# Ram Rakhan Singh & others v. Hon'ble the Chief Justice, High Court of Judicature, Allahabad and another

- **Citation:** (2004) 2 ILRA 384
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-05-28
- **Case number:** Civil Misc. Writ Petition No. 10771 of 2004
- **Bench:** Sunil Ambwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-rakhan-singh-others-v-hon-ble-the-chief-justice-high-court-of-judicature-40375
- **Pages:** 6

## Headnote

Constitution of India, Articles 14 and 16Allahabad High Court Officer and Staff
(Condition
of
Service
and
Conduct)
Rules, 1976-Rr. 11, 8 and10- Petitioners
seeking
direction
to
quash
advertisement-from Assistants of High
Court
for
appointment
of
Bench
Secretary
Grade
II
petitioners
also
seeking direction from Registrar General
to make appointment of 21 Bench
Secretaries
Grade
II,
for
which
application have been invited by said
advertisement dated 6.2.2004, out of
approved select list dated 19.1.2003Held, appointing authority did not act
illegally, arbitrarily or in violation of
fundamental rights under Articles 14 and
16 in declaring fresh selections for 21
vacancies of Bench Secretary Grade II
and curtailing life of previous select list
dt. 21.1.2003.

For the reasons given as above, I do not
find that the appointing authority acted
illegally, arbitrarily or in violation of
petitioners rights under Article 14 and 16
of the Constitution of India in declaring
fresh selections for 21 vacancies of
Bench secretary Grade II, and curtailing
the life of previous select list dated
21.1.2003.

Consequently
the
writ
petition fails and is dismissed, with no
order as to costs.

Para 18
Case law discussed:
(2004) 1 SCC 136
(1987) UPLBEC 1006
(1991) 3 ACC 47
(2001) 6 SCC 380

## Text

http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
384

5. In view of what has been stated
above, this writ petition succeeds and is
allowed. The order impugned in the
present writ petition dated 10th March,
2004, passed by Additional District
Judge, Court No. 18, Meerut is quashed.
So fare as the order passed by the trial
Court is concerned, the trial Court is
directed to proceed with the hearing of the
suit expeditiously, preferably within a
period of one year from the date of
production of a certified copy of this
order before him.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.5.2004

BEFORE
THE HON'BLE SUNIL AMBWANI, J.

Civil Misc. Writ Petition No. 10771 of 2004

Ram Rakhan Singh & others ...Petitioners
Versus
Hon'ble the Chief Justice, High Court of
Judicature, Allahabad and another

 ...Respondents

Counsel for the Petitioners:
Sri Shashi Nandan
Sri Pankaj Misra
Sri Devendra Swaroop

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

Constitution of India, Articles 14 and 16Allahabad High Court Officer and Staff
(Condition
of
Service
and
Conduct)
Rules, 1976-Rr. 11, 8 and10- Petitioners
seeking
direction
to
quash
advertisement-from Assistants of High
Court
for
appointment
of
Bench
Secretary
Grade
II
petitioners
also
seeking direction from Registrar General
to make appointment of 21 Bench
Secretaries
Grade
II,
for
which
application have been invited by said
advertisement dated 6.2.2004, out of
approved select list dated 19.1.2003Held, appointing authority did not act
illegally, arbitrarily or in violation of
fundamental rights under Articles 14 and
16 in declaring fresh selections for 21
vacancies of Bench Secretary Grade II
and curtailing life of previous select list
dt. 21.1.2003.

For the reasons given as above, I do not
find that the appointing authority acted
illegally, arbitrarily or in violation of
petitioners rights under Article 14 and 16
of the Constitution of India in declaring
fresh selections for 21 vacancies of
Bench secretary Grade II, and curtailing
the life of previous select list dated
21.1.2003.

Consequently
the
writ
petition fails and is dismissed, with no
order as to costs.

