# Vishwaraj Kumar Singh and another v. D.J., Muzaffarnagar

- **Citation:** (2006) 2 ILRA 605
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-07-19
- **Case number:** Civil Misc. Writ Petition No. 23946 of 1996
- **Bench:** Ashok Bhushan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vishwaraj-kumar-singh-and-another-v-d-j-muzaffarnagar-40615
- **Pages:** 6

## Headnote

Establishment Rules 1947-Rule-16-Right
of Appointment-Petitioners name found
place in approved roster list in March,
1991,-appointment
against
leave
vacancy before expiry of one year-No
right can be created-such appointment
should be on vacant post.

Held: Para 7

Rule-16 relied by learned counsel for the
petitioners does not help the petitioners.
The mention of appointment in Rule-16
obviously has to be appointment on a
606 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
vacant post. Present is a case where
petitioners
received
appointment
on
leave vacancy which were the posts
actually held by other persons. No right
can be created by a person appointed on
leave vacancy. Rule 16 does not help the
petitioners in any manner.

(B) Constitution of India Act 14 and 16appointment as class III employee-basis
of claim so many persons below in merit
given appointment-even after expiry of
the life of the list-No prayer for quashing
such
appointment-nor
impleaded
as
party No particulars of their appointment
brought on record-held-illegal and un
warranted order-can not be basis for
issue of mandamus.

Held: Para 10

The basis of the submission of the
petitioners' counsel is that since with
regard to persons mentioned above
appointment was made by the District
Judge on regular basis, the petitioners
are also entitled for the same treatment.
For seeking a mandamus from this Court
on the basis of certain orders passed by
authorities with regard to other persons,
the petitioners must satisfy the Court
that orders passed in favour of those
persons with whom parity is sought is
legal and in accordance with law. The
Apex Court in Chandigarh Administration
and
another
Vs.
Jagjit
Singh
and
another; (1995) 1 S.C.C. 745 has held
that generally speaking the mere fact
that the respondent authority has passed
a particular order in the case of another
person similarly situated can never be
the ground for issuing a writ in favour of
the
petitioner
on
the
plea
of
discrimination. The order in favour of the
other person might be legal and valid or
it
might
not be.
That has to be
investigated
first
before
it
can
be
directed to be followed in the case of the
petitioner. If the order in favour of the
other person is found to be contrary to
law or not warranted in the facts and
circumstances of his case, such illegal
and unwarranted order can be not made
the basis of issuing a writ compelling the
respondent-authority
to
repeat
the
illegality or to pass another unwarranted
order.

## Text

2 All] Vishwaraj Kumar Singh and another V. D.J., Muzaffarnagar
605
concerned file and it is not necessary that
recital to that effect must be made in the
order itself. If is not the case of the
petitioner that such sanction has been
refused by the Inspector General.

11. However, the Inspector General
of Police is required to consider and
decide for himself as to whether sanction
should be granted or not and therefore, it
is necessary that records in respect of
transfer of police officers over ten years
of service, be placed before the Inspector
General of Police for consideration of the
issue as to whether the sanction is to be
granted in the facts of the case or not at
the earliest.

12. In view of the aforesaid, the
present writ petition is devoid of merits
and is accordingly dismissed subject to
the
observations
that
the
Senior
Superintendent of Police, Muzaffarnagar
shall transmit all the records pertaining to
the transfer of the petitioner and other
constable, who have put in more than ten
years of service from one branch to
another for being placed before the
concerned Inspector General of Police for
consideration
of
the
sanction
in
accordance with Regulation-525 of the
U.P. Police Manual, preferably within two
weeks, from the date a certified copy of
this order is filed before the Senior
Superintendent of Police, Muzaffarnagar.
On receipt of the aforesaid, the concerned
Inspector General of Police shall apply his
mind to the facts of the present case and
shall pass appropriate orders either
refusing or sanctioning the transfer, by
means of a reasoned speaking order, at the
earliest possible. The aforesaid exercise
must be completed within four weeks
from the date the papers are so received
by the concerned Inspector General of
Police. The petitioners shall at liberty to
file such objection before the Inspector
General of Police for being retained in
their parent branch i.e. Civil Branch. The
Inspector General of Police shall also
consider the objections of the petitioners
while deciding the issue of sanction.
Petition dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.07.2006

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.

