May,
2013
by
(12+4)
petitioners; respectively, for the common
relief seeking a writ of mandamus
commanding the respondents to give
appointment to them to the post of
Sinchpal (Patrol) in pursuance of the
selection
proceeding
initiated
vide
advertisement dated 20.9.2011 published
in the daily newspaper 'Amar Ujala'
within a specified period and to pay them
salary regularly month by month from the
date of their appointment.

3. During the pendency of the
present writ petition, the amendment
application dated 25.3.2014 had been
filed in Writ Petition No. 43960 of 2012
(Syyad Rizwan Abbash and Others vs.
State Of U.P. and Others) seeking for a
writ of certiorari for quashing of the order
dated 2.4.2012 passed by the Executive
Engineer,
Sharda
Canal
Division,
Shahjahanpur for cancellation of the wait
list of 26 persons in Group 'C' with
immediate effect.

4. From the record, it appears that
the
said
amendment
application
is
pending. No counter affidavit to the
amendment application has been filed.
The question to consider the relief sought
3 All. Manoj Kumar & Ors. Vs. State of U.P. & Ors.
237
by
way
of
amendment
would
be
considered in the later part of this
judgment at an appropriate stage.

5. The facts in brief relevant is to
decide the controversy at hands are that
all the petitioners claimed to have been
selected by the Selection Committee
constituted
to
assess
their
general
suitability and that they were kept in the
wait list of the selected candidates.

6. As per the submission of four
petitioners in Writ Petition No. 35705 of
2013 (Manoj Kumar and 3 Others vs.
State Of U.P. and 3 others), they were
interviewed by the Selection Committee
between 14.6.2009 to 18.6.2009 and the
wait list dated 21.10.2011 of selected
candidates containing their names is
appended as Annexure-'2' to the said writ
petition.

7. As per the claim of 12 petitioners
in Writ Petition No. 43960 of 2012, they
were
interviewed
by
the
Selection
Committee
between
18.10.2011
to
25.10.2011 and three wait lists of the
same date 29.10.2011, were prepared by
the Selection Committee (appended as
Annexure-'4' to the said writ petition)
which contained their names.

8. All the petitioners claimed that
after their selection, they had successfully
undergone three months training as
unpaid apprentices and were given
certificates on completion of the said
training. They had also cleared the
departmental
examination
held
on
29.2.2012, result of which was declared
on 1.3.2012. The contention is that the
wait-lists
dated
21.10.2011
and
29.10.2011, as aforesaid, were prepared
in accordance with the Rule 14 of the
Irrigation Department Patrols Service
Rules, 1953 (In short as "the Rules,
1953"), which provides for preparation of
a wait list of the candidates selected by
the selection committee as per Rule 12 of
the Rules, 1953. The said list had been
prepared against the existing as also
future vacancies of the department.

9. In Writ Petition No. 35705 of
2013, it is stated in paragraph '11' that in
the Irrigation Department, there were 25
posts of Sinchpal (Patrols), 8 posts of
Sinch Paryavekshak and one post of
Ziledar. Out of total 34 posts in view of
the provisions of Rule 14 of the Rules,
1953, 20% candidates (of the total posts),
who were found suitable in the selection
proceedings, had to be kept in the wait
list, accordingly, six candidates were
placed in the wait list prepared on
21.10.2011 pursuant to the selection
proceedings held between 14.6.2009 to
18.6.2009.

10. In Writ Petition no. 43960 of
2012, it is contended in paragraph '12'
that
in
Sharda
Nahar
Khand,
Shahjahanpur, there were 94 posts of
Sinchpal (Patrols), 22 Amins, 3 Ziledars
and 11 Munsies. Thus, total 130 posts
were duly sanctioned by the State
Government. 20% of the said total
number of posts comes to 26 and
accordingly, a wait list of selected
candidates (26 in number) was prepared.

