D. K. Seth, J. - (1.) A select list containing '13' names was published after the same was approved by the Collector, Badaun on 15th January, 1993 along with the waiting list containing five names. The petitioners' names figure at Serial No. '4' and '5' of the waiting list, wherein the petitioner No. 2 was shown as backward class candidate. The said 13 persons were given appointment on 22.1.1993 against the vacancies which existed on the date selection process had started. Admittedly, in the next one year namely till the end of December, 1993 five persons were due to retire on superannuation. But after the persons at Serial y Nos. 1 to 3 in the waiting list were given appointment during the currency of the said list which is admittedly valid for one year, the same was sought to be cancelled by the Collector, by order dated 23rd July, 1993 which is Annexure 8 to the writ petition. It is this order which has been challenged in the present writ petition by the petitioner.
(2.) SRI Ashok Khare, learned counsel appearing on behalf of the petitioners contends, while translating the Annexure 4 to the writ petition, that even cancelling the candidature of the petitioners in the impugned order it was pointed out that the vacant posts as on 30th June, 1994 were to be filled up by fresh recruitment which should be completed within 15.9.1993. He also contends that even before the said order dated 23.7.1993, the Collector, Badaun had held fresh selection in April, 1993 and had selected two persons named in Para '15' and had given them appointment on 24.4.1993 which is Annexure 7 to the writ petition. On this background SRI Khare, learned counsel for the petitioners confined his argument on two-fold grounds, as indicated hereinafter. His first contention was that the selection list is to be made in terms of Rule 22 of the U. P. Subordinate Offices Ministerial Staff (Direct Recruitment) Rules, 1985 as amended by U. P. Subordinate Offices Ministerial Staff (Direct Recruitment) (First Amendment) Rules, 1986 which provides in Rules 22 and 23. the manner of recruitment, pursuant to which vacancy is to be determined, taking into account the vacancies that might occur during one year next from the selection process, and such rise should contain candidates 25% in excess of number of the existing and contemplated vacancies during the period of one year and the petitioners having been included within the number of vacancies, existing and contemplated during one year there was no scope for cancelling the waiting list on the ground that the petitioners were selected in excess of 25% of the vacancies. The second contention of Sri Khare, is that during the currency of the select list the candidates included in the select list cannot be deprived of appointment in the existing vacancies by Overlooking their case while filling up the same by some other persons even during the currency of the select list which till then stood valid and was not cancelled until after such appointment is given, is hit by the principles of equality as enunciated in Article 14 of the Constitution.
(3.) SRI R. K. Saxena, learned standing counsel on the other hand vehementally opposes SRI Khare's contentions. According to him in view of sub-rule (8) of Rule 23. the list may contain the names exceeding 25% of the vacancies and not beyond that. There having been 13 vacancies the list could contain only 16 names adding 25% in excess. Therefore, the name of the petitioners were rightly excluded since the inclusion of their names was contrary to the rules and, as such, was void ah initio and has to be ignored. In order to appreciate the rival contention it is necessary to refer to Rules 22 and 23 so far as it is relevant for our purpose : "22. Notification of vacancies to the Employment Exchange.-The appointing authority shall determine the number of vacancies to be filled during the course of the year." 23. Procedure of selection.- (1) ------------------- (2) -------------------- (3) The number of candidates to be selected will be larger (but not larger than 25 per cent) than the number of vacancies for which the selection has been made." The expression used in Rule 22 is that the Appointing Authority shall determine the number of vacancies to be filled during the course of the year. Now, the selection was undertaken in January, 1993. Admittedly, one year would expire in December, 1993. Therefore, while making selection, the Appointing Authority is required to determine the number of vacancies to be filled in during the course of the year. This expression means that the vacancies which are existing on the date of selection as well as the vacancies that might occur during the next one year is to be determined. The direction to determine is followed by 'shall' which has the implication of mandate leaving no scope for the Appointing Authority to do otherwise. The intention of the Legislature was to avoid selection in daivlet. Since the selection list has been given validly for one year all vacancies that are required to be filled in meaning thereby to be filled in future during the next one year are to be determined. In fact, so far as the vacancies are existing are not the matter of determination but is a matter of notification. Whereas the vacancies that are required to be filled during the period of one year is a question of determination. Therefore, while proceeding with the selection, it is mandatory and precondition to determine the number of vacancies to be filled in during the course of the year which implies the existing and the future vacancies expected during the next one year. Rule 23 (8) provides that the list shall be larger than the number of vacancies but the same shall not be larger than 25% of the number of vacancies. Such provision is provided in contemplation of the fact that all the persons selected may not Join or may leave within the period of one year after joining and in such case instead of making fresh selection, the selection, being a time consuming affair by way of repetition and facilitating filling up of the vacancies expeditiously or to fill up some other anticipated vacancies which might occur during the said period of one year.;