Sanjay Kumar vs State Of U.P. And Others
2012 Latest Caselaw 2456 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved.
 
Court No. 26
 
Case :- WRIT - A No. - 23231 of 2007
 
Petitioner :- Sanjay Kumar
 
Respondent :- State Of U.P. And Others
 
Petitioner Counsel :- P.K. Ganguly
 
Respondent Counsel :- C.S.C.,Arvind Srivastava,K.R. Sirohi, M.K.Kushwaha, M.N.Siddiqui,Rajeev Gupta
 
Connected with
 
Case :- WRIT - A No. - 30412 of 2007
 
Petitioner :- Upendra Kumar Singh
 
Respondent :- The State Of U.P. And Others
 
Petitioner Counsel :- P.K. Ganguly
 
Respondent Counsel :- C.S.C.,K.R. Sirohi,Rajiv Gupta
 
Hon'ble Sunil Hali,J.

Since both the writ petitions raise common question of facts and law hence are being disposed of by a common order. Before adverting to the merits of the case, it would be necessary to mention the facts of each case separately so as to understand the controversy for its proper adjudication.

Facts of W.P. No. 23231 of 2007 (Sanjay Kumar Vs. State Of U.P. and Others) culled out from the record is as under:

District Judge, Varansi invited applications for appointment of Class IV Employees in Varanasi Judgeship and in this respect an advertisement was issued and published in the news paper on 23.12.2000. In the said advertisement notice 18 posts were advertised and during the process of selection eight more vacancies had occurred owing to the promotion of Class IV employees to Class III Posts and thus total number of vacancies available were 26. Petitioner applied for the said post by submitting his form and was allotted roll no. 4352. He was called for interview on 18.4.2002. After conclusion of the selection process list of 68 successful candidates according to merit was published. Petitioner figured at Sl No. 25 of the said list. Appointment order in pursuance to the said selection was issued by the District Judge on 1.5.2002. In pursuance to the appointment order issued the petitioner submitted his joining report in the Varanasi Judgeship on 8.5.2002. After his initial appointment in the office of District Judge, Varanasi petitioner was posted in the Court of A.D.J. Room No. 15. Said court was shifted from Varanasi Judgeship to Chandauli Judgeship which was a newly created judgeship. Some other class IV employees were also transferred to newly created judgeship at Chandauli in terms of the direction issued by this Court. It appears that this Court issued Circular dated 15.4.2005 and 24.4.2005 for absorption of Class III and Class IV who are working in the FTC and in compliance of the said order petitioner joined on 6.6.2005 and since then he is continuously working in District Varanasi in the newly created Fast Track Court in the said judgeship.

His grievance is that he has been absorbed on adhoc basis in the newly created Fast Tract Courts even though he stood already appointed substantively in the judgeship of Varanasi in pursuance to the selection process undertaken by the District Judge.

Facts of W.P. No. 30412 of 2007 (Upendra Singh Vs State of UP and others) culled out from the record is as under:

Case of the petitioner is that in pursuance to the selection process undertaken by the respondents his name figured at sl no. 26 of the said list. Appointment order was issued in his favour on 1.5.2002. It is pertinent to mention that the District Judge had issued appointment letter from Sl No. 1 to 26 for appointment on regular posts. That after the appointment order in favour of the petitioner was issued the District Judge, Varanasi vide his order dated 1.6.202 removed the petitioner and appointed him on adhoc basis in the F.T.C. court No. 4 with a stipulation that his service can be terminated at any time without giving him any notice. It is important to mention here that one Hyder Ali and Mahendra Kumar who figured at Sl No. 29 and 31 of the select list were appointed in Varanasi judgeship against the sanctioned posts in view of the creation of the new Fast Track Courts in the judgeship while as petitioners were appointed on adhoc basis on 6.5.2005.

