Virendra Singh Yadav vs Collector, Ghazipur And Others
2012 Latest Caselaw 5058 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 

 

 

 
Civil Misc. Writ Petition N0. 109 of 1998
 
Virendra Singh Yadav.................................................Petitioner.
 
Vs.
 
Collector, Ghazipur and others....................................Respondents.
 

 

 
Hon'ble Rajes Kumar, J.

Heard Sri Prakash Padia, learned counsel for the petitioner and Sri Pankaj Rai, learned Additional Chief Standing

Counsel for the respondents.

By means of the present writ petition, the petitioner is challenging the order dated 29.12.1997 passed by the District Magistrate, Ghazipur whereby the appointment of the petitioner has been cancelled and the services of the petitioner has been dispensed with. The petitioner has been appointed by the appointment letter dated 29.8.1997 issued by the then District Magistrate, Ghazipur appointing the petitioner on the post of Peon which had fallen vacant on the retirement of one Sri Purshottam Yadav temporarily till the regular appointment. In the appointment letter it was stated that the appointment was only temporary and could be terminated without any prior information.

It appears that in respect of the appointment of the petitioner, several complaints have been received by the then District Magistrate, Ghazipur. On the complaint, he has appointed Sub-Divisional Magistrate,Saidpur, Ghazipur to make necessary inquiry. The Sub-Divisional Magistrate,Saidpur, Ghazipur submitted the inquiry report on 21.11.1997 stating following irregularities in the appointment :

A. In accordance to Rule 19 of the U.P. Group D Employees Service Rules, 1985 (as amended) the vacancy has neither been notified to the Employment Exchange nor published in the newspaper nor the applications have been invited through Notice Board;

B. For the appointment of one vacant post of Peon only one application of the petitioner has been received and he has been appointed;

C. In accordance to Regulation Selection Committee would have been constituted but no Selection Committee has been constituted and no interview has been taken by the Selection Committee.

The District Magistrate, Ghazipur on the basis of the inquiry report, in the impugned order, has stated that for one vacant post application has been directly received and the petitioner has been appointed and accordingly the appointment is contrary to Rules 1985 made in accordance to Article 309 of the Constitution of India and accordingly the appointment of the petitioner has been cancelled and his services have been dispensed with.

Learned counsel for the petitioner submitted that the petitioner has been appointed on 29.8.1997. The service of the petitioner has been dispensed with on 29.12.1997 against which the petitioner filed the writ petition which has been entertained and vide order dated 8.1.1998 the operation of the order dated 29.12.1997 has been stayed and since then the petitioner is continuously working and is getting salary and, therefore, on equitable consideration, the petitioner may be allowed to continue. He submitted that the impugned order has been passed without giving any opportunity and in violation of the principle of natural justice. He further submitted that on the validity of the appointment of the petitioner he cannot say anything. In support of the contention, learned counsel for the petitioner relied upon the decision of the Apex Court in the case of Shrawan Kumar Jha Vs. State of Bihar, reported in 1991-AIR (SC) 309, the division Bench decision of this Court in the case of Girish Chandra and others vs. Union of India and others, reported in 1985 UPLBEC 22 and the decision of the learned Single Judge of this Court in the case of Ratnakar Chaubey vs. Deputy Director of Education Vth Region, Varanasi and others, reported in 2004 E.S.C. Allahabad 262.

Learned Additional Chief Standing Counsel submitted that the appointment of the petitioner was wholly temporary and in the appointment letter, it was clearly stated that the service of the petitioner could be terminated without giving any prior notice. The appointment of the petitioner was on the face of it was illegal and was made without following procedure of appointment given in Group D Employees Service Rules, 1985. It is apparent that the appointment was made by manipulation and on extraneous considerations. As required under Rule 19 of the Rules, 1985 the vacancy had not been notified to the Employment Exchange. No publication was made in the newspaper nor in the notice Board and as Required under Rule 16, the Selection Committee has not been formed only the petitioner's application has been entertained and the petitioner has been appointed. The appointment letter was directly handed over to the petitioner on 1.9.1997. The petitioner has been allowed to join on the same day. Neither any medical examination nor any verification of the antecedent of the petitioner was made before his joining. The appointment was wholly motivated by extraneous consideration and in such a situation the appointment has rightly been cancelled. In the petition, the petitioner is not able to justify his appointment in accordance to law. Despite the appointment of the petitioner was wholly illegal de horse to the Rules, the petitioner is working on the basis of the interim order granted by this Court. The petitioner has got his appointment by manipulation taking away the right of appointment of the several persons. Therefore, the petitioner is not entitled for the benefit of equity.

I have considered the rival submissions and perused the records.

Rules 19 and 16 of the Group 'D' Employees Service Rules 1985 reads as follows:

19. Procedure for Selection. - (1) The appointing Authority shall determine the number of vacancies to be filled during the course of the year as also the number of vacancies to be reserved for the candidates belonging to the Scheduled Castes, Scheduled Tribes and other categories. The vacancy shall be notified to the Employment Exchange. The Appointing Authority may also invite application directly from the persons who have their names registered in the Employment Exchange. For this purpose, the Appointing Authority shall issue an advertisement in a local daily newspaper besides posting the notice for the same on the notice board. All such applications shall be placed before the Selection Committee.

