WAHAB UDDIN & ORS. versus KM. MEENAKSHI GAHLOT & ORS.
[2021] 7 S.C.R. 291, Supreme Court of India, 2021
Outcome: Dismissed (Dismissed)
Segment: Ratio
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WAHAB UDDIN & ORS.
v.
KM. MEENAKSHI GAHLOT & ORS.
(Civil Appeal No. 6477 of 2021)
NOVEMBER 13, 2021
[M. R. SHAH AND A. S. BOPANNA, JJ.]
Service Law: Appointment – Claim for appointment cannot
be made on the basis of expired select list.
Service Law: Appointment on leave vacancies – Appointment
letter stated that the appointment of appellants would be terminated
once the regular employee resumes their duties – Held: Once the
regular employees resume their duties, the services of appellants
are to be terminated and/or put to an end – High Court was right in
setting aside appointment of appellants.
Service Law: Termination from services – Respondent no. 1
to 3 were selected after due process and in accordance with the
Rules, 1947 – High Court was right in setting aside their termination
order – Subordinate Civil Courts Ministerial Establishment Rules,
1947.
Dismissing the appeal, the Court
HELD: Initially the appellants participated in the selection
process for the post of English Stenographers in the year 1987.
They never applied for the post of Hindi Stenographers in the
year 1987. Since there were no vacancies of English
Stenographers in the District Court, Moradabad no appointments
were made and appellants were not appointed on the post of
English Stenographers of which they applied. However, they were
placed on the select list on 14.07.1987.  As per Rule 14(3) of the
Rules, 1947 the validity of the select list was for one year
and
therefore, the said select list dated 14.07.1987 came to an end
on 13.07.1988. Thereafter the appellants could not have claimed
any appointment on the basis of the expired select list. However,
there were some leave vacancies of temporary nature in the post
of Hindi Stenographers and therefore, the appellants were
appointed purely on temporary basis on the said leave vacancies,
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for a period of one month from 14.10.1987 to 15.11.1987. In the
appointment letter itself, it was stated that their appointment shall
be terminated once the regular employees resume their duties.
It is not in dispute that thereafter a fresh examination was
conducted for the post of Hindi Stenographers on 24.09.1988 and
Respondent Nos. 1 to 3 were appointed. However, thereafter
though the services of the appellants were required to be
terminated on the Respondent Nos. 1 to 3 being selected for the
post of Hindi Stenographers, pursuant to the communication dated
22.05.1990 by the Deputy Registrar, High Court by which it was
directed that the approved list of ex-stenos and Hindi Stenos
dated 14.07.1987 be prepared and their names be arranged in
the order of merit, and though the appellants failed to clear the
speed test for the post of Hindi Stenographers as required as per
Rule 5(c) of the Rules, 1947, the District Judge, Moradabad
appointed the appellants and terminated the services of
Respondent Nos. 1 to 3. The appointment of the appellants and
the termination of the Respondent Nos. 1 to 3 has been rightly
quashed and set aside by the High Court, firstly on the ground
that in the year 1990, no direction could have been issued to
make the appointment on the basis of the select list dated
14.07.1987 as the select list dated 14.07.1987 expired and came
to an end on 13.07.1988; secondly, the appellants failed to clear/
pass the speed test for the post of Hindi Stenographers; thirdly,
the appellants were never appointed after following due procedure
of selection, against which the Respondent Nos. 1 to 3 were
selected and appointed pursuant to the fresh examination which
was conducted for the post of Hindi Stenographers on 24.09.1988
and thereafter they were appointed after following due procedure
of selection and that the appointment of the appellants in the
year 1987 was against the leave vacancies and in the appointment
order itself it was specifically mentioned that their appointment
shall be terminated once the regular employees resume their
duties. [Para 9][297-C-H; 298-A-C]
CIVIL APPELLATE JURISDICTION: Civil Appeal No.6477 of
2021.
From the Judgment and Order dated 23.01.2020 of the High Court
of Judicature at Allahabad in Special Appeal No.638 of 2012.
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Pardeep Gupta, Parinav Gupta, Mrs. Mansi Gupta, Rahul Kr.
Chaudhary, Dr. (Mrs.) Vipin Gupta, Advs. for the Appellants.
Dr. Ashutosh Garg, Baban Kr. Sharma, Ms. Preetika Dwivedi,
Advs. for the Respondents.
The Judgment of the Court was delivered by
M. R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned judgment
and order passed by the High Court of Judicature at Allahabad vide
order dated 23.01.2020 passed in Special Appeal No. 638 of 2012 by
which the Division Bench of the High Court has dismissed the said appeal
and has confirmed the judgment and order passed by the learned Single
Judge by which the learned Single Judge has allowed the writ petition
preferred by the Respondent No. 4 herein and quashed and set aside the
appointment of the appellants herein, the original Respondent Nos. 3 to
5 whose appointments have been quashed by the High Court have
preferred the present appeal.
