JUDGMENT [ENTITY], J.
1. This petition has been filed for quashing the order dated 26th May, 2006 passed by the learned District Judge, Aligarh whereby the waiting list of the candidates declared on 21st July, 2005 for Class IV employees in the Aligarh District Judgeship was cancelled. The petitioner has also sought the quashing of the appointment orders of respondent Nos. 3, 4 and 5 as [ENTITY]s in Aligarh District Judgeship. The relief for appointing the petitioner as a Class IV employee on the vacant post has also been sought.
2. An advertisement was issued in the Newspaper 'Amar Ujala' on 18th June, 2005 inviting applications for the two posts of Class IV employees in the District Court, Aligarh. It was mentioned that the number of posts can be increased or reduced. The petitioner applied for being considered for appointment against the said post and on the basis of the written examination and the interview, a list of seven candidates was declared on 21 st July, 2005 in which the petitioner was placed as Serial No. 4. It was mentioned in the said list that the candidates at Serial Nos. 1 to 3 had been selected for appointment while the rest were kept in the waiting list which would be in existence for a period of two years.
3. The petitioner claims that he was subsequently appointed as a peon in the Court of Civil Judge (LD), Atrauli as one [ENTITY] took leave from 25th July, 2005 up to 25th October, 2005. This appointment of the petitioner which lasted till 25th October, 2005 was made as he was at Serial No. 1 in the waiting list declared on 21st July, 2005. The petitioner thereafter submitted an application before the District Judge, Aligarh on 24 th April, 2006 mentioning therein that as two posts had fallen vacant in Class IV category on account of the promotion of Sri [ENTITY] and Sri [ENTITY] he may be appointed. This application was rejected by the District Judge in view of the report submitted by the In-charge, Nazarat. Subsequently, the District Judge by his order dated 26th May, 2006 also cancelled the waiting list of four persons declared on 21st July, 2005 in view of the Inspection Note made by the learned Administrative Judge on 12th May, 2006 and the circular dated 20th February, 1999 issued by this Court. Soon thereafter, the District Judge, Aligarh appointed respondent Nos. 3, 4 and 5 as [ENTITY]s.
4. The contention of the petitioner is that he was at Serial No. 1 in the waiting list prepared on 21st July, 2005 which list was valid for a period of two years but without any rhyme or reason the said list was cancelled by the District Judge by the order dated 26th May, 2006 and immediately thereafter respondent Nos. 3, 4 and 5 were appointed as Class IV employees in an arbitrary manner without even advertising the said posts.
5. It needs to be mentioned that the appointment to Class IV post in District Judgeship is provided under [SECTION] of the [ACT] (hereinafter referred to as the 'Rules') and the same is as follows:
4. Method of recruitment: Recruitment to the following posts in the establishment shall be made.
(1) Daftaries and bundle lifters- By promotion strictly on merits from amongst process servers, orderlies, office peons and farrashes who have put in at least five years service as such:
Provided that no person shall be promoted to these posts unless he is able to read and write Hindi in Devnagri Script with correctness and fluency and can discharge the duties of the office satisfactorily and in the case of the post of daftari unless he also knows book binding.
(2) Process servers, orderly, peons, Office peons and farrashes-(a) by appointment of candidates on the waiting list prepared under [SECTION] by transfer from one post to another according to suitability.
(3) Chaukidars, Mails, Waterman and sweepers- By direct recruitment on the discretion of District Judge.
6. A counter affidavit has been filed on behalf of the District Judge, Aligarh respondent No. 2 pointing out that the appointments of the private respondent Nos. 3, 4 and 5 had been made under [SECTION] of the Rules. It has also been stated that the select list/waiting list declared on 21st July, 2005 would not be applicable to the [ENTITY]s and, therefore, even if the said list had not been cancelled by the order dated 26 th May, 2006, the appointments of three persons as [ENTITY]s could not have been made on the basis of the said list.
7. A counter affidavit has also been filed on behalf of the private respondent Nos. 3, 4 and 5. It has been stated that the post of Class IV employees referred to in the advertisement dated 18th June, 2005 was in respect of the categories mentioned in [SECTION] relating to Process Servers etc. and not to [ENTITY]s and, therefore, the petitioner had no claim to be appointed as [ENTITY] merely because his name was at Serial No. 1 in the waiting list declared on 21st July, 2005. It has further been stated that respondent Nos. 3, 4 and 5 had been appointed under [SECTION] of the Rules on the discretion of the District Judge.
