TARUN AGARWALA, J. - (1.) ON 15 -6 -1999 a new judgeship of Baghpat was us carved out from district Meerut. New posts were created in the judgeship of Baghpat and, on 23 -12 -1999, an advertisement was issued inviting applications for 10 posts of clerks and four posts of stenographers. The advertisement also indicated that the number of posts may increase or decrease. Pursuant to the aforesaid advertisement, the petitioner's applied and sat in the examination in which they qualified. On 5th April, 2000, a select list of 73 persons was issued by the District Judge. Petitioner Nos. 1 to 7 were at Sl. Nos. 11 to 18 of the select list. Petitioner Nos. 8 to 20 were at Sl. Nos. 21 to 42 of the select list and petitioner Nos. 30 to 35 were at Sl. Nos. 45 to 47 and 49 to 51 of the select list. The petitioners were given an appointment as a clerk on a temporary basis on various dates between 6 -4 -2000 and 3 -1 -2001. The said appointments were made within one year of the issuance of the select list. On 4 -4 -2001, the District Judge extended the life of the select list for one more year and candidates appearing from Sl. Nos. 52 -A to Sl. No. 71 were also appointed as clerks on various dates.
(2.) ON 5 -4 -2003, the High Court; issued a letter to the District Judge asking for an explanation as to how the life of the select list was extended after the expiry of one year and on what basis the appointments were given from the select list after the expiry of the period of the select list. It further transpires that the Administrative Judge of the judgeship of Baghpat submitted a report dated 28 -7 -2003 holding that the appointments of the candidates from Sl. Nos. 11 to Sl. No. 71 were illegal and that these appointments were made on non -existing posts and recommended the removal of these candidates and directed the District Judge to take action as per his report. Based on the aforesaid report of the Administrative Judge, the District Judge by an order dated 22 -11 -2003 terminated the services of 15 clerks. By another order dated 28 -2 -2005, the District Judge terminated the services of 4 clerks. These 19 clerks whose services were terminated, as stated aforesaid, were those persons who were appointed after the select list was extended by the District Judge. Against the order dated 27 -9 -2003, 15 clerks filed Writ Petition No. 52654 of 2003 and an interim order was passed allowing these 15 clerks to continue in the service during the pendency of the writ petition. Against the order dated 28 -2 -2005, the remaining 4 clerks filed Writ Petition No. 34546 of 2005 in Which an interim order dated 28 -2 -2005 was passed staying the order of dismissal. It further transpires that a Special Appeal No. 702 of 2005 was filed against the interim order dated 28 -2 -2005, The appellate Court, while hearing the appeal against the interim order, called for the record of both the writ petitions and decided the same on merits. The appellate Court by a judgment dated 31 -5 -2005, while allowing the Special Appeal, also allowed both the writ petitions and quashed the order of termination and remanded the matter back to the District Judge to pass fresh orders in accordance with the observations and directions given in the judgment. The appellate Court while setting aside the order of termination, issued the following directions: (a) The decision in respect of the respondent -petitioners shall be taken by a speaking and reasoned order as per directions contained hereinabove by the District Judge, Baghpat. (b) The District Judge shall withdraw all such similar termination orders in respect of such Class -III employees whose appointments were pursuant to the selections dated 5 -4 -2000, including those which are under challenge in various writ petitions before the High Court, and thereafter shall proceed to take a decision in the matter afresh after giving opportunity to the concerned employees in the same way as in the case of the respondents herein. This exercise shall be completed within one month and compliance report shall be submitted immediately thereafter. While passing the aforesaid directions, the appellate Court further held - In view of the above, we are of the considered opinion that as only ten vacancies had been advertised, there could be no justification for the authority concerned to fill up more than ten vacancies as it included the then existing as well as vacancies likely to occur in the course of the year. Once ten vacancies had been filled up, the selection process stood exhausted, and the authority concerned become functus officio. Any appointment made by him beyond that number, is without jurisdiction, therefore a nullity, inexecutable and un -enforceable in law. In such an eventuality after issuing appointment letters to ten candidates, the select list/waiting list stood exhausted and could not have been used as perennial source for appointment against any other vacancy. There can be no controversy to the settled legal proposition that even if a successful candidate joins the post and resigns or dies or stands transferred, his vacancy stands exhausted merely by his joining and the post could not be filled up from the waiting list as the statutory rules do not provide for such a course. In the instant case, the candidates appointed against those vacancies had been transferred to different Judgeships and vacancies were created time and again artificially and the select list which could not have been for more than 20 names, had been used as a reservoir by the statutory authority for making illegal appointments. The Court being the custodian of law cannot close its eyes where the facts are so startling that it shocks the conscience of the Court. However, we restrain ourselves to hold that appointments could have been made on extraneous considerations only for the reason that the then District Judge is not a party by name before us. We are told that though the officer has retired but he is facing Departmental Enquiry on such charges. The Court further held - On the basis of the aforesaid provisions and the Circular, referred to hereinabove, it is explicit that the select list, which was prepared on 5th April, 2000 was in flagrant violation of the Rules, referred to above. The then District Judge has proceeded to prepare the list in an absolute arbitrary and whimsical fashion which list could not have included, by any means, more than 20 names. The first step of derailment of the process of selection seals the fate of all such candidates who are claiming themselves to have been appointed under the said list in excess of first twenty names and leave no room for doubt that the select list was prepared with some oblique and ulterior motive. The petitioners are admittedly much below the 20 candidates in the merit list dated 5 -4 -2000 and as such they could not have been included in the list prepared by the District Judge. Their very inclusion is invalid. The same is the position with regard to such other candidates who stand on a similar footing. The District Judge proceeded to place 52 persons in the select list in excess of 20 names, including that of the petitioners, and subsequently appointed them which appointments are also invalid, as they are from the same invalid list. We, therefore, hold that the preparation of the select list in excess of 20 names was absolutely illegal and contrary to the Rules applicable. The question of preparing the select of more than 20 or filling up the vacancies against more than 10 posts is in contravention of Articles 14 and 16 of the Constitution of India.
(3.) BASED on the aforesaid directions and, observations of the appellate Court, the District Judge issued a show cause notice dated 14 -6 -2005 to the petitioners to show cause why their services should not be terminated as their appointments were made beyond the notified vacancies. The said show cause notice was challenged by a number of the petitioners in Writ Petition No. 46867 of 2005. This Court by a judgment dated 7 -7 -2005 dismissed the writ petition as premature and directed the petitioners to file a reply to the show cause notice which would be considered and decided by the authority. It transpires that the petitioner filed the reply and, eventually by the impugned order dated 1 -8 -2005, the services of the petitioners were terminated. The petitioners have again filed the present writ petition challenging their order of termination.;