11. In the counter affidavits to the
aforesaid writ petitions, the averments as
noted above have not been denied.

12. In reply to paragraph '12' of the
Writ Petition No. 43960 of 2012, it is
stated therein that 8 posts of Sinchpal
(Patrols) were vacant and hence the same
238 INDIAN LAW REPORTS ALLAHABAD SERIES
were advertised to be filled through a
regular selection. However, the said
selection was challenged in Writ Petition
No. 60334 of 2011 (Sichai Sangh and
others vs. State of U.P. and others), the
services
of
six
Sinchpal
appointed
pursuant to the said selection were
terminated vide order dated 26.10.2012.
Remaining 2 selected candidates had been
transferred
to
another
division
and
resultantly services of all 8 persons
selected as Sinchpal pursuant to the
advertisement dated 20.9.2011 had been
dispensed with. The wait list of 26
persons had been cancelled vide order
dated 2.4.2012. Further the notification
dated 14.9.2011 issued by the Engineerin-Chief, Department of Irrigation, U.P.,
whereunder
the
advertisement
dated
20.9.2011 was issued, had also been
stayed by this Court in Writ Petition No.
60334
of
2011
vide
order
dated
3.11.2011.

13. In the counter affidavit to the
Writ Petition No. 35705 of 2013, it is
contended that the wait list dated
21.10.2011 of 26 candidates had lapsed
with the completion of the selection
proceedings i.e. preparation of the select
list and, moreover, it had lost its validity
after a period of one year. As eight
selected
candidates
were
given
appointment and joined against the vacant
posts and no one was given appointment
from the wait list, the petitioners therein
cannot claim appointment.

14. Further four posts of Sinchpal,
which became vacant in the year 2012-13
could not be filled from the wait list of
the previous years selection 2010-11.

15. In the rejoinder, the petitioners
taking aid of the Rule 14 of Rules, 1953
submit that the wait list was to be kept
alive in perpetuity and the stand of the
respondents that it had outlived its life
after one year, is incorrect.

16. In the supplementary rejoinder
affidavit filed in Writ Petition No. 35705
of 2013, it is contended that out of total
94 posts of Sinchpal in Sharda Nahar
Khand, Shahjahanpur, 55 posts became
vacant during pendency of the present
writ petition. The selected candidates,
whose appointments were cancelled vide
termination order dated 13.9.2012 filed a
Writ Petition No. 60830 of 2012 (Vinay
Kumar Singh and others vs. State of U.P.
and others), which had been allowed vide
judgment and order dated 26.11.2012,
resulting
in
restoration
of
their
appointment. Resultantly, six selected
persons had been reinstated vide office
orders dated 27.4.2013.

17. In the light of the above
pleadings, it is vehemently contended by
the learned Senior Advocate for the
petitioners that as per the scheme of Rule
14 of the Rules, 1953, the wait listed
candidates were to be appointed against
the subsequent vacancies, till the said lists
were exhausted. It was not open for the
respondents either to cancel the wait list
of 26 persons (dated 29.10.2011) by order
dated 2.4.2012 or to take stand with
regard to the six wait listed persons (of
the list dated 21.10.2011) that the same
had outlived its life after one year from
the date of selection. It is, thus, contended
that all the writ petitioners herein were
entitled to get appointmemt against the
vacancies to the post of Sinchpal (Patrol)
which arose in the department subsequent
to selection of eight candidates against the
then existing vacancies, till the aforesaid
wait lists were exhausted.
3 All. Manoj Kumar & Ors. Vs. State of U.P. & Ors.
239

18. Reliance has been placed on the
observations made by the Apex Court in
paragraphs '20' and '21' of the report in
Naseem Ahmad and others vs. State of
Uttar Pradesh and another1 to submit
that where the wait list has no limited life
under the statutory rule, the appointment
of wait listed candidates against the
subsequent vacancies cannot be held
illegal.

19. Sri Vishal Tandon learned Brief
Holder for the State-respondents, on the
other hand, vehemently contends that the
wait list contemplated in Rule 14 of the
Rules, 1953 is in fact the select list was
prepared by the Selection Committee for
the purpose of appointment made under
Rule 15 of the Rules, 1953, as against the
substantive permanent vacancies and
further on temporary or adhoc basis in
stop-gap-arrangement only. The wait
listed
candidates
cannot
claim
appointment
against
subsequent
substantive vacancies as the said list stood
exhausted
with
the
completion
of
selection. Moreover, the wait listed
candidates could claim appointment only
against the existing and anticipated
vacancies in a year of recruitment which
was 2011-12 in the present case. As
against the vacancies of the subsequent
years,
the
petitioners
cannot
be
considered as the said vacancies have to
be notified for Direct recruiment as per
Rule 5 of the Rules, 1953.

