# / v. Sri Anurag Kumar and others

- **Citation:** (2006) 2 ILRA 676
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-05-31
- **Case number:** Special Appeal No.702 of 2005
- **Bench:** Dr. B.S. Chauhan, Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/v-sri-anurag-kumar-and-others-40568
- **Pages:** 17

## Headnote

Constitution
of India,
Art. 14, 16Selection list-against 10 post Class III
employee-more
than
20
candidates
prepared-held-absolutely illegal-contrary
to rule-in contravention of Art. 14 and 16
of the Constitution.

Held: Para 12

The petitioners are admittedly much
below the 20 candidates in the merit list
dated 05.04.2000 and as such they could
not have been included in the list
prepared by the District Judge. Their
very inclusion is invalid. The same is the
position with regard to such other
candidates who stand on a similar
footing. The District Judge proceeded to
place 52 persons in the select list in
excess of 20 names, including that of the
petitioners, and subsequently appointed
them
which
appointments
are
also
invalid, as they are from the same invalid
list.
We,
therefore,
hold
that
the
preparation of the select list in excess of
20 names was absolutely illegal and
contrary to the Rules applicable. The
question of preparing the select list of
more than 20 or filling up the vacancies
against more than 10 posts is in
contravention of Articles 14 and 16 of
the Constitution of India.

(B)
Practice
of
Procedure-Service
Jurisdiction-Power
of the appointing
authority-once the entire vacancies as
per advertisement full filled-selection
process stood exhausted-the authority
became function officio any appointment
beyond that-held- without jurisdiction-a
nullity unenforceable in law-even after
the vacancy caused due to resignation,
death of a sucesseful candidate after his
joining.

Held: Para 22 and 23

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

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

(C) Constitution of India, Art. 226-Writ
court-while
granting
interim
order-
2 All] The District Judge, Baghpat and another V. Sri Anurag Kumar and others
677
provisions of C.P.C. under order 39 rule I
be kept in mind-not as a matter of right
or in the form of final relief.

Held: Para 37

In Union of India Vs. Era Educational
Trust, (2000) 5 SCC 57, the Hon'ble
Supreme Court after considering its large
number of judgments held that while
passing interim order in exercise of writ
jurisdiction under Article 226 of the
Constitution, principles laid down for
granting
interim
relief
under
Order
XXXIX of Code of Civil Procedure, 1908
should be kept in mind. It can neither be
issued as a matter of right nor it should
be in the form which can be granted only
as final relief.
Case law discussed:
AIR 1996 SC-976, 1994 (Suppl.-II) SCC599,
1996 (4) SCC-319, 1992 (Suppl.) (3) SCC-984,
AIR 1994 SC-736, AIR 1998 SC-18, AIR 1998
SC-1021, 2001 (10) SCC-237, AIR 2001 SC2900, 2005 (4) SCC-, AIR 1995 SC-277, 1996
(7) SCC-118, AIR 1997 SC-3456, AIR 1997 SC3464, 1993 (2) SCC-213, 1995 (Supp.)(4)-
SCC-706, 2005 (4) SCC-209, AIR 1994 SC1654, AIR 1985 SC-330, AIR 1985 SC-1289,
AIR 1986 SC-1490, 1992 (4) SCC-167, 1992
(Supp.)(1) SCC-680, AIR 1993 SC-2412, AIR
1995 SC-1499, 1995 (Supp)(2) SCC-593, 1995
(Supp)(2) SCC-726, AIR 1995 SC-1368, 1998
(8) SCC-347, AIR 1997 SC-993,

## Text

_Characters 0–39,982 of 56,521. This is a partial read: ask again with offset=39982 for what follows._

676 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.05.2005

BEFORE
THE HON'BLE DR. B.S. CHAUHAN, J.
THE HON'BLE ARUN TANDON, J.

Special Appeal No.702 of 2005

The District Judge, Baghpat and another

...Respondents/Appellants
Versus
Sri Anurag Kumar and others

 ...Petitioners/ Respondents

Counsel for the Petitioner:
Sri Sudhir Agarwal
Sri Amit Sthalekar

Counsel for the Respondents:
Sri Vikrant Rana
Sri Anup Trivedi

Constitution
of India,
Art. 14, 16Selection list-against 10 post Class III
employee-more
than
20
candidates
prepared-held-absolutely illegal-contrary
to rule-in contravention of Art. 14 and 16
of the Constitution.

