STATE OF U.P. AND ORS.

HARISH CHANDRA AND ORS.

APRIL 12, 1996

[K. RAMASWAMY AND G.B. PATTANAIK, JJ.]

Seroice Law :

U.P. Subordinate Officers Cleiical Staff (Direct Recruitment) Rules, 1985 : Rule 26.

Recruitment to posts in class III and IV-Select list-Expired after prescribed period of one yea1~Issuance of Mandamus by High Court to

recrnit candidates as per select list-Held : High Court erred in its conclusion that list did not expire-Issuance of such mandamus by High Court bad in D law-Hence, High Court could not direct recruitment to such posts after expiry

of select list.

Constitution of India, 1950 :

Article 226-Mandamus-lssuance of-Held: No mandamus could be E issued either to refrain from enforcing law or to do something contrary to law.

A1ticle J3(r-Special Leave Petition-Maintainability of-Against jud~ mellt of Single Judge of High _Court-Filed without availing alternative remedy of appeal to Division Bench-Held : in view of pendency of matter for more dian 2 years and patent error committed by High Court, SLP elltertained.

Article 13<r-Special Leave Petition-Filing of-480 days' delay-Condonation of-Held: in view of delay in bureaucratic process, delay by affected pe1:\ons the111selves in apJJroaclzing High Court and in view of nzerits of case, sufficient cause for condoning delay was shown-Hence, delay condoned.

Practice and Procedure-Delay and Lacheondonation of

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 H the vacancies. The appellant contended that the select list bad expired on

STATE v. HARlSH CHANDRA 261

4.4.88 but a Single Jndge of the High Court negatived that contention and A issued a mandamus to the appellant-State to appoint the respondents.

Aggrieved by the High Court's judgment the appellant preferred the present appeal.

Allowing the appeal this Court,

HELD : 1. Jn view of the Statutory Rules contained in Rule 26 of the U.P. Subordinate Officers Clerical Staff (Direct Recruitment) Rnles, 1985,

a select list prepared under the Recruitment Rnles has its life only for one year from the date of the preparation of the list and it expires thereafter.

Hence, the High Court's decision that the list does not expire after a period C of one year on the face of it is erroneous. 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 mandamns may be one D im.posed by the Constitution or a Statute or by Rules or orders having the force of law. Bnt no mandamus can be issued to direct the Government to refrain from enforcing the provisions of law or to do something which is contrary to law. This being the position and in view of the statntory Rules contained in Rnle 26 of the Recruitment Rules, the High Court could not issue the impugned direction to recruit the respondents who were included E in the select list prepared on 4.4.87 and the list no longer survived after one year and the rights, if any, of persons included in the list did not subsist. Even if on some occasion appointments have been made by the Appointing Authority from a select list even after the expiry of one year from the date of selection such illegal action of the Appointing Authority F does not confer a right on an applicant to be enforced by a court under Article 226 of the Constitution. [265-G-H; 266-D-H; 267-A]

2.1. 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 G 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 tl • .it they had not been appointed even though they are included in the Select List of 1987 and 1987 list iiself expired under the H

A Rules on 4.4.1988. In this view of the matter and in view of the merits of the case it has to be held that sufficient cause has been shown for condoning the delay and accordingly the delay is condoned. [265-B-D]

Commissioner of Income Tax, Bombay v.Amateur Riders Club, Bombay, [1994] 2 Supp. 2 SCC 603, relied on.

2.2. Ordinarily where an appeal lies to the Division Bench from the judgment of a 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 C pending for more than 2 years and in view of the patent error committed by the High Court it would not be appropriate to non-suit the appellant merely on the ground that the appellant could have approached the Division Bench against the judgment of the Single Judge. In the larger interest of all concerned it is appropriate in the facts and circumstances of the instant case to invoke the jurisdiction of this Court under Article D 136 of the Constitution. [265-E-F)

CIVIL APPELLATE JURISDICTION : Civil Appeal No.7068 of 1996.

From the Judgment and Order dated 24.4.92 of the Allahabad High Court in W.P. No. 25696 of 1990.

R.C. Verma and AK. Srivastava for the Appellants.

Pawan K. Bahl, Ram Babu Srivastava, P. Narasimhan and Manon Prasad for the Respondents.

The following Order of the Court was delivered by

PATTANAIK, J. Leave granted.

The impugned direction of the learned Single Judge of the Allahabad G 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 H the same, namely, is the High Court justified in issuing a mandamus to the

STATE v. HARISHCHANDRA[PATTANAIK.J.] 263

appellant to make recruitment of the respondents who were in the Select A 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 B made under a Statutory Rule called the Subordinate 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 C 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 can- D didate. The names of the candidates are arranged by the App_ointing Authority in accordance with the merit of the candidates and thereafter the appointments are offered in the order in which the names are arranged.

The respondents approached the High Court alleging, inter alia, that though there existed vacancies during the year 1987 and the select list was E 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 F 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 tnat the select list of the year 1987 became inoperntive after lapse of one year from the date of selection and, therefore, the applicants G 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 focusing its attention to the relevant provisions of the Statutory Rules, relying upon certain earlier decisions of the Court H

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 docs 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 urge 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 G under Article 136 of the Constitution.

Before going into the merits of the matter we would first dispose of the two technical objections raised by the learned counsel for the respon- H dents.

STATE v. HARISH CHANDRA [PATTANAIK, J.] 265

So far as the question of delay is concerned the learned counsel for A the respondents placed reliance on the decision of this Court in the case of Commissioner of Income Tax, Bombay v. 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 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 arid 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 Recruitmet 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. Rnle 26 is extracted hereinbelow in extenso : H

"26. Appointment by appointing authority. -

The select list referred to in sub-rules (6) and (7) of Rule 23 shall be forwarded by the Selection Committee to the appointing authority mentioning the aggregate marks outained 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 of one year from the date of selection."

Notwithstanding the aforesaid Statutory Rule and without applying the mind lo 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 D 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 no mandamus can be issued to direct the Govermnent to refrain from enforcing the provisions of law or to do something which is contrary to law. This being the position and in view of the Statutory rule 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, if 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 G preparation. The learned counsel appearing for the appellants submitted that in some cases pnrsuance 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 oc- H casion appointments have been made by the Appointing Authority from a

STATE v. HARISH CHANDRA[PATTANAIK, J.j 267

select list even after the expiry of one year from the date of selection but A 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 dif!icu.lt 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 D State Government that there existed or, e vacancy in the year 1987 is correct or not.

In the aforesaid premises the appeals are allowed. The impugned jndgments 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.

v.s.s.

Appeals allowed.