Civil Misc. Writ Petition No. 23946 of 1996

Vishwaraj Kumar Singh and another

 ...Petitioners
Versus
District Judge, Muzaffarnagar

 ...Opposite Party

Counsel for the Petitioners:
Sri Raj Kumar Jain
Sri R.C. Gupta
Sri Amit Daga
Sri R.B. Singhal

Counsel for the Opposite Party:
Sri K.R. Sirohi
S.C.

(A) Subordinate Civil Courts Ministerial
Establishment Rules 1947-Rule-16-Right
of Appointment-Petitioners name found
place in approved roster list in March,
1991,-appointment
against
leave
vacancy before expiry of one year-No
right can be created-such appointment
should be on vacant post.

Held: Para 7

Rule-16 relied by learned counsel for the
petitioners does not help the petitioners.
The mention of appointment in Rule-16
obviously has to be appointment on a
606 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
vacant post. Present is a case where
petitioners
received
appointment
on
leave vacancy which were the posts
actually held by other persons. No right
can be created by a person appointed on
leave vacancy. Rule 16 does not help the
petitioners in any manner.

(B) Constitution of India Act 14 and 16appointment as class III employee-basis
of claim so many persons below in merit
given appointment-even after expiry of
the life of the list-No prayer for quashing
such
appointment-nor
impleaded
as
party No particulars of their appointment
brought on record-held-illegal and un
warranted order-can not be basis for
issue of mandamus.

Held: Para 10

The basis of the submission of the
petitioners' counsel is that since with
regard to persons mentioned above
appointment was made by the District
Judge on regular basis, the petitioners
are also entitled for the same treatment.
For seeking a mandamus from this Court
on the basis of certain orders passed by
authorities with regard to other persons,
the petitioners must satisfy the Court
that orders passed in favour of those
persons with whom parity is sought is
legal and in accordance with law. The
Apex Court in Chandigarh Administration
and
another
Vs.
Jagjit
Singh
and
another; (1995) 1 S.C.C. 745 has held
that generally speaking the mere fact
that the respondent authority has passed
a particular order in the case of another
person similarly situated can never be
the ground for issuing a writ in favour of
the
petitioner
on
the
plea
of
discrimination. The order in favour of the
other person might be legal and valid or
it
might
not be.
That has to be
investigated
first
before
it
can
be
directed to be followed in the case of the
petitioner. If the order in favour of the
other person is found to be contrary to
law or not warranted in the facts and
circumstances of his case, such illegal
and unwarranted order can be not made
the basis of issuing a writ compelling the
respondent-authority
to
repeat
the
illegality or to pass another unwarranted
order.

(Delivered by Hon'ble Ashok Bhushan, J.)

Heard counsel for the petitioners.

1. By this writ petition, the
petitioner has prayed for a writ of
mandamus commanding the respondents
to appoint the petitioners as Class-III
employee
in
the
Muzaffarnagar
Judgeship.

2. Brief facts necessary for deciding
the writ petition are; Twenty-seven
vacancies were advertised in the year
1990 of Class III employees in the
Judgeship
of
Muzaffarnagar.
The
petitioners also applied in pursuance of
the
advertisement.
Add
the
Quick
Launcher on Panel list was prepared by
the District Judge. The list was notified on
30th March, 1991. The petitioners have
filed approved list which contains the
names of petitioner No. 2, Kiran Pal
Singh, at Serial No. 42 and petitioner
No.1, Vishwaraj Kumar, at Serial No. 49.
The said list is titled as "Roster List
1991". Twenty-seven persons out of the
list were appointed against the vacancies.
The petitioners were also given short term
appointment
on
leave
vacancies.
Petitioners were given appointment on
19.11.1991 and 31.10.1991 respectively
and were relieved when leave vacancy
came to an end. The petitioners submitted
representation to the District Judge that
they be given appointment on the basis of
their name being included in the select
list. Several representations are said to
have been given and thereafter the writ
petition has been filed on 26th July, 1996
praying for mandamus.
2 All] Vishwaraj Kumar Singh and another V. D.J., Muzaffarnagar
607