Stand of the respondents as reflected from the affidavit filed by the A.D.J.Varanasi is that it is wrong to state that there were 26 available vacancy as alleged by the petitioners, however, it is correct that on account of termination of class IV employees five more posts were created as a result of which there were 23 more posts available. It has been denied that the appointment letter issued by the District Judge, Varanasi were against the regular vacancy. In respect of the appointment of persons figured at Sl No. 29 and 31 it is stated that they were appointed on account of vacancy created by resignation of Ashok Kumar and termination of Sanjeev Kumar Gupta figured at Sl No. 1 and 22 respectively. it is however, denied that the appointment of the candidates namely Mahendra Kumar and Hayder Ali were against regular posts. Petitioners were relieved of their post after shifting of Court of the ADJ Court no. 15 to Chandauli Judgeship. It is further stated that on the shifting of the Court from Varanasi Judgeship to Chandauli petitioners waived their right to be appointed against regular posts as such they were accommodated in the FTC, Varanasi.

In nut shell it is stated that the petitioners were not appointed against the regular vacancy.

Heard learned counsel for the parties and perused the material on record.

Advertisement was issued for making appointment against the post advertised therein which were born on the regular strength of Varanasi Judgeship. Selection process was undertaken to make appointment and as a result of which select list of 26 candidates was finalized. Petitioners figured at Sl No. 25 and 26 of the said list. By way of administrative convenience, they were posted in the Court of ADJ, FTC, Varanasi and consequently on the shifting of this Court they were relieved and posted at Chandauli judgeship. It is pertinent to mention here that after there appointment they were posted in the Court of Ist ADJ, FTC Varanasi in the year 2003. Their initial appointment was int he judgeship of Varanasi.

In the aforesaid backdrops the following questions are required to be considered in the present case.

(i) Once a person is appointed to a post which has been advertised for being filled up does he loose his status of permanent employee merely on account of that fact that he has been transferred to the Court which is Fast Track Courts?

(ii) Was the District Judge competent to treat the appointment of petitioners co-terminous with the life of the courts where they stood posted after their appointment?

(iii) Can the appointment of the petitioners in the year 2005 constitute acquiescing their right to seek appointment on permanent basis?

In regard to question no. 1 it is not in dispute that the appointment to the post of Class IV employees is governed by U.P. Subordinate Civil Service Inferior Establishment Rules 1955.

Section 4 of the UP Subordinate Civil Services Inferior Establishment Rules 1955 provides the method of recruitment in the inferior establishment. Sub Rule 2 of Section 4 provides for appointment of process servers, orderly, peons, Office peons and farrashes and following mode of recruitment is provided i.e.-(a) by appointment of candidates on the waiting list prepared under Rule 12 or (b) by transfer from one post to another according to suitability. For the post of Chaukidars, Malis, Waterman and sweepers- by direct recruitment on the discretion of District Judge. For the purpose of present writ petition, Rule 4 of Rules 1955 is quoted below:-

"4. Method of recruitment: Recruitment to the following posts in the establishment shall be made.

(1) Daftaries and bundle lifters- By promotion strictly on merits from amongst process servers, orderlies, office peons and farrashes who have put in at least five years service as such:

Provided that no person shall be promoted to these posts unless he is able to read and write Hindi in Devnagri Script with correctness and fluency and can discharge the duties of the office satisfactorily and in the case of the post of daftari unless he also knows book binding.

(2) Process servers, orderly, peons, Office peons and farrashes-(a) by appointment of candidates on the waiting list prepared under Rule 12 or (b) by transfer from one post to another according to suitability.

(3) Chaukidars, Malis, Waterman and sweepers- By direct recruitment on the discretion of District Judge."

The rule provides that appointment has to be made on the basis of waiting list prepared under Rule 12 of the Rules 1955 which provides that a waiting list of candidates shall be maintained for each Judgeship for the posts of process-servers, ordrelies, office peons and farrashes. It also provides that waiting list should be of reasonable dimensions and be reserved from time to time with a view to removing there from the names of all such candidates as are not likely to receive appointments before attaining the maximum age prescribed in Rule 8 and such candidates as are found guilty of insubordination, misbehaviour or dishonesty in the discharge of their duties in temporary or officiating vacancies, after giving them necessary opportunities to explain their conduct. A note appended to the said rules provides that the order of names in the waiting list shall be in the order in which the candidates are admitted to it but the District Judge may at the time of appointment; choose from the list the most suitable of all the candidates for reasons to be recorded in writing.

