# Sushil Kumar Sharma v. State of U.P. & Others

- **Citation:** (2007) 2 ILRA 501
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-05-25
- **Case number:** Civil Misc. Writ Petition No. 37482 of 2006
- **Bench:** Dilip Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sushil-kumar-sharma-v-state-of-u-p-others-40953
- **Pages:** 11

## Headnote

Sri Rajeev Gupta
Sri Manoj Kumar
Sri K.R. Sirohi
S.C.
U.P. Subordinate Civil Court Inferior
Establishment
Rules
1955-Section
4
(a)Discretionary Power of District Judge
has to be exercised with conformity of
Article 14 and 16 of the constitutionappointment
made
without
advertisement-amount to denied of fair
and equal chance to all other eligible
candidates-held-illegal
can
not
sustained.

Held: Para 25
502 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
In the present case, the appointments of
private respondent nos. 3, 4 and 5 had
been
made
without
issuing
any
advertisement. They, therefore, have no
right to continue on the said post. It has
been pointed out by the Supreme Court
in the above mentioned cases that where
all the eligible candidates are not given a
fair chance of competing in the matter
relating to appointment, Article 16 of the
Constitution is violated and that rule of
equality in public employment is a basic
feature
of
the
Constitution.
The
appointments of respondent nos. 3, 4
and 5 are, therefore, liable to be set
aside as the District Judge has not
followed the procedure.
Case law discussed:
1991 (4) SCC-54
1983 (4) SCC-339
2004 (2) SCC-590
J.T. 2006 (2) SC-137
J.T. 2006 (4) 420
1994 (3) UPLBEC-1551

## Text

2 All] Rajua @ Raju V. State of U.P. and others
501
passed the judgement and order dated
19.10.2004. Thus, the learned ACJM did
not give opportunity to the prosecution to
summon the remaining witnesses. From
perusal of the FIR of the case, it appears
that one Angad was also injured in the
occurrence. Chandra Shekhar had also
witnessed
the
occurrence
but
no
opportunity was given by the learned
Magistrate to the prosecution to summon
these two witnesses.

6. It is also revealed that the
opposite party no. 1 and 2 are the
daughters of Mata Prasad, who died in the
occurrence.

7. In the case of Chaina Swami Vs.
State of Andhra Pradesh AIR 1962 S.C.
1788, the Apex Court has observed that
the revisional court shall not ordinarily
interfere
against
the
judgement
of
acquittal but if the judgement of acquittal
has been recorded without examination of
the important witness and no effort was
made to obtain their presence, the
revisional court shall be justified to
interfere while exercising its revisional
jurisdiction against an order of acquittal.

8. It is true that the opposite party
no. 2 and 3 according to the charge sheet
filed are neither the complainant of the
case, nor the eye witnesses, they are
daughters of Mata Prasad who died in the
occurrence. Hon'ble Supreme Court in the
case of Fad Regan Vs. S.S.R. Beluswami
2003 Dand Nirnay Sangrah 908 has
observed that the revisional court suo
motto can exercise the power of revision
and if the revision has been filed by the
stranger to the case, it would make no
difference.

9. Keeping in view the law laid
down by Hon'ble Supreme court I am of
the opinion that revision filed by opposite
party no. 2 and 3, who are daughters of
deceased Mata Prasad was maintainable.
It is also clear from the foregoing
discussions that the learned Magistrate
committed illegality in not affording any
opportunity to the prosecution to produce
injured
witness
Angad
and
other
witnesses and in concluding trial on the
date of appearance of the accused. I,
therefore, find that this revision is devoid
of merit and is dismissed accordingly.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.05.2007

BEFORE
THE HON'BLE DILIP GUPTA, J.

Civil Misc. Writ Petition No. 37482 of 2006

Sushil Kumar Sharma
...Petitioner
Versus
State of U.P. & Others Respondents

Counsel for the Petitioner:
Sri Kamlesh Shukla

Counsel for the Respondents:
Sri Rajeev Gupta
Sri Manoj Kumar
Sri K.R. Sirohi
S.C.
U.P. Subordinate Civil Court Inferior
Establishment
Rules
1955-Section
4
(a)Discretionary Power of District Judge
has to be exercised with conformity of
Article 14 and 16 of the constitutionappointment
made
without
advertisement-amount to denied of fair
and equal chance to all other eligible
candidates-held-illegal
can
not
sustained.