3. Add the Quick Launcher on Panel
counter affidavit has been filed on behalf
of the respondent. In the counter affidavit
it has been categorically stated that the
life of the select list prepared on
30.3.1991 expired on 30.3.1994 even after
extension granted by this Court from one
year to three years. It is stated in the
counter affidavit that the petitioners were
not given any appointment during the
currency of the list, hence their names
stand automatically removed after expiry
of the list.

4. Learned counsel for the petitioner,
in support of the writ petition, submitted
that
petitioners
having
been
given
appointment within one year from the
preparation of the select list, though on
the leave vacancy, are entitled for regular
appointment. It has further been submitted
that persons whose names were lower
than the petitioners in the approved list
have been given regular appointment even
after expiry of the period of the list as
claimed by the respondent. It is submitted
that one Janak Pal Singh, who was also
given appointment on leave vacancy in
the year 1991 was appointed on regular
basis on 2.1.1995, which is apparent from
Annexure-1 to the rejoinder affidavit filed
by the petitioners dated 20th March, 2001.
He further submits that other persons
whose names find place at Serial No.43,
44 and 45 were also given appointment on
regular basis, hence petitioners have made
out a claim for appointment on regular
basis.

I have considered the submissions
and perused the record.

5. The recruitment took place for
filling up 27 vacancies. The 27 persons
were appointed on the basis of the
approved list. Certain more persons were
appointed subsequently utilizing the same
list. The first submission of counsel for
the petitioner is that petitioners having
been appointed on leave vacancy within a
period of one year they must be deemed
to have been appointed on regular basis.
Learned counsel for the petitioner has also
placed reliance on Rule-16 of the
Subordinate
Civil
Courts
Ministerial
Establishment Rules, 1947. Rule 16 of the
said rule is quoted below:-

"16.
Retention
of
selected
candidates of approved service.-If a
selected candidate has once received an
appointment and his work has given
satisfaction, his name shall not be
removed from the register of recruited
candidates in the event of his reversion."

6. The submission, which has been
raised by counsel for the petitioners is not
res integra. The two Division Benches of
this Court have already considered the
issue and on the issue and on the basis of
the Division Bench judgment, the High
Court issued circular letter dated 24th
August, 1994 to all the District Judges.
The Division Bench in Special Appeal
No.235 of 1993 had occasion to consider
the effect of persons getting appointment
on leave vacancy before expiry of the
period of one year. The Division Bench
held that appointment against leave
vacancy
within
one
year
of
their
empanelment gives no right to claim
continuance. In Special Appeal No. 278
of 1993 (A.K. Ashthana Vs. State of U.P.)
the
Division
Bench
deprecated
the
practice of giving short term appointment
on
leave
vacancy
to
empanelled
candidates. The Division Bench, in fact,
has termed the said device as maneuvered
proceeding en masse-on medical leave
608 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
and creating thereby leave vacancies in
order that persons selected as Paid
Apprentices could be appointed to such
leave vacancies and thereby claim regular
appointment.
Following
observations
were made by the Division Bench in the
said judgment:-

"The manoeuvred device of regular
employees proceeding en masse on
medical leave and creating thereby leave
vacancies in order that persons selected
as Paid Apprentices, for whom no posts
were available, could be appointed to
such leave vacancies and thereby claim
regular appointment, is what was resorted
to, to help the appellant (one of the
petitioners in the writ petition) achieve
the object. It is now on this basis that the
appellant seeks regular appointment."