Held: Para 12

The petitioners are admittedly much
below the 20 candidates in the merit list
dated 05.04.2000 and as such they could
not have been included in the list
prepared by the District Judge. Their
very inclusion is invalid. The same is the
position with regard to such other
candidates who stand on a similar
footing. The District Judge proceeded to
place 52 persons in the select list in
excess of 20 names, including that of the
petitioners, and subsequently appointed
them
which
appointments
are
also
invalid, as they are from the same invalid
list.
We,
therefore,
hold
that
the
preparation of the select list in excess of
20 names was absolutely illegal and
contrary to the Rules applicable. The
question of preparing the select list of
more than 20 or filling up the vacancies
against more than 10 posts is in
contravention of Articles 14 and 16 of
the Constitution of India.

(B)
Practice
of
Procedure-Service
Jurisdiction-Power
of the appointing
authority-once the entire vacancies as
per advertisement full filled-selection
process stood exhausted-the authority
became function officio any appointment
beyond that-held- without jurisdiction-a
nullity unenforceable in law-even after
the vacancy caused due to resignation,
death of a sucesseful candidate after his
joining.

Held: Para 22 and 23

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

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

(C) Constitution of India, Art. 226-Writ
court-while
granting
interim
order-
2 All] The District Judge, Baghpat and another V. Sri Anurag Kumar and others
677
provisions of C.P.C. under order 39 rule I
be kept in mind-not as a matter of right
or in the form of final relief.

Held: Para 37

In Union of India Vs. Era Educational
Trust, (2000) 5 SCC 57, the Hon'ble
Supreme Court after considering its large
number of judgments held that while
passing interim order in exercise of writ
jurisdiction under Article 226 of the
Constitution, principles laid down for
granting
interim
relief
under
Order
XXXIX of Code of Civil Procedure, 1908
should be kept in mind. It can neither be
issued as a matter of right nor it should
be in the form which can be granted only
as final relief.
Case law discussed:
AIR 1996 SC-976, 1994 (Suppl.-II) SCC599,
1996 (4) SCC-319, 1992 (Suppl.) (3) SCC-984,
AIR 1994 SC-736, AIR 1998 SC-18, AIR 1998
SC-1021, 2001 (10) SCC-237, AIR 2001 SC2900, 2005 (4) SCC-, AIR 1995 SC-277, 1996
(7) SCC-118, AIR 1997 SC-3456, AIR 1997 SC3464, 1993 (2) SCC-213, 1995 (Supp.)(4)-
SCC-706, 2005 (4) SCC-209, AIR 1994 SC1654, AIR 1985 SC-330, AIR 1985 SC-1289,
AIR 1986 SC-1490, 1992 (4) SCC-167, 1992
(Supp.)(1) SCC-680, AIR 1993 SC-2412, AIR
1995 SC-1499, 1995 (Supp)(2) SCC-593, 1995
(Supp)(2) SCC-726, AIR 1995 SC-1368, 1998
(8) SCC-347, AIR 1997 SC-993, 2000 (7) SCC521, 2004 AIR SCW-6955

(Delivered by Hon'ble Dr. B.S. Chauhan, J.)

1. The District Judgeship of
Baghpat, which came into existence on
account of the newly created District of
Baghpat, has engaged the attention of the
High Court continuously on account of
un-ending controversies surrounding the
appointments made in the Ministerial
Cadre and has given rise to litigation
which, in turn, has been the subject matter
of adjudication on the judicial side of this
Court. The present litigation is the second
in the series of the recent controversial
appointments made which have been
scrutinized on the judicial side and we
have been again called upon to pronounce
a verdict which, as the facts would
disclose hereinafter, contain a disclosure
of unsavoury acts which are not only
unsustainable in the eyes of law but have
also provided an opportunity to this Court
to again seriously think over to provide
for remedial measures in order to prevent
any future mishaps which might tarnish
the image of our system.

2. This newly created Judgeship has
become a site of alternate unlawful
invasions, by unscrupulous officers as if it
was their favourite hunting resort, which
historically Baghpat was during the
Moghul period, and which requires an
immediate favourable treatment from this
Court in order to bring to an end this
scene of perpetual infamous attempts
made to defame the system.

3. The genesis of this litigation is to
be found with the creation of new posts in
the year 1998-1999 in the Ministerial
Cadre in the District Judgeship of
Baghpat. We are presently concerned with
such Class-III posts which carry with
them a pay-scale of Rs. 3050-4590/-.
Even though the present controversy is in
respect of four persons, yet this decision
pronounces upon the legal position that
shall be applicable in respect of all such
appointments,
as
that
of
the
four
petitioners of the writ petition giving rise
to the present Special Appeal.

