TMI Blog1996 (4) TMI 519X X X X Extracts X X X X X X X X Extracts X X X X ..... being assailed in the second case. The question of law involved in both these appeals is one and the same, namely, is the High Court justified in issuing a mandamus to the appellant to make recruitment of the respondents who were in the Select 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. 3. The Recruitment/selection to the posts in class III and class IV is 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 determine the number of vacancies to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... took the positive stand that the select list of the year 1987 became inoperative after lapse of one year from the date of selection and, therefore, the applicants 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 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 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 under Article 136 of the Constitution. 6. Before going into the merits of the matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in exercise of power under Article 136 of the Constitution. Ordinarily where an appeal lies to the Division Bench from the 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 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 and circumstances of this case to invoke ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 Rules or orders having the force of law. But 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 Statutory rule contained in Rule 26 of the Recruitment Rules we really fail to understand how the High Court could issue the impugned direction to recruit the respondents who were included in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epared 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 approached 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 State Government that there existed one vacancy in the year 1987 is correct or not. 11. In the aforesaid premises the appeals are allowed. The impugned judgments are set aside and the Writ Petition ..... X X X X Extracts X X X X X X X X Extracts X X X X
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