Their Lordships have also observed
as under:-

"Appointment to the civil courts is
governed by U.P. Subordinate Civil
Courts, Ministerial Establishment Rules,
1947 (hereinafter referred to as 'the
Rules'). Add the Quick Launcher on
Panel Rule 14 leaves no manner of doubt
that the select list is to ensure for only a
period of one year..." It follows that a
candidate on the select list can claim to
be appointed only in respect of vacancies
in the year for which the select list had
been prepared and finalized. In the
present case the relevant year was 1993.

Such being the circumstances, no
exception can indeed be taken to the
judgment of the learned Single Judge
which is accordingly hereby upheld and
affirmed and this special appeal is thus
dismissed."

7. Rule-16 relied by learned counsel
for the petitioners does not help the
petitioners. The mention of appointment
in
Rule-16
obviously
has
to
be
appointment on a vacant post. Present is a
case
where
petitioners
received
appointment on leave vacancy which
were the posts actually held by other
persons. No right can be created by a
person appointed on leave vacancy. Rule
16 does not help the petitioners in any
manner.

8. The next submission of counsel
for the petitioner is that persons who were
lower in the select list were offered
appointment. He has made reference of
Janak Pal Singh, whose name was at
Serial no. 35 in Annexure-1 to the writ
petition. The petitioners' case is that
subsequently Wasim Akhtar Siddiqui,
Laxmi Kant and Nimesh Kumar Jain,
whose names are at Serial No.43, 44 and
45,
have
been
given
appointment.
Learned counsel for the petitioner has
referred to paragraph 14 of the counter
affidavit in which it has been stated that
the name of the aforesaid persons were
mentioned in the roster list. There is no
date of appointment of these three persons
as mentioned above whereas the date of
appointment of these three persons as
mentioned above whereas the date of
appointment of Janak Pal Singh has been
brought on the record by the petitioners
themselves by Annexure RA-1 to the
rejoinder affidavit as 2.1.1995. In the
roster list as well as in the approved list
Janak Pal Singh is much above the
petitioners and also above the aforesaid
three persons. Janak Pal Singh having
been appointed on 2.1.1995 on regular
basis, the persons whose names are
mentioned below Janak Pal Singh must
have
received
their
appointment
2 All] Vishwaraj Kumar Singh and another V. D.J., Muzaffarnagar
609
subsequent to 2.1.1995. The submission,
which has been build up by the
petitioners' counsel is that persons who
were lower in the roster/approved list
having been given regular appointment
after 2.1.1995 and after the list came to an
end, the petitioners are also entitled for
appointment. The petitioners' counsel
also stated that there is discrimination
violating Articles 14 and 16 of the
Constitutions. The said submission of the
counsel
for
the
petitioners
needs
consideration from two point of view.
Firstly the appointment of the said
persons has not been attacked in the writ
petition nor there is any prayer for
quashing their appointment. It is not
necessary for this Court to express any
opinion in this writ petition as to what
was the basis of their appointment. The
submission
remains
with
regard
to
discrimination violating Articles 14 and
16 of the Constitution.

9. In the counter affidavit it has been
specifically stated that select list came to
an end on 30th March, 1994. It is well
settled that after select list has come to an
end no appointment can be made utilizing
the select list and no person including the
petitioner can claim utilization of the
select list. The appointment of persons
whose names have been mentioned above
were made subsequent to expiry of the
select list and the same cannot be said to
be inconformity with the Rules. Further
the 27 vacancies were advertised and 27
posts were filled up before even offering
appointment to above mentioned persons.
After the advertised vacancy being filled
up, the select list cannot be utilized for
any other vacancy. On this score also the
select list cannot be made basis for
issuing appointment over and above the
advertised vacancies. The Division Bench
of this Court in a recent judgment in
2005(2) E.S.C. 1509; District Judge,
Baghpath Vs. Anurag Kumar has laid
down that select list cannot be utilized
from above the vacancies advertised and
after its life has come to an end.