4. We have heard Shri Sudhir
Agarwal, learned Additional Advocate
General assisted by Shri Amit Sthalekar
on behalf of the appellants and Shri
Vikrant Rana, holding brief of Shri Anup
Trivedi, on behalf of the respondents.
678 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
With the consent of the parties, we have
also summoned the records of the writ
petition and we are proceeding to decide
the fate of the writ petition along with this
Special Appeal as well, to which learned
counsel for the parties have no objection.

5. Reverting back to the facts of this
case, the appointments in respect of the
posts in question are governed by The
Subordinate
Civil
Courts
Ministerial
Establishment Rules, 1947 (hereinafter
called the ''1947 Rules) read with the
Uttar Pradesh Rules for the Recruitment
of Ministerial Staff of the Subordinate
Offices
in
Uttar
Pradesh,
1950
(hereinafter called the ''1950 Rules). The
1950 Rules have been considered by the
Apex Court in the case of O.P. Shukla Vs.
A.K. Shukla, AIR1986 SC 1043 and it has
been
held
that
these
Rules
are
complementary to the 1947 Rules and are
applicable for the selection of Ministerial
posts in Subordinate Judiciary. It is also
admitted to the parties that the posts,
against which the writ petitioners are
claiming continuance, were advertised on
23rd December, 1999. A copy of the
advertisement has been appended along
with the writ petition as Annexure-1,
which indicates the availability of 10
posts of Clerks and four posts of
Stenographers with the rider that the posts
are likely to increase or decrease. We are
presently concerned with the posts of
Clerks in the pay scale of Rs. 3050-4590/-
. The records further disclose the
undisputed position that the date of
examination was 5th March, 2000 and the
list of selected candidates which is the
subject matter of present controversy was
declared on 05.04.2000. This list which is
the source of all trouble enlists 72 persons
against 10 posts of Clerks which were
advertised. 32 persons out of these 72
were given immediate appointments on
5th April, 2000. However, the four
petitioners, who are before us, were not
amongst the said 32 persons. The
petitioners no. 1 and 2, namely, Anurag
Kumar
and
Deepak
Nigam
have
themselves
disclosed
their dates
of
appointments
as
02.02.2002.
The
petitioner no.3 Shri N.K. Khare has
disclosed his date of appointment as
16.05.2001 and the petitioner no.4, Mr.
T.P. Yadav has disclosed his date of
appointment as 04.02.2002.

6. The first question that calls for
determination in this controversy is as to
whether the aforesaid four petitioners
could have been offered appointments.
This necessarily brings us to the question
as to whether the declaration of the list on
05.04.2000 was in accordance with the
Rules or not and as to whether the said
list, even if found to be competent on the
date of its declaration, could survive on
the date when the petitioners were offered
appointment or not.

7. The Rules, in our opinion, are
absolutely clear and which have made our
task easier to pointedly answer the
aforesaid questions. Shri Sudhir Agarwal,
learned
counsel
appearing
for
the
appellants invited our attention to Rules
9,10,11,14 and 15 of the 1947 Rules,
referred to hereinabove. Rule 9 empowers
the District Judges to recruit as many
candidates as are required for the
vacancies ''likely to occur in the course of
the year'. The exercise has to be
commenced early in each year or as the
circumstances may require. This entails
an exercise by the District Judges of
identifying the number of vacancies
existing or likely to occur in the course of
the year. This is in conformity with the
2 All] The District Judge, Baghpat and another V. Sri Anurag Kumar and others
679
Rule 4 of the 1945 Rules, referred to
hereinabove, which requires that such
vacancies
shall
be
calculated
and
necessary steps shall be taken to make
this fact generally known. What follows is
that the advertisement to be made has to
be preceded by an exercise by calculating
the number of vacancies in the manner
indicated hereinabove.

8. Then comes Rule 10 of the 1947
Rules
which
provides
for
an
advertisement inviting applications in a
particular form which should particularly
disclose the number of candidates to be
recruited. The advertisement, therefore,
will be presumed to have included only
such number of vacancies/posts which are
available
in
accordance
with
the
calculation made under Rule 9 and no
other future vacancy. The Rule does not
contemplate
advertisement
of
future
vacancies which can be taken into account
after the advertisement has been made.

9. The recruitment thereafter is to be
made on the basis of the result of the
examination under Rule 11 and for the
said purposes, the list of selected
candidates has to be entered in a register
in order of merit to be maintained by the
District Judges under Rule 14. Sub-rule 3
of Rule 14, in no uncertain terms,
provides that in case a candidate who has
not
been
offered
appointment
in
accordance with the said list within one
year from the date of his recruitment, his
name shall automatically be removed
from the register.