8. I have heard Sri [ENTITY], learned Counsel for the petitioner, learned Standing Counsel for respondent No. 1, Sri [ENTITY], learned Counsel for respondent No. 2 and Sri [ENTITY], learned Counsel for respondent Nos. 3, 4 and 5.
9. The advertisement published on 18th June, 2005 invited applications for filling up two posts of Class IV employees in District Court, Aligarh. It also mentioned that the number of posts could increase or decrease. A perusal of the list declared on 21st July, 2005 (Annexure-4 to the writ petition) indicates that it contains the names of seven candidates and while the candidates at Serial Nos. 1, 2 and 3 were appointed, the name of the Petitioner is at Serial No. 4. It has also been mentioned in the list that the remaining candidates shall be placed in the waiting list which shall be effective for a period of two years.
10. Learned Counsel for the petitioner submitted that in the absence of any material on record to indicate that the advertisement that had been issued on 18th June, 2005 related to the post of Process Server mentioned in [SECTION], the waiting list should not be confined to the posts mentioned in [SECTION] of the Rules and, therefore, if the waiting list had not been cancelled by the order dated 26th May, 2006, the appointments of [ENTITY]s that had been made in July, 2006 should have been made from the persons whose names figured in the waiting list and respondent Nos. 3, 4 and 5 could not have been appointed. He further contended that even if it be assumed that the earlier advertisement did not relate to the post of [ENTITY]s then too the appointment of respondent Nos. 3, 4 and 5 as [ENTITY]s was liable to be cancelled as it had been made without issuing any advertisement for filling in the said posts.
11. Though there is nothing on the record to indicate that the advertisement that had been issued on 18th June, 2005 was confined to the posts mentioned in [SECTION] of the Rules and nor has any document been brought on record to indicate that the three candidates from the list had been appointed on any post mentioned in [SECTION] of the Rules but a perusal of [SECTION] and [SECTION] of the Rules clearly shows that the waiting list of the candidates is to be prepared for each Judgeship for the posts of Process Servers, Orderlies, Office Peons and Farrsashes and no waiting list shall be maintained for [ENTITY]s, Malies, Sweepers and Watermen. Such being the position, the contention of the learned Counsel for the respondents that the waiting list declared on 21st July, 2005 related to the posts mentioned in [SECTION] and the appointments of [ENTITY]s could not have been made from the said waiting list deserves to be accepted. It is, therefore, not necessary to examine the contention advanced by the learned Counsel for the petitioner that the waiting list dated 21st July, 2005 had been cancelled in an arbitrary manner by the District Judge by his order dated 26th May, 2006 as learned Counsel for the the petitioner did not place any material to show that any vacancy to the posts enumerated in [SECTION] came into existence during this period.
12. The question that now remains to be determined is whether the appointment of private respondent Nos. 3, 4 and 5 to the post of [ENTITY]s is valid. Learned Counsel for the petitioner submitted that the said orders are liable to be set aside as these persons had been appointed in an arbitrary manner in clear violation of the provisions of [SECTION] and [SECTION] of the [ACT] since no advertisement had been issued for filling up these posts.
13. Sri [ENTITY], learned Counsel appearing for the District Judge, Aligarh and Sri [ENTITY], learned Counsel appearing for respondent Nos. 3, 4 and 5 vehemently urged that it was not necessary to issue, any advertisement as under [SECTION] of the Rules, the appointments were required to be made on the discretion of the District Judge.
14. Learned Counsel have placed much emphasis on the discretionary power of the District Judge to make appointments under [SECTION] of the Rules. It is, therefore, necessary to examine the scope of this power. The Supreme Court has repeatedly observed that even in a situation where an authority is vested with a discretionary power, such power can be exercised by adopting that mode which best serves the interest and even if the Statute is silent as to how the discretion should be exercised, then too the authority cannot act whimsically or arbitrarily and its action should be guided by reasonableness and fairness because the legislature can never intend that its authorities could abuse the laws or use it unfairly. Any action which results in unfairness and arbitrariness results in violation of [SECTION] of the [ACT]. It has also been emphasised that an authority cannot assume to Itself an absolute power to adopt any procedure and the discretion must always be exercised according to law.