Held: Para 25
502 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
In the present case, the appointments of
private respondent nos. 3, 4 and 5 had
been
made
without
issuing
any
advertisement. They, therefore, have no
right to continue on the said post. It has
been pointed out by the Supreme Court
in the above mentioned cases that where
all the eligible candidates are not given a
fair chance of competing in the matter
relating to appointment, Article 16 of the
Constitution is violated and that rule of
equality in public employment is a basic
feature
of
the
Constitution.
The
appointments of respondent nos. 3, 4
and 5 are, therefore, liable to be set
aside as the District Judge has not
followed the procedure.
Case law discussed:
1991 (4) SCC-54
1983 (4) SCC-339
2004 (2) SCC-590
J.T. 2006 (2) SC-137
J.T. 2006 (4) 420
1994 (3) UPLBEC-1551

(Delivered by Hon'ble Dilip Gupta, J.)

1. This petition has been filed for
quashing the order dated 26th May, 2006
passed by the learned District Judge,
Aligarh whereby the waiting list of the
candidates declared on 21st July, 2005 for
Class IV employees in the Aligarh
District Judgeship was cancelled. The
petitioner has also sought the quashing of
the appointment orders of respondent nos.
3, 4 and 5 as Chowkidars in Aligarh
District
Judgeship.
The
relief
for
appointing the petitioner as a Class IV
employee on the vacant post has also been
sought.

2. An advertisement was issued in
the Newspaper ''Amar Ujala' on 18th
June, 2005 inviting applications for the
two posts of Class IV employees in the
District Court, Aligarh. It was mentioned
that the number of posts can be increased
or reduced. The petitioner applied for
being considered for appointment against
the said post and on the basis of the
written examination and the interview, a
list of seven candidates was declared on
21st July, 2005 in which the petitioner
was placed as Serial No.4. It was
mentioned in the said list that the
candidates at Serial Nos. 1 to 3 had been
selected for appointment while the rest
were kept in the waiting list which would
be in existence for a period of two years.

3. The petitioner claims that he was
subsequently appointed as a peon in the
Court of Civil Judge (LD), Atrauli as one
Avnesh Kumar Sharma took leave from
25th July, 2005 up to 25th October, 2005.
This appointment of the petitioner which
lasted till 25th October, 2005 was made as
he was at Serial No.1 in the waiting list
declared
on
21st
July,
2005. The
petitioner
thereafter
submitted
an
application before the District Judge,
Aligarh on 24th April, 2006 mentioning
therein that as two posts had fallen vacant
in Class IV category on account of the
promotion of Sri Anil Rai and Sri Srikant
he may be appointed. This application
was rejected by the District Judge in view
of the report submitted by the In-charge,
Nazarat. Subsequently, the District Judge
by his order dated 26th May, 2006 also
cancelled the waiting list of four persons
declared on 21st July, 2005 in view of the
Inspection Note made by the learned
Administrative Judge on 12th May, 2006
and the circular dated 20th February,
1999
issued
by
this
Court.
Soon
thereafter, the District Judge, Aligarh
appointed respondent nos. 3, 4 and 5 as
Chowkidars.

4. The contention of the petitioner is
that he was at Serial No.1 in the waiting
2 All] Sushil Kumar Sharma V. State of U.P. and others
503
list prepared on 21st July, 2005 which list
was valid for a period of two years but
without any rhyme or reason the said list
was cancelled by the District Judge by the
order
dated
26th
May,
2006
and
immediately thereafter respondent nos. 3,
4 and 5 were appointed as Class IV
employees in an arbitrary manner without
even advertising the said posts.

5. It needs to be mentioned that the
appointment to Class IV post in District
Judgeship is provided under Rule 4 of the
U.P. Subordinate Civil Courts Inferior
Establishment Rules, 1955 (hereinafter
referred to as the 'Rules') and the same is
as follows:-

"4.
Method
of
recruitment:
Recruitment to the following posts in the
establishment shall be made.

