Jai Govind Prasad & Others vs Director Of Consolidation & ...
2015 Latest Caselaw 2917 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 

 
Court No. - 59
 

 
Case :- WRIT - A No. - 17484 of 1996
 

 
Petitioner :- Jai Govind Prasad & Others
 
Respondent :- Director Of Consolidation & Others
 
Counsel for Petitioner :- D.Raj,Indra Deo,Mohd Umar Khan,S.C. Kushwaha
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Vivek Kumar Birla,J.

1. Heard learned counsel for the petitioner and the learned Standing Counsel for the respondents.

2.	The petitioners were appointed on purely temporary and      ad hoc basis by Sri Yuvraj Singh Ken the then Additional District Magistrate (Finance and Revenue) vide order dated 23.12.1995.
 
3.	The petitioners have come up challenging the order dated 30.4.1996 whereby the temporary services of the petitioners have been terminated in pursuance of the order of the Director of Consolidation, U.P. dated 17.4.1996, which was passed after conducing necessary enquiry.
 
4.	Initially, an interim order was passed on 20.5.1996, which is quoted as under:-
 
"Issue notice.
 
In the meanwhile, the operation of the impugned order dated 30.4.1996 shall remain stayed."
 
5.	Subsequently, after exchange of affidavits the aforesaid interim order was vacated by an order dated 20.9.1996, which is quoted as under:-
 
"I have heard the learned counsel for the petitioners and the learned Standing Counsel and perused the averments contained in the counter affidavit and their reply.
 

It has been alleged in the counter-affidavit that Sri Yuvraj Singh Ken, the then Additional District Magistrate, Bijnor, invited proposal from the Officiating Head Clerk of the Office of the Settlement Officer Consolidation, Bijnor, for ad hoc appointments on the post of Assistant and on the post of Chaprasi which are Category 'C' and Category 'D' posts under the Subordinate Offices Ministerial Staff (Direct Recruitment) Rules as amended from time to time. Sri Ken made these ad hoc appointments a week earlier to his retirement without complying the process for selection and appointment as provided in the Rules. It has further been alleged that the petitioners, who have been given ad hoc appointment in this irregular manner, are relations of the driver and peon of Sri Ken who had made these appointments. The counter-affidavit further indicates that there was a specific ban for making ad hoc appointments and there is nothing on record to indicate as to what necessitated recruitment of the petitioners in this manner. In view of the averments in the counter affidavit, for which there is no satisfactory reply. I do not think that the petitioners are entitled to any interim order. Further the ad hoc appointment can always be terminated as the incumbent has no legal right to be retained. The respondents have also alleged that there was no subsisting vacancy nor there was any requisition for sanction of these posts by the State Government. The Consolidation Commissioner, on the basis of complaint made with regard to these irregular appointments, made necessary inquiry and, on being satisfied, directed for the termination of the appointments by order dated 17.4.1996 and, on that basis, the Assistant Settlement Officer Consolidation by the impugned order has terminated the ad hoc appointment of the petitioners.

For the said reasons, prima facie, I am of the opinion that the petitioners are not entitled to any interim order and as such the interim order dated 20.5.1996 is discharged. I am further of the opinion that this is a fit case in which the Government should take action against Sri Yuvraj Singh Ken so that such incidents are not repeated. Since these appointments not only, prima facie, appear to be irregular and in violation of the Rules, the have also been obtained by misrepresentation of the facts and for extraneous consideration.

A certified copy of this order be sent to the Chief Secretary for necessary action."