15. In Websters' Third New International Dictionary 'discretion' means "Power of free decision or choice within certain legal bounds: ability to make decisions which represent a responsible choice and for which an understanding of what is lawful, right, or wise may be presupposed."
[SECTION]. In Black's Law Dictionary, Sixth Edition, 'discretion' means: "As applied to public officers connotes action taken in light of reason as applied to all facts and with view to rights of all parties to action while having regard for what is right and equitable under all circumstances and law."
17. In this connection reference may also be made to the decision of the Supreme Court in [PRECEDENT]. wherein the scope of discretionary power has been dealt with:
Discretion is an effective tool in administration. But wrong notions about it results in ill-conceived consequences. In law it provides an option to the authority concerned to adopt one or the other alternative. But a better, proper and legal exercise of discretion is one where the authority examines the fact, is aware of law and then decides objectively and rationally what serves the interest better. When a statute either provides guidance or rules or regulations are framed for exercise of discretion then the action should be in accordance with it. Even where statutes are silent and only power is conferred to act in one or the other manner, the Authority cannot act whimsically o arbitrarily. It should be guided by reasonableness and fairness. The legislature never intends its authorities to abuse the law or use it unfairly
(emphasis supplied).
18. In [PRECEDENT]. the Supreme Court observed:
After considering the matter carefully, we confess, we are unable to subscribe to the view to that the selection of candidates for that purpose must remain in the unlimited discretion and the uncontrolled choice of the State Government. We think it beyond dispute that the exercise of all administrative power vested in public authority must be structured within a system of controls informed by both relevance and reason-relevance in relation to the object which it seeks to serve, and reason in regard to the manner in which it attempts to do so. Wherever the exercise of such power affects individual rights, there can be no greater assurance protecting its valid exercise than its governance by these twin tests. A stream of case law radiating from the now well known decision in this Court in [PRECEDENT] has laid down in clear terms that [SECTION] of the [ACT] is violated by powers and procedures which in themselves result in unfairness and arbitrariness. It must be remembered that our entire constitutional system is founded in the rule of law, and in any system so designed it is impossible to conceive of legitimate power which is arbitrary in character and travels beyond the bounds of reason. To contend that the choice of a candidate selected on the basis of his ability to project the culture and ethos of his home State must necessarily be left to the unfettered discretion of executive authority is to deny a fundamental principle of our constitutional life. We do not doubt that in the realm of administrative power the element of discretion may properly find place, where the statute or the nature of the power intends so. But there is a well recognised distinction between an administrative power to be exercised within defined limits in the reasonable discretion of designated authority and the vesting of an absolute and uncontrolled power in such authority. One is power controlled by law countenanced by the [ACT], the other falls outside the [ACT] altogether.
(emphasis supplied)
19. In [PRECEDENT] the Supreme Court observed:
When anything is left to any person, judge or Magistrate to be done according to his discretion, the law intends it must be done with sound discretion, and according to law. (See Tomlin's Law Dictionary.) In its ordinary meaning, the word "discretion" signifies unrestrained exercise of choice or will; freedom to act according to one's own judgment; unrestrained exercise of will; the liberty or power of acting without control other than one's own judgment. But, when applied to public functionaries, it means a power or right conferred upon them by law, of acting officially in certain circumstances according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others. Discretion is to discern between right and wrong; and therefore, whoever hath power to act at discretion, is bound by the rule of reason and law. (See [ENTITY] 's Law Dictionary.) Discretion, in general, is the discernment of what is right and proper. It denotes knowledge and prudence, the discernment which enables a person to judge critically of what is correct and proper united with caution: nice soundness of judgment; a science or understanding to discern between falsity and truth, between wrong and right, between shadow and substance, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons. When it is said that something is to be done within the discretion of the authorities, that something is to be done according to the rules of reason and justice, not according to private opinion; according to law and not humour. It is to be hot arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man, competent to the discharge of his office ought to confine himself (per Lord [ENTITY], L.C., in Sharp v. Wakefield). (Also see [PRECEDENT].) The word "discretion" standing single and unsupported by circumstances signifies exercise of judgment, skill or wisdom as distinguished from folly, unthinking or haste; evidently therefore a discretion cannot be arbitrary but must be a result of judicial thinking. The word in itself implies vigilant circumspection and care: therefore, where the legislature concedes discretion it also imposes a heavy responsibility.