Para 18
Case law discussed:
(2004) 1 SCC 136
(1987) UPLBEC 1006
(1991) 3 ACC 47
(2001) 6 SCC 380

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

1. Heard Sri Shashi Nandan, Senior
Advocate, assisted by Sri Pankaj Misra
for petitioner and Sri K.R. Sirohi for
respondents.

2. The petitioners have sought a
direction to quash the advertisement dated
6.2.2004 issued by Registrar General,
High
Court
at
Allahabad
inviting
application from the Assistants of the
High
Court
for
selection
through
competitive examination for appointment
of Bench Secretary Grade-II. The
petitioners have also prayed for a
direction to the Registrar General to make
appointment of 21 Bench Secretary Grade
II, for which applications have been
http://www.allahabadhighcourt.nic.in
2 All] R.R. Singh & others V. Hon'ble the Chief Justice, High Court, Allahabad & another 385
invited vide aforesaid advertisement, out
of approved select list dated 19.1.2003.

3. Counter and rejoinder affidavits
have been exchanged. With the consent
of the parties, the writ petition, nominated
to this bench, is being finally decided.

4. The method of selection to the
post of Bench Secretary is provided in
Rule 11 of Allahabad High Court Officer
and Staff (Condition of Service and
Conduct) Rules, 1976. Whenever it is
required to make selection to fill up any
vacancy/vacancies for the post of Bench
Secretary Grade-II, Rule 11(1) requires
the
appointing
authority
to
invite
application from the eligible assistants as
mentioned in clause (e) of Rule 8 for
admission to competitive examination.
The source of recruitment in Rule 8 (c) is
by
selection
through
competitive
examination conducted by the appointing
authority, open to the Assistants having
not less than 10 years continuous service
in Class-III post. These Assistants
includes Routine Grade Clerks, Lower
Division
Assistants,
Upper
Division
Assistants and Personal Assistants. Sub
Rule (2) of Rule 11 provides that the
procedure and syllabus relating to the
competitive examination shall be such as
may be prescribed by the appointing
authority from time to time. Sub Rule (3)
provides that the rest of the procedure of
selection and the period during which the
select list shall hold good shall be the
same as laid down in Rule 10.

5. Rule 10 of the Rules of 1976
provides for method of selection for the
posts of Routine Grade Clerks, which has
been made applicable to Bench Secretary
Grade-II by Rule 11 (3). Under Sub Rule
(1) of Rule 10, the appointing authority is
required to ascertain the probable number
of vacancies likely to occur in the post
during the course of the year of
recruitment,
and
determination
the
number of vacancies, if any, to be
reserved for candidates belonging to the
Scheduled Castes and others under Rule
23. Sub Rule (g) of Rule 10 provides for
the total marks obtained by the candidates
in the written examination and interview
will determine their position and the merit
list shall be prepared accordingly. The
select list shall hold good for three years
or till the next selection is held whichever is earlier. The year of recruitment is
defined under Rule 2(m), which means,
the period of twelve months commencing
from the 1st day of July of a calendar year.
Rule 30 provides that on the occurrence
of substantive vacancy, the appointing
authority shall make appointment to the
various
categories
of
post
in
the
establishment from the respective list of
persons duly selected under these rules.
Where a select list has been prepared
appointments shall be made in the same
order in which the names appear in the
list.

6. The selection process for the last
recruitment was initiated vide Office
Memorandum dated March 5, 2002,
inviting applications for selection to the
post of Bench Secretary Grade II. The
number of vacancies were not given either
in the Office Memorandum or in the
notice inviting applications. IN all, 150
(111 from Allahabad and 39 from
Lucknow
Bench)
applications
were
received, out of which 138 candidates
were found eligible and only 92 appeared
in the written examination. Out of these
89 candidates qualified for interview and
that a select list of 67 candidates was
prepared and published by the Registrar
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
386
General on 21.1.2003. Out of these, 39
were appointed.

