REPORTABLE   

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.   10459            OF 2010 (Arising out of S.L.P. (C) No. 19944 of 2007)

Naseem Ahmad & Ors.                                         ....  Appellant (s)

Versus

State of  U.P. & Anr.             .... Respondent(s)

J U D G M E N T  

P. Sathasivam, J.

1)  Leave granted.

2)  This appeal is directed against the judgment and final  

order  dated  08.08.2007  passed  by  the  High  Court  of  

Judicature  at  Allahabad  in  Special  Appeal  No.  1004  of  

2007 whereby the High Court dismissed the appeal and  

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upheld the order dated 19.09.2003 passed by the District  

Judge, Mahoba .

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3) The facts and circumstances giving rise to this case  

are:

(a) An advertisement was issued by the Office of District  

Judge,  Mahoba  on  17.08.2000  inviting  applications  for  

appointment of Class IV posts of Process Server, Orderly,  

Peon and Farrash in the pay scale of Rs.2550-3200/- in  

District Judgeship, Mahoba mentioning that the selections  

are to be made for the purposes of preparation of a wait  

list.    The advertisement did not mention the details or  

number of posts for which the advertisement was issued.  

The appellants herein applied for the said posts.   After  

interview,  a  select  list  was  prepared  on  19.09.2000  

mentioning 22 names and the appellants were placed at  

S.Nos.  9,  10  and  11.   Subsequent  to  the  result,  

appointments  were  made  as  and  when  the  vacancies  

arose. Appointment orders were issued to the appellants  

on 13.08.2001.  The total sanctioned strength of Class IV  

employees  in  the  Judgeship  of  Mahoba  on  the  date  of  

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advertisement  was  31.   In  2001,  4  more  posts  were  

created in the Judgeship of Mahoba for the outlying Court  

in Tehsil Charkhari.  For the said newly created posts, the  

appointment letters were issued to the appellants herein  

on  13.08.2001.  In  the  meantime,  one  Court  of  Addl.  

District Judge was transferred from Hamirpur to Mahoba  

increasing the sanctioned strength of Class IV employees  

in  Mahoba  to  37  including  the  outlying  Court  of  

Charkhari.    

(b)  On 19.09.2003, the District Judge, Mahoba passed  

an  order  that  as  per  the  provisions  of  G.Os.  dated  

27.02.1974  (Personnel),  29.07.1995  (Personnel  and  

administrative  Reforms  Department,  U.P.  Government)  

and order dated 23.01.1996 passed by the High Court of  

Allahabad in Ram Babu etc., the panel made of Class IV  

employees is valid for a period of one year, and thus, the  

appointments made after 19.09.2001 are ad hoc.  He also  

cancelled the select list/wait list forthwith.  On the basis  

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of the said order, the appointments of the appellants were  

treated as ad hoc.

(c) Alleging  arbitrary  appointments,  promotions  and  

discrimination  in  appointments,  several  writ  petitions  

were filed which were disposed of by the High Court vide  

judgment  and  order  dated  26.10.2005.   However,  the  

appellants herein were not party to the said writ petitions,  

therefore, they filed a separate Writ Petition being W.P.(C)  

No.  49006 of  2003 against  the  order  dated  19.09.2003  

passed by the District Judge, Mahoba.  The learned single  

Judge of the High Court, vide order 02.07.2007, dismissed  

the writ petition.  Against the said order, a special appeal  

being S.A. No. 1004 of 2007 was filed by the appellants  

herein before the High Court which was also dismissed by  

the High Court on 08.08.2007 in terms of the judgment  

and  order  dated  26.10.2005  in  C.M.W.P.  No.  34640  of  

2003 (Murari Lal Pandey vs. District Judge, Mahoba &  

Ors.) wherein the High Court had held as follows:

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“…..A fair and reasonable interpretation of Rule 12 in  the light of the aforesaid Judgment is that the wait list  should not be drawn for more than twice the number  of anticipated vacancies in the recruitment year, and  should come to an end as soon as the last vacancy on  the date of advertisement is filled up.  It is always open  to the District Judge to anticipate the vacancies due to  superannuation  or  likely  promotion,  but  having  determined  number  of  vacancies,  for  which  the  advertisement  is  made,  and  drawing  a  wait  list  of  equal number of candidates he is not permitted under  the Rules to go on appointing persons from the wait  list  on  unanticipated  vacancies.   Any  other  interpretation  will  only  give  rise  to  serious  irregularities  as  in  the  present  case,  and  will  also  violate the rights of those persons, who become eligible  in  the  meantime  for  being  considered  for  such  vacancies in future.“

In pursuance of the order dated 08.08.2007, the District  

Judge,  Mahoba informed the  appellants  by  letter  dated  

12.11.2007  that  their  services  came  to  an  end  with  

immediate  effect.   Aggrieved  by  the  said  order,  the  

appellants have filed this appeal by way of special leave  

petition.