(emphasis supplied)
20. There is, therefore, no doubt that while exercising his 'discretion' under [SECTION] of the Rules in making appointments, the District Judge has to ensure that the procedure adopted by him is in conformity with the provisions of [SECTION] and [SECTION] of the [ACT] and that he cannot act in an unfair or arbitrary manner.
21. Having examined this aspect it has now to be seen whether the District Judge could make appointments under [SECTION] of the Rules without causing any advertisement for the posts.
22. The Supreme Court has emphasized that appointment to any post can be made only after proper advertisement has been made inviting applications from eligible candidates and any appointment without holding the proper selection where all eligible candidates get a fair chance to compete would be violative of [SECTION] of the [ACT] and, therefore, illegal. It has also been observed that there has to be equality of opportunities in matters of public employment and this principle would also govern the instrumentalities that come within the purview of [SECTION] of the [ACT].
23. In this connection reference may be made to the decision of the Supreme Court in [PRECEDENT]. wherein it was observed:
The appointment to any post under the State can only be made after a proper advertisement has been made inviting applications from eligible candidates and holding of selection by a body of experts or a specially constituted committee whose members are fair and impartial, through a written examination or interview or some other rational criteria for judging the inter se merit of candidates who have applied in response to the advertisement made.
24. Reference may also be made to the [ACT] Bench decision of the Supreme Court in [PRECEDENT]. , in which it was observed:
[SECTION] of the [ACT] gives the Government the power to frame rules for the purpuse of laying down the conditions of service and recruitment of persons to be appointed to public services and posts in connection with the affairs of the Union or any of the States. That Article contemplates the drawing up of a procedure and rules to regulate the recruitmert and regulate the service conditions of appointees appointed to public posts. It is well acknowledged that because of this, the entire process of recruitment for services is controlled by detailed procedure which specify the necessary qualifications, the mode of appointment etc. If rules have been made under [SECTION] of the [ACT], then the Government can make appointments only in accordance with the rules
In addition to the equality clause represented by [SECTION] of the [ACT], [SECTION] has specifically provided for equality of opportunity in matters of public employment In view of the interpretation placed on [SECTION] of the [ACT] by this Court, obviously, these principles also govern the instrumentalities that come within the purview of [SECTION] of the [ACT]
Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our [ACT] and since the rule of law is the core of our [ACT], court would certainly be disabled from passing an order upholding a violation of [SECTION] or in ordering the overlooking of the need to comply with the requirements of [SECTION] read with [SECTION] of the [ACT]. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee
25. A Full Bench of this Court in [PRECEDENT]. [PRECEDENT] also examined whether even temporary appointment could be made without causing any advertisement and it was observed:
The advertisement of short term vacancy on the notice board of the institution according to me, in fact no notice to the prospective eligible candidates as no prospective candidate is expected to visit each institution to see the notice board for finding out whether any short term vacancy has been advertised. Since the payment of salary to the teachers appointed against the short term vacancy is the liability of the State Government, the advertisement of short term vacancy must conform to the requirement of [SECTION] of the [ACT] which prohibit the State from doing anything whether by making rule or by executive order which would deny equal opportunity to all the citizens. The provision contained in [SECTION] of the [ACT] which provides that the short term vacancy shall be notified on the notice board of the institution, does not give equal opportunity to all the eligible candidates of the District, Region or the State to apply for consideration for the appointment against the said short term vacancy. Such kind of notice is an eye wash for the requirement of [SECTION] of the [ACT]. This aspect can be examined from another angle. If the notice of short term vacancy, through the notice board of the institution is accepted, it will throw open the doors for manipulation and nepotism. A management of an institution may or may not notify the short term vacancy on the notice board of the institution and yet may show to the authority that such vacancy has been notified on the notice board of the institution against the short term vacancy. I am, therefore, of the view that the procedure for notifying the short term vacancy should be the same as it is for the ad hoc appointment by direct recruitment under the First Removal of Difficulties Order. The management after intimating such vacancy to the District Inspector of Schools advertise such short term vacancy at least in two News Papers having adequate circulation in Uttar Pradesh in addition to notifying the said vacancy on the notice board of the institution and further the application may also be invited from the local employment exchange
26. The aforesaid decision of the Full Bench was approved by the Supreme Court in [PRECEDENT]. .
27. In [PRECEDENT]. decided on 25th May, 2007 I had dealt with a similar controversy and had observed:
Learned Counsel for the petitioners, however, urged that there was no requirement in law for issuing any advertisement as the appointment to the post of Chaukidar had to be made on the discretion of the District Judge. This contention cannot be accepted as even if it is to be made on the discretion of the District Judge then too the District Judge cannot make appointments in an arbitrary manner dehorse the provisions of [SECTION] and [SECTION] of the [ACT].