10. A perusal of the aforesaid Rules
would establish that the number of
vacancies which have to be advertised are
to be in accordance with the Rule 9 and,
therefore, the recital in the advertisement
that the vacancies are likely to increase or
decrease has to be strictly construed in
accordance with the aforesaid Rules.
What logically follows is that the District
Judge is not at liberty to prepare a list
dehors
the
number
of
vacancies
advertised. This position stands further
clarified by the Circular Letter No.
9/VIIb-104 Admin. Dated 29.04.1999
issued by the High Court which clearly
states that the select list shall not be
prepared by the District Judges for more
than
the
double
of
the
vacancies
advertised. The said Circular has been
referred to in the report of the then
learned Administrative Judge, Baghpat in
his report which has been appended as
Annexure-1 to the stay application in this
appeal. In the instant case, 72 persons
were
enlisted
for
recruitment
on
05.04.2000 as against 10 vacancies, which
stood advertised.

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

12. The petitioners are admittedly
much below the 20 candidates in the merit
list dated 05.04.2000 and as such they
680 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
could not have been included in the list
prepared by the District Judge. Their very
inclusion is invalid. The same is the
position with regard to such other
candidates who stand on a similar footing.
The District Judge proceeded to place 52
persons in the select list in excess of 20
names, including that of the petitioners,
and subsequently appointed them which
appointments are also invalid, as they are
from the same invalid list. We, therefore,
hold that the preparation of the select list
in excess of 20 names was absolutely
illegal
and
contrary
to
the
Rules
applicable. The question of preparing the
select list of more than 20 or filling up the
vacancies against more than 10 posts is in
contravention of Articles 14 and 16 of the
Constitution of India.

13. In Ashok Kumar & Ors. Vs.
Chairman, Banking Service Recruitment
Board & Ors., AIR 1996 SC 976, the
Supreme Court held as under:-

"5. Article 14 read with Article 16
(1)
of
the
Constitution
enshrines
fundamental right to every citizen to claim
consideration for appointment to a post
under the State. Therefore, vacant posts
arising or expected should be notified
inviting applications from all eligible
candidates to be considered for their
selection in accordance with their merit.
The recruitment of the candidates in
excess of the notified vacancies is a
denial
and
deprivation
of
the
constitutional right under Article 14 read
with
Article
16
(1)
of
the
Constitution............ Boards should notify
the existing and excepted vacancies and
the
Recruitment
Board
should
get
advertisement published and recruitment
should strictly be made by the respective
Boards in accordance with the procedure
to the notified vacancies but not to any
vacancies that may arise during the
process of selection". (Emphasis added)

14. In Gujarat State Deputy
Executive Engineer's Association Vs.
State of Gujarat & Ors., 1994 Suppl. (2)
SCC 591, the Hon'ble Supreme Court
quashed the appointments made over and
above the vacancies advertised holding
that
such
an
action
was
neither
permissible nor desirable for the reason
that it would amount to 'improper exercise
of power' and only in a rare and
exceptional circumstance and in emergent
situation, this rule can be deviated from
and it can be done only after adopting
policy decision based on some rational as
the authority cannot fill up more posts
than advertised as a matter of course.

In Prem Singh & Ors. Vs. Haryana
State electricity Board & Ors., (1996) 4
SCC 319, the Apex court observed as
under-

".........The selection process by way
of requisition and advertisement can be
started for clear vacancies and also for
anticipated vacancies but not for future
vacancies.
If
the
requisition
and
advertisement are for a certain number
of posts only, the State cannot make
more appointments than the number of
posts advertised........... State can deviate
from
the
advertisement
and
make
appointments on the posts falling vacant
thereafter in exceptional circumstances
only or in an emergent situation and that
too by taking a policy decision in that
behalf." (Emphasis added).

16. The said judgment in Prem
Singh was followed with approval by the
Hon'ble Supreme Court in Virendrer
2 All] The District Judge, Baghpat and another V. Sri Anurag Kumar and others
681
Singh Hooda Vs. State of Haryana, AIR
1999 SC 1701.

17. In Union of India & Ors. Vs.
Ishwar Singh Khatri & Ors, 1992 Suppl.
(3) SCC 84, the Court held that selected
candidate have right to appointment only
against 'vacancies notified' and that too
during the life of the select list as the
panel of selected candidate cannot be
valid of indefinite period. Moreover,
impanelled candidates "In any event
cannot have a right against future
vacancies." In State of Bihar & Ors. Vs.
The Secretariat, Assistant S.E. Union,
1986 & Ors, AIR 1994 SC 736, the Apex
court held that " a person who is selected
does not, on account of being empanelled
alone, acquire any indefeasible right of
appointment. Empanelment is at the best a
condition of eligibility for purposes of
appointment, and by itself does not
amount to selection or create a vested
right to be appointed unless relevant
service rules say to the contrary." In the
said case as the selection process was
completed
in
five
years
after
the
publication of the advertisement, the
contention was raised that the empanelled
candidates deserved to be appointed over
and above the vacancies notified. The
Hon'ble Supreme Court rejected the
contention observing that keeping the
selection process pending for long and not
issuing
any
fresh
advertisement
in
between, may not be justified but offering
the posts in such a manner would
adversely prejudice the cause of those
candidates who achieved eligibility in the
meantime.

