STATE OF U.P. AND ORS.versusHARISH CHANDRA AND ORS.

A                           STATE OF U.P. AND ORS.
                                            v.
                           HARISH CHANDRA AND ORS.

                                    APRIL 12, 1996

B               [K. RAMASWAMY AND G.B. PATTANAIK, JJ.]

           Seroice Law :

           U.P. Subordinate Officers Cleiical Staff (Direct Recruitment) Rules,
c    1985 : Rule 26.

           Recruitment to posts in class III and IV-Select list-Expired after
    prescribed period of one yea1~Issuance of Mandamus by High Court to
    recrnit candidates as per select list-Held : High Court erred in its conclusion
    that list did not expire-Issuance of such mandamus by High Court bad in
D · law-Hence, High Court could not direct recruitment to such posts after expiry
    of select list.

           Constitution of India, 1950 :

          Article 226-Mandamus-lssuance of-Held: No mandamus could be
E issued either to refrain from enforcing law or to do something contrary to law.
          A1ticle J3(r-Special Leave Petition-Maintainability of-Against jud~
    mellt of Single Judge of High _Court-Filed without availing alternative remedy
    of appeal to Division Bench-Held : in view of pendency of matter for more
    dian 2 years and patent error committed by High Court, SLP elltertained.
F
           Article 13<r-Special Leave Petition-Filing of-480 days' delay-Con-
    donation of-Held: in view of delay in bureaucratic process, delay by affected
    pe1:\·ons the111selves in apJJroaclzing High Court and in view of nzerits of case,
    sufficient cause for condoning delay was shown-Hence, delay condoned.
G
           Practice and Procedure-Delay and Lache~ondonation of

          The respondents approached the High Court alleging, inter alia, that
    though there existed vacancies during the year 1987 and the select list was
    prepared on 4.4.87 but the Appointing Authority arbitrarily, did not fill up
H   the vacancies. The appellant contended that the select list bad expired on
                                       260
                     STATE v. HARlSH CHANDRA                          261

4.4.88 but a Single Jndge of the High Court negatived that contention and   A
issued a mandamus to the appellant-State to appoint the respondents.
Aggrieved by the High Court's judgment the appellant preferred the
present appeal.

     Allowing the appeal this Court,
                                                                            B
      HELD : 1. Jn view of the Statutory Rules contained in Rule 26 of the
U.P. Subordinate Officers Clerical Staff (Direct Recruitment) Rnles, 1985,
a select list prepared under the Recruitment Rnles has its life only for one
year from the date of the preparation of the list and it expires thereafter.
Hence, the High Court's decision that the list does not expire after a period C
of one year on the face of it is erroneous. Under the Constitution .a
mandamus can be issued by the Court when the applicant establishes that
he has a legal right to the performance of legal duty by the party against
whom the mandamus is sought and said right was subsisting on the date
of the petition. The duty that may be enjoined by mandamns may be one D
im.posed by the Constitution or a Statute or by Rules or orders having the
force of law. Bnt no mandamus can be issued to direct the Government to
refrain from enforcing the provisions of law or to do something which is
contrary to law. This being the position and in view of the statntory Rules
contained in Rnle 26 of the Recruitment Rules, the High Court could not
issue the impugned direction to recruit the respondents who were included E
in the select list prepared on 4.4.87 and the list no longer survived after
one year and the rights, if any, of persons included in the list did not
subsist. Even if on some occasion appointments have been made by the ·
Appointing Authority from a select list even after the expiry of one year
from the date of selection such illegal action of the Appointing Authority F
does not confer a right on an applicant to be enforced by a court under
Article 226 of the Constitution. [265-G-H; 266-D-H; 267-A]

      2.1. It is undoubtedly true that the applicant seeking for condonation
of delay is duty bound to explain the reasons for the delay but as has been G
held by this Court in several cases, the very manner in which the
bureaucratic process moves, if the case deserves merit the court should
consider the question of condonation from that perspective. That apart the
respondents themselves approached the High Court in the year 1990
making a grievance tl•.it they had not been appointed even though they are
included in the Select List of 1987 and 1987 list iiself expired under the H
    262                   SUPREME COURT REPORTS [1996] SUPP.1 S.C.R.

