- (1.) SUNIL Ambwani, J. Heard Shri Arvind Tripathi, learned Counsel appearing for the petitioner; Shri Amit Sthalekar appears for the High Court-respondent Nos. 1 and 2; Shri Krishna Ji Khare for respondent Nos. 2, 13, 14; Shri Arvind Srivastava for respondent Nos. 5 to 8 and Shri Neeraj Tiwari for respondent No. 9.
(2.) THE petitioner applied for selections to the post of Routine Grade Clerk (RGC) in the establishment of the High Court at Allahabad in pursuance of advertisement No. 3/2004 dated 17-4- 2004 for 79 posts, published by the then Registrar General of the Court. By this writ petition, the petitioner has prayed for writ of certiorari calling the record and setting aside the appointments of respondent Nos. 3 to 14 made by order of Hon'ble Chief Justice, signed by Registrar General on 26-7-2004, 1-9-2004 and 2-9-2004 without holding any recruitment as process of selections as provided under Rule 8 (a) of Allahabad High Court Officers and Staff (Conditions of Service and Conduct) Rules, 1976 (Rules of 1976) through competitive examination and promotion from Class IV employees. THE appointments were made at the time when the selections to 79 posts of RGC vide advertisement dated 17-4-2004 was pending. The petitioner has challenged these appointments on the ground of arbitrariness, and favouritism during the pendency of the regular selections by direct appointments. He submits that while the regular selections were kept pending, Hon'ble Chief Justice went on filling up these posts in exercise of his residuary and extraordinary powers under Rules 41 and 45 of the Rules of 1976 to favour the employees, who are close to him and to appease the employees association and the office bearers of the Bar Association including President. It is submitted that the powers vested in Hon'ble Chief Justice under Rules 41 and 45 are to be used for extraordinary and emergent circumstances and should not be exercised for making appointments of the wards of persons close to him and thereby misusing the trust created in his office. On 24-5-2005, the Court, after exchange of counter and rejoinder affidavits of respondent No. 1, passed following orders issuing notices to respondents No. 3, 5 to 14 and made the appointments subject to the result of the writ petition. A further direction was issued that these appointments shall not be regularised or confirmed until the disposal of the writ petition, unless they are appeared or selected in the examination/test which has been advertised. "counter and rejoinder affidavits have been exchanged between the petitioner and respondents 1 and 2. Notices have not been issued to the remaining respondents so far. The establishment of the High Court had advertised 79 vacancies of Routine Grade Clerks with a note that these may increase or decrease, vide advertisement No. 3104 dated 17-4-2004. Sri Amit Sthalekar, learned Counsel for the respondents 1 and 2 informs that 32556 applications have been received (para 8 of the counter-affidavit of Sri Pramod Kumar Goel, HJS, Joint Registrar (Inspection), High Court of Judicature at Allahabad ). The written examination has not been held so far and that the selections have been delayed. The petitioners have prayed for expediting the recruitment process. It is contended that in the meantime, the respondents 3 to 14 have been appointed without following any procedure of selection and without adopting any criteria or method for ad hoc appointments and thus these appointments be quashed and that during the pendency of the writ petition these appointments may be kept in abeyance. Sri Amit Sthalekar has not given any reason either in the counter-affidavit or in oral submission as to why the examination process has been delayed, and has not given any indication of the period within which the recruitment may be finalised. He submits and has produced the original record of the appointment of respondents 3, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14. A perusal of this record shows that these respondents namely Sri Ajit Kumar Srivastava, Sri Anand Pal Singh, Sri Sarad Kumar, Sri Tej Singh, Sri Abhishek, Sri Barmeshwar Pandey, Sri Sandeep Kumar Ojha, Smt. Shushma Singh (who was earlier appointed as Class IV employee) Sri Samyadeep Goswami, Sri Santosh Kumar, Sri Vikash Tanu Goshwani had applied for appointment as Routine Grade Clerk. These appointments have been made under the orders of the Hon'ble the Chief Justice under Rule 45 of the Allahabad High Court Officers and Staff Rules, 1976. The Hon'ble the Chief Justice by his orders in May and August, after the advertisement was issued has appointed these persons under Rule 45 of the Allahabad High Court Officers and Staff (Conditions of Service and Conduct) Rules, 1976, on ad hoc basis. Whereas the appointment of Sri Ajit Kumar Srivastava, Sri Anand Pal Singh, Santosh Kumar Tiwari and Abhishek have been made on the condition that these appointments are ad hoc and they will be permitted to appear in the direct recruitment of Routine Grade Clerk, their services shall be regularised and confirmed only if they are selected in the examination/test, no such condition precedes the other appointments. Prima facie I find substance in the contention of learned Counsel for the petitioner that once an advertisement has been made, it is appropriate to await the result of the selections and not to make any ad hoc arrangement. Any ad hoc appointment made during the process of scrutiny of application and selection discriminates the persons who have applied, and causes concern over the reasons of delay in the process of selection. In the present case, it is alleged that some of these ad hoc appointees are near relatives of the employees and persons having connection with the High Court. In the counter-affidavit the contents of para 11 of the writ petition are not denied. In this paragraph it is stated that Sri Anand Pal Singh is the son of Sri Balwant Singh, Section Officer of Account Section; Sri Santosh Kumar is the son of Sri Anmol Tiwari, Assistant Registrar (Protocol), Sri Sharad