May - High Court of Judicature at Allahabad

2All] Jagdishwar Prasad Lekhpal and others V. D.M., Allahabad and others 51
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By the Court
1. There petitioners, Jagdishwar Prasad,
Shesh Narain Pandey and Om Prakash
preferred this petition against impugned order
dated 26 th July, 1997 (Annexure-2 to the Writ
Petition ) rejecting Petitioners’ representation
claming right of consideration of their
candidature for the post of Assistant Registrar
Kanoongo on the basis of eligibility list (said
to have been prepared in the year 1982) ,
(copy filed as Annexure 1 to the petition).
2. Learned counsel for the Respondents
raised preliminary objection regarding
alternative remedy of appeal contemplated
under statutory rule 9 (3) –U.P. Avar Rajsaw
Lipik (Registrar Kanoongo and Assistant
Registrar Kanoongo) Sewa Niyamaali, 1958,
hereinafter called Rules, 1958.
3. The preliminary-objection regarding
availability of alternative remedy cannot be
entertained for two reasons.
One, it is now too late to ask the parties to
go back to avail alternative remedy as the
parties have already exchanged counter and
rejoinder affidavits and there appears to be no
disputes on facts required to be considered for
deciding the writ petition.
See JT. 1995 (1) SC 471; (1999) 2
UPLBEC 982; 1971 SC 33 and (1993)2
UPLEBC 1313 (Para 7) .
Otherwise also alternative remedy is not an
absolute bar (1998) 8 SCC 1 and 1991 All
Civil Journal 392.
4. Second, hearing of the appeal will be
mere formality in the facts of the instant case
inasmuch as decision of the appellate
authority is foreclosed since the impugned
order/decision is as a consequence of
Government order dated 4.10.1994 – a
mentioned in the impugned order (dated 26 th
July, 1997, Annexure-2 to the Writ Petition)
itself.
In 1979 UPTC AN 837 (para 4) and 1979
UPTC 517 (para 5) this Court observed that
alternative remedy will not be a bar when
Government view is already known.
5. The submission regarding
maintainability of the writ petition-as
preliminary objection of the Respondents –has
no force.
Writ Petition is, therefore, after hearing
the learned counsel for the parties, decided on
merits.
Learned counsel for the petitioners submits
that once the names of the petitioners were in
the eligibility list 9Annexure-1 to the Writ
Petition) they ought to have been considered
and appointed as Assistant Registrar
Kanoongo.
6. Mere fact that name of a person find
place in the eligibility list, (from which
promotion is to be made) does not confer a
vested legal right ( enforceable by a law
court) when there is no such conferment in the
relevant rules. Relevant Rules, 1958 (placed
by the learned counsel for the petitioner and
disputed by the other side to be amended up to
date) shows that the list is not sacrosanct in
the sense that names of the persons included
in the said eligibility list are liable to be
removed and/or altered. I am. Hence, not in
agreement with the petitioners.
7. Name of Mustaq Ahmad and two others
(in respect of which it is alleged that they
were promoted from the said list) are at Sl.