Balkrishna Sharma vs State Of U.P. & Others
2012 Latest Caselaw 3881 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
AFR
 
Reserved
 

 

 

 
Civil Misc. Writ Petition No. 44164 of 2000
 
Balkrishan Sharma...................................................................Petitioner.
 
Vs.
 
State of U.P. through Secretary (Home) Government of U.P., Lucknow and others.......................Respondents.
 

 

 

 
Hon'ble Rajes Kumar, J.

Heard Sri Anoop Trivedi, learned counsel for the petitioner and Sri A.K. Singh, learned Standing Counsel appearing on behalf of the respondents.

By means of the present writ petition, the petitioner is challenging the order dated 13.9.2000 passed by the District Magistrate, Pilibhit by which the services of the petitioner have been dispensed with. The said order has been passed under the U.P. Temporary Government Servant (Termination of Service) Rule, 1975.

In the impugned order, it is stated that it has come to the notice from the inspection report of Board of Revenue, U.P. Bareilly Region, Barerilly and by the letter dated 11.8.2000 of Additional Commissioner (Finance and Revenue), Bareilly Region, Bareilly that the irregular appointment of the petitioner was made on the post of clerk and after return of Smt. Pratima Saxena, the services of the petitioner have not been dispensed with. It is further stated that at the time of appointment of Balkrishan Sharma, no post was vacant and he has been appointed against the leave vacancy occurred as Smt. Pratima Saxena Z.A.C. had gone on leave temporarily and after arrival of Smt. Pratima Saxena his services have not been dispensed with.

Learned counsel for the petitioner submitted that an advertisement was published by the District Magistrate, Pilibhit stating therein that two posts for Scheduled Castes and Scheduled Tribes candidates, two posts for OBC category and two posts for general category were vacant. For the aforesaid posts the applications had been invited. The petitioner being of general category, applied for the post of junior clerk. He cleared the written examination and selected in interview. In the select list, issued by the Additional Commissioner (Finance) Revenue Board, Uttar Pradesh, Bareilly Zone, Bareilly dated 31.7.1997 his name was shown at serial no. 2 of the general category. Thereafter appointment letter dated 12.9.1997 has been issued by the District Magistrate, Pilibhit, which is Annexure-4 to the writ petition. The appointment was temporary against the vacancy. It was stated that the services could be dispensed with, without giving any notice and his services could be taken at any place of the district. By the order dated 18.9.1997 issued by the Additional Commissioner (Finance) Revenue Board, Uttar Pradesh, Bareilly Zone, Bareilly, the petitioner has been appointed temporarily against the leave vacancy post of Z.A.C. in Treasury, Pilibhit which had fallen vacant on account of long leave taken by Smt. Pratima Saxena. He submitted that since the petitioner had been appointed against the vacant post advertised in the newspaper, the petitioner's appointment was not against the leave vacancy but against substantive post and, therefore, the petitioner's services could not be dispensed with. Other persons who have been selected and appointed along with the petitioner are still working through their appointments were also temporary and similar appointment letters have been issued to them.

