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PETITIONER:

STATE OF UP & ORS.

Vs.

RESPONDENT:

HARISH CHANDRA & ORS.

DATE OF JUDGMENT: 12/04/1996

BENCH:

G.B. PATTANAIK (J)

BENCH:

G.B. PATTANAIK (J)

RAMASWAMY, K.

CITATION:

JT 1996 (4) 414 1996 SCALE (3)730

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

PATTANAIK, J.

Leave granted.

The impugned direction of the learned Single Judge of

the Allahabad High Court in Civil Misc. Writ Petition No.

25696 of 1990 is being challenged-in the first case and a

similar direction of a learned Single Judge of Allahabad

High Court dated 2.4.1993 passed in Civil Misc. Writ

Petition No. 28719 of 1992 following the earlier judgment is

being assailed in the second case. The question of law

involved in both these appeals is one and the same. namely,

is the High court justified in issuing a mandamus to the

appellant to make recruitment of the respondents who were in

the Select List of the year 1987 even after the expiry of

the said list, the list under the Recruitment Rules having

the force only for a period of one year from the date of

selection.

The Recruitment/Selection to the posts in class III and

class IV is made under a Statutory Rule called the Sub-

ordinate Officers Clerical Staff (Direct Recruitment) Rules,

1985 (hereinafter referred to as "Recruitment Rules"). Under

the Rules the Appointing Authority is required to determine

the number of vacancies to be filled during the course of

year and notify the same to the Employment Exchange for

sponsoring candidates. The Appointing Authority is also

entitled to invite applications directly by issuing an

advertisement in a local daily newspaper. on receipt of the

names of the candidates the Selection Committee prepares a

merit list in the manner prescribed under Rule 23. The

Selection Committee then forwards the list thus prepared to

the Appointing Authority under Rule 26 mentioning the

aggregate marks obtained at the selection by each candidate.

The names of the candidates are arranged by the Appointing

Authority in accordance with the merit of the candidates and

thereafter the appointments are offered in the order in

which the names are arranged.

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The respondents approached the High Court alleging,

inter alia, that though there existed vacancies during the

year 1987 and the select list was prepared on 4.4.87 but the

Appointing Authority arbitrarily did not fill up the

vacancies and the respondents having failed in their attempt

by filing representations approached the Court for issuance

of mandamus, It was also alleged that the Appointing

Authority ignoring the select list prepared by the Statutory

Selection Committee has been filling up the vacancies in

accordance with its own sweet will and the right of the

candidates in the select list is thereby being infringed.

The appellant filed counter affidavit controverting the

allegations made in the Writ Applications and took the

positive stand that the select list of the year 1987 became

inoperative after lapse of one year from the date of

selection and, therefore, the applicants who claimed to be

in the select list prepared on 4.4.87 do not have any right

to be appointed as the life of the list has expired by

4.4.88. It was also pleaded before the High Court that there

did not exist any vacancy during the year as contended in

the Writ application. The High Court by The impugned order

instead of focussing its attention to the relevant

provisions of the Statutory Rules, relying upon certain

earlier decisions of the Court came to hold that the select

list does not lapse on the expiry of one year from the

preparation of the list. The High Court also came to the

conclusion that several vacancies having occurred after

4.4.87 on account of superannuation of many of the existing

employees the stand of the State that there existed only one

vacancy cannot be accepted. With this conclusion direction

having been issued to appoint the Writ Petitioners the same

is being assailed in these appeals.

Learned counsel for the appellant contended that in

view of the provisions of Rule 26 of the Recruitment Rules

the High Court erred in law that the select list does not

expire after expiry of one year. He further contended that

the vacancy position as was indicated by the State

Government is correct and the High Court erroneously came to

the conclusion about the existing of more number of

vacancies during the year without examining the peculiar

circumstances where some appointments have been made.

Learned counsel appearing for the respondents do not dispute

the position that under the Statutory Rule the select list

remains valid for one year from the date of the preparation

of list. But they contended that in the past on several

occasions the Appointing Authority have been appointing the

persons from the select list even after expiry of one year

and in support of that they placed reliance on the

appointments made in the year 1992 of persons who were

selected in the year 1985. The learned counsel also urged

that under the Recruitment Rules the Appointing Authority is

duty bound to calculate and notify The number of vacancies

as it existed and likely to occur during the year and,

therefore. the contentions that there will be only one

vacancy in the year 1987 is wholly unsustainable. Apart from

the aforesaid contention, on merit the learned counsel also

urged that there has been delay of 480 days in preferring

the Special Leave Petition and no justifiable ground having

been given the delay should not be condoned. The learned

counsel also urged that against the judgment of the Single

Judge a special appeal lies to the Division Bench and the

appellant not having taken recourse to alternative remedy of

approaching the Division Bench this Court should not

interfere in exercise of power under Article 136 of the

Constitution.

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Before going into the merits of the matter we would

first dispose of the two technical objections raised by the

learned counsel for the respondents.