7. The notice under challenge, was
issued on 6.2.2004 inviting applications
for Assistants in the High Court having
not less ten years service in class III post
as on 1.1.2004 for selection through
competitive examination for appointment
as Bench Secretary Grade II. Para 3 of the
notice gave the number of vacancies to be
21 which may decrees or increase. A
Committee has been constituted by
Hon'ble the Chief Justice on 21.1.2004 for
selections. Sri K.R. Sirohi appearing for
the Court, informs that 60 applications
have been received out of which 20 new
and eligible Assistants have applied.

8. In the counter affidavit of Sri
Pramod Kumar Goel, Joint Registrar
(Inspection), High Court it has stated in
para 11 that the selection committee
resolved that there are 21 vacancies of
Bench Secretary Grade II which includes
18 vacancies for the new judges, 2
vacancies already in existence and one
anticipated to fall vacant due to retirement
before June, 2004. In para 13, it is stated
that these 18 posts were sanctioned by the
Government Order dated 8.11.2001 with a
rider that appointment against these posts
shall be made in such a way that the staff
is made available to the Hon'ble Judges
on their elevation, and therefore, the same
were not included in the selection of
2002. Since the said posts were not
notified for the recruitment in the year
2002, a fresh selection process has been
initiated for these 18 posts along with
three
additional
vacancies
in
the
recruitment year 2003-04.

9. In the same paragraph it is stated
by Sri Pramod Kumar Goel, Joint
Registrar (Inspection), High Court that
earlier selections were held pursuant to
notice dated 5.3.2002 but since some
other
Assistants
working
in
the
establishment of the Court on class III
posts were likely to have complete ten
years of continuous service, and may have
acquired
eligibility
to
undertake
competitive examination, in all fairness a
fresh selection process was started, moreso, when the post included in the present
advertisement, were not included in the
advertisement dated 5.3.2002. Sri K.R.
Sirohi informs the Court that about 30
Upper Division Assistants, 7 Lower
Division Assistants and 1 Routine Grade
Clerk have acquired eligibility, after the
previous selection vide notice dated
5.3.2002

10. Learned counsel for petitioner,
Sri Shashi Nandan submits that Rule 10
(4) of the Rules of 1976 provide that
select list shall hold good for three years
or till next selection is held, whichever is
earlier. The selections in pursuance of
notification dated 5.3.2002 was held for
indeterminate number of vacancies. The
advertisement did not specify the number
of vacancies which has now been
provided in para 4 of the counter affidavit
of Sri Pramod Kumar Goel, Joint
Registrar
(Inspection)
High
Court,
Allahabad. He submits that the 18 posts
were sanctioned by the State Government
by Government Order dated 8.11.2001
much before the advertisement was issued
on 5.3.2002 inviting applications for
selection. These 18 vacancies were
already
existing
were
illegally
and
arbitrarily excluded from the previous
selections. There has been no change
whatsoever either in the method of
selection, or syllabus, and thus the
commencement of the next selection,
http://www.allahabadhighcourt.nic.in
2 All] R.R. Singh & others V. Hon'ble the Chief Justice, High Court, Allahabad & another 387
cutting short the validity of the previous
select list is a wholly arbitrary and
irrational exercise of power by the High
Court. The petitioners have completed
and have passed the examination. They
are available for appointment to the posts
which were sanctioned by the State
Government prior to their selections. Out
of this list 46 were called for training 39
were appointed. He submits that all the
21 vacancies ought to have been filled up
from the select list available with the
Court.

The
fresh
advertisement,
according to him, is not only arbitrary,
irrational but also violates petitioner's
right under Article 14 and 16 of the
Constitution of India. He has relied upon
the judgment in Oriental Insurance Co.
Ltd. Vs. T.S. Shastri (2004) 1 SCC 136,
and dr. Arvind Kumar Vs, State of
U.P., (1987) UPLBEC 1006, in support
of
his
submission
that
where
the
vacancies were not determined prior to
the selection, all the vacancies arising
during the currency of the select list
should be filled up from the selected
candidates impanneled the select list.

