# Shiv Om and others v. District Judge, Farrukhabad

- **Citation:** (2011) 1 ILRA 461
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-03-11
- **Case number:** Civil Misc. Writ Petition No. 8528 of 2001
- **Bench:** Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiv-om-and-others-v-district-judge-farrukhabad-41883
- **Pages:** 3

## Headnote

Constitution of India, Article 226-right to
appointment-out of 7 post of class 4th
employees -appointment made strict in
accordance with merit-thereafter the list
lost its existence-petitioner admittedly
below in merit than those candidatessubsequent
appointment
from
retrenched
employer-petitioner
being
stranger can not be allowed to question
the
same-held-no
right
to
claim
appointment.

Held: Para 8 and 9

I have heard learned counsel for the
parties and have examined the records.

The advertisement, copy whereof has
been enclosed as Annexure-1 to the writ
petition, specifically mentions that there
are 7 vacancies of Class-IV employee on
the
regular
side
and
there
are
9
vacancies of Class-IV employees which
are
reserved
for
appointment
of
retrenched employees. Admittedly, as
against 7 regular vacancies, candidates
strictly in accordance with merit list have
been appointed. Petitioners are lower in
merit viz-a-viz all the seven candidates
appointed. With the appointment of 7
candidates against regular vacancies, the
select list preprepared for the purpose
lost its life. The same was rightly
cancelled under the order dated 04th
December, 2000. The controversy in that
regard stands settled by the Hon'ble
Supreme Court in the case of Rakhi Ray
and others vs. High Court of Delhi and
others; (2010) 2 SCC 637.

So far as the vacancies reserved for
retrenched employees are concerned,
the petitioners can have no claim as they
do not belong to said category. With
regard to the appointments offered by
way of promotion from the post of
Chowkidar and Mali to that of Process
Server
to
the
persons
named
in
paragraph 12 of the writ petition, this
Court
is
of
the
opinion
that
the
petitioners
not
being
employee
of
judgeship
cannot
object
to
such
promotion.
Case law discussed:
(2010) 2 SCC 637; (2002) 10 SCC 269; (2002)
10 SCC 549.
462 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

## Text

1 All Shiv Om and others V. District Judge, Farrukhabad
461

10. For the aforesaid reasons, we
find merit in this petition and are of the
opinion that the order dated 27.1.2011
cannot be sustained in the eye of law.
Accordingly, this writ petition stands
allowed. The order dated 27.1.2011
passed by the respondent no. 1 is set
aside. It shall be open for the respondents,
if they are so advised, to pass fresh orders
in accordance with law and after giving
adequate opportunity to the petitioner. If
the order be adverse, it is not to be given
effect to for a period of two weeks from
the date of communication of the order to
the petitioner. We make it clear that since
the impugned order has been set aside, the
petitioner shall be forthwith allowed to
function as President with all powers.

11. There shall be no order as to
costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.03.2011

BEFORE
THE HON'BLE ARUN TANDON,J.

Civil Misc. Writ Petition No. 8528 of 2001

Shiv Om and others
 ...Petitioners
Versus
District Judge, Farrukhabad ...Respondent

Counsel for the Petitioner:
Sri Anand Behari Lal Verma
Sri Tahir Hussain Farooqui

Counsel for the Respondent:
Sri Sunil Ambwani
Sri Amit Sthaleker
S.C.

Constitution of India, Article 226-right to
appointment-out of 7 post of class 4th
employees -appointment made strict in
accordance with merit-thereafter the list
lost its existence-petitioner admittedly
below in merit than those candidatessubsequent
appointment
from
retrenched
employer-petitioner
being
stranger can not be allowed to question
the
same-held-no
right
to
claim
appointment.

Held: Para 8 and 9

I have heard learned counsel for the
parties and have examined the records.

The advertisement, copy whereof has
been enclosed as Annexure-1 to the writ
petition, specifically mentions that there
are 7 vacancies of Class-IV employee on
the
regular
side
and
there
are
9
vacancies of Class-IV employees which
are
reserved
for
appointment
of
retrenched employees. Admittedly, as
against 7 regular vacancies, candidates
strictly in accordance with merit list have
been appointed. Petitioners are lower in
merit viz-a-viz all the seven candidates
appointed. With the appointment of 7
candidates against regular vacancies, the
select list preprepared for the purpose
lost its life. The same was rightly
cancelled under the order dated 04th
December, 2000. The controversy in that
regard stands settled by the Hon'ble
Supreme Court in the case of Rakhi Ray
and others vs. High Court of Delhi and
others; (2010) 2 SCC 637.

So far as the vacancies reserved for
retrenched employees are concerned,
the petitioners can have no claim as they
do not belong to said category. With
regard to the appointments offered by
way of promotion from the post of
Chowkidar and Mali to that of Process
Server
to
the
persons
named
in
paragraph 12 of the writ petition, this
Court
is
of
the
opinion
that
the
petitioners
not
being
employee
of
judgeship
cannot
object
to
such
promotion.
Case law discussed:
(2010) 2 SCC 637; (2002) 10 SCC 269; (2002)
10 SCC 549.
462 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
(Delivered by Hon'ble Arun Tandon, J.)