(1) Daftaries and bundle lifters- By
promotion strictly on merits from amongst
process servers, orderlies, office peons
and farrashes who have put in at least five
years service as such:

Provided that no person shall be
promoted to these posts unless he is able
to read and write Hindi in Devnagri
Script with correctness and fluency and
can discharge the duties of the office
satisfactorily and in the case of the post of
daftari unless he also knows book
binding.

(2) Process servers, orderly, peons, Office
peons and farrashes-(a) by appointment
of candidates on the waiting list prepared
under Rule 12 or
(b) by transfer from one post to another
according to suitability.

(3) Chaukidars, Malis, Waterman and
sweepers- By direct recruitment on the
discretion of District Judge."

6. A counter affidavit has been filed
on behalf of the District Judge, Aligarh
respondent no.2 pointing out that the
appointments of the private respondent
nos. 3, 4 and 5 had been made under Rule
4(3) of the Rules. It has also been stated
that the select list/waiting list declared on
21st July, 2005 would not be applicable to
the Chowkidars and, therefore, even if the
said list had not been cancelled by the
order
dated
26th
May,
2006,
the
appointments
of
three
persons
as
Chowkidars could not have been made on
the basis of the said list.

7. A counter affidavit has also been
filed on behalf of the private respondent
nos. 3, 4 and 5. It has been stated that the
post of Class IV employees referred to in
the advertisement dated 18th June, 2005
was in respect of the categories mentioned
in Rule 4(2) relating to Process Servers
etc. and not to Chowkidars and, therefore,
the petitioner had no claim to be
appointed as Chowkidar merely because
his name was at Serial No.1 in the waiting
list declared on 21st July, 2005. It has
further been stated that respondent nos. 3,
4 and 5 had been appointed under Rule
4(3) of the Rules on the discretion of the
District Judge.

8. I have heard Sri Kamlesh Shukla,
learned counsel for the petitioner, learned
Standing Counsel for respondent no.1, Sri
Rajeev
Gupta,
learned
counsel
for
respondent no.2 and Sri Manoj Kumar,
learned counsel for respondent nos. 3, 4
and 5.
504 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
9. The advertisement published on
18th June, 2005 invited applications for
filling up two posts of Class IV
employees in District Court, Aligarh. It
also mentioned that the number of posts
could increase or decrease. A perusal of
the list declared on 21st July, 2005
(Annexure-4 to the writ petition) indicates
that it contains the names of seven
candidates and while the candidates at
Serial Nos. 1, 2 and 3 were appointed, the
name of the petitioner is at Serial No.4. It
has also been mentioned in the list that the
remaining candidates shall be placed in
the waiting list which shall be effective
for a period of two years.

10. Learned counsel for the
petitioner submitted that in the absence of
any material on record to indicate that the
advertisement that had been issued on
18th June, 2005 related to the post of
Process Server mentioned in Rule 4(2),
the waiting list should not be confined to
the posts mentioned in Rule 4(2) of the
Rules and, therefore, if the waiting list
had not been cancelled by the order dated
26th May, 2006, the appointments of
Chowkidars that had been made in July,
2006 should have been made from the
persons whose names figured in the
waiting list and respondent nos. 3, 4 and 5
could not have been appointed. He further
contended that even if it be assumed that
the earlier advertisement did not relate to
the post of Chowkidars then too the
appointment of respondent nos. 3, 4 and 5
as Chowkidars was liable to be cancelled
as it had been made without issuing any
advertisement for filling up the said posts.