20. Having heard learned counsel
for the parties and perused the record, in
view of the stand taken by the learned
Senior Advocate for the petitioners that
all wait listed candidates herein are
entitled to substantive appointment under
the Rules, 1953, inasmuch as, the wait list
is a list of selected candidates in
perpetuity, it would be apt to go through
the entire scheme of the Rules, 1953
which governs the recruitment to th

21. Rule 2(kha) of the definition
clause of the Rules, 1953 provides the
meaning of "Committee" "being the
Selection Committee" constituted under
the rules. Rule 5 states that appointment
to the services under the Rules, 1953
would be by direct recruitment. Rules 8 to
11 provides for eligibility/qualification
and
the
maximum
age
limit
for
appointment in the services under the
Rules, 1953.

22. Rules 12, 13, 14 and 15 relevant
for the purpose of present controversy are
to be quoted hereunder:-

"12- भती की रीर्त- सर्मर्त
र्नम्नर्लप्तखत बात ं का ध्यान रखते हुये
उम्मीिवार में से चुनाव करेंगी:- (1) अच्छा
िरीर- गठन,

(2) फुतीलापन (Active habits),
और।

(3) जगह के र्लये समान्य रुप से
उपयुक्तता (General suitability)

चुने गये उम्मीिवार ं की सर्मर्त
र्िवीजन ं में तैनात करेगी और सर्मर्त का
संय जक (convener) चुने गये उम्मीिवार ं के
नाम ं
की
तथा
र्िवीजन ं
की
सूचना
सुपररन्टेंर्िंग इंजीर्नयर क िेगा, र्जनमें उन्हें
तैनात र्कया गया ह ।

13- अन्तेवासी (अपरेंर्िस) की
हैर्सयत से काम करना और र्वभागीय परीक्षा
(apprentice
ship
and
departmental
examination)- चुने गये उम्मीिवार उस
र्िवीजन में, जहााँ व तैनात र्कये गये ह , र्कसी
अनुभवी पतरौल के अधीन तीन महीने
अवैतर्नक (unpaid) अन्तेवासी (apprentice)
की हैर्सयत से काम करेंगे। इस अवर्ध के
240 INDIAN LAW REPORTS ALLAHABAD SERIES
अन्त में उन्हे नहर के पतरौल के कायि और
कतिव्य ं के सम्बन्ध में एक र्क्रयात्मक परीक्षा
(Practical examination) पास करनी ह गी।
इस परीक्षा का संचालन इस प्रय जन के र्लये
एक्जीक्यूर्िव इंजीर्नयर द्वारा र्नयुक्त र्कये गये
एक र्िप्टी रेवेन्यू अफसर और एक र्जलेिार
करेंगे। परीक्षा में सफल ह ने वाले उम्मीिवार ं
क एक प्रमाण-पत्र (certificate) र्िया
जायेगा।

14- प्रतीक्षा-सूची- (क) र्नयम 12
के उपबन्ध ं के अधीन चुने गये उम्मीिवार ं के
नाम, इस िति के अधीन र्क वे र्नयम 13 में
र्नधािररत र्वभागीय परीक्षा पास कर ले
अनुम र्ित (Approved) उम्मीिवार ं की सूची
में उन व्यप्तक्तय ं के नीचे, र्जनके नाम सूची में
पहले से है, अन्त की तारीख के क्रम से
र्नम्नर्लप्तखत ब् ंर सर्हत िजि कर र्लये जायेंगे-

(1) उम्मीिवार का नाम।

(2) र्पता का नाम।

(3) र्िक्षा सम्बन्धी प्रमाण - पत्र के
अनुसार जन्म की तारीख।

(4) र्िक्षा सम्बन्धी य ग्यतायें।

(5) घर का पता।

(6) र्विेष र्ववरण (Remark)

(ख) र्िवीजन की अनुम र्ित सूची
उम्मीिवार ं की र्कसी भी ििा में र्जलेिार ,
अमीन ं, पतरौल ं और मुप्तशिय ं के र्िवीजनल
कैिर के य ग के 20 प्रर्तित से अर्धक न
ह गी।