Kumar is son of Sri Harish Kumar Srivastava, Stamp Reporter; Sri Sandeep Kumar Ojha is son of Sri Kashi Dhar Ojha, Joint Private Secretary to the Chief Justice, and Sri Samya Deep Goswami is son of Sri P. K. Ganguli, Joint Private Secretary to Hon'ble the Chief Justice, Sri Barmeshwar Pandey is close relative of Sri C. L. Pandey, President, Bar Association High Court and Sri Tej Singh is brother of Sri Hem Singh, Junior Vice President of Employees Union, Sri Ajit Kumar Srivastava is the brother-in-law of Sri Yogesh Kumar Srivastava, Senior Vice President of Employee Association and Sri Abhishek is close relative of Sri Nishith Verma, Joint Secretary of the Employees Union. The Court is not concerned with the appointment of Abha Khare who was appointed on compassionate ground and Sri R. P. Patel, the respondent No. 5, who was appointed as Officiating Section Officer (Cash) as these persons are appointed by a separate procedure and are not the candidates to the post of Routine Grade Clerks, for which applications have been invited. Allahabad High Court Officers and Staff (Conditions of Service and Conduct) Rules, 1976 provides for appointment of Routine Grade Clerk through competitive examination by the Committee constituted by the Hon'ble the Chief Justice. The power of Hon'ble the Chief Justice to make ad hoc appointments cannot be questioned. Counsel for the petitioner is, however, correct in submitting that all the statutory powers vested in authorities must be exercised fairly and reasonably and in accordance with rules. Once the selections have been advertised and there is no explanation for delay in holding the selections, the scope of this power for ad hoc appointments, pending such selection requires to be considered and decided in this writ petition. Having regard to the facts and circumstances, let notice be issued to the respondents 3 and 5 to 14 to be served through the Registrar General of the Court. They shall file counter- affidavits within four weeks. Rejoinder affidavit may be filed within one week thereafter. The matter shall be listed for admission on 19-7-2005. In the meantime it is provided that the appointment of respondents 3, 5 to 14 shall be subject to the result of this writ petition. They shall not be regularised or confirmed until the disposal of this writ petition unless they appear and are selected in the examination/test which has been advertised. "
(3.) THE High Court and the private respondents have filed their counter-affidavits in which they have relied upon the residuary and extraordinary powers of Hon'ble Chief Justice under Rules 41 and 45 of the Rules of 1976, to make appointments irrespective of the pending selections. THEy have also challenged the standing of the petitioner to file the writ petition. The interim order dated 24-5-2005 was challenged by Shri Barmeshwar Pandey and 4 others (respondents in this writ petition) in a Special Appeal on the ground that with the cancellation of the selections advertised on 17-4-2004, the writ petition has become infructuous. The Special Appeal No. 987 of 2006 was heard by Hon'ble Chief Justice, (whereas he was impleaded as the party to the special appeal) and that the Bench hearing the Special Appeal passed the following orders : "the appeal from the interim order dated 24th of May, 2005 is summarily disposed of. The appellants before us, who were the materially affected private respondents in the writ, had been given ad hoc appointments as routine grade clerks and that was the grievance of the writ petitioner. In the impugned interim order the Hon'ble Single Judge laid down that even powers under Article 229 are to be exercised by the Hon'ble the Chief Justice fairly and reasonably. Mr. Pandey for the appellants submits that the position might need re- examination in view of the case reported at 2006 (1) LBESR 553 (SC) : (2006) 1 SCC 779 (Union of India & Ors. v. Kali Dass Batish & Anr.) and he placed passages, specifically, paragraph 14 thereof. His Lordship also ordered that the ad hoc appointments would not be regularised or confirmed until disposal of the writ petition unless the appellants-private respondents "appear and are selected in the examination/test which has been advertised. " Several developments have taken place which appear to have rendered the writ petition infructuous or out of date now. The writ petitioner-respondent submits before us that the mandamus prayer in the writ petition permitting him to appear in the examination has become infructuous but according to him the other prayers are still alive. We have our doubts in this regard also. By a proclamation dated the 6th of December, 2005 the then learned Registrar General has cancelled the advertisement No. 03- 2004, which was at the root of the interim order in operation which is the impugned order before us. As such, it is declared that the impugned interim order has become unworkable because of the changed circumstances and as on date all parties are free to proceed in accordance with law and no workable restraint can be spelt out from the interim order which ties down the hands of anybody to any extent at all. Regarding the further progress of the matter the appellants submitted that the writ petition should not have been treated as heard in part on 19-7-2005, which was two months after the passing of the detailed order and on a date when the appellants, i. e. , the affected parties had not been served. We are of the opinion that an Hon'ble Single Judge has discretion in the matter and the discretion can hardly be interfered with by anybody; we are also of the respectful opinion that in general matters are not treated as heard in part until at least all parties appear, or at least substantially all parties appear and more often a not the tying up of the case is ordered only after the pleadings are complete and the matter is ripe for final disposal, and is then heard for a sufficient length of time. With these orders and observations, the appeal is finally disposed of. Ajoy Nath Ray, C. J. Dated : 4-9-2006 Ashok Bhushan, J. ";