A   Rules on 4.4.1988. In this view of the matter and in view of the merits of
    the case it has to be held that sufficient cause has been shown for
    condoning the delay and accordingly the delay is condoned. [265-B-D]

          Commissioner of Income Tax, Bombay v.Amateur Riders Club, Bom-
    bay, [1994] 2 Supp. 2 SCC 603, relied on.
B
        2.2. Ordinarily where an appeal lies to the Division Bench from the
  judgment of a Single Judge this Court refrains from invoking power under
  Article 136 of the Constitution but this is a self-imposed restriction and
  not a matter ousting the jurisdiction of the court. The matter having been
C pending for more than 2 years and in view of the patent error committed
  by the High Court it would not be appropriate to non-suit the appellant
  merely on the ground that the appellant could have approached the
  Division Bench against the judgment of the Single Judge. In the larger
  interest of all concerned it is appropriate in the facts and circumstances
  of the instant case to invoke the jurisdiction of this Court under Article
D 136 of the Constitution. [265-E-F)
            CIVIL APPELLATE JURISDICTION : Civil Appeal No.7068 of
    1996.

            From the Judgment and Order dated 24.4.92 of the Allahabad High
E Court in W.P. No. 25696 of 1990.

            R.C. Verma and AK. Srivastava for the Appellants.

         Pawan K. Bahl, Ram Babu Srivastava, P. Narasimhan and Manon
    Prasad for the Respondents.
F
            The following Order of the Court was delivered by

            PATTANAIK, J. Leave granted.

        The impugned direction of the learned Single Judge of the Allahabad
G High Court in Civil Misc. Writ Petition No. 25696 of 1990 is being chal-
  lenged in the first case and a similar direction of a learned Single Judge of
  Allahabad High Court dated 2.4.1993 passed in Civil Misc. Writ Petition
  No. 28719 of 1992 following the earlier judgment is being assailed in the
  second case. The question of law involved in both these appeals is one and
H the same, namely, is the High Court justified in issuing a mandamus to the
              STATE v. HARISHCHANDRA[PATTANAIK.J.]                           263

appellant to make recruitment of the respondents who were in the Select             A
List of the year 1987 even after the expiry of the said list, the list under the
Recruitment Rules having the force only for a period of one year from the
date of selection.

      The Recruitment/selection to the posts in class III and class IV is B
made under a Statutory Rule called the Subordinate Officers Clerical staff
(Direct Recruitment) Rules, 1985 (hereinafter referred to as "Recruitment
Rules"). Under the Rules the Appointing Authority is required to deter-
mine the number of vacancies to be filled during the course of year and
notify the same to the Employment Exchange for sponsoring candidates.
The Appointing Authority is also entitled to invite applications directly by · C
issuing an advertisement in a local daily newspaper. On receipt of the
names of the candidates the Selection Committee prepares a merit list in
the manner prescribed under Rule 23. The Selection Committee then
forwards the list thus prepared to the Appointing Authority under Rule 26
mentioning the aggregate marks obtained at the selection by each can- D
didate. The· names of the candidates are arranged by the App_ointing
Authority in accordance with the merit of the candidates and thereafter
the appointments are offered in the order in which the names are arranged.

        The respondents approached the High Court alleging, inter alia, that
 though there existed vacancies during the year 1987 and the select list was        E
prepared on 4.4.87 but the Appointing Authority arbitrarily did not fill up
the vacancies and the. respondents having failed in their attempt by filing
representations approached the Court for issuance of mandamus. It was
also alleged that the Appointing Authority ignoring the select list prepared
by the Statutory Selection Committee has been filling up the vacancies in           F
accordance with its own sweet will and the right of the candidates in the
select list is thereby being infringed. The appellant filed counter affidavit
-controverting the allegations made in the Writ Applications and took the
positive stand tnat the select list of the year 1987 became inoperntive after
lapse of one year from the date of selection and, therefore, the applicants         G
 who claimed to be in the select list prepared on 4.4.87 do not have any
 right to be appointed as the life of the list has expired by 4.4.88. It was also
 pleaded before the High Court that there did not exist any vacancy during
 the year as contended in the Writ application. The High Court by the
 impugned order instead of focusing its attention to the relevant provisions
 of the Statutory Rules, relying upon certain earlier decisions of the Court        H
    264                   SUPREME COURT REPORTS [1996J SUPP. 1 S.C.R.