11. Though there is nothing on the
record to indicate that the advertisement
that had been issued on 18th June, 2005
was confined to the posts mentioned in
Rule 4(2) of the Rules and nor has any
document been brought on record to
indicate that the three candidates from the
list had been appointed on any post
mentioned in Rule 4(2) of the Rules but a
perusal of Rule 4(2) and Rule 12 of the
Rules clearly shows that the waiting list
of the candidates is to be prepared for
each Judgeship for the posts of Process
Servers, Orderlies, Office Peons and
Farrsashes and no waiting list shall be
maintained
for
Chowkidars,
Malies,
Sweepers and Watermen. Such being the
position, the contention of the learned
counsel for the respondents that the
waiting list declared on 21st July, 2005
related to the posts mentioned in Rule
4(2) and the appointments of Chowkidars
could not have been made from the said
waiting list deserves to be accepted. It is,
therefore, not necessary to examine the
contention advanced by the learned
counsel for the petitioner that the waiting
list dated 21st July, 2005 had been
cancelled in an arbitrary manner by the
District Judge by his order dated 26th
May, 2006 as learned counsel for the the
petitioner did not place any material to
show that any vacancy to the posts
enumerated in Rule 4(2) came into
existence during this period.

12. The question that now remains
to
be
determined
is
whether
the
appointment of private respondent nos. 3,
4 and 5 to the post of Chowkidars is valid.
Learned
counsel
for
the
petitioner
submitted that the said orders are liable to
be set aside as these persons had been
appointed in an arbitrary manner in clear
violation of the provisions of Article 14
and 16 of the Constitution of India since
no advertisement had been issued for
filling up these posts.
2 All] Sushil Kumar Sharma V. State of U.P. and others
505
13. Sri Rajeev Gupta, learned
counsel appearing for the District Judge,
Aligarh and Sri Manoj Kumar, learned
counsel appearing for respondent nos. 3, 4
and 5 vehemently urged that it was not
necessary to issue any advertisement as
under Rule 4(3) of the Rules, the
appointments were required to be made
on the discretion of the District Judge.

Learned counsel have placed much
emphasis on the discretionary power of
the District Judge to make appointments
under Rule 4(3) of the Rules. It is,
therefore, necessary to examine the scope
of this power. The Supreme Court has
repeatedly observed that even in a
situation where an authority is vested with
a discretionary power, such power can be
exercised by adopting that mode which
best serves the interest and even if the
Statute is silent as to how the discretion
should be exercised, then too the authority
cannot act whimsically or arbitrarily and
its
action
should
be
guided
by
reasonableness and fairness because the
legislature can never intend that its
authorities could abuse the laws or use it
unfairly. Any action which results in
unfairness and arbitrariness results in
violation of Article 14 of the Constitution.
It has also been emphasised that an
authority cannot assume to itself an
absolute power to adopt any procedure
and the discretion must always be
exercised according to law.

14. In Websters' Third New
International
Dictionary
''discretion'
means "power of free decision or choice
within certain legal bounds: ability to
make
decisions
which
represent
a
responsible choice and for which an
understanding of what is lawful, right, or
wise may be presupposed."
15. In Black's Law Dictionary, Sixth
Edition, ''discretion' means: "As applied to
public officers connotes action taken in
light of reason as applied to all facts and
with view to rights of all parties to action
while having regard for what is right and
equitable under all circumstances and
law."

16. In this connection reference may
also be made to the decision of the
Supreme Court in Bangalore Medical
Trust Vs. B. S. Muddappa & Ors., (1991)
4 SCC 54 wherein the scope of
discretionary power has been dealt with:-

"............. Discretion is an effective
tool in administration. But wrong notions
about
it
results
in
ill-conceived
consequences. In law it provides an
option to the authority concerned to adopt
one or the other alternative. But a better,
proper and legal exercise of discretion is
one where the authority examines the
fact, is aware of law and then decides
objectively and rationally what serves the
interest better. When a statute either
provides guidance or rules or regulations
are framed for exercise of discretion then
the action should be in accordance with
it. Even where statutes are silent and
only power is conferred to act in one or
the other manner, the Authority cannot
act whimsically or arbitrarily. It should
be
guided
by
reasonableness
and
fairness. The legislature never intends its
authorities to abuse the law or use it
unfairly. .............." (emphasis supplied).

