STATE OF U P Vs. RAKESH KUMAR

JUDGEMENT

(1.) THE present special appeal has been filed against the judgment and order dated 10th March, 1999 passed by the learned Single Judge whereby a direction in the nature of writ of mandamus has been issued commanding the present appellants who were respondents in the writ petition to give appointment to the respondent -writ petitioner on the post of Machine Assistant which fell vacant on 3rd November, 1989. This Court, however, directed that the service shall be deemed to have commenced after one month from the date when he had approached this Court namely, 14th September, 1993, and the said period shall be counted towards his service. Further, if the petitioner has crossed the age limit in the meantime, the same should be overlooked since he had become eligible for appointment on 3rd November, 1989. However, he shall not be entitled for payment of salary for the period till the date of his appointment pursuant to this order. In case, the petitioner's appointment is made beyond the period of four months as directed by the learned Single Judge, in that event, he shall be entitled to payment of salary immediately after expiry of four months from the date a copy of this order is produced before the concerned respondent.

(2.) BRIEFLY stated, the facts giving rise to the present special appeal, are as follows: The appellant advertised post of Machine Assistant. It appears that vacancy against three posts was already in existence. The fourth vacancy was anticipated on account of imminent promotion of one of the Machine Assistants to the post of Rotary Machine Operator. A select list was prepared on 24th January, 1989 against four posts of Machine Assistants. The name of the respondent -writ petitioner was placed at Serial No. 4 in the list. Persons appearing at Serial Nos. 1, 2 and 3 were given appointment on the existing vacant posts of Machine Assistants. When Nasir Ahmad, Machine Assistant was promoted to the post of Rotory Machine Operator vide order dated 29th August, 1989 the post held by Nasir Ahmad fell vacant on 3rd November, 1989 on his joining the promoted post. On this post the respondent -writ petitioner was to be accommodated. However, by reason of a ban imposed by the State Government on 26th February, 1989 from filling up the post, the petitioner was informed through letter dated 21st December, 1989 that he could not be appointed because of the ban imposed on direct recruitment, but he will be given appointment as soon as the ban is lifted. The letter dated 21st December, 1989 is available on record as Annexure I to the counter affidavit filed by the present appellant in the writ petition. The ban was lifted in the year 1993 but the petitioner was not given any appointment. The petitioner approached this Court by filing Civil Misc. Writ Petition No. 32743 of 1993, giving rise to the present special appeal. The learned Single Judge allowed the writ petition and issued certain directions by judgment and order dated 10th March, 1999 which has been challenged in the present appeal.

(3.) SRI Sabhajeet Yadav, learned Standing Counsel submitted that the life of the select list which was prepared on 24th January, 1989 was only for one year and if the respondent -writ petitioner has not been given appointment during the aforesaid period the select list ceases to remain in existence and the respondent -writ petitioner cannot claim his appointment as a matter of right. He further submitted that in the year 1989 the State Government had imposed a ban on recruitment and in view of this subsequent development appointment was not given, thus, the respondent -writ petitioner cannot claim any right of appointment. He further submitted that merely the name of the respondent -writ petitioner was placed in the select list, it did not give any right of being appointed. According to him, in the year 1993 when the ban was lifted by the State Government, the post of Machine Assistant was to be filled up from amongst the candidates belonging to Scheduled Caste, Scheduled Tribes and Backward Class category as it fell in the share of reserved category post. Thus, the learned Singe Judgle was not justified in issuing writ of mandamus to the appellants and directing them for giving appointment to the respondent -writ petitioner.