4) Heard learned counsel for the parties.

5)  The advertisement was issued on 17.08.2000 by District  

Judge,  Mahoba  inviting  applications  for  selection  and  

appointment  on  Class  IV  posts  of  Process  Server,  Orderly,  

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Peon and Farrash.  In response to the said advertisement, the  

appellants applied and on 19.09.2000 results were published  

and they were included in the select list.  All the appellants  

were given appointment on 13.08.2001.  It is the claim of the  

appellants  that  all  the  appointments  were  made  on  

substantive vacancies.   It  is  the grievance of  the appellants  

that  without  any  show  cause  notice,  by  order  dated  

19.09.2003, their appointments have been converted into  ad  

hoc appointment.   The appellants also pointed out  that the  

Rules nowhere provides that the regular appointments can be  

converted into  ad hoc appointments, hence, the order passed  

by  the  District  Judge,  Mahoba,  terminating  their  services  

cannot be sustained and the same was wrongly approved by  

the High Court.  The appellants have asserted that they were  

appointed by order dated 13.08.2001 i.e. within one year of  

their selection by select list  dated 19.09.2000, as such, the  

grounds mentioned in the order dated 19.09.2003 cannot be  

sustained and the service of the appellants has to be treated  

as regular service and no adverse order can be passed against  

them.

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6)  On the other hand, it is the contention of the respondents  

that in view of Rule 12 of the Uttar Pradesh Subordinate Civil  

Courts  Inferior  Establishment  Rules,  1995  (in  short  ‘the  

Rules’), the select list, mentioned as waiting list, should be a  

moderate  one  containing  that  number  of  candidates  which  

was  not  less  than  or  much  excess  of  the  vacancies  which  

might  be  available  in  the  year  of  recruitment  or  the  year  

succeeding  thereto  and  this  list  should  be  in  reasonable  

proportion to the notified vacancies.  In other words, according  

to the respondents, a wait list of the candidates contemplated  

under Rule 12 cannot be deemed to be subsisting for a period  

beyond  the  filling  up  of  the  notified  vacancies.  It  is  also  

submitted by the respondents that once all the vacancies were  

filled up, the waiting list would stand exhausted.  In support  

of  the  above  stand,  the  respondents  relied  on  Office  

Memorandum of the State Government dated 31.01.1994 in  

which it has been provided that the waiting list should be valid  

only for one year.

7)  In order to consider the rival claim of both the parties, it is  

useful to refer the relevant provisions from the Rules:-  

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Rule  2  (f)  defines  “Waiting  List”  as  the  list  of  candidates  

approved  under  the  rules,  for  appointment  to  the  various  

posts in the establishment.

Rule 4(2) of the Rules lays down the method of recruitment for  

Process  Servers,  Orderlies,  Office  Peons  and Farrashes  and  

reads thus:

“Rule  4.  Method  of  recruitment.—Recruitment  to  the  following posts in the establishment shall be made— (1)….. (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) …..”

As  per  Rule  5,  all  appointments  to  the  establishment  in  a  

Judgeship shall be made by the District Judge.   

Rule 12 is very relevant for our purpose which reads as under:

“12.  Waiting  List—(i)  A  waiting  list  of  candidates  shall  be  maintained  for  each  Judgeship  for  the  posts  of  process  servers, orderlies, office peons and farrashes. No  waiting  list  shall  be  maintaind  for  chaukidars,  malis,  sweepers and waterman. (ii) The waiting list should be of reasonable dimensions and  be revised from time to time with a view to removing there  from the names of— (a) all  such  candidates  as  are  not  likely  to  receive  

appointments  before  attaining  the  maximum  age  prescribed in Rule 8, and

(b) such candidates as are found guilty of insubordination,  misbehaviour  or  dishonesty in  the  discharge  of  their  

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duties in temporary or officiating vacancies, after giving  them necessary opportunities to explain their conduct.

Note—The order of names in the waiting list shall be in the  order  in  which  the  candidates  are  admitted  to  it  but  the  District Judge may at the time of appointment, choose from  the list the most suitable of all the candidates for reasons to  be recorded in writing.”