A   came to hold that the select list does not lapse on the expiry of one year
    from the preparation of the list. The High Court also came to the con-
    clusion that several vacancies having occurred after 4.4.87 on account of
    superannuation of many of the existing employees the stand of the State
    that there existed only one vacancy cannot be accepted. With this con-
    clusion direction having been issued to appoint the Writ Petitioners the
B
    same is being assailed in these appeals.


          Learned counsel for the appellant contended that in view of the
    provisions of Rule 26 of the Recruitment Rules the High Court erred in
    law that the select list docs not expire after expiry of one year. He further
c   contended that the vacancy position as was indicated by the State Govern-
    ment is correct and the High Court erroneously came to the conclusion
    about the existing of more number of vacancies during the year without
    examining the peculiar circumstances where some appointments have been
    made. Learned counsel appearing for the respondents do not dispute the
D   position that under the Statutory Rule the select list remains valid for one
    year from the date of the preparation of list. But they contended that in
    the past on several occasions the Appointing Authority have been appoint-
    ing the persons from the select list even after expiry of one year and in
    support of that they placed reliance on the appointments made in the year
    1992 of persons who were selected in the year 1985. The learned counsel
E   also urge that under the Recruitment Rules the Appointing Authority is
    duty bound to calculate and notify the number of vacancies as it existed
    and likely to occur during the year and, therefore, the contentions that
    there will be only one vacancy in the year 1987 is wholly unsustainable.
    Apart from the aforesaid contention, on merit the learned counsel also
F   urged that there has been delay of 480 days in preferring the Special Leave
    Petition and no justifiable ground having been given the delay should not
    be condoned. The learned counsel also urged that against the judgment of
    the Single Judge a special appeal lies to the Division Bench and the
    appellant not having taken recourse to alternative remedy of approaching
    the Division Bench this Court should not interfere in exercise of power
G   under Article 136 of the Constitution.


           Before going into the merits of the matter we would first dispose of
    the two technical objections raised by the learned counsel for the respon-
H   dents.
             STATE v. HARISH CHANDRA [PATTANAIK, J.]                      265

      So far as the question of delay is concerned the learned counsel for A
the respondents placed reliance on the decision of this Court in the case
of Commissioner of Income Tax, Bombay v. Amateur Riders Club, Bombay,
[1994] Supp. 2 Supreme Court Cases 603 and urged that the grounds taken
for condonation is due to the delay in processing the matter through official
channel and cannot be held to be good ground for condonation. It is
                                                                              B
undoubtedly true that the applicant seeking for condonation of delay is
duty bound to explain the reasons for the delay but as has been held by
this Court in several cases, the very manner in which the bureaucratic
process moves, if the case deserves merit the Court should consider the
question of condonation from that perspective. That apart the respondents
themselves approached the High Court in the year 1990 making a grievance         c
that they had not been appointed even though they are included in the
Select List of 1987 and 1987 list itself expired under the Rules on 4.4.1988.
In this view of the matter and in view of the merits of the case we are of
the opinion that sufficient cause has been shown for condoning the delay
and accordingly we have condoned the delay.
                                                                                 D

       So far as the other contention, namely, availability of an appeal to
the Division Bench, we are of the opinion that that would not stand on the
way of this Court in exercise of power under Article 136 of the Constitu-
tion. Ordinarily where an appeal lies to the Division Bench from the             E
Judgement of a learned Single judge this Court refrains from invoking
power under Article 136 of the Constitution but this is a self-imposed
restriction and not a matter ousting the jurisdiction of the Court. The
matter having been pending for more than 2 years and in view of the patent
error committed by the High Court we do not think it appropriate to
non-suit the appellant merely on the ground that the appellant could have        F
approached the Division Bench against the judgment of the learned Single
Judge. In the larger interest of all concerned we think it appropriate in the
facts arid circumstances of this case to invoke our jurisdiction under Article
136 of the Constitution.
                                                                                 G
       Coming to the merits of the matter, in view of the Statutory Rules
contained in the ·Rule 26 of the Recruitme~t Rules the conclusion is
irresistible that a select list prepared under the Recruitment Rules has its
life only for one year from the date of the preparation of the list and it
expires thereafter. Rnle 26 is extracted hereinbelow in extenso :            H
    266                   SUPREME COURT REPORTS [1996] SUPP. 1 S.C.R.