6. In paragraph 4 of the counter affidavit it has been clearly mentioned that the post on which the petitioner were appointed is governed by the provisions of U.P. Consolidation Department Ministerial and Drawing Employees Group Service Rules, 1980. Relevant paragraphs 4, 5 and 6 of the counter affidavit are quoted as under:-

"4. A. Uttar Pradesh Consolidation Department Ministerial and Drawing Employees Group Service Rules 1980 relating to recruitment of various posts including the posts of Clerk in Subordinate Officers of Consolidation Department was promulgated on 24th September, 1980 herein-after referred to as Service Rules. Rule-5 of the Service Rules deals with source of recruitment of various posts including the post of clerk in Ministerial Cadre in Subordinate Offices of Consolidation Department. It provides that vacancies in the cadre of Reader, Ahalmad, Record Keeper, Clerk, Typist and Tabulator shall be filled in by direct recruitment in accordance with the provisions contained in the Subordinate Offices Ministerial Staff (Direct Recruitment) Rules, 1975 which has been substituted/superseded vide Subordinate Offices Ministerial Staff (Direct Recruitment) Rules, 1985 as amended by the Subordinate Officers Ministerial Staff (Direct Recruitment) (First Amendment) Rules, 1986 and (Second Amendment) Rules, 1992 hereinafter referred to as Group-C Service Rules. The Uttar Pradesh Consolidation Department (Group-D) Service Rules, 1978 have been notified on 16th June, 1978 hereinafter referred to as Group-D Service Rules. Recruitment of Group-D Service in the Consolidation Department is governed by Group-D Service Rules. Rule 6 of Group-C Service Rules provides that recruitment to the lowest Grade in the Ministerial Staff in Subordinate Offices shall be made by direct recruitment through the Selection Committee referred to in Rule 17 on the basis of the academic and other attainments as provided in Rule-9 and provide that 15 per cent of vacancies in particular subordinate offices may also be filled by appointing authority by promotion from amongst High School passed Group-D Employees of that office. Rule 22 of Group-D Services further provides that the Appointing Authority shall determine the number of vacancies to be filled during the course of the year and the vacancies shall be notified to the Employment Exchange and the Appointing Authority shall issue advertisement in local daily newspaper besides pasting the notice for the same on the Notice Board and all such applications shall be placed before the Selection Committee. Rule 23 of Group-C Service Rules further provides that when the names of the candidates have been received by the Selection Committee it shall prepare a merit list of candidates in accordance with Rules and merit list so prepared shall be placed before the Selection Committee, and interview shall thereafter be held by the Selection Committee and marks shall be awarded in the manner prescribed therein, and thereafter the final merit list shall be prepared on basis of aggregate marks. Rule-26 of the said Service Rules further provides that the select list shall be forwarded by the Selection Committee to the Appointing Authority who shall arrange the names of general candidates and reserve candidates in a common list according to the merit of the candidates and the appointment shall be made in the order in which the names are arranged in the list and the select list shall hold good for the period of one year from the date of Selection. Rule 5 of Group D Service Rules provides that recruitment of various posts including on the post of Office Peon and Orderly Peon shall be made by direct recruitment in the manner laid down in Class IV Employees Service Rules 1975 which has been substituted/superseded vide Group D Employees Service Rules 1985 as amended by the Group-D Employees Service (First Amendment) Rules, 1986. Rule 16 of Group-D Employees Service Rules provides that for purposes of recruitment to any post in Group-D Service there shall be constituted a Selection Committee consisting of the officers mentioned therein. Rule 19 of the said Service Rules further provides that the appointing authority shall determine the number of vacancies to be filled during the course of the year, and the vacancies shall be notified to the Employment Exchange and the Appointing Authority shall also issue advertisement in a local daily newspaper besides pasting the notice for the same on the Notice Board and all such applications shall be placed before the Selection Committee. The Selection Committee thereafter shall interview and select the candidates for the various posts in accordance with the provisions contained therein. The Appointing Authority on receipt of the Select List shall arrange them in common list. Thee first name from the list of general candidate followed by the name of reserve candidates and so on and the appointment shall be from the said list. A complaint was made by Shri Mohammad Yamin, Advocate of Nazibabad, Bijnor to the Consolidation Commissioner, U.P. Lucknow in which it was pointed out that Shri Ken, then Additional District Magistrate, Bijnor who retired from the service on 31st December, 1995 appointed Sarva Shri Raj Kumar, Ram Charan Singh, Jai Govind, Karanvir Singh on the post of Peon on adhoc basis without any selection a week before his retirement and the same was based on favouritism, gross irregularities and illegalities and the appointment were made by taking bribe of relations of the employees and of Shri Ken, then Additional District Magistrate. The Commissioner, Consolidation, U.P. Lucknow on receipt of the above mentioned complaint asked the factual details and sent for the file relating to the appointment of the above mentioned persons on adhoc basis including the petitioner. The following facts emerged from the scrutiny of file relating to the adhoc appointment and factual details. Shri Dhanai Prasad, Officiating Head Clerk of office of Settlement Officer Consolidation, Binjor, on oral directions of Shri Yuvraj Singh ken, then Additional District Magistrate, Bijnor, submitted proposal on 23rd December, 1995 to Shri Ken, then Additional District Magistrate Bijnor fo adhoc appointment of Sarva Shri Raj Kumar son of Sri Ram Singh, Ram Charan Singh son of Shri Lalloo Singh, Jai Govind son of Shri Dhanai Prasad, Karanvir Singh son of Shri Rajendra Singh on the post of Peon and Sarva Shri Ram Bahadur Singh, Shabih Abbas and Rajesh Singh on the post of Clerk without any Selection, advertisement and notice and Shri Ken, then Additional District Magistrate on basis thereof appointed the above mentioned persons on adhoc basis without any selection, interview advertisement and notice. Shri Jai Govind Prasad appointed on the post of Peon on adhoc basis is son of Shri Dhanai Prasad, then Officiating Head Clerk of Office of the Settlement Officer Consolidation, Bijnor who made proposal for apointment while Sarva Shri Raj Kumar and Ram Charan appointed on the post of Peon on adhoc basis are relations of the Driver and Peon of Shri Ken, then Additional District Magistrate, Bijnor and Karan Vir Singh so appointed on the post of Peon on adhoc basis is the nephew of Shri Virendra Singh, then Pashi Kanungo of Office of Settlement Officer Consolidation, Bijnor. Shri Ram Bahadur appointed on the post of Clerk on adhoc basis is the son of Shri Magan Singh, then Reader to Settlement Officer Consolidation, Bijnor, whereas Shabih Abbas appointed on the post of Clerk on adhoc basis is the son of Shri Shaviul Hasan, then Consolidator under the Office of Settlement Officer Consolidation Bijnor.