18. In Surinder Singh & Ors. Vs.
State of Punjab & Ors., AIR 1998 SC 18,
the Apex Court Court held as under:-

"A waiting list, prepared in an
examination
conducted
by
the
Commission does not furnish a source of
recruitment. It is operative only for the
contingency that if any of the selected
candidates does not join then the persons
from the waiting list may be pushed UP
and be appointed in the vacancy so caused
or if there is some extreme exigency the
Government may as a matter of policy
decision pick up persons in order of merit
from the waiting list. But the view taken
by the High Court that since the
vacancies have not been worked out
properly, therefore, the candidates
from the waiting list were liable to be
appointed does not appear to be sound.
This practice, may result in depriving
those candidates who became eligible for
competing for the vacancies available in
future. If the waiting list in one
examination was to operate as infinite
stock for appointment, there is danger that
the State may resort to the device of not
holding
the
examination
for
years
together and pick up candidates from the
waiting list as and when required. The
Constitutional discipline requires that this
Court should not permit such improper
exercise of power which may result in
creating a vested interest and perpetuating
the waiting list for the candidates of one
examination at the cost of entire set of
fresh candidates either from the open or
even from service.....Exercise of such
power has to be tested on the touch-stone
of reasonableness.....It is not a matter of
course that the authority can fill up
more posts than advertised." (Emphasis
added).

19. In Kamlesh Kumar Sharma Vs.
Yogesh Kumar Gupta & Ors., AIR 1998
SC 1021, the Apex Court similarly
observed as under:-
682 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
"As per the scheme of the Act and
the
aforesaid
provisions,
for
each
academic
year
in
question,
the
management has to intimate the existing
vacancies and vacancies likely to be
caused by the end of the ensuing
academic year in question. Thereafter, the
Director shall notify the same to the
Commission and the Commission, in turn,
will invite applications by giving wide
publicity in the State of such vacancies.
The vacancies cannot be filled except
by
following
the
procedure
as
contained therein. Sub-section (1) of
Section 12 has incorporated in strong
words that any appointment made in
contravention of the provisions of the Act
shall be void. This was to ensure to backdoor entry but selection only as provided
under the said sections." (Emphasis
added).

20. Similar view has been reiterated
by the Hon'ble Supreme Court in Sri Kant
Tripathi Vs. State of U.P. & Ors., (2001)
10 SCC 237; and State of J&K Vs.
Sanjeev Kumar & Ors., (2005) 4 SCC
148.

21. In State of Punjab Vs. Raghbir
Chand Sharma & Ors., AIR 2001 SC
2900, the Apex Court examined the case
where only one post was advertised and
the candidate whose name appeared at
Serial No.1 in the select list joined the
post, but subsequently resigned. The
Court rejected the contention that post can
be filled up offering the appointment to
the next candidate in the select list
observing as under:-

"With the appointment of the first
candidate for the only post in respect of
which the consideration came to be made
and select list prepared, the panel ceased
to exist and has outlived its utility and at
any rate, no one else in the panel can
legitimately contend that he should have
been offered appointment either in the
vacancy arising on account of the
subsequent resignation of the person
appointed from the panel or any other
vacancies arising subsequently."

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

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

24. In the instant case, the
candidates
appointed
against
those
vacancies
had
been
transferred
to
different Judgeships and vacancies were
created time and again artificially and the
2 All] The District Judge, Baghpat and another V. Sri Anurag Kumar and others
683
select list which could not have been for
more than 20 names, had been used as a
reservoir by the statutory authority for
making illegal appointments. The Court
being the custodian of law cannot close its
eyes where the facts are so startling that it
shocks the conscience of the Court.
However, we restrain ourselves to hold
that appointments could have been made
on extraneous considerations only for the
reason that the then District Judge is not a
party by name before us. We are told that
though the officer has retired but he is
facing Departmental Enquiry on such
charges.