(ग) ऐसे उम्मीिवार के नाम इस
सूची से काि र्िये जायेंगे ज क ई उपयुक्त
कारण बताये र्बना स्थानापन्न ररक्त पि ं पर
काम करने से इनकार करेंगे या र्कसी ररक्त
पि स्थानापन्न रुप से काम र्कये र्बना 25 वषि
की आयु प्राि लेंगे। एक्जीक्यूर्िव इंजीर्नयर
यर्ि चाहे, त ऐसे उम्मीिवार ं क इस र्नयम
के लागू ह ने से मुक्त कर सकता है। ज 25
वषि की आयु प्राि करने से पहले र्कसी ररक्त
पि पर स्थानापन्न रुप से काम कर चुके ह ं।

15- नियुक्ति- (1) स्थायी पि ं के
ररक्त ह ने पर एक्जीक्यूर्िव इंजीर्नयर, इस
सेवा में जहां तक सम्भव ह , र्नयम 14 के
अधीन तैयार की गई सूची में से उम्मीिवार ं
क र्नयुक्त करेगा। इस सेवा में वे उस क्रम से
र्लये जायेंगे र्जस क्रम में उनके नाम इस सूची
में र्िये ह ं।

(2)
एक्जीक्यूर्िव
इंजीर्नयर
अस्थायी या स्थानापन्न रुप में ररक्त पि ं पर
ऐसे व्यप्तक्तय ं क र्नयुक्त कर सकता है ज इन
र्नयम ं के अधीन सेवा में स्थायी रुप से र्नयुक्त
र्कये जाने के य ग्य ह ं।

(3) यर्ि क ई स्वीकृत उम्मीिवार
उपलब्ध न ह , त एक्जीक्यूर्िव इंजीर्नयर
स्थानापन्न या अस्थायी रुप से ररक्त पि पर
र्कसी ऐसे व्यप्तक्त क संयुक्त कर सकता है,
र्जसका नाम प्रतीक्षा-सूची में न ह , परन्तु ऐसी
र्नयुप्तक्त छः महीने से अर्धक अवर्ध के र्लये न
ह गा।"

23. A conjoined reading of the
above noted provisions indicate that
under Rule 12 which provides for method
of recruitment, the Selection Committee
has to prepare a list of suitable candidates
division-wise after assessment of general
suitability of the candidates.

24. In the instant case, the said
assessment was made with the interview
of the candidates.

25. Rule 13 states that the selected
candidates (as per Rule 12) shall be sent
for three months training as unpaid
apprentice and at the end of the said
training, they shall be required to pass a
practical
examination.
All
those
3 All. Manoj Kumar & Ors. Vs. State of U.P. & Ors.
241
candidates who have been declared
successful will be given a certificate.

26. Rule 14(ka) provides that all
selected candidates under Rule 12 shall be
kept in a list below the approved
candidates (whose names have already
been kept there), subject to the condition
that they will clear/pass departmental
examination (practical examination as
aforesaid).

27. Rule 14(kha) further states that
the Division wise approved list of
candidates shall not be of more than 20%
of the total posts in the divisional cadre
including all Ziledars, Amin (Patrols) and
Munshi.

28. Rule 14(ga) states that names of
all such candidates shall be deleted from
the aforesaid list who refuse to work in
stop-gap-arrangement or on adhoc basis
or attain the age of 25 years without ever
working on adhoc basis against a vacant
post.

29.

Rule
15
provides
for
appointment both on regular as well as
adhoc basis in a stop-gap-arrangement.
As
per
sub-rule
(1)
of
Rule
15
appointment against the permanent vacant
post will be made from the list of
candidates prepared under Rule 14, as far
as possible, in the same order as they
have been placed in the said list.

30. Sub-rule (2) of Rule 15 provides
that temporary appointment against the
vacant posts can be made by the
Executive Engineer only of such persons
who are eligible to get permanent
appointment. Sub-rule (3) of Rule 15
further states that in case of nonavailability of approved candidates, the
Executive
Engineer
can
make
appointment on temporary or adhoc basis
against a vacant post of such person
whose name has not been found in the
wait list, subject to the condition that such
an appointment would not be made for
more than a period of six months.