In Suman Gupta & Ors. Vs. State of
J. & K. & Ors., (1983) 4 SCC 339 the
Supreme Court observed :-

"..............
After
considering
the
matter carefully, we confess, we are
506 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
unable to subscribe to the view to that the
selection of candidates for that purpose
must remain in the unlimited discretion
and the uncontrolled choice of the State
Government. We think it beyond dispute
that the exercise of all administrative
power vested in public authority must be
structured within a system of controls
informed by both relevance and reason -
relevance in relation to the object which it
seeks to serve, and reason in regard to the
manner in which it attempts to do so.
Wherever the exercise of such power
affects individual rights, there can be no
greater assurance protecting its valid
exercise than its governance by these twin
tests. A stream of case law radiating
from the now well known decision in this
Court in Maneka Gandhi v. Union of
India has laid down in clear terms that
Article 14 of the Constitution is violated
by powers and procedures which in
themselves result in unfairness and
arbitrariness. It must be remembered
that our entire constitutional system is
founded in the rule of law, and in any
system so designed it is impossible to
conceive of legitimate power which is
arbitrary in character and travels beyond
the bounds of reason. To contend that the
choice of a candidate selected on the
basis of his ability to project the culture
and ethos of his home State must
necessarily be left to the unfettered
discretion of executive authority is to deny
a
fundamental
principle
of
our
constitutional life. We do not doubt that in
the realm of administrative power the
element of discretion may properly find
place, where the statute or the nature of
the power intends so. But there is a well
recognised
distinction
between
an
administrative power to be exercised
within defined limits in the reasonable
discretion of designated authority and the
vesting of an absolute and uncontrolled
power in such authority. One is power
controlled by law countenanced by the
Constitution, the other falls outside the
Constitution
altogether."
(emphasis
supplied)

In Union of India Vs. Kuldeep
Singh, (2004) 2 SCC 590 the Supreme
Court observed :-

"When anything is left to any person,
judge or Magistrate to be done according
to his discretion, the law intends it must
be done with sound discretion, and
according to law. (See Tomlin's Law
Dictionary.) In its ordinary meaning, the
word "discretion" signifies unrestrained
exercise of choice or will; freedom to act
according
to
one's
own
judgment;
unrestrained exercise of will; the liberty
or power of acting without control other
than one's own judgment. But, when
applied to public functionaries, it means
a power or right conferred upon them by
law, of acting officially in certain
circumstances according to the dictates
of their own judgment and conscience,
uncontrolled
by
the
judgment
or
conscience of others. Discretion is to
discern between right and wrong; and
therefore, whoever hath power to act at
discretion, is bound by the rule of reason
and law. (See Tomin's Law Dictionary.)

Discretion,
in
general,
is
the
discernment of what is right and proper.
It denotes knowledge and prudence, the
discernment which enables a person to
judge critically of what is correct and
proper
united
with
caution;
nice
soundness of judgment; a science or
understanding to discern between falsity
and truth, between wrong and right,
between shadow and substance, between
2 All] Sushil Kumar Sharma V. State of U.P. and others
507
equity and colourable glosses and
pretences, and not to do according to the
will and private affections of persons.
When it is said that something is to be
done
within
the
discretion
of
the
authorities, that something is to be done
according to the rules of reason and
justice, not according to private opinion;
according to law and not humour. It is to
be not arbitrary, vague, and fanciful, but
legal and regular. And it must be
exercised within the limit, to which an
honest man, competent to the discharge
of his office ought to confine himself
(per Lord Halsbury, L.C., in Sharp v.
Wakefield). (Also see S.G. Jaisinghani v.
Union of India.)

The
word
"discretion"
standing
single and unsupported by circumstances
signifies exercise of judgment, skill or
wisdom as distinguished from folly,
unthinking or haste; evidently therefore
a discretion cannot be arbitrary but must
be a result of judicial thinking. The word
in itself implies vigilant circumspection
and
care;
therefore,
where
the
legislature concedes discretion it also
imposes
a
heavy
responsibility."
(emphasis supplied)

17. There is, therefore, no doubt that
while exercising his ''discretion' under
Rule 4(3) of the Rules in making
appointments, the District Judge has to
ensure that the procedure adopted by him
is in conformity with the provisions of
Articles 14 and 16 of the Constitution and
that he cannot act in an unfair or arbitrary
manner.

18. Having examined this aspect it
has now to be seen whether the District
Judge could make appointments under
Rule 4(3) of the Rules without causing
any advertisement for the posts.