8)  The advertisement dated 17.08.2000 makes it clear that a  

waiting list for the post of Tamola Dahak Orderly, Peons and  

Farrash in the pay scale of Rs. 2550-3200/- for District Court,  

Mahoba is to be prepared.  In view of the same, applications  

from eligible candidates were invited in the prescribed format  

and  the  same  has  to  be  submitted  to  the  Office  of  Senior  

Administrative  Officer  of  District  Judge,  Mahoba.   The  

advertisement  further  shows  that  the  candidates  will  be  

interviewed on 11.09.2000 at  District  Court,  Mahoba.   The  

eligibility  conditions  for  the  said  posts  were  that  the  

candidates should be at least 8th, should be an Indian citizen,  

capable of writing and reading english words and figures and  

should not be less than 18 years and more than 35 years as  

on  31.09.2000.   There  is  no  dispute  that  all  the  three  

appellants  satisfied  the  eligibility  conditions.   The  list  of  

selected  candidates  interviewed  during  11.09.2000  to  

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15.09.2000  in  District  Court,  Mahoba  was  published  on  

19.09.2000.  In that select list, appellants were shown at S.No.  

9,  10  and  11.  By  appointment  orders  dated  13.08.2001  of  

District Judge, Mahoba, the appellants have been appointed to  

Class IV posts in the District Court, Mahoba.  No doubt, it is  

specifically  stated  that  they  were  appointed  in  a  temporary  

capacity  in  the  pay  scale  of  Rs.  2550-3200/-  and  their  

appointment was purely temporary and was terminable at any  

time without any prior notice.   

9)  It is the claim of the respondents before the High Court as  

well  as  before  us  that  since  the  appellants  were  appointed  

after a period of one year from the date of their selection by  

select list dated 19.09.2000, in terms of Government Order as  

well as Rule 12, their appointment cannot be sustained since  

the wait list stood exhausted on the appointments being made  

against the available vacancies on the date of advertisement  

i.e.,  6  +  1,  and therefore,  they  have  no  right  to  claim any  

appointment.  We are unable to accept the said contention.  

We  have  already  noted  the  date  of  advertisement  and  the  

vacancies available. The material placed as well as the details  

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available in the order of the learned Single Judge of the High  

Court  clearly  shows that  on 20.09.2000,  the  District  Judge  

appointed six persons, namely, Sri Shitla Prasad, Shri Anand  

Kumar Shukla, Shri Santosh Kumar Saini, Shri Ravi Ranjan  

Kumar  Gautam  and  Shri  Vinod  Kumar  Paliwal  on  these  

available six vacancies on the thirty five sanctioned posts (31  

at  Mahoba  and  4  at  Charkhari)  in  the  Judgeship.   These  

factual details were extracted by the learned single Judge in  

the order dated 26.11.2005 based on the information supplied  

in the counter affidavit of Shri Balendu Singh, Ist Additional  

District Judge, Mahoba.  The same order further shows that  

Shri  Prem Narayan  at  S.No.  7  was  left  out  and  was  given  

appointment  as SC candidate  on 23.12.2000.   Smt.  Mamta  

Devi at S.No. 8 of the list drawn according to roster was given  

appointment on 13.02.2001.  It is further recorded that the  

candidates at S.Nos. 9 to 12, namely,  Shri  Naseem Ahmad,  

Shri  Prakash Chandra,  Shri  Sohan Lal,  (appellants  herein),  

Shri  Rajendra  Prasad  Gautam were  given  appointments  as  

against four vacancies at the outlying court at Charkhari.

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10)   It  is  clear  from  the  information  furnished  before  the  

learned single Judge that the select list of the appellants was  

dated 19.09.2000 whereas they were appointed by order dated  

13.08.2001 i.e. within one year of the declaration of results.  

The  order  dated  19.09.2003  provides  that  only  the  

appointments made after 19.09.2001 were ad hoc.  As all the  

appellants  have  been given  appointment  within  one  year  of  

publication  of  select  list  dated  19.09.2000,  their  services  

cannot be termed as  ad hoc.  Even if it is accepted that wait  

list  is  valid  only  for  one  year,  since  the  appellants  were  

appointed well  prior  to the expiry of  the one year,  the said  

objection cannot be countenanced.

