IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Writ Petition No. 6746 OF 2001 (Old No.13585 of 1995) Sita Ram S/o Murti Prasad R/o Narendra Nagar District- Tehri Garhwal ………Petitioner Versus 1. The District Magistrate, Tehri Garhwal 2. Sub Divisional Magistrate Narendra Nagar, Distt- Tehri Garhwal ………Respondents Shri J.C. Joshi, learned Sr. Counsel assisted by Shri Chetan Joshi, Advocate for the petitioner. Learned Standing Counsel for the State. Hon’ble Prafulla C. Pant, J. By means of this Writ Petition, moved under Article 226 of Constitution of India, the petitioner has sought mandamus directing the respondents to issue appointment letter in favour of the petitioner against a Class-IV post as per the alleged select list prepared by the Selection Committee 29.06.1994. 2. Brief facts of the case, as narrated in the writ petition, are that recruitment to Group-D posts are made according to U.P. Group-D Employees Service Rules, 1985. Rule 16 of said Rules requires constitution of Selection Committee and Rule 19 pertains to the procedure of recruitment. According to the petitioner, District Magistrate, Tehri, 2 constituted a Committee under Rule 16 for filling the vacancies in Group-D in the office of the Sub-Divisional Magistrates, Narendra Nagar and Special Land Acquisition Officer, Tehri Garhwal at Narendra Nagar. It is alleged that petitioner’s name found place at serial no. 6 of the select list dated 29.06.1994 (copy Annexue-1) but he was not given the appointment while the person at serial no. 8 of the select list has been offered the same. It is further alleged that petitioner was a physically handicapped person (copy of Certificate at Annexure- 2 to the Writ Petition) when the petitioner did not get the appointment even after making representation, he moved the present petition before Allahabad High Court in the year 1995. A counter affidavit has been filed by the respondents, denying if any select list dated 29.06.1994 was prepared. It is stated in the counter affidavit that whatever appointments have been made these were under Rule 23 (2) and (3) of the U.P. Group-D Employees Services Rules, 1985. 3. I heard learned Counsel for the parties and perused the record. 4. The procedure for recruitment against the Group-D posts is provided under Part V of the Group-D Employees Service (U.P.) Rules, 1985. The recruitment is to be made every year and appointments are required to be made under Rule 23 of Part VI of aforesaid Rules. Before further discussion, it is pertinent to mention here Rule 23, which is quoted as under:- “23. Appointment –(1) On the occurrence of substantive vacancies the appointing authority shall make 3 appointments from the list of candidates prepared under Rule 21 or Rule 22, as the case may be, in the order in which their names appear in the list. (2) The appointing authority shall also make appointment in officiating and temporary vacancies from the said list and in the manner referred to in sub-rule (1). (3) When the list of selected candidates is exhausted or no candidate is available for appointment from out of the selected candidates ad hoc appointments may be made by the appointing authority from amongst the eligible candidates. Provided that such appointment shall not last for a period exceeding one year or beyond the next selection under these rules, whichever is earlier” 5. From above Rules, it is clear that the appointment on ad-hoc basis can be made only if no candidate is available from amongst the selected candidates. Here the respondents have taken the plea that there was no selection list and it is only under Rule 23 (2) and (3), the appointment were made. The said plea is vague. It is not mentioned who is appointed and when he was appointed and for what period. This was the most material fact which the respondents should have disclosed to the Court. From the Annexure filed with the rejoinder affidavit, which is copy of the letter dated 9th August, 1996 sent by the Commissioner, Garhwal Region to the District Magistrate, Tehri vide No. 1071/7-1(1), it appears that the Commissioner reminded the Collector to make appointment of one Krishna Chand, S/o Shri Madhavanand whose 4 name figures at serial no. 1 of the select list and who has also obtained orders from the High Court. 6. Learned Standing Counsel questioned the verasity and genuineness of the select list filed by the petitioner as Annexure-1 but mere vague denial in counter affidavit, concealing the fact as to who was appointed by respondent no. 1 and with what terms, is not sufficient to doubt the alleged select list. From para- 22 to 27 of the petition, the petitioner has stated the facts narrating the preparation of the select list and it is further stated on its basis that one of the selected candidates namely, Shri Pushkar Singh, filed his Writ Petition No. 11567 of 1995 before the Allahabad High Court in which interim order was passed on 02.05.1995. In reply to this, once again the respondents are very vague as in the counter affidavit only this much is mentioned that ‘para 22 to 27 are not admitted’. Name of Shri Pushkar Singh also finds place in the select list (copy Annexure-1) at serial no. 2. The respondents have not specifically stated in their counter affidavit if no person named Shri Pushkar Singh was selected or had filed any Writ Petition or had obtained any interim order. In para 16 of the Writ Petition, the petitioner has specifically stated that Pushkar Singh and Kamal Singh have been given appointment. From the Annexure-1 to the Writ Petition, it appears that Kamal Singh was at serial no. 5. It is further stated in para 17 of the Petition that Sita Singh, S/o Shri Kalia Singh candidate at serial no. 8 has also been given the appointment. In view of the letter dated 09.08.1996 (copy Annexure filed with the rejoinder affidavit), of the Commissioner, Garhwal Division, this Court has no reason 5 to disbelieve the select list dated 29.06.1994, annexed as Annexure-1 to the Writ Petition. The Writ Petition appears to have been filed before the Allahabad High Court on 18th May, 1995 i.e. within one year of the preparation of the select list. 7. Learned Counsel for the respondents submitted that what ever appointments have made are under sub-rule (2) and sub-rule (3) of Rule 23 as aforesaid. But learned Standing Counsel failed to show me the select list, from where the appointments were made under sub-rule (2). Respondents also could not show me the ad-hoc appointments list of the persons if the same were made under sub-rule (3) on the ground that no person from the select list was available. 8. In the circumstances, the Writ Petition deserves, and is allowed to the extent that if any appointment is already made from the select list mentioned in Annexure-1, of a person who is below in merit to the petitioner (who is shown at serial no. 6), then the appointment letter to the petitioner shall be issued according to the rules, within thirty days of production of certified copy of this order before the District Magistrate, Tehri. (Prafulla C. Pant, J.) Dt: February 17, 2005 Sweta