31. The aforesaid scheme of the
Rules, 1953, thus, makes it clear that the
select list which has been termed as "wait
list" in Rule 14(ka) is a tentative list
prepared by the Selection Committee as
per Rule 12 of the Rules, 1953 of those
candidates who are found suitable by it.
The condition is that the said wait listed
candidates shall be kept below the
approved candidates in one list. The "wait
listed candidates" shall have to complete
apprenticeship and clear departmental
examination
for
being
termed
as
"approved candidates" for the purpose of
appointment under rule 15 (1)&(2) of the
Rules, 1953. The appointment against
substantive vacant post on permanent
basis has to be made from the list
mentioned in Rule 14(kha) which is a list
of "approved candidates" after fulfilling
conditions of Rule 14(ka).

32. From the further reading of subrules (2) and (3) of Rule 15, it is clear that
even temporary or adhoc appointment
against a substantive vacancy has to be
made by the Executive Engineer from the
list of eligible candidates prepared under
Rule 14. But in any case appointment
against substantive vacancies, can be
made only through direct recruitment as
per Rule 5 of the Rules, 1953. That
means, the vacancies have to be notified
for inviting applications from eligible
candidates. The candidates kept in the
wait list under Rule 14(ka) prepared
under
Rule
12
by
the
Selection
242 INDIAN LAW REPORTS ALLAHABAD SERIES
Committee have to complete training and
pass practical examination so as to
become eligible or "approved candidates"
for being kept in the Division wise list
prepared under Rule 14(kha).

33. From the reading of clause (ga)
of Rule 14 alongwith sub-rule (2) and (3)
of Rule 15, it appears that the aforesaid
list of "approved candidates" is being kept
alive for the purpose of making temporary
arrangement against the vacant posts
subject
to
regular
selection.
The
expression "wait list" used in Rule 14 to
the list which is prepared for the purpose
of appointment under sub-rule (1) & (2)
of Rule 15 cannot be given the meaning
as contended by the petitioners, of being a
"wait list in perpetuity" for substantive
appointment against the future vacancies.
In other words, the "wait list of approved
candidates" as contemplated under Rule
14 (ka) and (kha) cannot be said to be a
"wait list in perpetuity" for appointment
against substantive vacancies under Rule
15(1) of the Rules, 1953 which do not
exist in the given year of selection.

34. In the opinion of the Court, the
expression "wait list" has been used in
Rule 14 in view of scheme of clause (ka)
which contemplates that a list of suitable
candidates be prepared by the Selection
Committee subject to them passing the
departmental examination under Rule 13
and Clause (kha) which provides for
preparation of a "wait list of approved
candidates" to the extent of 20% of the
total posts, who can be given appointment
on temporary or adhoc basis against
substantive vacancies occuring from time
to time. And for this reason only clause
(ga) of Rule 14 provides that if an
"approved candidate" refuse to work on
adhoc basis or had not worked as such
uptil the age of 25 years, his name would
be deleted from the said list.

35. Under the statutory scheme
though the "wait list" prepared under Rule
14(kha) of "approved candidate" has not
been given a limited life but it cannot be
accepted that the said "wait list" is to be
used for filling the vacancies not available
in the year of recruitment i.e. for future
vacancies occurring in the department
over the years, on substantive basis, more
so, when appointment in services is by
direct recruitment. The scheme of direct
recruitment in service as per Rule 5 of the
Rules,
1953
itself
contemplates
notification of substantive vacancies and
assessment of suitability of all applicants
as per Rule 12 and 13 of the Rules, 1953
for filling the same.

36. The expression "wait list" in
Rule 14 of the Rules, 1953 by no stretch
of imagination can be said to be a "wait
list in perpetuity", to be used or exhausted
against
future
substantive
vacancies
which were not either anticipated or likely
vacancies. Such an interpretation to the
said expression would lead to incongruity
and ambiguity.

37. To be more precise, the Rules
1953 in essence are for providing
procedure for direct recruitment to the
services concerned (in question). Rule 12
to 14 of the Rules, 1953 provide for
different stages of selection. At the first
stage of selection as per Rule 12, the wait
list of suitable candidates under clause
(ka) of Rule 14 is to be prepared. As is
clear from the language of Rule 14 (ka),
the candidates who were found suitable
by the Selection Committee under Rule
12 have to be kept below the candidates
who have been approved for selection,
3 All. Manoj Kumar & Ors. Vs. State of U.P. & Ors.
243
subject to the conditions that they clear
the departmental examination under Rule
13.

38.