2. The facts leading to the present appeal in nutshell are as under:
2.1 In the judgeship of Moradabad in the year 1987, a competitive
examination was held for filling up the post of English and Hindi
Stenographers. The appellants herein initially participated for the post of
English Stenographers. Select list of English Stenographers (containing
the names of the appellants herein) and Hindi Stenographers was
prepared on 14.07.1987. However, since there were no vacancies in the
judgeship for the post of English Stenographers, no appointments were
given to the
candidates in the select list of English Stenographers (including
the appellants herein). As per Rule 14(3) of the Subordinate Civil Courts
Ministerial Establishment Rules, 1947 (hereinafter referred to as ‘the
Rules, 1947’) select list was to remain valid for one year and the said
select list dated 14.07.1987 came to an end on 13.07.1988. At the same
time, Hindi Stenographers were given appointment as per the select list.
However, since there were some leave vacancies of temporary nature
in the post of Hindi Stenographers, the appellants were appointed on
temporary basis against those leave vacancies, for a period of one month
from 14.10.1987 to 15.11.1987. At this stage, it is required to be noted
that in their respective appointment letters it was specifically stated that
their appointments shall be terminated once the regular employees resume
their duties.
WAHAB UDDIN & ORS. v. KM. MEENAKSHI GAHLOT &
ORS.
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That thereafter fresh examination was conducted for the post of
Hindi Stenographers on 24.09.1988. Pursuant thereto Respondent Nos.
1 to 3 herein were appointed on the substantive post of Hindi
Stenographers as per merit and the select list. Therefore, as such
Respondent Nos. 1 to 3 herein were appointed. As the appellants herein
were appointed on leave vacancies of a temporary nature, their services
were required to be terminated once the regular employees resume their
duties. However, representations were made by the appellants to the
District Judge, Moradabad. The District Judge, Moradabad forwarded
his comments on the same to the Deputy Registrar, High Court. The
Deputy Registrar, High Court vide administrative order dated 22.05.1990
to District Judge, Moradabad directed that the approved list of ex-stenos
and Hindi stenos dated 14.07.1987 be prepared and their names be
arranged in the order of merit. At this stage, it is required to be noted
that in the communication dated 22.05.1990, it was specifically mentioned
that the appointment of the appellants was temporary and on leave
vacancies. It appears that thereafter a typing/speed test was conducted
for the appellants for the post of Hindi Stenographers. The Officer-In-
charge proceeded and conducted Hindi typing test of appellants and one
more candidate on 29.05.1990. In the said examination all the three
appellants were found not qualified as per Rule 5(c) of
the Rules, 1947
and their typing test was found less than the prescribed. Thus, the
appellants failed in the speed test for the post of Hindi Stenographers.
Despite the above without communicating to the High Court that the
appellants have failed the speed test, the District Judge, Moradabad
terminated the services of Respondent Nos. 1 to 3 herein who were
selected after due process and in compliance of the Rules of 1947 and
appointed the appellants on 05.06.1990, against the post held by
Respondent Nos. 1 to 3 herein by terminating the services of Respondent
Nos. 1 to 3. The appointment of the appellants and the termination of
Respondent Nos. 1 to 3 was challenged before the High Court by
Respondent Nos. 1 to 3 herein. The learned Single Judge allowed the
said writ petition and quashed and set aside the appointment of the
appellants herein and set aside the orders of termination terminating the
services of Respondent Nos. 1 to 3 herein. The special appeal against
the order and judgment passed by the learned Single Judge has been
dismissed by the Division Bench by impugned judgment and order dated
23.01.2020. Hence, the present appeal.
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3. Mr. Pardeep Gupta, learned counsel appearing on behalf of the
appellants has vehemently submitted in the facts and circumstances of
the case more particularly when the appellants worked for almost 29
years and that too after the High Court of Allahabad vide its order dated
22.05.1990 approved the appointment of the appellants as Stenographers
and directed the District Judge, Moradabad to issue the appointment
letters and in accordance with the same the appointment letters dated
05.06.1990 were issued, it is not justified to quash their appointments.
It is vehemently submitted that as such Rule 14(3) of the Rules,
1947 shall not be applicable to the recruitment list on merit under Rule 11
and can be made applicable only to the reserved category candidates
under Rule 12. It is submitted that the High Court has erred in relying
upon the said rule for setting aside the appointment of the appellants.
It is further submitted that the High Court has erred in treating the
appellants’ appointment against leave vacancy vide orders dated
14.10.1987, 15.10.1987 etc. and has failed to consider that the appellants
have continuously worked for more than 30 years.