19. The Supreme Court has
emphasized that appointment to any post
can
be
made
only
after
proper
advertisement has been made inviting
applications from eligible candidates and
any appointment without holding the
proper
selection
where
all
eligible
candidates get a fair chance to compete
would be violative of Article 16 of the
Constitution of India and, therefore,
illegal. It has also been observed that
there has to be equality of opportunities in
matters of public employment and this
principle
would
also
govern
the
instrumentalities that come within the
purview of Article 12 of the Constitution
of India.

20. In this connection reference may
be made to the decision of the Supreme
Court
in
Union
Public
Service
Commission Vs. Girish Jayanti Lal
Baghela & Ors., JT 2006 (2) SC 137
wherein it was observed:-

"......The appointment to any post
under the State can only be made after a
proper advertisement has been made
inviting
applications
from
eligible
candidates and holding of selection by a
body of experts or a specially constituted
committee whose members are fair and
impartial, through a written examination
or interview or some other rational
criteria for judging the inter se merit of
candidates who have applied in response
to the advertisement made."

21. Reference may also be made to
the Constitution Bench decision of the
Supreme Court in Secretary, State of
Karnataka & Ors. Vs. Umadevi & Ors.,
508 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
JT 2006 (4) SC 420, in which it was
observed:-

".............Article
309
of
the
Constitution gives the Government the
power to frame rules for the purpose of
laying down the conditions of service and
recruitment of persons to be appointed to
public services and posts in connection
with the affairs of the Union or any of the
States. That Article contemplates the
drawing up of a procedure and rules to
regulate the recruitment and regulate the
service
conditions
of
appointees
appointed to public posts. It is well
acknowledged that because of this, the
entire process of recruitment for services
is controlled by detailed procedure which
specify the necessary qualifications, the
mode of appointment etc. If rules have
been made under Article 309 of the
Constitution, then the Government can
make appointments only in accordance
with the rules.............

In addition to the equality clause
represented
by
Article
14
of
the
Constitution, Article 16 has specifically
provided for equality of opportunity in
matters of public employment............ In
view of the interpretation placed on
Article 12 of the Constitution by this
Court, obviously, these principles also
govern the instrumentalities that come
within the purview of Article 12 of the
Constitution..........
...........
Thus, it is clear that adherence to the
rule of equality in public employment is a
basic feature of our Constitution and
since the rule of law is the core of our
Constitution, court would certainly be
disabled from passing an order upholding
a violation of Article 14 or in ordering the
overlooking of the need to comply with
the requirements of Article 14 read with
Article 16 of the Constitution. Therefore,
consistent with the scheme for public
employment, this Court while laying down
the law, has necessarily to hold that
unless the appointment is in terms of the
relevant rules and after a proper
competition among qualified persons, the
same would not confer any right on the
appointee..............."

22. A Full Bench of this Court in
Radha Raizada & Ors. Vs. Committee of
Management, Vidyawati Darbari Girls
Inter College & Ors., (1994) 3 UPLBEC
1551
also
examined
whether
even
temporary appointment could be made
without causing any advertisement and it
was observed :-

"The advertisement of short term
vacancy on the notice board of the
institution according to me, in fact no
notice
to
the
prospective
eligible
candidates as no prospective candidate is
expected to visit each institution to see the
notice board for finding out whether any
short term vacancy has been advertised.
Since the payment of salary to the
teachers appointed against the short term
vacancy is the liability of the State
Government, the advertisement of short
term vacancy must conform to the
requirement of Article 16(1) of the
Constitution which prohibit the State from
doing anything whether by making rule or
by executive order which would deny
equal opportunity to all the citizens. The
provision contained in sub-paragraph (3)
of Paragraph 2 of the Second Removal of
Difficulties Order which provides that the
short term vacancy shall be notified on
the notice board of the institution, does
not give equal opportunity to all the
eligible candidates of the District, Region
2 All] Sushil Kumar Sharma V. State of U.P. and others
509
or the State to apply for consideration for
the appointment against the said short
term vacancy. Such kind of notice is an
eye wash for the requirement of Article 16
of the Constitution. This aspect can be
examined from another angle. If the
notice of short term vacancy, through the
notice board of the institution is accepted,
it will throw open the doors for
manipulation
and
nepotism.
A
management of an institution may or may
not notify the short term vacancy on the
notice board of the institution and yet may
show to the authority that such vacancy
has been notified on the notice board of
the institution against the short term
vacancy. I am, therefore, of the view that
the procedure for notifying the short term
vacancy should be the same as it is for the
ad hoc appointment by direct recruitment
under the First Removal of Difficulties
Order. The management after intimating
such vacancy to the District Inspector of
Schools
advertise
such
short
term
vacancy at least in two News Papers
having adequate circulation in Uttar
Pradesh in addition to notifying the said
vacancy on the notice board of the
institution and further the application
may also be invited from the local
employment exchange. .........."

