B. D. Agrawal, J. - (1.) BY 'means of this petition under Article 226 of the Constitution the petitioners have sought writ of certiorari to the effect that the order of the District Judge, Ghazipur, dated November 21, 1985, be quashed.
(2.) FOR recruitment to the ministerial establishment of the civil courts, the Subordinate Civil Courts Ministerial Establishment Rules, 1947 (hereinafter referred to as the Rules, 1947) were enforced with effect from August 1, 1947. The provision made for the method of recruitment under Rule 9 was that early in each year, or as the circumstances may require, each District Judge shall recruit as many candidates for his judgeship as are required for the vacancies likely to occur in the course of the year. Even after the commencement of the Constitution these Rules continued to be in force by virtue of the provisions of Article 313 and Article 372 of the Constitution. On July 11, 1950, the State Government in exercise of powers under Article 309 of the Constitution notified " Rules for the Recruitment of Ministerial Staff to the Subordinate Offices ". In Om Prakash Shukla v. Akhilesh Kumar Shukla, AIR 1986 SC 1043 dealing with these Rules the Supreme Court observed that the Rules, 1950 had the effect to supersede Rules 9 to 12 of the 1947 Rules and Appendix II to it. In consultation with this Court the State Government issued on September 20, 1969, the Subordinate Civil Courts Ministerial Establishment (Amendment) Rules, 1969 (for short referred to as the ' Rules, 1969 ' hereinafter). The 1969 Rules specifically amended the 1947 Rules. By these Rules Rule 5 of the 1947 Rules was Amended. Rule 5 dealt with the minimum academic qualification which a candidate for the post in the ministerial staff in a subordinate civil court should possess. The provisions contained in Rules 9 to 12 of the 1947 Rules remained unaccessable even after the enforcement of the 1969 Rules ; there was no effective substitution of the 1950 Rules brought about by the 1969 Amending Rules. The 1950 Rules are to be considered operating even thereafter nor are the 1950 Rules to be taken as repealed by the 1975-Rules the reason being that the 1975 Rules did not apply to the subordinate courts under the control and superintendence of the High Court. Upon the competitive test held in this case the District Judge drew the approved list dated May, 3 1983, consisting of the names of 42 candidates in all. During the course of inspection, it appears, the Hon'ble Administrative Judge made observation to the effect that the approved list prepared by the District Judge was not according to the Government Order No. 8/4/1975-Karmik-2 dated May 29, 1979, which lays down that the list should be prepared keeping in view of the number of existing vacancies plus 25 per cent more in anticipation. The District Judge was directed to look into this and take appropriate action. In compliance to this the District Judge by order dated November 21, 1985, struck off the names of the candidates from serial nos. 21 to 42 except serial no. 38, since he had been working in the Stenographer Grade. The petitioners before us are among the candidates mentioned at serial nos. 21 to 42, whose names were struck off by the order of the District Judge dated November 21, 1985. Contention raised by the learned counsel for the petitioners is that the order impugned was passed under a mistaken impression since, it is urged, Government Order dated May 29, 1979, is in-applicable. In paragraph 9 of the counter affidavit filed for and on behalf of the District Judge the appointing authority, it is admitted in plain terms that this Government Order is of no application, and it is rightly so. The Government Order in question was issued in implementation of the Subordinate Offices Ministerial Staff (Direct Recruitment) Rules, 1975. In Rule 2 (1) thereof it is specifically stated that they do not apply to posts in the subordinate courts under the control and superintendance of the High Court. The Supreme Court has also held accordingly as appearing from paragraph 22 of the decision in the case of Om Prakash Shukla (Supra). It would not be correct, therefore, that the approved list drawn by the District Judge on May 3, 1983, was vitiated because of not being in conformity with the Government Order dated May 29, 1979.
(3.) THE question next is whether the approved list is, in any manner, contrary to the provisions contained in the Rules applicable to the Subordinate Courts. For the respondent there is reference made to Rule 9 of the 1947 Rules, which, as mentioned above, laid down that early in each year, or as the circumstances may require, the District Judge shall recruit as many candidates for his judgeship as are required for the vacancies likely to occur in the course of the year. In Om Prakash Shukla, aforementioned, the Supreme Court has ruled that Rule 9 stands superseded by virtue of the 1950 Rules. This apart the respondent does not derive assistance from Rule 9 for another reason also. According to the Rule 14 (1) the names of the candidates recruited shall be entered in order of merit in a bound register in the prescribed form. Sub-rule (3) of Rule 14 provides as under : " (3) If any such candidate has not been given an appointment offered in strict order of seniority according to the list in the bound register prescribed under sub-rule (1) within one year from the date of his recruitment, his name shall be automatically removed from the register of recruited candidates. He must then take his chance with others for recruitment again in a subsequent year. " Rule 14 (3) has to be read along side with the second proviso to Rule 15 (2) of the 1947 Rules, which lays down : " Provided also that nothing in these rules shall operate to the disadvantage of any person on the approved list of candidates who have already got an officiating chance and not otherwise disqualified at the time these rules come into force, whether such person has in fact been appointed or not. " ;