A               "26. Appointment by appointing authority. -

               The select list referred to in sub-rules (6) and (7) of Rule 23
            shall be forwarded by the Selection Committee to the appointing
            authority mentioning the aggregate marks outained at the selection
            by each candidates. The name of general and reserve candidates
B
            shall be arranged by the appointing authority in a common list
            according to the merit of the candidates and the appointment shall
            be offered in the order in which the names are arranged in the list
            shall hold good for a period of one year from the date of selection."

c          Notwithstanding the aforesaid Statutory Rule and without applying
    the mind lo the aforesaid Rule the High Court relying upon some earlier
    decisions of the Court came to hold that the list does not expire after a
    period of one year which on the face of it is erroneous. Further question
    that arises in this context is whether the High Court was justified in issuing
D   the mandamus to the appellant to make recruitment of the Writ Petitioners ..
    Under the Constitution a mandamus can be issued by the Court when the
    applicant establishes that he has a legal right to the performance of legal
    duty by the party against whom the mandamus is sought and said right was
    subsisting on the date of the petition. The duty that may be enjoined by
    mandamus may be one imposed by the Constitution or a Statute or by
E   Rules or orders having the force of law. But no mandamus can be issued
    to direct the Govermnent to refrain from enforcing the provisions of law
    or to do something which is contrary to law. This being the position and
    in view of the Statutory rule contained in Rule 26 of the Recruitment Rules
    we really fail to understand how the High Court could issue the impugned
F   direction to recruit the respondents who were included in the select list
    prepared on 4.4.87 and the list no longer survived after one year and the
    rights, if any, of persons included in the list did not subsist. In the course
    of hearing the learned counsel for the respondents, no doubt have pointed
    out some materials which indicate that the Administrative Authorities have
    made the appointments from a list beyond the period of one year from its
G   preparation. The learned counsel appearing for the appellants submitted
    that in some cases pnrsuance to the direction of the Court some appoint-
    ments have been made but in some other cases it might have been done
    by the Appointing Authority. Even though we are persuaded to accept the
     submission of the learned counsel for the respondents that on some oc-
H    casion appointments have been made by the Appointing Authority from a
            STATE v. HARISH CHANDRA[PATTANAIK,J.j                        267

select list even after the expiry of one year from the date of selection but    A
such illegal action of the Appointing Authority does not confer a right on
an applicant to be enforced by a Court under Article 226 of the Constitu-
tion. We have no hesitation in coming to the conclusion that such appoint-
ments by the Appointing Authority have been made contrary to the
provisions of the Statutory Rules for some unknown reason and we depre-
                                                                                B
cate the practice adopted by the Appointing Authority in making such
appointments contrary to the Statutory Rules. But at the same time it is
dif!icu.lt for us to sustain the direction given by the High Court since,
admittedly, the life of the select list prepared on 4.4.87 had expired long
since and the respondents who claim their rights to be appointed on the
basis of .such list did not have a subsisting right on the date they ap-        c
proached the High Court. We may not be understood to imply that the
High Court must issue such direction, if the writ petition was filed before
the expiry of the period of one year and the same was disposed of after
the expiry of the statutory period. In view of the aforesaid conclusion of
ours it is not necessary to deal with the question whether the stand of the     D
State Government that there existed or,e vacancy in the year 1987 is correct
or not.

      In the aforesaid premises the appeals are allowed. The impugned
jndgments are set aside and the Writ Petitions filed by the respondents
stand dismissed. But in the circumstances there will be no order as to costs.   E

v.s.s.                                                   Appeals allowed.