Waiting list is required to be prepared by advertising the vacancies and preparing the select list from where the candidates are to be appointed. Selection list is required to be prepared on the basis of assessment of the candidates at the time of preparation of the said list. Candidates are required to be appointed on the basis of their placement in the said seniority list. Discretion is given to the District Judge to choose from the list the most suitable of all the candidates for reasons to be recorded in writing by ignoring their position in the select list prepared.

In Black's Law Dictionary, Sixth Edition, ''discretion' means: "As applied to public officers connotes action taken in light of reason as applied to all facts and with view to rights of all parties to action while having regard for what is right and equitable under all circumstances and law."

In Websters' Third New International Dictionary ''discretion' means "power of free decision or choice within certain legal bounds: ability to make decisions which represent a responsible choice and for which an understanding of what is lawful, right, or wise may be presupposed."

In this connection reference may also be made to the decision of the Supreme Court in Bangalore Medical Trust Vs. B. S. Muddappa & Ors., (1991) 4 SCC 54 wherein the scope of discretionary power has been dealt with:-

"............. Discretion is an effective tool in administration. But wrong notions about it results in ill-conceived consequences. In law it provides an option to the authority concerned to adopt one or the other alternative. But a better, proper and legal exercise of discretion is one where the authority examines the fact, is aware of law and then decides objectively and rationally what serves the interest better. When a statute either provides guidance or rules or regulations are framed for exercise of discretion then the action should be in accordance with it. Even where statutes are silent and only power is conferred to act in one or the other manner, the Authority cannot act whimsically or arbitrarily. It should be guided by reasonableness and fairness. The legislature never intends its authorities to abuse the law or use it unfairly. .............." (emphasis supplied).

In Union of India Vs. Kuldeep Singh, (2004) 2 SCC 590 the Supreme Court observed :-

"When anything is left to any person, judge or Magistrate to be done according to his discretion, the law intends it must be done with sound discretion, and according to law. (See Tomlin's Law Dictionary.) In its ordinary meaning, the word "discretion" signifies unrestrained exercise of choice or will; freedom to act according to one's own judgment; unrestrained exercise of will; the liberty or power of acting without control other than one's own judgment. But, when applied to public functionaries, it means a power or right conferred upon them by law, of acting officially in certain circumstances according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others. Discretion is to discern between right and wrong; and therefore, whoever hath power to act at discretion, is bound by the rule of reason and law. (See Tomin's Law Dictionary.) Discretion, in general, is the discernment of what is right and proper. It denotes knowledge and prudence, the discernment which enables a person to judge critically of what is correct and proper united with caution; nice soundness of judgment; a science or understanding to discern between falsity and truth, between wrong and right, between shadow and substance, between 2 All] Sushil Kumar Sharma V. State of U.P. and others 507 equity and colourable glosses and pretences, and not to do according to the will and private affections of persons. When it is said that something is to be done within the discretion of the authorities, that something is to be done according to the rules of reason and justice, not according to private opinion; according to law and not humour. It is to be not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man, competent to the discharge of his office ought to confine himself (per Lord Halsbury, L.C., in Sharp v. Wakefield). (Also see S.G. Jaisinghani v. Union of India.)

The word "discretion" standing single and unsupported by circumstances signifies exercise of judgment, skill or wisdom as distinguished from folly, unthinking or haste; evidently therefore a discretion cannot be arbitrary but must be a result of judicial thinking. The word in itself implies vigilant circumspection and care; therefore, where the legislature concedes discretion it also imposes a heavy responsibility." (emphasis supplied)

There is, therefore, no doubt that while exercising his ''discretion' under Rule 4(3) of the Rules in making appointments, the District Judge has to ensure that the procedure adopted by him is in conformity with the provisions of Articles 14 and 16 of the Constitution and that he cannot act in an unfair or arbitrary manner.