Two counter affidavits have been filed. One by Sri S.P. Verma, Additional Commissioner (Finance) Board of Revenue, Uttar Pradesh, Bareilly Zone, Bareilly and another by Sri Ram Kewal, Deputy Collector, Pilibhit. In the counter affidavit of Sri S.P. Verma, it is stated that the appointment letter dated 12.9.1997 issued by the District Magistrate, Pilibhit was wholly without jurisdiction, as there was no vacancy on the post of Junior Clerk-cum-Typist at the relevant point of time. The petitioner himself admitted in para-8 of the writ petition that the post of Zamindari Abolition Clerk fell vacant on account of the fact that incumbent of the said post had proceeded on maternity leave. Thus, it is clear that the petitioner was appointed on a leave vacancy as is clear from the order dated 18.9.1997 passed by the Additional District Magistrate (Finance & Revenue), Pilibhit. He further submitted that before the selection process was finalized one post of junior clerk was filled on 25.7.1997 by candidate under Dying in Harness Rules, namely, Vimal Kumar Saxena, who was appointed by the District Magistrate, Pilibhit. As a result of appointment of Sri Vimal Kumar Saxena only one post in the general category remained vacant on the date of selection. Since six candidates were selected by the Selection Committee, the petitioner name being at serial no. 2 of the merit list in general category candidate, he was placed in the waiting list. The resolution for appointment of five candidates including one in general category dated 5.8.1997 was made and the approval has been granted by the District Magistrate, Pilibhit on the same. Again on 30.8.1997, a report was submitted by the General Clerk in the office of District Magistrate, Pilibhit that since one Smt. Pratima Saxena, Zamindari Abolition Clerk, was on maternity leave, the petitioner could be given appointment against the leave vacancy on the post of Zamindari Abolition Clerk. It is further mentioned in the report that no post of Junior Clerk is vacant in the Collectorate. On the said report, the then District Magistrate, Pilibhit enquired that since this is not a clear vacancy under which head the salary will be drawn. From the report dated 30.8.1997 submitted by the General Clerk in the department of the District Magistate, Pilibhit it is clear that the resolution for the appointment of the petitioner was against a leave vacancy and not against substantive vacancy, as alleged by the petitioner. On the basis of the said report, an appointment order was prepared for appointment of the petitioner on the post of Zamindari Abolition Clerk on 18.9.1997 and in view of the report submitted by the General Clerk an appointment letter was issued to the petitioner on 18.9.1997 by the Additional District Magistrate (Finance & Revenue) Pilibhit appointing the petitioner against the leave vacancy purely on temporary basis. In the counter affidavit, filed by Sri Ram Kewal, Deputy Collector, Pilibhit the averments made in the affidavit of Sri S.P. Verma have been mainly reiterated. It is further stated in the counter affidavit that the Board of Revenue by its letter dated 26.4.1996 has directed to appoint Sri Vimal Kumar Saxena, son of Sri Radhey Shyam Saxena on the post of clerk on compassionate ground. When the order of Board of Revenue has not been complied with, Sri Vimal Kumar filed Civil Misc. Writ Petition No. 21416 of 1996 in which on 16.7.1996 the Court has issued a direction to comply with the order of the Board of Revenue dated 26.4.1997. In pursuance thereof, Sri Vimal Kumar has been appointed on the post of clerk by the order dated 25.7.1997 passed by the District Magistrate, Pilibhit.

Learned Standing Counsel on the basis of the two counter affidavits submitted that when the process of selection started, it was found that there was only one post available in the general category, the approval of appointment has been granted only to five candidates and the petitioner appointment has not been approved by the District Magistrate, Pilibhit as it is apparent from the note of the junior clerk dated 5.8.1997. When the petitioner's appointment as a junior clerk has not been approved in pursuance of the selection on the note of the general clerk, the petitioner has been given appointment against the leave vacancy by order dated 18.9.1997 by the Additional District Magistrate (Finance & Revenue), Pilibhit which occurred on account of long leave taken by Smt. Pratima Saxena. The petitioner also admitted in paragraph-8 of the writ petition that his appointment was against the leave vacancy and, therefore, when Smt. Pratima Saxena came back the petitioner's services were liable to be dispensed with. Thus, the impugned order passed by the District Magistrate, Pilibhit dispensing with the services of the petitioner is wholly justified.

I have considered the rival submissions and perused the record.

It would be appropriate to refer para nos. 6 and 8 of the counter affidavit filed by Sri S.P. Verma which are reproduced below :

"6. That in reply to the contents of paragraph nos.7 and 8 of the writ petition it is being submitted here that the appointment letter dated 12.9.1987 issued by the District Magistrate, Pilibhit is totally without jurisdiction, as there was no vacancy on the post of Junior Clerk-cum-Typist at the relevant point of time. The petitioner himself admitted in para-8 of the writ petition that the post of Zamindari Abolition Clerk fell vacant on account of the fact that incumbent of the said post had proceeded on maternity leave. Thus, it is clear that the petitioner was appointed in a leave vacancy as is clear from the order dated 18.9.1987 passed by the Additional District Magistrate (Finance & Revenue), Pilibhit annexed as Annexure-5 to the writ petition.