(2) When the names both of the general candidates and reserve candidates for whom vacancies are required to be reserved under the orders of the Government have been received by the Selection Committee it shall interview and select the candidates for various posts.

(3) In making selection the Selection Committee shall give weightage to the retrenched employees awarding marks in the following manner :

(i)For the first complete year                                          ....5 marks.
 
(ii)For the next and every completed year of service      .....5 marks.
 

 
	Provided that the maximum marks awarded to a not trenched employee under this sub-rule shall not exceed 15 marks.
 

 
	(4) The number of the candidates to be selected will be larger (but not larger by more than 25 per cent) than the number of vacancies for which the selection has been made. The names in the selection list shall be arranged according to the marks awarded at the interview.
 

 
	16. Constitution of Selection Committee. -For the purpose of recruitment to any post, there shall be constituted a Selection Committee as follows:
 

 
(1)Appointing Authority;
 

 

(2)An officer belonging to Scheduled Caste/Scheduled Tribe, nominated by the District Magistrate if the Appointing Authority does not belong to Scheduled Caste/Scheduled Tribe. If the Appointing Authority belongs to Scheduled Caste/Scheduled Tribe, an office other than belonging to Scheduled Caste, Scheduled Tribe, Minority Community and Backward Class to be nominated by the District Magistrate;

(3)Two officers nominated by the Appointing Authority, one of whom shall be an officer belonging to Minority Community and the other to backward class. If such suitable officers are not available in his department or organization, such officers shall on the request of the Appointing Authority, be nominated by the District Magistrate and on his failure to do so, by reason of non-availability of suitable officers, such officers shall be nominated by the Divisional Commissioner.

Rule 19 (1) provides that the Appointing Authority shall determine the number of vacancies to be filled during the course of the year as also the number of vacancies to be reserved for the candidates belonging to the Scheduled Castes, Scheduled Tribes and other categories and shall notify the vacancy to the Employment Exchange and may also invite application directly from the persons who have their names registered in the Employment Exchange and in this regard the Appointing Authority shall issue an advertisement in a local daily newspaper besides posting the notice for the same on the notice board. All such applications shall be placed before the Selection Committee. Thereafter, the Selection Committee shall interview and select the candidates for various posts. Rules 16 provides for constitution of the Selection Committee, consisting of the Appointing Authority, an officer belonging to the Scheduled Caste and Scheduled Tribe and one officer belonging to the minority community.

In the present case neither any Selection Committee has been constituted nor the petitioner has been interviewed. The Procedure contemplated under Rule 19 has also not been followed. Only one application of the petitioner has been entertained on which the petitioner has been appointed.

Thus, it is apparent that the appointment of the petitioner was without following the Rules. The appointment of the petitioner was motivated by extraneous consideration and as a result of favouritism. The petitioner is not able to justify his appointment under the Rules. In the appointment letter itself it was made clear that the appointment of the petitioner was wholly temporary and could be terminated without any prior notice. Therefore, even if the termination order has been passed without giving any opportunity to the petitioner, the same cannot be said to be illegal. The petitioner has fullest opportunity in this Court to assail the impugned order on merit but the petitioner could not do so and made no submission in this regard. Merely because the petitioner has worked under the interim order of this Court, the petitioner's appointment cannot be justified and the petitioner cannot be allowed to continue. The illegal appointment of the petitioner has taken away the rights of the several persons, who were also entitled for the appointment and could be better candidates but they were deprived to exercise their rights. Therefore, in such a situation, the petitioner is not entitled for any equitable considerable.

In my view, the initial appointment of the petitioner is de horse to the Rules, the equity has no role and on equitable consideration the petitioner cannot be allowed to continue on the ground that he has worked for long period under the interim order of this Court. It would amount to encourage the illegal appointments, depriving the right of the legitimate candidates. Reliance is placed on the Constitution Bench decision of the Apex Court in the case Secretary, State of Karnataka and others Vs. Uma Devi (2) and others, reported in 2006 (4) SCC-1. I have perused the decision of the Apex Court in the case of Shrawan Kumar Jha Vs. State of Bihar (supra). The fact of such case was entirely different. In the said case, the appointments have been cancelled because the District Superintendent of Education had no authority to make the appointments while the same has been disputed by the petitioner and in such a situation the Apex Court has held that before cancelling the appointment, opportunity should be given. In the case of Girish Chandra and others vs. Union of India and others (supra), it is not clear that what was the condition of the appointment and the allegation was that the termination was not in accordance with the terms and conditions of their services. The case of Ratnakar Chaubey vs. Deputy Director of Education Vth Region, Varanasi and others (supra) the facts of the case are entirely different and is not applicable to the present case.