25. The question of appointment
dehors the Rules has been considered by
the Hon'ble Supreme Court time and
again and the Court held that such
appointments
are
unenforceable
and
inexecutable. It is settled legal proposition
that any appointment made de hors the
Rules violates the Public Policy enshrined
in the rules and, thus, being void, cannot
be enforced. (Vide Smt. Ravinder Sharma
& anr.. Vs. State of Punjab & ors., AIR
1995 SC 277; State of Madhya Pradesh
Vs. Shyama Pardhi, (1996) 7 SCC 118;
State of Rajasthan Vs. Hitendra Kumar
Bhatt,
(1997)
6
SCC
574;
Patna
University Vs. Dr. Amita Tiwari, AIR
1997
SC
3456;
Madhya
Pradesh
Electricity Board Vs. S.S. Modh & ors.,
AIR 1997 SC 3464; and Chancellor Vs.
Shankar Rao & ors., (1999) 6 SCC 255).

26. In Dr. M.A. Haque & ors. Vs.
Union of India & ors., (1993) 2 SCC 213,
the Supreme Court observed as under:-

".........We cannot lose sight of the
fact that the recruitment rules made under
Article 309 of the Constitution have to be
followed strictly and not in breach. If a
disregard of the rules and by passing of
the Public Service Commissions are
permitted, it will open a back-door for
illegal recruitment without limit. In fact
this Court has, of late, been witnessing a
constant violation of the recruitment rules
and a scant respect for the constitutional
provisions requiring recruitment to the
services through the Public Service
Commissions. It appears that since this
Court has in some cases permitted
regularisation of the irregularly recruited
employees,
some
governments
and
authorities
have
been
increasingly
resorted to irregular recruitments. The
result had been that the recruitment rules
and the Public Service Commissions have
been kept in cold storage and candidate
dictated by various considerations are
being recruited as a matter of course."

27. Deprecating the practice of
making appointment de hors the Rules by
the State or its instrumentalities in Dr.
Arundhati A. Pargaonkar Vs. State of
Maharashtra, AIR 1995 SC 962, the Court
rejected the claim of the petitioner therein
for regularisation on the ground of long
continuous service observing as under:-

"Nor the claim of the appellant, that
she having worked as Lecturer without
break for 9 years' on the date the
advertisement was issued, she should be
deemed to have been regularised appears
to be well founded. Eligibility and
continuous working for howsoever long
period should not be permitted to overreach the law. Requirement of rules of
selection.... cannot be substituted by
humane considerations. Law must take its
course."

28. In Harpal Kaur Chahal Vs.
Director Punjab Instructions, 1995 Supp
684 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
(4) SCC 706, a similar contention was
rejected though the appellant therein had
worked for about 24 years.

29. In Binod Kumar Gupta Vs. Ram
Ashray Mahoto & Ors., (2005) 4 SCC
209, the Apex Court did not grant
indulgence to an illegal appointee though
he had worked for more than 15 years,
observing as under:-

"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 the 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. If 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."

30. The Hon'ble Supreme Court in
State of U.P. & Ors. Vs. U.P. State Law
Officers Association & Ors., AIR 1994
SC 1654 observed as under:-
"This being so those who come to be
appointed by such arbitrary procedure can
hardly complain if the termination of their
appointment is equally arbitrary. Those
who come by the back door have to go by
the same door. ........... The fact that they
are made by public bodies cannot vest
them with additional sanctity. Every
appointment made to a public office,
howsoever made, is not necessarily vested
with public sanctity. There is, therefore,
no public interest involved in saving all
appointments irrespective of their mode.
From the inception some engagements
and contracts may be the product of the
operation of the spoiled system. There
need be no legal anxiety to save them."

31.

Appointments
made
in
contravention of the statutory provisions
remain in-executable.

Coming to the next question with
regard to the period for which the said
select list survived, it is apparent that the
list for recruitment was prepared finally
on 05.04.2000. On a simple mathematical
calculation, the period of one year, as per
the Gregorian Calendar, cannot, in any
circumstance, stretch beyond 04.04.2001.
Thus, according to Rule 14 (3) of the
1947 Rules, all names that were existing
up to 04.04.2001, stood automatically
removed with effect from 05.04.2001 and
no person could either have claimed
appointment
or
could
have
been
appointed by the District Judge under the
said select list. The Rule, referred to
hereinabove, is ruthless and negatively
worded.
It
brings
about
automatic
removal and is not subject to any
relaxation. The word ''automatic' in its
ordinary sense means ''on its own'. Thus,
the removal of the name does not require
any action to be taken and stands removed
2 All] The District Judge, Baghpat and another V. Sri Anurag Kumar and others
685
accordingly. The removal of the name,
therefore, brings about a complete and
unqualified cessation of any semblance of
claim under the select list. To put it
otherwise, the District Judge looses all
authority
and
jurisdiction
and
is
completely forbidden from picking up any
name out of the said list after the expiry
of the aforesaid period of one year for
appointment. In short, the District Judge
becomes functus officio vis-à-vis to that
extent. This position with regard to the
existence of the select list and the
automatic removal of the names from the
list was subject matter of consideration of
several
decisions
and
the
final
pronouncement in this regard is in the
case of D.N. Srivastava Vs. State of U.P.,
a Full Bench decision of our Court
reported in 1996 (2) UPLBEC 1037. This
view stands fortified by the judgments of
the Hon'ble Apex Court in State of Bihar
& Ors. Vs. Mohd. Kalimuddin, AIR 1996
SC 1145; State of U.P. & Ors. Vs. Harish
Chandra & Ors., AIR 1996 SC 2173; and
& State of U.P. & Ors. Vs. Ram Swarup
Saroj, AIR 2000 SC 1097.