The High Court has not properly appreciated the fact that though
the appointment of the Respondent Nos. 1 to 3 were approved on the
basis of the selection list dated 29.11.1988, they were given appointment
only in the year 2012, i.e., after a lapse of more than 24 years of select
list dated 29.11.1988.  It
is submitted that therefore there is no justification
to approve the appointment of the respondents when they were already
become age barred, i.e., 50 years old.
4. Making the above submissions, it is prayed to allow the present
appeal and protect the services of the appellants.
5. Present appeal is opposed by Ms. Preetika Dwivedi, learned
counsel appearing on behalf of Respondent No.4 – High Court of
Judicature at Allahabad. It is submitted that the appellants initially
participated for the post of English Stenographers in the year 1987.
However, since there were no vacancies, their names were placed on
the select list on 14.07.1987. It is submitted that the select list was valid
only for one year and came to an end on 13.07.1988, in view of the
provisions contained in Rule 14(3) of the Rules, 1947. It is submitted that
no appointments were given to the appellants to the post of English
Stenographers for want of vacancies for the post of English
Stenographers. It is submitted that however in the year 1987, there were
WAHAB UDDIN & ORS. v. KM. MEENAKSHI GAHLOT &
ORS. [M. R. SHAH, J.]
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some leave vacancies of a temporary nature, in the post of Hindi
Stenographers and therefore the appellants were appointed on temporary
basis against leave vacancies for a period of one month from 14.10.1987
to 15.11.1987. It is submitted that in the appointment letter it was
specifically stated that their appointment shall be terminated once the
regular employees resume their duties. It is submitted that thereafter
fresh recruitment process was initiated and the fresh examination was
conducted for the post of Hindi Stenographers on 24.09.1988 and pursuant
thereto, Respondent Nos. 1 to 3 were appointed. It is submitted that
however thereafter the representations were made by the appellants to
the District Judge, Moradabad which was forwarded to the High Court
and the Deputy Registrar, High Court vide administrative order dated
22.05.1990 though noted that the appellants were appointed temporarily,
directed that the approved list of ex-stenos and Hindi Stenos dated
14.07.1987 be prepared and their names be arranged in the order of
merit. It is submitted that pursuant thereto a speed test was conducted
for the appellants in accordance with the Rules and the appellants failed
to achieve and possess the minimum speed required for the post of Hindi
Stenographers, the fact which was not communicated to the High Court
thereafter. It is submitted that despite the above the District Judge,
Moradabad continued the appellants
and terminated the services of
Respondent Nos. 1 to 3 who were appointed after due process and in
compliance to the Rules of 1947 and appointed the appellants against
the post held by Respondent Nos.1 to 3. It is submitted that therefore,
the High Court has rightly quashed the appointment of the appellants
and has rightly quashed the termination of Respondent Nos. 1 to 3.
6. It is submitted that the appellants are not entitled to any relief
as they were never appointed to the post of Hindi Stenographers, after
following due selection procedure. It is submitted that on the contrary
the respondents were appointed after following proper selection
procedure. It is submitted that the appointment of Respondent Nos. 1 to
3 was on the substantive sanctioned posts. It is submitted that there
cannot be two persons working on one sanctioned post. It is submitted
that therefore once the Respondent Nos. 1 to 3 were selected and
appointed after following due selection procedure on the post of Hindi
Stenographers and the appellants were appointed on leave vacancies,
as a consequence the Respondent Nos. 1 to 3 have to be appointed and
the appellants have to give way to those who are duly selected after
following selection procedure. It is submitted that therefore, the High
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Court has not committed any error in passing the impugned judgment
and order. It is submitted that no interference of this Court in exercise of
powers under Article 136 of the Constitution of India is called for.
7. Dr. Ashutosh Garg, learned Counsel appearing on behalf of the
Respondent Nos. 1 to 3 have supported the impugned judgment and
order passed by the learned Single Judge and confirmed by the Division
Bench by adopting the submissions made by the counsel on behalf of the
High Court.