8. That the contents of paragraphs nos.15, 16, 17, 18 and 19 of the writ petition are absolutely wrong, they are, therefore, being denied here. It is totally false to say that audit report submitted form the office of the respondent no.2 is misguided or misconceived. In fact, the audit report was based on the materials on record. The brief facts relevant for the purposes of the case are being stated below:-

8 (a) That in the year, 1997 interview was held for six post of Junior Clerk in the Collectorate, Pilibit. Out of six posts, two were reserved for scheduled caste another two posts for backward classes and remaining two posts belonging to the general category candidates. Admittedly, the petitioner is a general category candidate.

8 (b) That the selection was held on 30.7.1997 and approval was granted by the District Magistrate, Pilibhit on 31.7.1997. However, before the selection process was finalised one post of Junior Clerk was filled on 25.7.1997 by candidate under Dying-in-Harness Rules namely, Vimal Kumar Saxena by the District Magistrate, Pilibhit. As a result of, only one post in the general category remains vacant on the date of selection.

8 (c) That, however, since six candidates were selected by the Selection Committee by the petitioner being at serial no.2 in the merits of the general category candidate was placed in the waiting list. The resolution for appointment of five candidates including one in general category dated 5.8.1997 and the approval granted by the District Magistrate, Pilibhit on the same is being annexed herewith and marked as ANNEXURE NO.C.A.-1 to this affidavit.

8 (d) That again on 30.8.1997 a report was submitted by the General Clerk in the office of District Magistrate, Pilibhit that since one Smt. Pratima Saxena, Zamindari Abolition Clerk was on maternity leave till 30.9.1997, the petitioner could be given appointment against the leave vacancy on the post of Zamindari Abolition Clerk. It is further mentioned in the report that no post of Junior Clerk is vacant in the Collectorate.

8 (e) That on the said report, the then District Magistrate, Pilibhit enquired that since this is not a clear vacancy under which head the salary will be drawn. A true copy of the aforementioned report dated 30.8.1997 as well as inquiry made by the then District Magistrate, Pilibhit bearing on it, is being annexed herewith and marked as ANNEXURE NO.C.A.-2 to this affidavit.

8 (f) That again from a report dated 2.9.1997 submitted by the General Clerk in the department of District Magistrate, Pilibhit it is clear that the resolution for appointment of the petitioner was against a leave vacancy and not against substantive vacancy as alleged by the petitioner. On the basis of said report, an appointment order was prepared for appointment of the petitioner on the post of Zamindari Abolition Clerk on 18.9.1997 The note put up by the Additional District; Magistrate, Pilibhit on 12.9.1997 as well as the report sent by the General Clerk in the office of District Magistrate, Pilibit dated 2.9.1997 and 18.9.1997 are being annexed herewith and marked as ANNEXURE NO.C.A.-3 to this affidavit.

8 (g) That in view of the report submitted by the General Clerk an appointment letter was issued to the petitioner on 18.9.1997 by the Additional District Magistrate (Finance & Revenue), Pilibhit saying that the petitioner is being appointed against a leave vacancy purely on temporary/officiating basis. From the bare reading of the above mentioned order dated 18.9.1997 it is clear that the same has been passed in continuation to the order dated 12.9.1997 passed by the District Magistrate, Pilibhit. A true copy of the order dated 18.9.1997 issued by the Additional District Magistrate (Finance & Revenue), Pilibhit is being annexed herewith and marked as ANNEXURE NO.C.A.-4 to this affidavit.

8 (h) That from the facts and circumstances stated above, it is clear that no post of General Clerk was vacant in the office of District Magistrate, Pilibhit at the relevant point of time, as such, the petitioner could not have been appointed against a substantive vacancy as alleged by him in the writ petition. Even assuming without admitting that the petitioner has been appointed against a substantive vacancy, the petitioner's appointment is bad and illegal in view of the ban imposed by means of a government order no.R.M.-84/497-95-393/Anubhag-4, dated 11.9.1997. A true copy of the aforesaid government order dated 11.9.1997 is being filed herewith and marked as ANNEXURE NO.C.A.-5 to this affidavit.

8 (I) That it is further being submitted here that even the petitioner could not have been given appointment on temporary/officiating basis in the department concerned as on 18.11.1991 Vikhandan Niyamawali, 1991 was issued by the State Government which clearly says that no appointment can be made on temporary/officiating basis in any of the department of the State Government. A true copy of the Vikhandan Niyamawali, 1991 is being annexed herewith and marked as ANNEXURE NO.C.A.-6 to this affidavit.