32. Examining the facts of the
present case, as admitted to the petitioners
themselves, the first appointment claimed
is by the petitioner no.3 on 16.05.2001
and that by petitioners no. 1 and 2 on
02.02.2002 and by petitioner no.4 on
04.02.2002. To support the enlargement
of the period of the life of the list, the
petitioners (respondents herein) have
relied on an order of then District Judge
(Annex-3) whereby the District Judge
himself has purported to extend the life of
select list for one year, i.e. up to
05.04.2002. The aforesaid order of the
District Judge is not only an order without
authority of law but appears to be
contemptuous as well. It is in teeth of the
Circulars of this Court and the decisions
pronounced on the judicial side. The
District Judge, in our opinion, had no
authority in law to give extension to the
life of a list which not only, by operation
of the Rules but also by declaration of
law, stood exhausted. The District Judge,
therefore, clearly tried to overreach the
law and has acted malafidely by issuing
such
an
order.
The
petitioners
(respondents herein), therefore, cannot get
any benefit out of the said letter issued by
the District Judge and consequently, the
appointments of all four petitioners are
void being dehors the Rules. Their
consequential transfers respectively to
Barabanki, Kanpur, Lucknow and Meerut
also cannot confer any benefit to them.

33. The petitioners contend that they
were neither given any opportunity prior
to the issuance of the termination orders
dated 28.02.2005 inasmuch as inspite of
the demand having been raised, no
documents were supplied to them and the
reply submitted by them has not received
any consideration from the District Judge.
The impugned orders terminating their
services reflect non-application of mind
and that no objection was ever raised in
respect of the select list which was
prepared on 05.04.2000. It has been
further urged that the candidates out of
the said list, whose names were in excess
of the double the number of vacancies
advertised, are still continuing in service
and
their
services
have
not
been
terminated and as such the termination of
the petitioners' services are accordingly
violative of Article 14 of the Constitution
of India, being discriminatory in nature. It
has been further urged that the stay order
granted in a similar writ petition being
Writ Petition No.52654 of 2003 in respect
of 15 employees out of the same list is
686 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
pending and operating and as such the
learned Single Judge did not commit any
error in extending the same benefit by
granting the interim order in favour of the
petitioners.

34. In reply, Shri Sudhir Agarwal,
learned Senior Counsel and Additional
Advocate General appearing on behalf of
the appellants has urged that there were
no posts in the pay scale of Rs. 30504590/- in existence and sanctioned against
which the petitioners-respondents could
have claimed appointments. He has
further submitted that the petitioners were
given an opportunity which they failed to
avail and even before this Court, the
petitioners have miserably failed to
establish the validity of their selections
and
appointments.
He
has
further
submitted that the termination orders were
issued on 28.02.2005 and after having
remained out of employment for about
two months, the petitioners were favoured
with an interim order on 28.04.2005
which could not have been done as the
termination orders have already been
given effect to. He contends that by an
interim order the petitioners could not
have been allowed to continue in service
and that the interim order amounts to
granting the final relief which could not
have been done in view of the settled
position of law in this regard.

35. Coming to the first objection
raised by Shri Sudhir Agarwal, it is settled
that a final relief cannot be granted at the
interim stage. We are, therefore, of the
view that the interim order under appeal is
unsustainable.