In Committee of Management Arya Nagar Inter College v. Sri Kumar Tiwari, 1997 (4) SCC 388: AIR 1997 SC 3071, the services of the respondent came to be terminated on 30th June, 1988, whereafter he obtained interim order and continued thereunder. Thus, he continued in service not by virtue of his own right under an order of appointment, but on account of interim order and the Court, thus, held that no benefit of such continuance can be allowed. In South Eastern Coalfields Ltd. vs. State of M.P. And others, 2003 (8) SCC 648: (AIR 2003 SC 4482), the Court recognized the principle that wrong order should not be perpetuated by keeping it alive. Recognizing the maxim auctus curiae neminem gravabit, it was held that no one shall suffer by an act of the Court and such a rule is not confined to an erroneous act of the Court but act of the Court embraces within its purview all such acts as to which the Court may form an opinion in any legal proceedings that the Court would not have so acted had it been correctly apprised of the facts and law. It is duty of the Court to apply the restitution putting the parties in the same position as they would have been, had the order, subsequently found to be erroneous by the Court, would not have been passed. In para 28 of the judgment, it was held (para 26 of AIR).

"The injury, if any, caused by the act of the Court shall be undone and the gain which the parties would have earned unless it was interdicted by the order of the Court would be restored to or conferred on the party by suitably commanding the party liable to do so. Any opinion to the contrary would lead to unjust if not disastrous consequences. Litigation may turn into a fruitful industry. Though litigation is not gambling yet there is an element of chance in every litigation. Unscrupulous litigants may feel encouraged to approach the Court persuading the Court to pass interlocutory orders favourable to them by making out a prima facie case when the issues are yet to be heard and determined on merits and if the concept of restitution is excluded from application to interim orders, then the litigant would stand to gain by swallowing the benefits yielding out of the interim order even though the battle has been lost at the end. This cannot be countenanced." (emphasis added)

Considering from another angle, where an interim order is passed and the writ petition is ultimately dismissed, the effect would be as if no order was ever passed. That being so, the incumbent does not gain on the basis of mere continuance since he has no legal or valid right to continue. An interim order passed by the Court merges with the final order and, therefore, the result brought by dismissal of the writ petition is that the interim order becomes non est.

A Division Bench of this Court in Shyam Lal v. State of U.P., AIR 1968 Allahabad , while considering the effect of dismissal of writ petition on interim order passed by the Court has laid down as under:

"It is well settled that an interim order merges in the final order and does not exist by itself. So the result brought about by an interim order would be non est in the eye of law if the final final order grants no relief. The grant of interim relief when the petition was ultimately dismissed could not have the effect to postponing implementation of the order of compulsory retirement. It must in the circumstances take effect as if there was no interim order."

The same principle has been reiterated in the following cases:

(A) AIR 1975 Allahabad 280, Sri Ram Charan Das v. Pyare Lal.

"In Shyam Lal v. State of U.P., AIR 1968 All 139, a Bench of this Court has held that orders of stay or injunction are interim orders that merge in final orders passed in the proceedings. The result brought about by the interim order becomes non est in the eye of law if final order grants no relief. In this view of the matter it seems to us that the interim stay became non est and lost all the efficacy, the Commissioner having upheld the permission which became effective from the date it was passed."

(B) 1986 (40 LCD 196, Shyam Manohar Shukla v. State of U.P.

"It is settled law that in interim order passed in a case which is ultimately dismissed is to be treated as not having been passed at all (see Shyam Lal v. state of Uttar Pradesh, Lucknow), AIR 1968 Allahabad 139 and Sri Ram Charan Das v. Pyare Lal, AIR 1975 Allahabad 280 (DB)."

(C) AIR 1994 Allahabad 273, Kanoria Chemicals & Industries Ltd. v. U.P. State Electricity Board. (Para 7).

"After the dismissal of the writ petitions wherein notification dated 21-4-1990 was stayed, the result brought about by the interim orders staying the notification, became non est in the eye of law and lost all its efficacy and the notification became effective from the beginning."

In the case of Raghavendra Rao Etc. v. State of Karnataka and others, etc., reported in JT 2009 (2) SC 520, the Apex Court held as follows:

It is now a well-settled principle of law that merely because an employee had continued under cover of an order of Court, he would not be entitled to any right to be absorbed or made permanent in the service . This Court in Uma Devi (3) (supra), held as under :

"Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of the temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. High Courts acting under Article 226 of the Constitution of India, should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because, an employee had continued under cover of an order of Court, which we have described as 'litigious employment' in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas the interim direction to continue his employment would hold up the regular procedure for selection or imposed on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates."

Recently in Official Liquidator v. Dayanand & Ors. [JT 2008 (11) SC 467 ; 2008 (10) SCC 1], this Court has reiterated the same view.

In the facts and circumstances, stated above, I do not find any merit, which requires interference by this Court. On the facts and circumstances, I direct the District Magistrate to make inquiry that who are the persons involved in such illegal appointment and necessary action be taken against them.

In the result, the writ petition fails and is dismissed with costs of Rs.25,000/-.

Dated: 12th October, 2012

OP