- (1.) THROUGH this special appeal, the appellants have challenged the order dated 21.9.2001 passed by the learned Single Judge as well as the order dated 28.10.1996 passed by the District Judge, Raebareli, so far it relates to the appellants.
(2.) THE facts, in short, are that the District Judge, Raebareli called the names from the District Employment Officer, Raebareli by means of letter dated 4.3.1993 for the purpose of preparing the approved list of fifteen candidates for the posts of Process Servers, Peons, Orderlies and Farrashes. In the said letter, it was mentioned that the posts should be filled up on occurrence of vacancy. The Committee prepared the waiting list of 42 candidates, which was circulated by means of order dated 2.4.1993 passed by the District Judge, Raebareli. The names of the appellants find place at Serial nos.6, 8, 11 and 10 respectively. The appellant no.2 was appointed on 21.4.1993 on the post of Process Server on temporary basis. The nature of appointment was temporary and the services were terminable without any notice. As against the four substantive vacancies, waiting list of 42 candidates was prepared and circulated vide order dated 2.4.1993 passed by the District Judge, Raebareli. The District Judge, Raebareli constituted a Committee to consider the matter regarding continuance of waiting list of Class -IV employees prepared on 2.4.1993. The committee submitted a report, which was approved by the District Judge vide order dated 28.10.1996. The District Judge, Raebareli in pursuance of the direction given in the case of Ram Das Pal vs. District Judge, Banda (Writ Petition No.5913 of 1994) decided on 23.1.1996, took the view that there is no vacancy left to be filled except four, which have already been filled by the appointments by his predecessor. The District Judge has also found that more than three years have elapsed from the date of preparing the waiting list and, therefore, proceeded to cancel the waiting list of 38 candidates. The said order was put to challenge by way of writ petition before the learned Single Judge of this Court and the learned Single Judge vide order dated 21.9.2001 proceeded to dismiss the writ petition. Hence, this special appeal.
(3.) SUBMISSION of learned counsel for the appellants is that under the U.P. Subordinate Civil Courts Inferior Establishment Rules, 1955 (for short 'the Rules'), only waiting list has been recognized. He further submits that under Rule -12 of the Rules, the waiting list of selected candidates has been described so no distinction can be drawn from the list, which has been prepared by the District Judge and the appellants are entitled for appointment as the waiting list was prepared in reference to the vacancies, which were likely to fall vacant in the coming years. Further submission is that four vacancies were filled up, which were lying vacant at the relevant time when the waiting list was prepared, but thereafter the list cannot exhaust and shall continue till all the candidates in the waiting list are appointed and given appointment subject to the persons who have become overage or who have died. Learned counsel submits that the waiting list should be of reasonable dimension and said aspect of the matter has been decided by the apex court in the case of Naseem Ahmad and others vs. State of U.P. and another, 2011 29 LCD 632. He submits that the appellants are to be given appointment in view of law declared by the apex court. He further submits that Rule -12 of the Rules contemplates that the waiting list should be revised from time to time with a view to remove the names of all such candidates as are not likely to receive appointments before attaining the maximum age prescribed under Rule -8 of the Rules and such candidates as are found guilty of insubordination, misbehaviour or dishonesty in discharge of their duties in temporary or officiating vacancies, after giving them necessary opportunity to explain their conduct. Learned counsel for the opposite party has submitted that the waiting list cannot continue beyond the period of one year and moreover, no vacancy has occurred for a period of three years from the date of preparation of waiting list and as such waiting list stands exhausted automatically. The waiting list has to be given a particular period of life and it cannot continue for years to come. Learned counsel submits that against the four substantive vacancy, list of 42 wait list candidates was prepared. The aforesaid action was not found to be correct in view of law laid down by the High Court in Ram Das Pal's case and so the District Judge revised the waiting list and cancelled the same as no vacancy has occurred for a period of three years from the date of preparation of waiting list. Learned counsel submits that Naseem Ahmad's case is not applicable in the case in hand as in that case appointments were made within one year from the date of preparation of waiting list from the date, vacancy has fallen vacant and in those peculiar circumstances, the apex court allowed the persons to continue. He further submits that here in the present case, no vacancy has occurred for a period of three years and so the waiting list cannot continue for unlimited period. The apex court has ruled that the vacancies must be of the present year as well as of the succeeding year thereto and the list should be in reasonable proportion to the notified vacancies. The list should be broadly correlated to the number of vacancies either available in the year of recruitment or likely to become available in the succeeding year and the proportion qua the existing and anticipated vacancies. Learned counsel further submits that from the above view of the apex court, the appellants have no case and neither they can be given appointment.;