Brij Kumar And 14 Ors. vs State Of U.P.Thru Secretary And 3 ...
2013 Latest Caselaw 3279 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

                                                                                                      A.F.R. 
 

 
                                                                                                 Reserved 
 

 
Writ Petition No.3052 (S/S) of 2004.
 

 
Brij Kumar and others
 
Vs. 
 
State of U.P. and others.
 
With 
 
Writ Petition No.3244 (S/S) of 2004.
 
Brij Mohan Gautam Vs. State of U.P. and others,
 
Writ Petition No.3246 (S/S) of 2004.
 
Alok Kumar Sahu Vs. State of U.P. and others,
 
Writ Petition No.3261 (S/S) of 2004,
 
Shiv Bahadur Yadav Vs. State
 
Writ Petition No.3271 (S/S) of 2004,
 
Shiv Kumar Tiwari Vs. State of U.P. and others
 
and 
 
Writ Petition No.3149 (S/S) of 2004.
 
Satish Chandra Vs. State of U.P. and others.
 

 

 
Hon'ble Shabihul Hasnain, J. 

Heard Sri Upendra Nath Mishra, learned counsel for the petitioners and Ms. Aprajita Bansal for opposite party No.s 2, 3 and 4 while learned Standing counsel appears for opposite party No.1.

The petitioners have challenged the impugned order dated 26.5.2004 passed by the Secretary, U.P. State Election Commission, Lucknow as are collectively contained in annexure No.1 to the writ petition. There are number of petitioners and each has been served with a separate order whereby his services have been dispensed with. In fact, the orders for cancellation of appointment orders of the petitioners dated 23.7.2001 has been passed by the appointing authority himself. Now the petitioners have prayed that they be allowed to continue to work on class IV posts in the office of the State Election Commission, U.P. Lucknow as before and to pay them salary and other consequential benefits.

Certain facts will be necessary for adjudication of the matter hence narration of facts is as follows:

The petitioners were engaged on class IV posts on daily wage basis/consolidated pay for working in the office of State Election Commission, U.P. between 1994 to 2001. The Commissioner of the State Election Commission issued a circular dated 23.3.1996 providing therein that existing class IV posts shall be filled up from amongst such employees who have earlier worked as daily wagers/contract basis in the Commissioner's office during previous elections of U.P. Legislative Assembly/Panchayati Raj Elections/Local Bodies. Copy of the circular No.962/Ra-Ni-Aa Anubhag-I, issued by Sri R. D. Sonkar, Rajya Nirvachan Ayukta, U.P. Copy of the aforesaid circular has been annexed by the petitioners as annexure No.4 to the writ petition.

A ban was imposed on fresh recruitment by the State Government. No appointment on regular selection of class IV post was made. However, on 30.1.2001 a notification was issued laying down procedure for recruitment of Group 'D' posts in Commission. By this notification the Secretary of the Commission was made the appointing authority and the selection on Class IV posts were to be made a recommendation of duly constituted selection committee. Consequent to this notification the appointing authority issued a circular on 15.6.2001 inviting applications from the persons who had working experience on class IV posts in the Commission. However, persons were to be appointed on contract basis instead of regular basis in view of existing ban on regular appointment. Since the petitioners were having working experience in the Commission they applied for appointment on Group 'D' posts before the appointing authority. On 30.6.2001 the appointing authority issued another circular whereby two selection committees were constituted for recruitment between 1.7.2001 to 4.7.2001. The petitioners appeared for interview before the selection committee and they were selected by the committee. On 23.7.2001 the appointment orders were issued by the appointing authority. The appointment orders were issued by the then respondent No.4 in favour of the petitioners. In the appointment order the appointing authority instead of appointing the petitioners on regular basis has appointed them on consolidated pay on contract basis in view of prevailing ban on fresh recruitment.