So far as the question of delay is concerned the

learned counsel for the respondents placed reliance on the

decision of this court in the case of Commissioner of Income

Tax, Bombay vs. Amateur Riders Club, Bombay (1994 Supp. (2)

Supreme Court Cases 603) and urged that the grounds taken

for condonation is due to the delay in processing the matter

through official channel and cannot be held to be good

ground for condonation. It is undoubtedly true that the

applicant seeking for condonation of delay is duty bound to

explain the reasons for the delay but as has been held by

this Court in several cases. the very manner in which the

bureaucratic process moves, if the case deserves merit the

Court should consider the question of condonation from that

perspective. That apart the respondents themselves

approached the High Court in the year 1990 making a

grievance that they had not been appointed even though they

are included in the Select List of 1987 and 1987 list itself

expired under the Rules on 4.4.1988. in this view of the

matter and in view of the merits of the case we are of the

opinion that sufficient cause has been shown for condoning

the delay and accordingly we have condoned the delay.

So far as the other contention, namely, availability of

an appeal to the Division Bench, we are of the opinion that

would not stand on the way of this Court in exercise of

power under Article 136 of the Constitution. Ordinarily

where an appeal lies to the Division Bench from the

Judgement of a learned Single Judge this court refrains from

invoking power under Article 136 of the Constitution but

this is a self-imposed restriction and not a matter ousting

the jurisdiction of the Court. The matter having been

pending for more than 2 years and in view of the patent

error committed by the High Court we do not think it

appropriate to non suit the appellant merely on the ground

that the appellant could have approached the Division Bench

against the judgment of the learned Single Judge. In the

larger interest of all concerned we think it appropriate in

the facts and circumstances of this case to invoke our

jurisdiction under Article 136 of the Constitution.

Coming to the merits of the matter, in view of the

Statutory Rules contained in the Rule 26 of the Recruitment

Rules the conclusion is irresistible that a select list

prepared under the Recruitment Rules has its life only for

one year from the date of the preparation of the list and it

expires thereafter. Rule 26 is extracted hereinbelow in

extenso;

"26. Appointment by appointing

authority.-

The select list referred to in

sub-rules (b) and (7) of Rule 23

shall be forwarded by the Selection

Committees to the appointing

authority mentioning the aggregate

marks obtained at the selection by

each candidates. The name of

general and reserve candidates

shall be arranged by the appointing

authority in a common list

according to the merit of the

candidates and the appointment

shall be offered in the order in

which the names are arranged in the

list shall hold good for a period

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of one year from the date of

selection."

Notwithstanding the aforesaid Statutory Rule and

without applying the mind to the aforesaid Rule the High

Court relying upon some earlier decisions of the Court came

to hold that the list does not expire after a period of one

year which on the face of it is erroneous. Further question

that arises in this context is whether the High Court was

justified in issuing the mandamus to the appellant to make

recruitment of the Writ Petitioners. Under the Constitution

a mandamus can be issued by the Court when the applicant

establishes that he has a legal right to the performance of

legal duty by the party against whom the mandamus is sought

and said right was subsisting on the date of the petition.

The duty that may be enjoined by mandamus may be one imposed

by the Constitution or a Statute or by Rules or orders

having the force of law. But so mandamus can be issued to

direct the Government to refrain from enforcing the

provision of law or to do something which is contrary to

law. This being the position and in view of the Statutory

Rules contained in Rule 26 of the Recruitment Rules we

really fail to understand how the High Court could issue the

impugned direction to recruit the respondents who were

included in the select list prepared on 4.4.87 and the list

no longer survived after one year and the rights, it any, of

persons included in the list did not subsist. In the course

of hearing the learned counsel for the respondents, no doubt

have pointed out some materials which indicate that the

Administrative Authorities have made the appointments from a

list beyond the period of one year from its preparation. The

learned counsel appearing for the appellants submitted that

in some cases pursuance to the direction of the Court some

appointments have been made but in some other cases it might

have been done by the Appointing Authority. Even though we

are persuaded to accept the submission of the learned

counsel for the respondents that on some occasion

appointments have been made by the Appointing Authority from

a select list even after the expiry of one year from the

data of selection but such illegal action of the Appointing

Authority does not confer a right on an applicant to be

enforced by a Court under Article 226 of the Constitution.

We have no hesitation in coming to the conclusion that such

appointments by the Appointing Authority have been made

contrary to the provisions of the Statutory Rules for some

unknown reason and we deprecate the practice adopted by the

Appointing Authority in making such appointments contrary to

the Statutory Rules. But at the same time it is difficult

for us to sustain the direction given by the High Court

since, admittedly, the life of the select list prepared on

4.4.87 had expired long since and the respondents who claim

their rights to be appointed on the basis of such list did

not have a subsisting right on the date they approached the

High Court. We may not be understood to imply that the High

Court must issue such direction, if the writ Petition was

filed before the expiry of the period of one year and the

same was disposed of after the expiry of the statutory

period. In view of the aforesaid conclusion of ours it is

not necessary to deal with the question whether the stand of

the State Government that there existed one vacancy in the

year 1987 is correct or not.

In the aforesaid premises the appeals are allowed. The

impugned judgments are set aside and the Writ Petitions

filed by the respondents stand dismissed. But in the

circumstances there will be no order as to costs.

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