B. Shri Ken, then Additional District Magistrate, Bijnor appointed the persons mentioned above on the posts mentioned above on adhoc basis despite then ban imposed on adhoc appointment and that too about a week before his retirement. Under the Service Rules the Settlement Officer Consolidation is the Appointing Authority of Ministerial Cadre and of Group-D Service in his office, in the Offices of Consolidation Officers and in the Offices of Assistant Consolidation Officers under his subordination. Shri Ken, then Additional District Magistrate, Bijnor has no right and authority to make appointment on the post of mentioned above and that too on adhoc basis, in asmuchas he has no jurisdiction and authority to do so.

The Consolidation Commission vide order dated 17th April, 1996 cancelled the appointment of Sarva Shri Raj Kumar, Ram Charan, Jai Govind, Karan Vir Singh, Ram Bahadur Singh, Shabih Abbas and Rajesh Singh in view of the facts and circumstances mentioned above and in view of the facts and circumstances disclosed therein. A copy of order dated 17th April, 1996 passed by the Commissioner, Consolidation, U.P. Lucknow and copy of Rule imposing ban on adhoc appointment are annexed to with this affidavit as ANNEXURE NUMBERS-C/1 and C/2 respectively.

C. That Shri Ken has been asked to explain in respect of stinking appointments for taking appropriate action. A copy of order asking explanation is annexed to this affidavit as Annexure-C/2A.