The petitioners submit that for all practicable purposes the appointing authority and the Commission have already treated the petitioners as regular employees but did not afford other service benefits like leave benefits, pension etc. as is admissible to regular employees. On 16.7.2002 the ban/restriction order dated 3.11.1997 was diluted by the State Government when it was lifted for filling up the reserved backlog vacancies. On 28.8.2002 the petitioners submitted representations praying to issue regular appointments at least in favour of those petitioners who belong to reserved categories in view of the relaxation order dated 16.7.2002. In July, 2003 the State Government further lifted the said ban on fresh recruitment, as a result of which number of departments started making regular selection on the existing Group D vacancies. On 15.1.2004 the ban on fresh recruitment was finally lifted by the State Government. On 3.2.2004 the petitioners submitted a detailed representation to the appointing authority for issuance of regular appointment order in their favour. One more representation was filed on 16.4.2004 to the Deputy Commissioner of State Election Commission, U.P., Lucknow. On 26.5.2004 the impugned orders cancelling the appointment orders of the petitioners dated 23.7.2001 was issued which is under challenge before this Court.

The main argument of the petitioners is to the effect that no show cause notice or opportunity of hearing was given to the petitioners by respondent No.4 prior to issuance of the impugned cancellation orders of appointment dated 23.7.2001, which were issued by the Commission after carrying out regular selection. The impugned order of cancellation suffers from the vice of non-application of mind and arbitrariness. The same violates the principles of natural justice as well as the provisions of Article 14 and 16 of the Constitution of India.

It has been further argued that rights of regular appointment created in favour of petitioners vide appointment orders dated 23.7.2001 could not have been taken away by respondent No.4 without issuing any show cause notice or without giving any opportunity of hearing. The petitioners were divested of the vested rights for regular appointment which had already accrued by issuance of appoint order dated 23.7.2001 and the impugned order can not, therefore, be sustained in the eyes of law. It has also been stressed that cancellation of appointment after several years on the allegations of procedural mistake or irregularities is not permissible, especially when no concealment of fact or fraud was committed by the candidates.

The petitioners have further submitted that the procedure for appointment was specifically laid down by the State Election Commission through a gazette notification dated 30.1.2001 and the said procedure was held valid by the Secretary, State Election Commission i.e. appointing authority by issuing a circular dated 15.6.2001 and 30.6.2001 and also by holding interview of the candidates including the petitioners by the selection committee.

The appointment orders have been issued in favour of the petitioners by the appointing authority himself i.e. Secretary, State Election Commission and it was specifically mentioned that the said appointments were made on the basis of selections held by the Commission through a process of interview which was required as per gazette notification dated 30.1.2001. The selection of petitioners were held by the State Election Commission practically for regular appointment against substantive vacancies but merely because of imposition of government ban on fresh recruitment, which was prevailing at that time, the said appointment of the petitioners was made on consolidated salary instead of regular pay. Petitioners have argued that in view of aforesaid fact, it was absolutely unjustified on the part of the respondent No.4 to have suddenly issued an order of cancellation of appointment of the petitioners on 26.5.2004 i.e. after three years of working of the petitioners and also after the ban on fresh recruitment was finally lifted by the government vide notification dated 15.1.2004 instead of adhering to the promise/assurance of regular appointment orders to the petitioners, which was mentioned in the order dated 23.7.2001.

In the instant case, the petitioners' appointment were made on 23.7.2001 and they continued to work as such, till passing of impugned order and are continuing even till date. The impugned cancellation order was passed in May, 2004 i.e. after three years and it is surprising to note that in January, 2004 the ban on fresh recruitment was finally lifted by the State Government, where after it had become incumbent on the part of respondent No.4 to have issued regular appointment orders in favour of the petitioners as per the terms and conditions of the orders of appointment of the petitioners. Respondent No.4 could not have cancelled the said appointment of the petitioners in May, 2004 without any valid and cogent reason.

Counter affidavit has been filed on behalf of opposite party Nos. 2 to 4. It has been submitted that appointment of the petitioners on contract was made despite complete ban on the appointments imposed by the State Government through government order dated 3.11.1997. The State Government had made Group -D Employees Service Rules, 1985 by which any appointment to the post of Group-D has to be made according to the provisions of this rule. However, the State Election Commission also made provisions for the procedure of recruitment on the post under Group-D for its office and district offices, vide its Executive Order dated 30.1.2001 as no service rules were framed for recruitment to Group-D under the State Election Commission and its district offices. The said provisions show that recruitment for any vacancy which has to be filled up, would be made after notifying the vacancies to the Employment Exchange Office and the persons may only apply for the vacancy which has been notified to Employment Exchange after his name has been registered in Employment Exchange. The said procedure in the instant case of the petitioners, was not followed. It has further been submitted that the appointing authority ought to have published/advertised the said vacancies on the notice board and in any local news papers. This was also not done by the appointing authority.