23. The aforesaid decision of the
Full Bench was approved by the Supreme
Court in Prabhat Kumar Sharma Vs.
State of U.P. & Ors., (1996) 10 SCC 62.

In Writ Petition No. 37482 of 2006
(S.K. Sharma Vs. State of U.P. & Ors.)
decided on 25th May, 2007 I had dealt
with a similar controversy and had
observed :-

"Learned counsel for the petitioners,
however, urged that there was no
requirement in law for issuing any
advertisement as the appointment to the
post of Chaukidar had to be made on the
discretion of the District Judge. This
contention cannot be accepted as even if
it is to be made on the discretion of the
District Judge then too the District Judge
cannot make appointments in an arbitrary
manner dehorse the provisions of Articles
14 and 16 of the Constitution."

24. A similar controversy was also
examined by this Court in Writ Petition
No. 24665 of 2003 (Sachin Kumar &
Ors. Vs. State of U.P. & Ors.) decided on
22nd August, 2005 and it was observed :-

"The discretion given by the District
Judge under Rule 4(3) of the Rules of 195,
for appointment of Chowkidar, Malies,
Waterman, and Sweepers, is not to be
exercised on his whims. The appointing
authority exercising statutory powers of
appointment in public service under
statutory rules can not use his discretion
for oblique purposes. The submission that
there are no guidelines provided in the
rules for exercising the discretion is not
correct. The appointment on a civil post,
even if made at the sole discretion of the
appointing authority, has to be made by
giving wide publicity inviting all the
eligible
persons,
and
thereafter
by
following a selection procedure which
should
be
fair,
transparent,
and
reasonable and should conform to the
tests
of
equality
non-arbitrariness
guaranteed to all the citizens, under
Article 14 and 16 of the Constitution of
India. The Rules of reservation under
Rule 6 of the Rules of 1955 are required
to be followed by the District Judge. He
must ensure that the persons appointed
are not below the minimum and above the
maximum age and are in a good mental
510 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
and bodily health, free from any physical
defect and bear good character duly
verified for public employment.
There is no substance in the
submission of learned counsel for the
petitioner that the discretion of District
Judge cannot be questioned unless there
is any allegation of malafide which has
been put to test after an enquiry. Where
the District Judge does not advertise the
vacancy and follow any procedure,
muchless a fair and reasonable procedure
for selection, having due regard to the
eligibility
and
follow
the rules
of
reservation, the appointments cannot be
sustained.
...................
The discretion given to the District
Judges to make appointments on the post
of Chowkidar, Malies, waterman and
sweeper is by way of a trust and must
therefore, be exercised in accordance
with
settled
principle
of
fairness
transparency and reasonableness. The
District Judge must adhere to the settled
norms of selections by the vacancies even
if they fall on the posts mentioned in Rule
4 (3), advertising hold selections in
making such appointments, and follow the
rules of reservation. .............."