4. That sub Rule-9 of Rule-3 of U.P. Consolidation of Holdings Act 1963 provides that the Settlement Officer Consolidation means the person appointed as such by the State Government to exercise powers and perform the duties of a Settlement Officer Consolidation and shall include an Additional Settlement Officer Consolidation and Assistant Settlement Officer Consolidation. Sub Rule-4 B of Rule-3 of U.P. Consolidation of Holdings Act 1955 also provides the definition of District Deputy Director of Consolidation and it provides that District Deputy Director of Consolidation means the person who is for the time being, the Collector of the district, it is submitted that Shri Ken, then Additional District Magistrate, Bijnor was neither appointed as a Settlement Officer Consolidation by the State Government nor he was Additional Settlement Officer Consolidation, Assistant Settlement Officer Consolidation. Shri Ken was also not the Collector of the District.

5. That entire appointments on adhoc basis of the persons mentioned in foregoing paras of this affidavit are stinking, conceived in fraud and delivered in deceit based on fabouritism and suffers from vide of gross arbitrariness, and grave illegalities and therefore, the entire appointments on adhoc basis were cancelled by the Commissioner, Consolidation, U.P. Lucknow by means of orders dated 17th April, 1996 contained in Annexure number-C/1 which is perfectly valid and it does not suffer from any infirmity and illegality. No opportunity was also required to be given in view of the facts and circumstances disclosed here-in above.

6. That in reply to para 1 and 2 of the writ petition it is submitted that the appointment of Sri Jai Govind, Karam Vir Singh, Ram Charan and Raj Kumar were made on the post of peons without any selection, advertisement and notice by Shri Ken, then Additional District Magistrate, Bijnor on adhoc basis despite the ban imposed on adhoc appointment and that too about a week before his retirement and the same was based on favouritism, gross irregularities and illegalities. Shri Ken, then Additional District Magistrate, Bijnor has no right and authority to make appointment on the post mentioned above because he was neither appointing authority nor he had jurisdiction to do so. The entire appointment on adhoc basis of the persons mentioned in foregoing paras of this affidavit are stinking, conceived in fraud and delivered in deceit based on favouritism and suffers from vice of gross arbitrariness, and grave illegalities and therefore, the entire appointment on adhoc basis were cancelled by the Commissioner, Consolidation, U.P. Lucknow by means of order dated 17th Aprial 1996. A photo copy of order dated 17th April 1996 is being annexed as Annexure Number C-1 to this affidavit which is perfectly valid and it does not suffer from any infirmity and illegality. The order dated 30.4.1996 Annexure-1 to the writ petition was issued under the instructions of the order dated 17.4.1996 which is perfectly valid." (emphasis supplied)

7. A perusal of the order dated 17.4.1996 (Annexure-1 to the counter affidavit) clearly indicates that exhaustive enquiry was conducted by the Director of Consolidation, U.P. and it was found that all such appointments were absolutely illegal.

8. Learned counsel for the petitioner has drawn attention of this Court to Annexure-2 to the restoration application no. 374713 of 2013 dated 17.12.2013 to indicate that subject to decision of the present petition the petitioners have been regularized in service. The submission is that the petitioners are continuously working since then. As already noted above, the interim order dated 20.5.1996 was not only vacated by this Court vide order dated 20.9.1996 but copy of the order was directed to be sent to the Chief Secretary for necessary action against Sri Yuvraj Singh Ken, who has made such appointments. It was categorically observed by this Court that these appointments are not only prima faice appears to be irregular and are in violation of the rules and they have also been obtained by misrepresentation of facts and for extraneous considerations.

9. Learned counsel for the petitioner could not defend the case, which was considered by this Court while vacating the interim order dated 20.5.1996.

10. A perusal of record indicates that the appointment of the petitioners was purely temporary in nature and it was clearly mentioned that services can be terminated at any point of time without any further notice.