28. A similar controversy was also examined by this Court in [CASE NUMBER] [PRECEDENT]. decided on 22nd August, 2005 and it was observed:
The discretion given by the District Judge under [SECTION] of the Rules of 195, for appointment of [ENTITY], Malies, Waterman, and Sweepers, is not to be exercised on his whims. The appointing authority exercising statutory powers of appointment in public service under statutory rules can not use his discretion for oblique purposes. The submission that there are no guidelines provided in the rules for exercising the discretion is not correct. The appointment on a civil post, even if made at the sole discretion of the appointing authority, has to be made by giving wide publicity inviting all the eligible persons, and thereafter by following a selection procedure which should be fair, transparent, and reasonable and should conform to the tests of equality non-arbitrariness guaranteed to all the citizens, under [SECTION] and [SECTION] of the [ACT]. The Rules of reservation under [SECTION] of the Rules of 1955 are required to be followed by the District Judge. He must ensure that the persons appointed are not below the minimum and above the maximum age and are in a good mental and bodily health, free from any physical defect and bear good character duly verified for public employment.
There is no substance in the submission of learned Counsel for the petitioner that the discretion of District Judge cannot be questioned unless there is any allegation of malafide which has been put to test after an enquiry. Where the District Judge does not advertise the vacancy and follow any procedure, muchless a fair and reasonable procedure for selection, having due regard to the eligibility and follow the rules of reservation, the appointments cannot be sustained.
The discretion given to the District Judges to make appointments on the post of [ENTITY], Malies, waterman and sweeper is by way of a trust and must therefore, be exercised in accordance with settled principle of fairness transparency and reasonableness. The District Judge must adhere to the settled norms of selections by the vacancies even if they fall on the posts mentioned in [SECTION], advertising hold selections in making such appointments, and follow the rules of reservation
29. In the present case, the appointments of private respondent Nos. 3, 4 and 5 had been made without issuing any advertisement. They, therefore, have no right to continue on the said post. It has been pointed out by the Supreme Court in the above mentioned cases that where all the eligible candidates are not given a fair chance of competing in the matter relating to appointment, [SECTION] of the [ACT] is violated and that rule of equality in public employment is a basic feature of the [ACT]. The appointments of respondent Nos. 3, 4 and 5 are, therefore, liable to be set aside as the District Judge has not followed the procedure. In [PRECEDENT]. the Supreme Court observed:
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 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. It 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. The High Court has been more than generous in allowing the appellants to participate in any fresh selection procedure as may be held and in granting a relaxation of the age limit.
30. The Supreme Court very recently in [PRECEDENT] while upholding the orders of cancellation of appointment of field staffs of the Revenue Department on i certain grounds including the ground that appointments had been made without any advertisement or without notifying the vacancies to the employment exchange observed:
The State while offering appointments, having regard to the constitutional scheme adumbrated in [SECTION] and [SECTION] of the [ACT], must comply with its constitutional duty, subject to just and proper exceptions, to give an opportunity of being considered for appointment to all persons eligible therefor.
The posts of field staffs of the Revenue Department of the State of Manipur were, thus, required to be filled up having regard to the said constitutional scheme. We would proceed on the assumption that the State had not framed any recruitment rules in terms of the proviso appended to [SECTION] of the [ACT] but the same by itself would not clothe the Commissioner of Revenue to make recruitment in violation of the provisions contained in [SECTION] and [SECTION] of the [ACT].
31. Thus, for all the reasons stated above, the appointments of respondent Nos. 3, 4 and 5 on the post of [ENTITY] in District Judgeship, Aligarh cannot be sustained and are hereby set aside.
32. The writ petition, therefore, succeeds and is allowed to the extent indicated above.