In the present case, 18 class IV vacancies were advertised on 23.12.2000 for recruitment. Eight more posts became available. In the said category select list of 68 candidates was prepared in terms of Rule 12 of Rules of 1055. Candidates from select list no. 1 to 26 and serial nos. 29 & 31 were appointed on 7.5.2002, 9.52002 and 8.7.2002 on the basis of their position in the select list. Candidates from sl no. 1 to 26 were posted in the regular courts and candidates from sl no. 26 to 31 were posted in the Fast Tract Courts. It is crystal clear that 29 appointments were made on 7.5.2002, 9.5.2002 and 8.7.2002 against clear vacancies of class IV employees. It is clearly visible from the stand taken by the respondents in paragraph no. 7 of the Counter affidavit.

"That however, a select list of 68 candidates under Rule 12 of UP Subordinate Civil Court Inferior Establishment Rules 1955 was prepared by the thn District Judge, Varanasi on 1.5.2002. The candidates from Sl No. 1 to 28 and Sl No. 30 were appointed on 7.5.2002, 9.5.2002 and 8.7.2002 on the basis of said select list. The candidates from Sl No. 01 to 26 were posted in regular courts and the candidate at Sl No. 27, 28 & 30 were posted in Fast Tract Courts. It is crystal clear that 29 appointments were made on 7.5.2002, 9.5.2002 and 8.7.2002 against 23 (18+3+2) clear vacancies of Class IV employees."

Case of the petitioners is that in terms of selection undertaken they figured from Sl No. 25 and 26 of the select list prepared by the Distrit Judge under Rule 12 of Rules 1955 They were appointed and posted in regular courts and candidates from Sl no. 27 to 31 were posted in Fast Track Courts. After their appointment and posting in the regular courts they were transferred and posted in the Court No. 15 which was a Fast Track Court. Their status as permanent employee was disregarded by the District Judge and thereby treated them to be working on adhoc basis. Their appointment on adhoc basis has been construed to be waiver of their right to seek absorption on the regular appointment.

On the other hand stand of the respondents is that the petitioners figured at Sl No 25 and 26 and were appointed and posted in regular courts. In the same appointment of Sanjay Kumar was not made against regular vacancy as such they were treated to be appointed on adhoc basis and in respect of Upendra Singh same stand has been taken that on his transfer to Fast Track Court his appointment was treated as Adhoc appointment. It is further stated that in pursuance to the direction issued by this Court by order dated 14.7.2003 the post of Daftari, Orderlies and office peon were abolished on account of shifting of courts of ADJ, FTC from Varanasi to Chandauli Judgeship as a result of t his petitioners have been appointed on adhoc basis.

In nut shell stand of the respondents is that on account of shifting of one Court from Varanasi Judgeship to Chandauli judgeship petitioners lost their claim of being lastly placed candidates in the select list and are not entitled to regularization of their services.

The facts in this case are not in dispute that after the advertisement of the post select list was prepared and the petitioners were appointed against regular courts. Their appointment was against the clear vacancy. They stood appointed in the regular courts in the Varanasi Judgeship who were later on transferred to newly created judgeship of Chandauli. Petitioners, subsequently, were also transferred to this newly created judgeship. After their selection and appointment they became members of the services. In order to became a member of the services candidate is required to satisfy the four conditions viz (i) appointment must be in substantive capacity; (ii) to a post in service i.e. o substantive vacancy; (iii) made in accordance with the rules; (iv) within the quota prescribed for the source.

Applying this principle in the present case, it be seen that in terms of Rule 12 a select list was prepared of candidates for appointment on the basis of advertisement. Only those posts are required to be advertised which are to be filled up substantively. On the basis of their position in the select list and upon availability of the vacancy petitioners were appointed which is not being denied by the respondents. Their selection was made in accordance with the Rules of 1955 and their appointment was in substantive capacity. Their status of substantive appointee has been changed to adhoc in view of the fact that they were appointed in FTC which was subsequently transferred to another judgeship.

It also transpires that on account of direction issued by this Court and their posting in the FTC at Chandauli resulted in abolition of the said posts. I am afraid that this procedure adopted by the respondents is contrary to the rules. After having established their right to be appointed against the substantive vacancy under rules their status cannot be changed to that of adhoc appointee on the pretext that they were posted to FTC which was transferred to a new district. It may be observed here that Rule 4 (3)(b) of Rules 1955 provides transfer from one post to another according to suitability.