Rule
14(kha)
speaks
of
"अनुम र्ित सूची" means list of "approved
candidates" of those who have been
selected finally after clearing all stages of
selection, i.e. those who have to be given
appointment
against
substantive
vacancies in order of their merit. The list
as contemplated in Rule 14(ka) and
14(kha) are, thus, two different lists
prepared at two stages of selection.

39. The lists in question i.e. the wait
lists dated 21.10.2011 and 29.10.2011 in
the instant case, can be clearly understood
as the "wait list" prepared at the first stage
of selection [as per Rule 14(ka)] after
assessment of suitability of all candidates
by
the
Selection
Committee.
The
candidates kept in the said list cannot
have any legitimate expectation for
appointment
against
the
vacancies
notified in the advertisement dated
20.9.2011.

40. They can at best, only be
understood
as
the
"prospective
candidates" waiting for their place in the
final select list of "approved candidates"
[as per Rule 14(kha)] after completion of
training and passing of the departmental
examination. There is no dispute about
the fact that all the petitioners herein had
completed requisite training and also
passed the departmental examination but
they could not get a chance for selection
against
the
existing
vacancies
as
"approved candidates" who were higher
placed in the list were given appointment
against the existing vacancies. It is not the
case of the petitioners that any of the
appointee was below them in the merit
list or ineligible for appointment. The
appointment of none of them has been
challenged.

41. Going further, though the
expression "wait list" in rule 14 is used
both for the list prepared at the first stage
under
sub-clause(ka)
of
"suitable
candidates" and the final list under subclause (kha) of the "approved candidates"
to the extent of 20% of the total posts in
the Divisional cadre. But by reading of
Rule 15(1), (2) and (3) together, there
remains no doubt that the "wait list" as
contemplated in Rule 14(kha) is to be
used for the purpose of permanent
appointment
against
existing
or
anticipated vacancies, and may be used
for any adhoc or temporary appointment
against substantive vacancies, which may
occur in the department at a later point of
time. The purpose of keeping the "wait
list" is, thus, for making stop-gaparrangement.

42. This becomes more clear from
the reading of sub-rule (3) of Rule 15
which provides that if a candidate from
the "wait list" is not available (who is
eligible for regular appointment), short
term appointment in temporary or adhoc
basis can be made not exceeding six
months.

43. Giving any other interpretation
to the expression "wait list" would render
the entire rule of procedure for selection
to the services by direct recruitment
unworkable.

44.

The
General
Rule
of
construction of statute is not only to look
at the words but to look at the context, the
collocation and the object of such words
relating to such matter and interpret the
244 INDIAN LAW REPORTS ALLAHABAD SERIES
meaning according to what would appear
to be the meaning intended to be
conveyed by the rules of the words under
the circumstances. Reference Jagir Singh
and others vs. State of Bihar and
another2.

45. In State of West Bengal vs.
Union of India3, the then Chief Justice
Mr. B.P. Sinha, speaking for the majority
has said that in considering the true
meaning of words or expression used by
the Legislature, the Court must have
regard to the aim, object and scope of the
statute to be read in its entirety. The Court
must ascertain the intention of the
Legislature by directing its attention not
merely to the clauses to be construed but
to the entire Statute; it must compare the
clause with the other parts of the law, and
the setting in which the clause to be
interpreted occurs.

46. The Constitution Bench in
Union
of
India
vs.
Elphinstone
Spinning and Weaving Co. Ltd. and
others4 has held that when the question
arises as to the meaning of a certain
provision in a Statute it is not only
legitimate but proper to read that
provision in its context. The context
means; the statute as a whole, the
previous state of law, other statutes in pari
materia, the general scope of the statute
and the mischief that it was intended to
remedy. With reference to Corocraft
Ltd. vs. Pan American Airways Inc.5
and State of Haryana vs. Sampuran
Singh6 , it is noted therein that:-

"The duty of judges is to
expound and not to legislate is a
fundamental rule. There is no doubt a
marginal area in which the courts mould
or creatively interpret legislation and
they are thus finishers, refiners and
polishers of legislation which comes to
them in a state requiring varying degrees
of further processing."

47. In National Insurance Co. Ltd
vs. Anjana Shyam and others7, taking
note of the proposition propounded in
1846 by Dr. Lushington in Queen V.
Eduljee Byramjee [(1846) 3 MIA 468] it
is held that the proposition that to
ascertain the true meaning of a clause in a
statute the court must look at the whole
statute, at what precedes and at what
succeeds and not merely at the clause
itself, has been accepted and reiterated by
the Apex Court in innumerable cases.