36. It is settled legal proposition that
no interim relief at the initial stage which
amounts to final relief should be granted.
The Hon'ble Apex Court has consistently
and persistently held that the Court should
not pass an order at the interim stage,
which can be granted only at the time of
disposal of the petition. (Vide Assistant
Collector of Central Excise, Chandan
Nagar, West Bengal Vs. Dunlop India
Ltd. & Ors., AIR 1985 SC 330; State of
Rajasthan & Ors. Vs. M/s. Swaika
Properties & Anr., AIR 1985 SC 1289;
A.P.
Christians
Medical
Educational
Society Vs. Govt. of A.P., AIR 1986 SC
1490; State of Jammu & Kashmir Vs.
Mohd Yakoob Khan & ors., 1992 (4)
SCC 167; U.P. Junior Doctors Action
Committee & Ors. Vs. Dr. B. Shital
Nandwani, 1992 Suppl (1) SCC 680;
Guru
Nanak
Dev
University
Vs.
Parminder Kumar Bansal & Anr., AIR
1993 SC 2412; Saint John's Teachers
Training Institute (for Women) & Ors.
Vs. State of Tamil Nadu & Ors., 1993 (3)
SCC 595; Burn Standard Co. Ltd. & Ors.
Vs. Dinabandhu Majumdar & Anr., AIR
1995 SC 1499; Dr. B.S. Kshirsagar Vs.
Abdul Khalik Mohd Musa, 1995 Suppl
(2) SCC 593; Shiv Shankar & Ors. Vs.
Board of Directtors, U.P.S.R.T.C. & Anr.,
1995 Supp. (2) SCC 726; The Bank of
Maharastra
Vs.
Race
Shipping
&
Transport Co. (P) Ltd., AIR 1995 SC
1368;
Commissioner/Secretary,
Government
of
Health
&
Medical
Education Department Vs. Dr. Ashok
Kumar Kohli, 1995 Suppl (4) SCC 214;
Union of India Vs. Shree Ganesh Steel
Rolling Mills Ltd., (1996) 8 SCC 347;
State of Madhya Pradesh Vs. M.V.
Vyavsaya and Co., AIR 1997 SC 993; and
C.B.S.E. & Anr.. Vs. P. Sunil Kumar &
Ors., (1998) 5 SCC 377; Indian School
Certificate Examination Vs. Isha Mittal &
Anr., (2000) 7 SCC 521; Regional
Officer,
CBSE
Vs.
Km.
Sheena
Peethambaran & Ors., (2003) 7 SCC 719;
2 All] The District Judge, Baghpat and another V. Sri Anurag Kumar and others
687
and State of U.P. Vs. Ram Sukhi Devi,
2004 AIR SCW 6955).

37. In Union of India Vs. Era
Educational Trust, (2000) 5 SCC 57, the
Hon'ble Supreme Court after considering
its large number of judgments held that
while passing interim order in exercise of
writ jurisdiction under Article 226 of the
Constitution, principles laid down for
granting interim relief under Order
XXXIX of Code of Civil Procedure, 1908
should be kept in mind. It can neither be
issued as a matter of right nor it should be
in the form which can be granted only as
final relief.

38. In Morgan Stanley Mutual Fund
Vs. Kartick Das, (1994) 4 SCC 225, the
Hon'ble Apex Court held that ex-parte
injunction could be granted only under
exceptional circumstances. The factors
which
should
weigh
for
grant
of
injunction are - (a) whether irreparable or
serious mischief will ensue to the
plaintiff; (b) whether the refusal of exparte injunction would involve greater
injustice than grant of it would involve;
(c) even if ex-parte injunction should be
granted, it should only be for limited
period of time; and (d) general principles
like
prima
facie
case,
balance
of
convenience and irreparable loss would
also be considered by the Court.

39. The logic behind this remains
that
the
ill-conceived
sympathy
emasculates as interlocutory judgment
exposing judicial discretion to criticism to
de-generating private benevolence and the
Court should not be guided by misplaced
sympathy, rather it should pass interim
orders making accurate assessment of
even the prima facie legal position. The
Court should not embrace the authorities
under the Statute by taking over the
functions to be performed by them.

40. Accordingly, the interim relief
granted by the learned Single Judge is not
justified as the petitioners did not have the
prima facie case, more so, they could be
compensated in terms of money, if they
succeeded in the petition finally.

41. An interim order cannot be held
to be having a binding force. (Vide Jay
Pratap Singh Vs. State of U.P. & Ors.,
(2005) 29 AIC 157).

42. However, the Court is fully alive
of the legal position that it should pass
similar interim orders in the cases having
similar facts and circumstances and which
are governed by the similar statutory
provisions.

43. In M/s. Vinod Trading Company
Vs. Union of India, (1982) 2 SCC 40; and
Bir Bajrang Kumar Vs. State of Bihar,
AIR 1987 SC 1345, the Hon'ble Apex
Court has expressed the view that the
interim orders should not be contradictory
to
each
other
if
the
facts
and
circumstances of the cases are identical.
Similarly, in Vishnu Traders Vs. State of
Haryana, 1995 Suppl (1) SCC 461, the
Supreme Court has observed as under:-

"In the matters of interlocutory
orders, principle of binding precedent
cannot be said to apply.