It has been further submitted in the counter affidavit that clause 3 of the procedure for recruitment as given in Executive Order lays down the procedure for the constitution of the selection committee, in the instant case of the petitioners the said Rule was not followed, as prescribed. The appointing authority had constituted two selection committees, which under relevant provisions was not permissible. In the instant case, the appointing authority was not present in both the selection committees but was present in only one selection committee and hence the constitution of the selection committee was not done as prescribed and was not legal. Therefore, the selection made by irregular selection committee is void abinitio. The selection which was made is also bad in the eyes of law as the relevant reservation rules were also not followed. The quota of physically handicapped, ex-servicemen and dependents of freedom fighter was not given/filled up.

According to the opposite parties, the appointment of the petitioners was made on contractual basis and they were given appointments on a consolidated pay of Rs.3000/- per month. In the appointment orders which were issued to the petitioners, the tenure of the contract, which is against public policy and is bad in the eyes of law. It is a well settled principle of law that no person under the contract can claim a right to enforce the contract for indefinite period, even if tenure of contract has not been given. A contract of service without any specified tenure is simply terminable at will. It is well settled that any appointment made dehors the rules is void and for terminating such appointments observance of natural justice is not obligatory.

I have heard counsel for both the parties and considered the rival arguments.

The opposite parties have stressed a lot on the issue of ban imposed by the State Government vide its order dated 30.11.1997. It has not been successfully argued whether the ban issued by the State Government will be affecting autonomous bodies like the Election Commission, which have been given maximum independence by the Constitution of India. It is but natural that the agency which is vested with the powers of conducting fair and free elections in the State should have independent powers to make arrangements for such an election. The Court is not convinced that the State Government can issue a blanket ban on all appointments including the Election Commission which will make it handicapped in performance of its duties. Elections in India after independence have to be held at various levels. Initially, elections of Parliament and State Legislatures are held once in five years. Lateron, with the development of democracy, Election Commission is being called upon to perform the duties intermittently. Elections of other institutions apart from Parliament and State Legislatures are being bestowed upon the Election Commission. It is understandable that earlier temporary staff was recruited at the time of elections and the force was disbanded after its job was over but subsequently, the need for permanent staff arose with the increase of working in the Election Commission.

It is an irony that the tenure of the governments have increasingly become unstable leading to the need of stability in the Election Commission. A fully equipped and well oiled machinery ever-ready and geared up to hold elections anywhere any time is the need of the hour for an Election Commission. In the present case, the Secretary of the Election Commission, who has been vested with the power of appointment of Class IV posts, has felt the need of having a stable team of regular staff, which can be entrusted with various activities involved in the process of electioneering. For this purpose, in his own wisdom, the Secretary of the Election Commission thought it proper that experienced hands may be regrouped and their appointments may be safeguarded so that their interests and loyalty towards the Election Commission may be guaranteed. The Secretary of the State Election Commission has not appointed any rank outsider through any back door entry. The office order dated 23.7.2001 issued by the Secretary is very clear. Only those persons have been invited for regular appointments who have already worked in the department and have experience of elections of Panchayat and local bodies. Since the purpose of appointment was directly connected to the experience of the employee hence the general advertisement to a common man was not issued. Reference to the employment exchange would have been antithetical to the very idea of garnishing a team of experienced employees. Therefore, applications were invited only from those employees, who had already worked with the department from time to time. That intention and action of the Secretary of State Election Commission appears to be justified and there is no violation of Article-14 or 16 of the Constitution of India. Reasonable classification on the basis of experience will be wholly permissible in the circumstances of the case. If sufficient number of experienced persons are available and willing to offer their services, it will be violative of principals of rule of law by equating the equals with the unequals.

A ground has been taken that two selection committees were made for selection in the instant case.