11)   About  the  validity  of  wait  list  and  the  claim  of  the  

respondents that it is valid only for one year, we have already  

pointed out that the relevant Rule applicable is Rule 12 which  

admittedly  does  not  prescribe  any  such  limitation.   Even  

though, the High Court has adverted to clarification said to  

have been issued by the Government,  the fact remains, the  

statutory rule i.e. Rule 12, as it existed on the relevant date  

did not provide any time limit in regard to the operation of the  

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waiting list.    In such circumstances, the claim of the official  

respondents  that  a  waiting  list  of  candidates  contemplated  

under Rule 12 cannot be deemed to be subsisting for a period  

beyond the filling up of  the notified vacancies for the filling  

whereof  the  list  has  to  be  prepared  and maintained  is  not  

supported by any statutory Rule and liable to be rejected.  It is  

true that it cannot be deemed to be operative for an indefinite  

period.  We have already pointed out that even if we accept  

that the life of the wait list is only for one year, inasmuch as  

these appellants were appointed by order dated 13.08.2001,  

within  one  year  of  their  selection  by  the  select  list  dated  

19.09.2000, the stand of the respondents is to be rejected and  

the  service  of  the  appellants  has  to  be  treated  as  regular  

service and no adverse order can be passed against them.  As  

discussed  above,  the  construction  of  Rule  12  as  per  

interpretation of the statute would be that its life is not limited  

for  a  particular  year  since  the  Rule  is  very  specific  and  

unambiguous.   Wait  list  gets exhausted only when all  duly  

selected  candidates  are  given  appointments  in  the  light  of  

Rule 12.  As long as the wait list was not exhausted, a fresh  

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list  could  not  be  prepared  under  Rule  12  and  the  process  

initiated by the  respondents  for  advertising fresh posts and  

cancelling the wait list by making it as  ad hoc is against the  

provisions of the Rules.

12)  The waiting list was prepared as per Rule 12 and had to  

be  operated  as  per  Rule  12.   The  aforesaid  Rule  12  

contemplates  that  the  waiting  list  should  be  of  “reasonable  

dimension” and be revised from time to time with a view to  

removing  therefrom the  names  of  such candidates  who are  

found guilty of insubordination, misbehaviour or dishonesty in  

the  discharge  of  their  duties  in  temporary  or  officiating  

vacancies. The wait list is neither a selection list prepared with  

reference  to  specific  number  of  vacancies  notified.   It  is  

somewhat peculiar and special.   The expression “reasonable  

dimension”  used in Rule 12 of  the aforesaid Rules  signifies  

that the wait list should be a moderate one containing that  

number of candidates which is adequate to meet the vacancies  

which might  be  available  within a reasonable  period in  the  

year of recruitment or the year succeeding thereto and this list  

should be in reasonable proportion to the notified vacancies.  

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To  be  more  precise,  this  waiting  list  should  broadly  be  

correlated to the number of vacancies either available in the  

year  of  recruitment  or  likely  to  become  available  in  the  

succeeding  year  and  the  proportion  qua the  existing  and  

anticipated  vacancies.   It  is  only  in  order  to  obviate  the  

possibility of the waiting list becoming vitiated on account of  

the  vice  of  arbitrariness  or  illegal  discrimination  that  the  

provision  contains  the  Rules  which  specifically  provides  for  

maintaining  a  waiting  list  of  a  reasonable  dimension.   The  

word  ‘dimension’  has  to  be  understood  to  emphasise  the  

proportion qua the vacancies which are sought to be filled up.  

It is relevant to mention that we have already noted the factual  

materials furnished before the learned Judge which was noted  

in  the  order  and  shows  that  the  sanctioned  posts  at  the  

relevant time were 35 i.e. 31 at Mahoba and 4 at Charkhari in  

Judgeship.  In this factual position, the contrary conclusion  

and the interpretation as to expression “reasonable dimension”  

cannot be accepted.   

13)  Under these circumstances, the claim of the appellants  

has to be accepted.  In the course of hearing, it is brought to  

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our notice that appellant Nos. 1 and 3 i.e.,  Naseem Ahmad  

and Sohan Lal were once again appointed temporarily for one  

year  by  order  dated  30.11.2007  as  Class  IV  employees.  

However, the appellant No. 2 –Prakash Chandra was not re-

appointed since at that time he was over aged.  

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14) In these circumstances, we hold that appellant Nos. 1 to  

3 are deemed to continue in service from the date of initial  

selection  i.e.,  13.08.2001  and  for  all  purpose  and  service  

benefits, the relevant date is date of their initial selection i.e.,  

13.08.2001  and  they  are  permitted  to  continue  as  per  the  

Rules applicable.  The impugned order of the High Court is set  

aside.  The appeal is allowed to the extent mentioned above.  

No costs.   

...…………………………………J.           (R.V. RAVEENDRAN)  

...…………………………………J.                   (P. SATHASIVAM)                                  

...…………………………………J.           (A.K. PATNAIK)  

NEW DELHI; DECEMBER 10, 2010.    

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