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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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