11. In such view of the matter, I do not find any good ground to interfere in the order impugned herein dated 20.9.1996. It may also be noted that if the orders dated 30.8.2011 granting regularization of the petitioners are correct, which are of course subject to final decision of this petition, this clearly shows sorry state of affairs going on in the office of the respondent authorities as inspite of the interim order having been vacated vide order dated 20.9.1996 the petitioners continue to function.

12. There is nothing on record to indicate that any action was taken against Sri Yuvraj Singh Ken, who had made all such illegal appointment as directed by this Court vide order dated 20.9.1996.

13. Above all, even if the petitioners have continued in pursuance of the interim order dated 20.5.1996 presuming that the respondent authorities were not aware of the vacation of the interim order, even in that case, it is the settled law that no benefit of such continuance in service on the basis of interim order can be granted to the petitioners when ultimately it is found that appointment of the petitioners was illegal and petition is dismissed. Therefore, even if the services of the petitioner have been regularized by the respondent authorities subject to decision of the present petition no benefit of their long continuance can be granted to the petitioners.

14. A reference may be made to a judgment of Hon'ble Apex Court in the case of Secretary to Government, School Eduction Department, Chennai Vs. R. Govindaswamy and others, 2014 (4) SCC 769. Relevant paragraph 8 of the aforesaid judgment is quoted as under:-

"8. This Court in State of Rajasthan & Ors. v. Daya Lal & Ors., AIR 2011 SC 1193, has considered the scope of regularisation of irregular or part-time appointments in all possible eventualities and laid down well-settled principles relating to regularisation and parity in pay relevant in the context of the issues involved therein. The same are as under:

"(i) The High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularisation, absorption or permanent continuance, unless the employees claiming regularisation had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and Courts should not issue a direction for regularisation of services of an employee which would be violative of the constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularised, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularised.

(ii) Mere continuation of service by a temporary or ad hoc or daily-wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be "litigious employment". Even temporary, ad hoc or daily-wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularisation, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularisation in the absence of a legal right.

(iii) Even where a scheme is formulated for regularisation with a cut-off date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut-off date), it is not possible to others who were appointed subsequent to the cut-off date, to claim or contend that the scheme should be applied to them by extending the cut-off date or seek a direction for framing of fresh schemes providing for successive cut-off dates.

(iv) Part-time employees are not entitled to seek regularisation as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularisation or permanent continuance of part-time temporary employees.

(v) Part-time temporary employees in government-run institutions cannot claim parity in salary with regular employees of the Government on the principle of equal pay for equal work. Nor can employees in private employment, even if serving full time, seek parity in salary with government employees. The right to claim a particular salary against the State must arise under a contract or under a statute."

(Emphasis supplied)"

15. A perusal of paragraph 5 of the affidavit filed in support of the expedite application dated 4.10.1996 clearly indicates that the petitioners were fully aware of the fact that the interim order dated 20.5.1996 was vacated on 20.9.1996 by this Court after hearing learned counsel for the parties. However, still the petitioners manage to continue in service with connivance of the respondent authorities.

16. In such view of the matter, even regularisation of the services of the petitioners, which was subject to decision of this petition, is of no help to them. Not only their appointments were wholly illegal and not merely irregular and were an outcome of dishonour connivance of Sri Ken, against whom this Court has directed that action should be taken, but their continuance in service is also wholly illegal and is an outcome of fraud played on state exchequer and is also contemptuous in nature. Therefore, in the facts and circumstances of the case, I am of the opinion that the amount of salary paid to the petitioners is liable to be recovered from the petitioners and is therefore, ordered accordingly.

17.	As now 19 years have passed, decision to take action against Sri Yuvraj Singh Ken is left at the discretion of the respondent     no. 1-Director of Consolidation, U.P. Lucknow.
 
18.	With the aforesaid observations/directions, the writ petition stands dismissed.
 
19.	Let a copy of this judgment and order be supplied to learned Standing Counsel, who shall forward the same to respondent     no. 1-Director of Consolidation, U.P. Lucknow for necessary action.
 
Order Date :- 6.10.2015
 
Lalit Shukla