- (1.) Both the aforesaid special appeals are arising out of selfsame judgement and order dated Devendra Kumar Pandey v. Hon ble High Court of Judicature at Allahabad and others, 2007 7 ADJ 720. When Special Appeal No. 563 of 2008 has been preferred by the High Court itself, the other one i.e. Special Appeal No. 1152 of 2007 has been preferred by the employees of the High Court.
(2.) The brief facts giving rise to these appeals are that in the year 2004 some persons, who were respondents in the writ petition and either appellants or respondents in the present appeals, were appointed by the then Chief Justice on ad hoc basis and they are continuing in service till date. Prior to such appointment, an advertisement was published by this High Court for appointment on the post of Routine Grade Clerks i.e. Class-III posts as per the advertisement. The writ petitioner, who is respondent No. 1 in both the aforesaid special appeals and who had applied for selection pursuant to such advertisement, challenged the appointments made by the then Chief Justice by filing Civil Misc. Writ Petition No. 45922 of 2004. Subsequently, such advertisement was cancelled in view of the amendment of relevant Rules. Again fresh advertisement was issued by the High Court on 31st July, 2006, but the writ petitioner never applied pursuant to such advertisement. Such writ petition was disposed of by the learned Single Judge by impugned judgement and order dated 27th July, 2007. In the impugned judgement learned Single Judge himself has recorded that with the amendment of the Rules and the change of qualifications the petitioner was rendered ineligible to apply for the post re-advertised by the High Court on 31st July, 2006. The petitioner has not cared to amend the writ petition by either challenging the amendment in the qualifications to the post of Assistant Review Officer or the fresh advertisement. The writ petitioner as such cannot be granted any relief in the writ petition. The writ petition could have been dismissed with the above observations but learned Single Judge felt otherwise and relying upon a Constitution Bench judgement of the Supreme Court in Secretary, State of Karnataka and others v. Uma Devi (3) and others, 2006 4 SCC 1, held that appointments of the appointees will be subject to regular selection by direct recruitment in accordance with the Rule 8 and these appointees will not be confirmed and regularized. Such part of the order has been challenged by the High Court and its employees in these special appeals.
(3.) The contention of the appellants in the present appeals is that if no relief can be granted in favour of the writ petitioner, the writ petition is liable to be dismissed. The error of judgement of the learned Single Judge is that inspite of saying that the writ petitioner as such cannot be granted any relief in the writ petition, observed that the ratio of Uma Devi is to be followed by all authorities in India including Hon'ble the Chief Justice of the High Courts, therefore, all appointments made by the Hon'ble Chief Justice in exercise of his powers under Rules 41 and 45 of the Allahabad High Court Officers and Staff (Conditions of Service and Conduct) Rules, 1976 (hereinafter in short called as the "Rules, 1976") will be subject to regular selection by direct recruitment in accordance with Rule 8 of the Rules, 1976 and that these appointees will not be confirmed and regularised. According to them, if the very foundation in the writ petition goes, no superstructure can remain.;