- (1.) D. K. Seth, J. The petitioner was ap pointed as Sessional Assistant Wasil Vaki Navis in Teshil Anupshahar on 1-7-1989 and had worked till 30-7-1993 as is ap parent from Annexures 1 and 2. Selection for filling up of vacant post of Assistant Wasil Vaki Navis (hereinafter called as the AW. VN.) was held through a selection committee by respondent No. 2. The petitioner appeared in the selection and having been found successful in the writ ten examination was called for interview by the selection committee which prepared a panel of the successful can didates wherein the petitioner's name was placed at SI. No. 11. Though the persons placed at SI. Nos. 1 to 10 and SI. No. 12 were given appointment in the post of A. W. V. N. in different Tehsils but the petitioner has been overlooked in the mat ter of appointment. It is alleged that there are 10 posts of A. W. V. N. still vacant in the office of respondent No. 2 and its subor dinates. Despite such vacancy, instead of giving appointment, the respondents are going to fill up those vacancies through open advertisement without absorbing the candidates selected by the selection com mittee, hence this writ petition.
(2.) MR. Y. D. Sharma, learned Counsel for the petitioner contends that though there is no rule governing the selection or recruitment of A. W. VN. but by reason of different pronouncements of this Court, a rule similar to those for recruitment of seasonal collection am in is required to be followed i. e. 50% of the posts should be filled up from among the seasonal A. W. VN. He relies on the decision in the case of Veerendra Singh v. Collector, Kanpur Dehat and others, 1995 A. W. C. 397 in suppor of his contention. Learned Standing Counsel, on the other hand, contends that the petitioners cannot claim benefit of the said judgment inasmuch as the learned Single Judge had in fact indirectly ventured to intrude upon the field of legislation which the court cannot do. I have heard Mr. Y. D. Sharma, learned Counsel for the petitioner and Shri Sabajit Yadav, learned Standing Counsel. The judgment in the case of Veerendra Singh, (supra) was rendered relying upon the decision of the Apex Court in the case of Maharashtra State Co-operative Cotton Growers Marketing Association Ltd. and another v. Maharashtra State Co-operative Cotton Growers Workers Federation Employees Union and another, AIR 1994 SC 1046, as well as the judgment of this Court in the case of Rajesh Kumar Khare and another v. State of UP. and others, 1993 (1) UPLBEC 729. In the said case it was found that there exist no service rules governing the ser vices or appointments of A. W. V. N. whereas the provisions relating to ap pointment of collection amin was directed to be adopted on the analogy that seasonal collection amins were treated to be a feader group for the post of collection amin inasmuch as under the U. P. Collection Amins Rules, 1974 50% vacancies in the post of Collection Amins are to be filled by direct recruitment; 15% byway of promotion from the seasonal collection peons and remaining 35% by promotion from the seasonal collection amins. Whereas there being no feeder group in the AW. VN. In the absence of any rule, it was directed that 50% of the vacancies are to be filled up by promotion from the seasonal A. W. V. N. through selection while leaving the balance 50% to direct recruitment. The same view was taken in the case of Smt. Sudha Srivastava v. State of U. Pand others decided on 16-1-1996 in writ petition No. 3762 of 1994. In the case of Km. Rozleen Mery Benjamin v. State of U. P. and others, 1996 (1) UPLBEC 7 the ratio was directed at 60:40 for promotion and direct recruitment. However, the Division Bench had modified the said ra tion to 50% each on an appeal. All these cases were taken note of in the judgment dated 24-2-97 in the case of Thakur Dass Gautam v. State of U. P. and others in Civil Misc. Writ Petition No. 16761 of 1992.
(3.) THUS, it appears that the question was gone into and dealt with in all the said judgments but the learned Standing Coun sel contends that the question whether the said judgments tend to legislate was not considered or gone into in any of the said judgments. True, that this question does not appear to have been addressed in any of the said judgments but it does not make any difference in the facts and circumstan ces of the case. Inasmuch as in the said judgments no attempt to legislate has been undertaken by the Courts as would be evi dent from the discussion hereinafter. Admittedly, there is no rule governing the services and appointments of A. WVN. The service under the State and the per sons appointed as A. W. V. N. hold civil posts. In the recruitment thereof Articles 14 and 16 of the Constitution apply in equal force. At the same time, it is the duty of the State to ensure prevention of injus tice and protection from exploitation. Ad mittedly the seasonal A. W. V. N. are recruited on the exigency of work for the season. Now having in its fold several such seasonal AW. VN. working from the season to season sometimes continuously for considerable long period by reason of such engagement, these groups of people definitely acquired certain amount of experience. It would be unwise if their ex perience is not utilised. Admittedly, in the absence of any rules, these seasonal AW. V. Ns. are not being treated to be the feeder post for promotion to the post of AW. V. Ns. There is a system of appoint ment of seasonal AW. VN. and again per manent AW. VN. Similarly, there are posts of seasonal collection amin and then permanent collection amin. By reason of U. P. Collection Amins Rules, 1974 (hereinafter called as the Rules, 1974) the seasonal collection amins have been treated to be the feeder post and the ap pointment has been made through the said rule as indicated above. The persons posted as AW. VN. are equally situated. A different treatment cannot be given to them from those of the fortunate brothern of these unfortuante people being the seasonal A. W. VN. from those of seasonal collection amin in the matter of recruit ment in the post of A. W. VN. It is not a new system or concept being introduced. The appointment of seasonal A. W. VN. is being carried on by the State since long before 1974. While the State could enact Collection Amin Rules, 1974, there can not be any ostensible ground for leaving the field of A. W. V. N. in vacuum. If the State Government does not choose to in troduce any rules the courts cannot remain silent on-looker or when the Government acts arbitrarily or dis-criminatly between the people without any rational ground. In the present case, the courts have not legislated any rule but merely directed the Government not to act arbitrarily. or capriciously or effectuate discrimination. A principle akin to that of U. P. Collection Amins Rule, 1974 for fill ing up the post of Collection Amin having been found to be justified and which could be depended as an absorbing pad or buffer to protect these unfortuante group from arbitrariness and discrimination. It had also ensured the State's duties and func tions as enshrined in Article 46 of the Constitution. Inasmuch as the seasonal AW. VN. if they are eased out of the selec tion in that event it would work a grave injustice to them when equally situated brothern as seasonal collection amins are given such an apportunity. While engaging such people in work and then neglecting them in the matter of appointment, surely work out an injustice which the State has responsibility to prevent. Then again by engaging people as seasonal A. W. V. N. the denial of opportunity to be recruited in permanent post by promotion through selection would definitely mean an ex ploitation from which it is the duty of the State to save these unfortuante people. The Court had only reminded the State of its responsibility. The Court cannot direct the Government to legislate any law. Similarly the court can not encroach upon the jurisdication of legislature and itself legislate. The direction to follow similar provision in the same department for another group absolutely on identical padestal having been thought to be the only mode through which the arbitrari ness, the discrimination, the injustice and the exploitation could be saved. Even if the State feels that this is a kind of legisla tion, it is open to the State to enact a legislation. The said direction does not stand in the way of enactment of legisla tion by the State. But when the people come to this Court and seek justice against the highhandedness of the executives, a duty is cast on the court to see that justice is done and to do justice without encroach ing upon the legislation which could very well issue direction to follow for the pur pose of making recruitment in a manner which is free from the mischief of arbitrari ness, discrimination, injustice and ex ploitation. Therefore, I am unable to agree with the contention of the learned Stand ing Counsel that the decision in the case of Veerendra Singh, (supra) had encroached upon the jurisdiction of legislation and had ventured to legislate.;