8. Heard learned counsel for the respective parties at length.
9. At the outset, it is required to be noted that initially the appellants
participated in the selection process for the post of English Stenographers
in the year 1987. They never applied for the post of Hindi Stenographers
in the year 1987. Since there were no vacancies of English Stenographers
in the District Court, Moradabad no appointments were made and
appellants were not appointed on the post of English Stenographers of
which they applied. However, they were placed on the select list on
14.07.1987. As per Rule 14(3) of the Rules, 1947 the validity of the
select list was for one year and therefore, the said select list dated
14.07.1987 came to an end on 13.07.1988. Thereafter the appellants
could not have claimed any appointment on the basis of the expired
select list. However, it appears that there were some leave vacancies of
temporary nature in the post of Hindi Stenographers and therefore, the
appellants were appointed purely on temporary basis on the said leave
vacancies, for a period of one month from 14.10.1987 to 15.11.1987. At
this stage, it is required to be noted that in the appointment letter itself it
was stated that their appointment shall be terminated once the regular
employees resume their duties. It is not in dispute that thereafter a fresh
examination was conducted for the post of Hindi Stenographers on
24.09.1988 and Respondent Nos. 1 to 3 were appointed. However,
thereafter though the services of the appellants were required to be
terminated on the Respondent Nos. 1 to 3 being selected for the post of
Hindi Stenographers, pursuant to the communication dated 22.05.1990
by the Deputy Registrar, High Court by which it was directed that the
approved list of ex-stenos and Hindi Stenos dated 14.07.1987 be prepared
and their names be arranged in the order of merit, and though the
appellants failed to clear the speed test for the post of Hindi Stenographers
as required as per Rule 5(c) of the Rules, 1947, the District Judge,
Moradabad appointed the appellants and terminated the services of
WAHAB UDDIN & ORS. v. KM. MEENAKSHI GAHLOT &
ORS. [M. R. SHAH, J.]
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Respondent Nos. 1 to 3. The appointment of the appellants and the
termination of the Respondent Nos. 1 to 3 has been rightly quashed and
set aside by the High Court, firstly on the ground that in the year 1990 no
direction could have been issued to make the appointment on the basis
of the select list dated 14.07.1987 as the select list dated 14.07.1987
expired and came to an end on 13.07.1988; secondly, the appellants
failed to clear/pass the speed test for the post of Hindi Stenographers;
thirdly, the appellants were never appointed after following due procedure
of selection, against which the Respondent Nos. 1 to 3 were selected
and appointed pursuant to the fresh examination which was conducted
for the post of Hindi Stenographers on 24.09.1988 and thereafter they
were appointed after following due procedure of selection and that the
appointment of the appellants in the year 1987 was against the leave
vacancies and in the appointment order itself it was specifically mentioned
that their appointment shall be terminated once the regular employees
resume their duties. Considering the aforesaid facts and circumstances,
the High Court has rightly quashed and set aside the appointment of the
appellants and has rightly quashed and set aside the orders terminating
the services of Respondent Nos. 1 to 3 who were selected after due
process and in accordance with the Rules, 1947.
The submission on behalf of the appellants that
the Respondent
Nos. 1 to 3 were appointed in the year 2012 is factually incorrect as in
the year 1988 itself Respondent Nos. 1 to 3 were appointed and their
services were terminated in the year 1990 by the District Judge,
Moradabad and the appellants were appointed and thereafter pursuant
to the interim orders passed by the Division Bench of the High Court,
the Respondent Nos. 1 to 3 were also accommodated in the year 2012.
Therefore, as such the Respondent Nos. 1 to 3 have suffered for the
period between 1992 - 2012 for no fault of them and though they were
selected and appointed after following due procedure of selection. In
fact, the appellants have gained illegally and they were continued in
service pursuant to the interim order of the High Court. Once the
appellants continued on the aforementioned post pursuant to the interim
order passed by the High Court and their appointment is subsequently
held to be bad in law and not only that their continuation in service is also
held to be bad in law, thereafter they cannot be permitted to submit that
as they worked for a long time their services should be protected, though
their appointments are not legally tenable. Once their appointments are
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held to be illegal and it is held that they have no right to continue on the
post to be occupied by other eligible candidates, the necessary
consequences shall follow. Once the Respondent Nos.1 to 3 are to be
accommodated and/or appointed who were selected after due process
and the appointment of the appellants were on leave vacancies with a
specific condition in the appointment order that their appointment shall
be terminated once the regular employees resume their duties, necessary
consequences shall follow and the services of the appellants are to be
terminated and/or put to an end. Unfortunately, it has so happened that
after 2012 on the post of Hindi Stenographers the appellants as well as
Respondent Nos. 1 to 3 are working, which is not permissible. There
cannot be appointment of two persons on one sanctioned post.  Otherwise,
there will be financial burden on the State of two persons on one sanctioned
post. Under the circumstances the prayer of the appellants to continue
them in services and to pay them pensionary benefits etc. also cannot be
granted. Appellants are not entitled to any relief.  In fact, they are
benefitted by continuing in the service after 1988 though their services
were required to be put to an end after the fresh selection in the year
1988 and after the Respondent Nos. 1 to 3 were appointed after following
due process and procedure as per Rules, 1947.
In view of the above and for the reasons stated hereinabove, the
present
appeal fails and the same deserves to be dismissed and is
accordingly dismissed.
There shall be no order as to costs.
Devika Gujral
Appeal dismissed.
WAHAB UDDIN & ORS. v. KM. MEENAKSHI GAHLOT &
ORS. [M. R. SHAH, J.]