48. Even in the judgment relied by
the learned Senior Advocate for the
petitioners, the Supreme Court has
observed
that
the
"wait
list"
as
contemplated therein can be co-related to
the number of vacancies either available
in the year of recruitment or likely to
become available in the succeeding year
i.e. in proportion to the existing and
anticipated vacancies. In the said case, the
Apex Court had permitted the appellants
therein to continue as they were appointed
within one year of the declaration of the
result.

49. In the light of the aforesaid, the
claim of the petitioners that the select list
or the wait list prepared under Rule 14
was to be kept alive in perpetuity so as to
give
appointment
to
all
wait-listed
candidates
against
future
vacancies
occurring in the year 2013 onwards, is not
worthy of acceptance.

50. Before parting with this
judgment, relevant is to note that the wait
list of 26 candidates (with reference to the
3 All. M/S Saharanpur Estates And Construction & Ors. Vs. Rent Control and Eviction
 Officer/A.D.M.,Saharanpur & Ors.
245
Writ Petition No. 43960 of 2012) was
cancelled vide order dated 2.4.2012,
which was admittedly received by the
said petitioners in the month of October,
2012. The said order was also brought on
record of the said writ petition along with
the counter affidavit filed in the month of
November, 2012.

51. For the reasons best known to
the petitioners therein, they did not
challenge the said order within a
reasonable
period
of
time.
The
amendment
application
filed
on
25.3.2014, therefore, cannot be allowed to
assail the said order as no explanation has
been offered by the petitioners for
inordinate delay in seeking amendment.

52. For the four petitioners in Writ
Petition No. 35705 of 2013 who are claiming
appointment on the basis of the list dated
21.10.2011, relevant is to note that they had
approached this Court in the year 2013-14
for appointment against four vacancies
which occurred in the year 2012-13. Their
prayer for appointment against the future
vacancies
made
after
a
period
of
approximately two years from the date of
declaration of result, is not acceptable.

53. For the above discussions, both
the writ petitions are found devoid of
merits and hence dismissed.
----------

(2019)11ILR A245

ORIGINAL JURISDICTION
 CIVIL SIDE
DATED: ALLAHABAD 16.10.2019

BEFORE
THE HON'BLE SURYA PRAKASH KESARWANI , J.

Writ A No.50249 of 2015

M/S
Saharanpur
Estates
And
Construction & Ors. ...Petitioners
Versus
Rent Control and Evicition Officer/ A.D.M.,
Saharanpur & Ors. ...Respondents

Counsel for the Petitioners:
Sri Ajay Kumar Singh, Sri Ashish Kumar
Singh, Sri Vinod Kumar Srivastava.

Counsel for the Respondents:
C.S.C., Sri Manish Kumar Nigam, Sri
Manoj
Kumar
Rajvanshi,
Sri
N.C.
Rajvanshi, Sri Some Narayan Mishra.

A. Civil Law-Rent control/Tenancy - Uttar
Pradesh Urban Buildings (Regulation of
Letting, Rent and Eviction) Act, 1972:
Section 29A; Partnership Act, 1932 -
Section
69(2)
-
Suit
filed
by
an
unregistered firm is maintainable for
enforcement of statutory right u/s 29A(5)
of the U.P. Act XIII of 1972?

The suit filed by an unregistered firm is not
barred u/s 69(2) of Act, 1932, if it is based on
a statutory right or a common law right. S.
29A(5) gives a statutory right to the landlord
or the tenant to move an application before
the District Magistrate to determine the annual
rent payable. The application filed was for
enforcement of statutory right and not for
enforcement of a right arising out from rent
agreement/contract. (Para 9, 10)

Petition allowed (E-4)

Matter Remitted

Precedent followed: -
1. M/s Raptakos Brett & Company Ltd. Vs Ganesh
Property, AIR (1998) SC 3085 (Para 10)

2. M/s Haldiram Bhujiawala & anr. Vs. M/s
Anand Kumar Deepak Kumar & anr. AIR
(2000) SC 1287 (Para 10)
3. Punjab & Sindh Bank Vs M/s Manoram
Agencies & ors. (2008) 4 ADJ 248 (Para 10)