Stress has been laid on the fact that in one selection committee, the Secretary himself was the Chairman while in other committees some other members were included. It is a strange argument wherein it has been insisted that the Chairman should be member of every Board. The selection committee was appropriately constituted by the Secretary, who was the appointing authority himself. It is but natural that if there are a large number of candidates, the Chairman of the selection committee can not be expected to examine large number of candidates personally. Even in Union Public Service Commission and the State Public Service Commissions, different boards are constituted for interviews. In written examinations all the copies are not evaluated by one single person. Different bunch of copies are sent to different examiners. Different groups of applicants are interviewed by different selection committees/boards. This is compulsion of the process; a necessity which can not be done away with. If the law provides for "a" selection committee, it does not mean that there has to be necessarily one single committee. It is natural that the Chairman will be member of one such committee and he will constitute equivalent committees if there are large number of people, which will depend on the exigency of the situation. The number of selection committees/panel/boards will depend on the strength or the number of candidates. If the candidates are far and few, of course, one selection committee will be sufficient but in case the number of candidates is large, constitution of the second or the third committee/panel/board will not vitiate the process. In the present case, it can not be said that that the selection committees were irregularly constituted. Both the selection committees were constituted by the Secretary of the Commission and the validity of both can be upheld. The argument of counsel for opposite parties will lead to ridiculous situation wherein candidates selected by the panel in which the Secretary himself was present will be valid and the candidates selected by the other panel or board will be invalid because as per their own argument the Secretary was available in one of the committees personally. The argument of the opposite parties is totally unacceptable.

Another argument raised by the opposite parties is to the effect that no tenure was mentioned in the contract. The Court feels that this argument is also misconceived. An agreement can not become bad only because specific date has not been mentioned as the date of expiry of the contract. In case, the contract is terminable in the event of a particular incident likely to happen in future, it can not be said that the agreement was eternal. The agreement clearly mentions that it will come to an end as soon as the ban is lifted. It has been made determinable on the happening of a certain event. The term of the contract has thus become determinable. If we see this contract in the background of whole situation we come to the conclusion that the Commission wanted to recruit experienced hands and since it felt obligated to respect the ban imposed by the State Government, it developed a methodology and adopted a procedure which would give the desired result, which may have nexus to the purpose of selection. Hence, a valid contract was entered into. A reasonable amount was fixed which would not exceed the pay scale of class IV employees and would ultimately secure regular appointment to the experienced hands. Advertising through employment exchange and inviting applications from fresh hands to compete with the experienced one would have defeated the purpose of Election Commission.

Even otherwise, in a democratic set up, government should not easily be allowed to interfere with the working and independence of the Election Commission. There is no case of unsuitability. A selection committee was held and recruitment was made of competent persons only. It is not the case of the opposite parties that each and every person who was working in the Commission has been absorbed en masse. It is not a case of absorption of all the temporary employees. It was a contract selection but with the total preference to the working experience of handling various elections. Since there were sufficient number of experienced candidates, it would have been totally unwise to have flooded the selection committee with thousands of applications moved by totally inexperienced persons.

There is no case of malafide or any bungling in the selection process and there is no allegation of any corruption, bribe or unfair selection. No candidate has come forward with any case of malpractice being adopted in the selection. The State itself allowed these persons to continue for more than three years. Naturally, the experience of these people with the passage of time must have enhanced. To throw them out and bring in raw hand in the institution, which is very sensitive and needs well oiled machinery to cope with the process of electioneering, will not be justified. It has been informed that the petitioners are working till date. Initially, a stay order was passed in favour of the petitioners. I find no good reason to deviate from that finding. The stay order was never vacated by any other Court.

Accordingly, the impugned orders of cancellation of appointment individually issued against the petitioners and collectively annexed as annexure No.1 to the writ petition, is quashed. Respondent No.4 is directed to issue necessary orders for treating the petitioners' services as regular service in pursuance of the direct selection held in July, 2001 and in continuation of the petitioners' appointment orders dated 23.7.2001. All consequential benefits of regular appointment of Class IV posts may also be conferred on the petitioners.

The petition is allowed.

Dt.14.6.2013.

RKM.