10. The basis of the submission of
the petitioners' counsel is that since with
regard to persons mentioned above
appointment was made by the District
Judge on regular basis, the petitioners are
also entitled for the same treatment. For
seeking a mandamus from this Court on
the basis of certain orders passed by
authorities with regard to other persons,
the petitioners must satisfy the Court that
orders passed in favour of those persons
with whom parity is sought is legal and in
accordance with law. The Apex Court in
Chandigarh Administration and another
Vs. Jagjit Singh and another; (1995) 1
S.C.C. 745 has held that generally
speaking the mere fact that the respondent
authority has passed a particular order in
the case of another person similarly
situated can never be the ground for
issuing a writ in favour of the petitioner
on the plea of discrimination. The order in
favour of the other person might be legal
and valid or it might not be. That has to
be investigated first before it can be
directed to be followed in the case of the
petitioner. If the order in favour of the
other person is found to be contrary to law
or not warranted in the facts and
circumstances of his case, such illegal and
unwarranted order can be not made the
basis of issuing a writ compelling the
respondent-authority
to
repeat
the
illegality or to pass another unwarranted
order.

11. As observed above, the life of
select list having come to an end and all
610 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
advertised vacancy having been filled up,
there
is
no
justification
of
giving
appointment after expiry of the select list.
In the event certain persons were
appointed after expiry of the select list,
the same cannot be made basis for issuing
a mandamus in favour of the petitioners at
such distance of time.

12. None of the submissions raised
by counsel for the petitioners has any
substance. On the basis of the aforesaid
submissions mandamus cannot be issued
to the respondents to give appointment to
the petitioners as Class-III employee.

The writ petition lacks merit and is
dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.05.2005

BEFORE
THE HON'BLE MRS. POONAM
SRIVASTAVA, J.

Criminal Misc. Application No.6067 of 2005

Pankaj and another

...Applicants
Versus
State of U.P. & another ...Opposite Party

Counsel for the Applicants:
Sri V.K. Singh
Sri A.K. Singh

Counsel for the Opposite Parties:
A.G.A.

Juvenile Justice (Care of Protection of
Children)
Act
2000-Section
6
(2)-
Application claiming benefit of juvenile
justice Act-rejected by session judge-on
the ground of constitution of Juvenile
Justice Board-held-the session judge is
bound to hold enquiry -keeping in view
of beneficial legislation socially orinted
to ensure every kind for reformative
measures- direction issued to move fresh
application-the session court to hold
enquiry on basis of evidence.
Case law discussed:
1997 (35) ACC-835

(Delivered by Hon'ble Mrs. Poonam Srivastava,J.)

Heard
learned
counsel
for
the
applicants and learned A.G.A. for the
State.

1. This application has been filed
challenging the order dated entertain an
application moved on behalf of the
applicants claiming to be a juvenile and is
entitled for protection under the Juvenile
Justice (Care and Protection of Children)
Act, 2000 (hereinafter referred as the
Act). A copy of the application has been
annexed as Annexure-5 to the affidavit,
stating therein that the two sessions trial
were amalgamated and S.T. No. 425 of
2003 is the leading case. The applicants
Pankaj and Neeraj claimed to be minor
and in the circumstances, a separate trial
was liable to be conducted. It was stated
in the application that the were students at
the time of occurrence. The date of birth
of the applicant Pankaj son of Sri Charan
Singh Saroha is 27.3.1986 according to
High School Certificate and the applicant
no. 2 son of Sri Raj Singh was born on
22.11.1987 as recorded in the School
Leaving Certificate. The application was
moved on 6.5.2005 that common trial
should not proceed but the application
was not entertained on the ground that
since the Juvenile Justice Board has been
constituted at Meerut, it is the jurisdiction
of the Board to decide and declare an
accused as juvenile. This application has
been moved challenging the said order. It
has been argued that Section 7 of the Act
prescribes procedure to be followed by a