11. Sri K.R. Sirohi, on the other
hand, submits that the selections were
held in the year 2002 for only 30
vacancies. The 18 posts sanctioned by the
State Government on 8.11.2001 were to
be filled up subject to the availability of
Hon. Judges on their elevation. These
vacancies were not included in the
previous selections and that the Court
decided to fill these vacancies and two
more which came into existence and one
anticipated vacancy due to retirement
before June, 2004 by making fresh
selection, including all those who were
not eligible on 5.3.2002. Sri Sirohi
submits that under Rule 10 (4), the select
list holds good for three years or till the
next selection is held whichever is earlier
with the decision to hold fresh selection,
the select list dated 21.1.2003 does not
hold good any longer. He submits that
after the previous selections, more Judges
have been appointed giving rise to
shortage of staff, on account of which
officials
have
been
taken
from
administrative/weeding work and have
been posted as Bench Secretary on
temporary measure till further orders. He
submits that the decision to fill up 20
vacancies and one anticipated vacancy
up-to June, 2004, ceased the select list
dated 21.1.2003. In the meantime a
number of Assistants completed 10 years
of service and became eligible. In order
to give wider base to the selection and to
include all those who had become eligible
after the previous advertisement and to
give equal treatment to them, the decision
to hold fresh selection cannot be treated to
be arbitrary or violative of Article 14 and
16 of the Constitution of India.

12. The Rule 10 of 1976 provide for
ascertaining
probable
number
of
vacancies likely to occur in the year of
recruitment, which under 2(m) is defined
as period of 12 months continuous service
from 1st day of July of the calendar year.
The selection is provided under Rule 11
by a competitive examination. Sub Rule
(4) of Rule 10 gives a life of three years to
the list which can be cut short by
commencement of the next selections.
The short question to be decided in this
writ petition is, whether the respondents
acted arbitrarily and in violation of
petitioners right under Article 14 and 16
of the Constitution of India in deciding to
hold next selection during the currency of
the select list dated 21.1.2003.
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
388

13. In Shankarsan Dash Vs. Union
of India (1991) 3 ACC 47, the Supreme
Court held that the inclusion of a name of
candidate in the panel indicating their
selection does not give such person any
indefeasible right for appointment even
against the existing vacancies, and the
State is under no legal duty to fill up all or
any of the vacancies. Para 7 of the
Judgement is quoted as below:

"7. It is not correct to say that if a
number of vacancies are notified for
appointment and adequate number of
candidates are found fit, the successful
candidates acquire an indefeasible right to
be appointed which cannot be legitimately
denied. Ordinarily the notification merely
amounts to an invitation to qualified
candidates to apply for recruitment and on
their selection they do not acquire any
right to the post. Unless the relevant
recruitment rules so indicate, the State is
under no legal duty to fill up all or any of
the vacancies. However, it does not mean
that the State has the licence of acting in
an arbitrary manner. The decision not to
fill the vacancies has to be taken bona fide
for appropriate reasons. And if the
vacancies or any of them are filled up.
The State is bound to respect the
comparative merit of the candidates, as
reflected at the recruitment test, and no
discrimination can be permitted. This
Correct position has been consistently
followed by this Court, and we do not
find any discordant note in the decisions
in State of Haryana Vs. Subash Chander
Marwaha2 Neelima Shangla Vs. State of
Haryana3 or Jatinder Kumar Vs. State of
Panjab4."

2. (1974) 3 SCC 220; 1973 SCC
(L&S 488.

3.
(1986) 4 SCC 268: 1985 SCC
(L&S) 759

4.
(1985) 1 SCC 122: 1985 SCC
(L&S) 174.