8 (j) That again on 16.3.1998 instruction/clarification was issued from the office of Commissioner & Secretary, Revenue Board, U.P., Lucknow to all concern Officer in U.P. that any appointment made in any category on temporary/officiating basis will be void in view of the Vikhandan Niyamawali, 1991. A true copy of the letter dated 16.3.1998 issued from the office of Commissioner & Secretary, Revenue Board, Lucknow is being annexed herewith and marked as ANNEXURE NO.C.A.-7 to this affidavit.

8 (k) That thus it is clear that the petitioner's appointment on the post of Zamindari Abolition Clerk even on officiating basis against a leave vacancy, is totally bad. The petitioner could not have been given appointment in view of the ban imposed by the State Government. The appointment letters dated 12.91997 passed by the District Magistrate, Pilibhit and the letter dated 18.9.1997 passed by the Additional District Magistrate (Finance & Revenue), Pilibhit in continuation of the same, are totally illegal. It is totally false to say that the petitioner was appointed against the substantive vacancy after having adopted due selection process in accordance with law.

8 (l) That the audit report as well as letter dated 11.8.2000 issued by the Additional Commissioner (Finance), Bareilly Zone, Bareilly are based on the sufficient materials on record as is being placed by the deponent before this Hon'ble Court."

It would be appropriate to refer paragraph-3 of the counter filed by Sri Ram Kewal, Deputy Collector, Pilibhit:

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ifj"knkns'kla[;k [email protected]&[email protected] fnukad 17-6-97 }kjk izlkfjr funsZ'kksa ds vuqikyu esa vkjf{kr Js.kh ds fjDr inksa dks Hkjs tkus ds laca/k esa fu/kkZfjr fo'ks"k p;u dk;Z ;kstuk ds vUrxZr dysDVªsV vf/k"Bku esa rRle; vkjf{kr Js.kh ds pkj rFkk lkekU; oxZ ds nks] dqy 6 fjDr dfu"B fyfid de Vadd ds inksa ij p;u gsrq dk;Zokgh dh x;h p;u dk;Zokgh ds nkSjku Hkwys[k vf/k"Bku ds ys[kiky LoxhZ; jk/ks';ke lDlsuk ds e`rd vkfJr Jh foey dqekj lDlsuk dks dysDVªsV vf/k"Bku esa fyfid in ij lsok;ksftr fd;s tkus ds laca/k esa fuxZr jktLo ifj"kn m0iz0 y[kuÅ ds v0'kk0i= la[;k [email protected]&31,@95 fnukad 26-4-96 ¼layXud1½ ds lanHkZ lanHkZ esa ;ksftr fjV ;kfpdk la0 [email protected] foey dqekj lDlsuk cuke ftyk eftLVsª[email protected] ihyhHkhr o vU; esa ikfjr ekuuh; mPp U;k;ky; bykgkckn ds vkns'k fnukad 16-7-96 ¼layXud 2½ dk vuqikyu fd;s tkus ds fufeRr vkns'k fnukad 25-7-97 ¼layXud 3½ }kjk ;kph foey dqekj lDlsuk dks dfu"B fyfid de Vadd ds fjDr lkekU; Js.kh ds 2 inksa esa ls ,d in ij lsok;ksftr dj fn;s tkus ds dkj.k foKkfir Js.kh ds 2 inksa esa ls lkekU; Js.kh ds 2 inksa esa ls lkekU; Js.kh dk ,d in de gks x;kA