1. An advertisement was published
by the District Judge, Farrukhabad for
making appointments on various posts
including the posts of Class-IV employee.
A select list was prepared. The petitioners
before this Court, who are six in number,
were empanelled at serial nos. 9, 10, 12,
13, 18 and 20 respectively.

2. According to the petitioners,
candidates at serial no. 1 to 4 were
appointed on 28.07.1998, candidate at
serial no. 5 was appointed on 12.08.1998,
candidate at serial no. 7 was appointed on
16.12.2000 and the candidate at serial no.
8 was appointed on 18.12.2000.

3. According to the petitioners the
select list itself was cancelled on
04.12.2000. Even thereafter appointment
of candidates at serial nos. 7 and 8 was
made. In paragraph 12 of the writ petition
it is stated that in the month of January,
2001 three other persons were appointed
as Class-IV employee.

On these allegations the petitioners
have prayed for quashing of the order
dated 04.12.2000 canceling the select list
as
well
as
a
mandamus
directing
respondents to offer appointment to the
petitioners.

4. Counsel for the petitioner submits
that as many as 16 vacancies were
advertised and therefore the petitioners,
who were within the first 16 in the merit
list, were entitled to appointment. He
further submits that the appointments
were offered illegally to three candidates
in the month of January, 2001, as their
names were not included in the select list
prepared for the posts in question.

5. A counter affidavit has been filed
on behalf of the District Judge and it has
been stated that 7 permanent vacancies of
Class-IV posts were advertised and in
respect of other 9 Class-IV vacancies it
was specifically mentioned that the same
are reserved for retrenched employees
only. It is then stated that the candidates
from serial nos. 1 to 8 have been
appointed against substantive vacancies
strictly in order of merit. Candidate at
serial no. 6 has not been appointed.
Petitioners are lower in merit than the
appointed candidates. The select list
exhausted itself with the appointment
against the advertised vacancies. The
petitioners have no claim for any
appointment.

6. So far as candidates appointed on
16th and 18th December, 2000 are
concerned, it has been explained that
there was some discrepancy in the roster
prepared and after necessary corrections
the orders for appointment of candidates
at serial nos. 7 and 8 were issued. It has
been stated that the petitioners did not
belong to reserved category.

7. So far as the candidates appointed
in the month of January, 2001 are
concerned, it is stated that they have not
been
appointed
by
way
of
direct
recruitment. They were promoted from
the post of Chowkidar, Mali to the post of
Process Server. The petitioners can have
no claim in respect of such promotion.

8. I have heard learned counsel for
the parties and have examined the
records.

The advertisement, copy whereof has
been enclosed as Annexure-1 to the writ
petition, specifically mentions that there
1 All V.V.P. Welfare Association V. State of U.P. and others
463
are 7 vacancies of Class-IV employee on
the regular side and there are 9 vacancies
of Class-IV employees which are reserved
for appointment of retrenched employees.
Admittedly,
as
against
7
regular
vacancies,
candidates
strictly
in
accordance with merit list have been
appointed. Petitioners are lower in merit
viz-a-viz
all
the
seven
candidates
appointed. With the appointment of 7
candidates against regular vacancies, the
select list preprepared for the purpose lost
its life. The same was rightly canceled
under the order dated 04th December,
2000. The controversy in that regard
stands settled by the Hon'ble Supreme
Court in the case of Rakhi Ray and
others vs. High Court of Delhi and
others; (2010) 2 SCC 637.

9. So far as the vacancies reserved
for retrenched employees are concerned,
the petitioners can have no claim as they
do not belong to said category. With
regard to the appointments offered by way
of promotion from the post of Chowkidar
and Mali to that of Process Server to the
persons named in paragraph 12 of the writ
petition, this Court is of the opinion that
the petitioners not being employee of
judgeship
cannot
object
to
such
promotion.

10. In the facts and circumstances of
the case, no mandamus as prayed for by
the petitioners can be issued.

Counsel for the petitioners has
placed reliance upon the judgment of the
Hon'ble Supreme Court in the cases of
Suvidya Yadav and others vs. State of
Haryana and others;.(2002) 10 SCC 269
and Sandeep Singh vs. State of Haryana
and another; (2002) 10 SCC 549.

11. The judgments relied upon by
the counsel for the petitioners are clearly
distinguishable in the facts of the case, as
it has already been recorded that all the
advertised vacancy within the category
against which the petitioners had applied,
had been filled by the candidates more
meritorious to the petitioners.

Writ petition is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.03.2011

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

Civil Misc. Writ Petition No. 12754 of 2011

Vittavihin Vidyalaya Prabhandhak
Welfare Association

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

Counsel for the Petitioner:
Sri Brij Raj

Counsel for the Respondents:
C.S.C.

Constitution of India Art. 226-Petitioner
running
Private
School-un-aided
institution challenge the validity of Govt.
Order
relating
to
self-centerexamination center can not be claimed
as matter of right-apart from that no
right of manager going to be affectedcan not be allowed to challenge the
Policy-which is sole discretion of Board.

Held: Para 9

The
impugned
provisions
are
all
regulatory in nature, inasmuch as, they
advance
the
cause
of
holding
examinations and merely because the
said provisions have either been misused
or not put to use or not having been
strictly complied with, the same cannot