25. In the present case, the
appointments of private respondent nos.
3, 4 and 5 had been made without issuing
any advertisement. They, therefore, have
no right to continue on the said post. It
has been pointed out by the Supreme
Court in the above mentioned cases that
where all the eligible candidates are not
given a fair chance of competing in the
matter relating to appointment, Article 16
of the Constitution is violated and that
rule of equality in public employment is a
basic feature of the Constitution. The
appointments of respondent nos. 3, 4 and
5 are, therefore, liable to be set aside as
the District Judge has not followed the
procedure. In Binod Kumar Gupta &
Ors. Vs. Ram Ashray Mahoto & Ors.,
(2005) 4 SCC 209 the Supreme Court
observed:-

"The
District
Judge,
who
was
ultimately responsible for the appointment
of Class IV staff violated all norms in
making the appointments. It is regrettable
that the instructions of High Court were
disregarded
with
impunity
and
a
procedure evolved for appointment which
cannot be said to be in any way fair or
above board. The submission of the
appellants that they had been validly
appointed
is
in
the
circumstances
unacceptable. Nor can we accede to their
prayer to continue in service. No doubt, at
the time of issuance of the notice on the
special leave petition, this Court had
restrained the termination of services of
the appellants. However, having regard to
the facts of the case as have emerged, we
are of the opinion that this Court cannot
be called upon to sustain such an obvious
disregard of the law and principles of
conduct according to which every judge
and anyone connected with the judicial
system are required to function. It we
allow the appellants to continue in service
merely because they have been working in
the posts for the last 15 years we would
be
guilty
of
condoning
a
gross
irregularity in their initial appointment.
The High Court has been more than
generous in allowing the appellants to
participate
in
any
fresh
selection
procedure as may be held and in granting
a relaxation of the age limit."

26. The Supreme Court very
recently in State of Manipur & Ors. Vs.
Y. Token Singh & Ors., 2007 AIR SCW
2 All] Ram Deo Lal Srivastava V. The Commissioner/Secretrary and others
511
1995 while upholding the orders of
cancellation of appointment of field staffs
of the Revenue Department on certain
grounds
including
the
ground
that
appointments had been made without any
advertisement or without notifying the
vacancies to the employment exchange
observed:-

"The
State
while
offering
appointments, having regard to the
constitutional scheme adumbrated in
Articles 14 and 16 of the Constitution of
India, must comply with its constitutional
duty,
subject
to
just
and
proper
exceptions, to give an opportunity of
being considered for appointment to all
persons eligible therefore.
The posts of field staffs of the
Revenue Department of the State of
Manipur were, thus, required to be filled
up
having
regard
to
the
said
constitutional scheme. We would proceed
on the assumption that the State had not
framed any recruitment rules in terms of
the proviso appended to Article 309 of the
Constitution of India but the same by
itself would not clothe the Commissioner
of Revenue to make recruitment in
violation of the provisions contained in
Articles 14 and 16 of the Constitution of
India."

27. Thus, for all the reasons stated
above, the appointments of respondent
nos. 3, 4 and 5 on the post of Chowkidar
in District Judgeship, Aligarh cannot be
sustained and are hereby set aside.

28. The writ petition, therefore,
succeeds and is allowed to the extent
indicated above.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.04.2007

BEFORE
THE HON'BLE VINEET SARAN, J.

Civil Misc. Writ Petition No. 8825 of 2000

Ram Deo Lal Srivastava
...Petitioner
Versus
The Commissioner/Secretary, Food &
Civil
Supplies
Department
of
U.P.
Lucknow and others
 ...Respondents

Counsel for the Petitioner:
Sri W.H. Khan
Sri Gulrez Khan

Counsel for the Respondents:
S.C.

Constitution of India, Art. 226-Pensiondelay in payment-only reason disclosed
was certain amount due against the
applicant-but No notice given during
service period-No document produced
inspite
of
direction
of
court-helddirection issued to given entire dues with
9% interest with cost of Rs.20,000/-.

Held: Para 6

Thus the withholding of the dues of the
petitioner for such frivolous reasons is
highly unreasonable and deprecated by
this Court. A retired employee who has
given prime years of his life in the
service of the department is entitled
under law for payment of his retiral dues
immediately on his retirement so that he
may be able to live with dignity even
after his retirement.

(Delivered by Hon'ble Vineet Saran, J.)

1. On 9.5.1959, the petitioner joined
the service as a Clerk in the Food and
Civil
Supplies
Department
of
the
Government of U.P. He was granted