ifj.kke Lo:i lkekU; Js.kh dh 'ks"k cph ,d fjfDr esa p;fur lwph fnukad 31-7-2000 ds ojh;rkdze esa lkekU; Js.kh ds vH;fFkZ;ksa esa igys uEcj ds vH;FkhZ lS;~;n dkejku vyh dks fu;qDr dj fn;k x;k ;kph lkekU; oxZ esa nwljs uEcj dk vH;FkhZ Fkk blfy;s lkekU; in dh fjfDr miyC/k u gksus ds dkj.k mldh fu;qfDr ugh dh tk ldh ,oa rRi'pkr dfu"B fyfid in dhs miyC/krk gqbZ vodk'kdkyhu fjfDr esa ;kph Jh ckyd`".k 'kekZ dks vkns'k fnukad 18-9-97 ds vUrxZr iw.kZr;k vLFkk;[email protected] :i ls fu;qfDr fd;k x;k tks lsok lekfIr ds fnukad rd dfu"B fyfid in dh fu;fer fjfDr miyC/k u gks ikus ds dkj.k mlh fLFkfr esa dk;Zjr jgkA ys[kiky jktLo ifj"kn m0iz0 cjsyh e.My cjsyh }kjk vius fujh{k.k esa bl fu;qfDr dks fo[kUMu fu;ekoyh 1991 ¼layXud&4½ dk mYya?ku ikrs gq, vkifRr bafxr dh x;hA ifj.kkeLo:i m0iz0 vLFkkbZ ljdkjh lsod ¼lsoklekfIr½ fu;ekoyh 1975 esa fofgr izfdz;kuqlkj vkns'k fnukad 13-9-2000 ds vUrxZr ;kph dh lsok;sa lekIr dj nh x;hA lsok lekfIr ds blh vkns'k ds fo:) ;kph ckyd`".k 'kekZ us fjV ;kfpdk la0 [email protected] izLrqr dh gS ftldh izLrjokj vk[;k fuEuor gS%&

Paragraph nos. 6 and 8, (a) (b) (c) (d) (e) (f) (g) (h) (i) (j) (k) and (l) of the counter affidavit filed by Sri S.P. Verma has been replied by para-4 , 7, 8, 9, 10, 11, 12, 13, 14, 15 and 16 of the rejoinder affidavit are being reproduced below :

"4. That the contents of paragraph no.6 of the counter affidavit are misconceived, incorrect and hence denied. In reply it is stated that the appointment letter dated 12.9.1997 has been issued by the D.M. On the recommendation of the selection committee in pursuance of the advertisement dt. 11.7.97. The petitioner was appointed on a substantive post.

7. That the contents of paragraph no.8(a) of the counter affidavit being matter of record need no specific reply.

8. That the contents of paragraph no.8(b) of the counter affidavit are misconceived and hence denied. It is stated that the advertisement for the selection on six posts of Junior Clerk-cum-Typist was published on 11.7.97. The selection was held and the merit list of duly recommended and approved candidates was published on 31.7.97. The appointment order dt. 12.9.97 was issued by the competent/appointing authority in pursuance of the aforesaid selection. It is further submitted that the petitioner cannot be denied his right of appointment on the post of Junior Clerk-cum-Typist on the pretext of appointment of some other person on compassionate ground.

9. That the contents of paragraph no.8(c) of the counter affidavit are misconceived and hence denied. It is stated that the petitioner was duly selected and his name found place in the list of selected candidates. It is further stated that the petitioner was never placed in waiting list. The appointment letter dt. 12.9.97 was issued in pursuance of the recommendation made by the selection committee.

10. That the contents of paragraph no.8(d) and (e) of the counter affidavit being matter of record can be verified from the same. However, the petitioner was a holder of the post as he was appointed against a substantive vacancy in pursuance of the advertisement dt. 11.7.1997 after duly recommended by the selection committee.

11. That the contents of paragraph no.8(f) of the counter affidavit are misconceived and hence denied. In reply it is stated that the petitioner was appointed after having been duly selected in pursuance of the advertisement dt. 11.7.97.

12. That the contents of paragraph no.8(g) of the counter affidavit are misconceived and hence denied. In reply it is stated that the order dt. 18.9.97 passed by the respondent no.4 is not an appointment letter. The said order is a consequential order, placing the petitioner on a particular place, passed in pursuance of the appointment letter dt. 12.9.97.

13. That the contents of paragraph no. 8(h) of the counter affidavit are misconceived, incorrect and hence denied. In reply it is stated that the respondents concerned are trying to anyhow frustrate the right/claim of the petitioner. From the document, which is annexed as Annexure No.CA-5, it is aptly clear that the alleged order has been received in the office of respondent no.3 on 25.9.97 whereas the appointment letter was issued to the petitioner on 12.9.97. However, the same has no bearing at all on the instant controversy.