14. The Constitution Bench decision
in Shankarsan Dashwas followed by
Supreme Court in All India SC & ST
Employees Association Vs. Arthur Jeen
(2001) 6 SCC 380. In Dr. Arvind Kumar
(supra) this Court held that the list may be
examination or selectionwise or it may be
list for one year or till the next selection is
made or till the list is cancelled. Whereas
the list is examination or selection wise
the candidates in the waiting list can
claim to be appointed if the selected
candidate do not join and vacancy arises.
But the purpose of periodical list is to
keep it alive for certain period and if a
vacancy arises in that period then it
should be offered to the candidates from
the list. A candidate has a right to claim
that he should be appointed against
vacancy which occurs during that period,
otherwise there can be no purpose in
keeping the list operative for a certain
period. In Oriental Insurance Co. Lt.
(supra), the Supreme Court found that
promotion policy stipulating ranking list
to include 20% beyond the declared
vacancies. The contingent list was issued
for the purpose of giving promotion from
a vacant post as and when required prior
to the formation of the next Promotion
Committee. In the facts and circumstances
of the case, the Supreme Court found that
the vacancies at Kurnool and Srikakulam
were actually filled up by the transfer of
the existing cadre. The Supreme Court
approved the finding of the High Court
that these two branches were opened by
transferring of the cadre was an act of
mala fide on the part of the appellant.
The two branches were opened during the
currency from the list prepared by the
Selection Committee, and the vacancies
http://www.allahabadhighcourt.nic.in
2 All] The Commissioner of Sales Tax V. S/S Melrose Biscuit Co., Aligarh
389
were filled up only to deprive the right of
promotion to the respondent who was
placed as contingent reserve.

15. In the present case, the Rules of
1976 did not provide for periodical list.
Rule 10 (1) requires the appointing
authority to ascertain the probable number
of vacancies likely to occur during the
course of the year of recruitment. The
impaneled assistants selected after written
examination do not have a right to be
appointed on the post beyond the
vacancies ascertained by the appointing
authority to be filled up from the
recruitment. There were 30 vacancies for
which applications were invited on
5.3.2002 and that out of the select list
dated 21.1.2003, 39 persons were given
appointment. Nine persons out of the
select list received appointment beyond
the number of vacancies worked out by
the appointing authority. The 18 posts
sanctioned by the State Government vide
Government Order dated 8.11.2001 were
not decided to be filled up in the previous
recruitment as these posts were created
subject to elevation of Hon'ble Judge. In
these
circumstances
the
appointing
authority acted well within his authority
under the rules to declare next selection
for the 20 existing and one likely vacancy
to occur on retirement before June, 2004.

16. The petitioners as selected of the
list which does not hold good any more
now no longer hold good, cannot claim a
right to be appointed to the 21 vacancies
advertised by notice dated 6.2.2004.

17. I do not find any force in the
contention
of
the
counsel
for
the
petitioners that after 1988 the examination
to Routine Grade Clerks were held in
1994, and that since the result of 1994
examinations were declared in March,
1994, there will be no one amongst the
eligible other than those who appeared
along with the petitioners, for selection in
2002, to appear in the selection advertised
by notice dated 6.2.2004. Out of 60
applicants in the current selections, there
are 20 new applicants, and that 30 Upper
Division Assistants, 7 Lower Division
Assistants and 1 Routine Grade Clerks
have acquired eligibility after the previous
selections. In case the subject vacancies
were decided to be filled from previous
selection, the valuable rights of selections
of these persons who have acquired
eligibility subsequently was to be likely
defeated.

18. For the reasons given as above, I
do not find that the appointing authority
acted illegally, arbitrarily or in violation
of petitioners rights under Article 14 and
16 of the Constitution of India in
declaring fresh selections for 21 vacancies
of Bench secretary Grade II, and
curtailing the life of previous select list
dated 21.1.2003. Consequently the writ
petition fails and is dismissed, with no
order as to costs.
---------
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.4.2004

BEFORE
THE HON'BLE PRAKASH KRISHNA, J.

Sales Tax Revision No. 1444 of 1990

The Commissioner of Sales Tax

...Applicant
Versus
S/S Melrose Biscuit Co., Aligarh

...Opposite Party

Counsel for the Applicant:
S.C.