Respondents were obliged under law to transfer the petitioners from one Judgeship to new Judgeship by taking recourse to those rules. Since there is provision under the rules that once a new district is created a person who are appointed substantively can be transferred in the said district. They could not be treated as adhoc appointee which is something alien to the service jurisprudence. Adhoc appointment or appointment of daily wage basis or appointment made to the service or cadre should be in accordance with the provisions contained in the recruitment rules, however, these appointments are not made in accordance with the provisions of the recruitment rules.

Other aspect of the matter is that a person figuring at Sl No. 29 and 31 of the select list namely Hyder Ali and Mahendra Kumar were appointed in Varanasi Judgeship and thereafter they have been regularized against the said post and transferred to the newly created judgeship Chandauli vide order dated 18.11.2003. This is clearly visible from the report of the District Judge, Varanasi dated 28.3.2007.

Stand taken is that on account of their posting in FTC No. 15, at Varanasi judgeship and consequently transfer of the said post to Chandauli has resulted in the abolition of the said posts. It is also important to note that once they stood transferred to FTC, Chandauli they were allowed to join on the same date and no order of appointment on adhoc basis was issued. It is crystal clear that the District Judge has adopted a process which is not only arbitrary but smacks of malafide. Creation of new posts at Chandauli would not lead to the abolition of the posts against which petitioners were working. It is not in dispute that the state has been empowered to abolish any post. The process of treating these posts to have been abolished and which of the candidates are to suffer this consequence has to be done fairly. Once the court where the petitioners were working were transferred to new judgeship, petitioners appointment would not have been cancelled. They should have been allowed to retain in the judgeship at Varanasi and those persons who were lower in merits and figured at Sl No. 29 to 35 their posts were required to be abolished. Converse has happened in this case. The persons who were higher in the select list and appointed on substantive basis their appointment has been converted to adhoc appointment whereas those who were figuring at Sl No. 29 to 31 their appointments have been confirmed and they have been transferred to Chandauli judgeship This has been done in pursuance to Rule 4(2)(b) of Rule 1955. Same principle was required to be adopted in the case of the petitioner which has not been done. I am fortified in saying so by a judgement of Hon'ble Apex Court reported in AIR 2010 SC 157 State of Rajasthan and others Vs Jagdish Narain Chaudhary wherein the Hon'ble Apex Court has made the following observation:-

"The basic issue was whether ad hoc appointment or appointments on daily wage or work charge basis are appointments made to the cadre/service in accordance with the provisions contained in the recruitment rules contemplated by the Government Orders dated 25.1.1992 dated 17.2.1998. It is the stand of the appellants that they are not, while the respondents contended to the contrary. In order to become "a member of service" a candidate must satisfy four conditions, namely (i) the appointment must be in a substantive capacity; (ii) to a post in the service i.e. in a substantive vacancy; (iii) made according to rules; (iv) within the quota prescribed for the source. Ad hoc appointment is always to a post but not to the cadre/service and is also not made in accordance with the provisions contained in the recruitment rules for regular appointment."

To sum up the issue following things clearly emerges that:-

(i)the petitioners stood appointed in terms of Rule 12 of the Rules 1955 and were appointed substantively to the posts which were advertised;

(ii)after transfer of the posts of ADJ, Court No. 15, FTC to newly created judgeship Chandauli status of their appointment could not have been changed from substantive to adhoc on the pretext that the posts have been abolished;

(iii)respondents were obliged under rules to transfer the petitioners as has been done in the case of Sri Hyder Ali and Mahendra Kumar;

(iv)petitioners shall be always deemed to have been appointed against the substantive post and any reference that they are appointed on adhoc basis shall be always deemed to be non est in the eyes of law

(v)because they were appointed in the FTC their appointments cannot be deemed to be on adhoc basis.

In view of aforesaid, the writ petitions are allowed. Impugned orders dated 28.3.2007 is hereby quashed. Respondents are directed to treat the petitioners to have been appointed substantively in pursuance of the advertisement notice issued on 23.12.2000 with effect from the date they were appointed in terms of their seniority with all the consequential benefits.

Dated: 01/06/2012

RKS/