14. That the contents of paragraph no.8(j) of the counter affidavit are misconceived and hence denied. In reply, it is stated that the petitioner was duly appointed against a substantive vacancy. The said Niyamawali has no bearing at all on the controversy.

15. That the contents of paragraph no.8 (k) of the counter affidavit are misconceived, incorrect and hence denied. The petitioner was duly appointed against a substantive vacancy after having been recommended by the selection committee.

16. That the contents of paragraph no.8(l) of the counter affidavit are misconceived, incorrect and hence denied. The answering respondent has adopted wholly misconceived and casual approach in the matter of appointment of the petitioner."

The averments of paragraph-3 of the counter affidavit filed by Sri Ram Kewal has been replied by para-3 of the rejoinder affidavit, which is reproduced below :

"3. That the contents of paragraph no. 3 of the counter affidavit are misconceived wrongly stated and factually incorrect and hence denied. In reply the following relevant facts necessary for the just decision of this writ petition are stated as follows:

a) that selection process in question was not a special drive for recruitment of candidates belonging to reserve category rather the said selection process was for six substantive vacant post of Junior Clerk-Cum-Typist.

b) that though the order appointing Sri Vimal Saxena under dying-in-harness rule was passed by District Magistrate on 7.7.1997, however the exam for selection was conducted on 22 and 23 July and merit list was prepared and published on 31.7.1997. However, the alleged appointment was a compassionate appointment where as the petitioner was appointed through a regular selection process on a substantive vacant post.

c) that it is stated that at the relevant time two post of junior clerks fell vacant on account of promotion of two junior clerks namely Sri Deepak Agarwal, the then Assistant Chief Revenue Accountant and Sri Sanjeev Kumar Saxena the then Typist, Tehsildar Puranpur.

d) that the services of the petitioner were illegally terminated."

From the record it appears that in the advertisement two posts under the general category were shown vacant. The petitioner along with other candidates appeared in the examination and it appears that the petitioner along with Sayed Kamran Ali was selected. In the select list of general category, Sayed Kamran Ali was placed at serial no. 1 and the petitioner was placed at serial no. 2. However, during the process of the appointment it was found that one post of general category has been filled up by appointing Sri Vimal Kumar Saxena on compassionate ground on 25.7.1997 and there was only one vacant post under the general category and, therefore, the approval for the appointment of only five selected persons has been granted by the District Magistrate, Pilibhit. The petitioner name has not been approved for the appointment as no post was vacant. In fact, at that stage, the petitioner's name should have been dropped in the absence of any vacancy, however, a separate proceeding has been initiated on the report of the general clerk that one post was lying vacant on account of long leave taken by Smt. Pratima Saxena in the Treasury and the name of the petitioner has been recommended for the appointment against the leave vacancy and accordingly, the petitioner has been issued appointment letter by the Additional District Magistrate (Finance & Revenue), Pilibhit on 18.9.1997 appointing the petitioner against the leave vacancy. In paragraph-8 of the writ petition the petitioner admitted that his appointment was against leave vacancy. It is not in dispute that Smt. Pratima Saxena has returned back and joined. Since the petitioner's appointment was against the leave vacancy and Smt. Pratima Saxena had come back and joined the petitioner's services was bound to be dispensed with.

The contention of the petitioner that his appointment was made against the substantive vacancy in pursuance of the advertisement has no substance. It is true that in the advertisement two posts have been shown under the general category as vacant posts, but it is a settled law that the advertisement does not give any right of appointment. It only gives the right to apply and participate. Further mere selection does not confer indefensible right to claim appointment. The selection and appointment is to be made against the vacancy only. At the time of selection and appointment if there was only one vacancy under the general category the petitioner could not be appointed as the petitioner being at serial no. 2 in the merit list of general category. The petitioner selection has not been approved. The petitioner, as a matter of right, cannot claim that since he has been selected, he should necessarily be appointed. The appointment can only be made against the vacancy. If there was no vacancy, the claim of the petitioner could not be considered and has rightly not been considered. The appointment letter dated 12.9.1997 issued by the District Magistrate was ex-facie illegal.

In view of the above discussions, the writ petition is devoid of merit and is accordingly dismissed.

Dated: 31st August, 2012

OP