Allahabad High Court
Daya Shankar Upadhayaya vs State Of U.P. And Others on 13 December, 2017
Bench: Sudhir Agarwal, Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Reserved on 06.11.2017
Delivered on 13.12.2017
Court No. - 34
1. Case :- SPECIAL APPEAL No. - 847 of 2009
Appellant :- Daya Shankar Upadhayaya
Respondent :- State Of U.P. And Others
Counsel for Appellant :- S. Shekhar,Shiv Kumar Singh,V.K. Singh, G.K. Singh
Counsel for Respondent :- C.S.C.
2. Case :- SPECIAL APPEAL No. - 1280 of 2009
Appellant :- Uday Chand Prasad
Respondent :- State Of U.P. through Secretary Gram Vikash And Others
Counsel for Appellant :- Sanjiv Singh,Ashok Kumar, G.K. Singh
Counsel for Respondent :- C.S.C.
3. Case :- SPECIAL APPEAL No. - 800 of 2009
Appellant :- Rakesh Kumar Singh & Others
Respondent :- District Magistrate & Others
Counsel for Appellant :- Suresh Chandra Dwivedi,Ashok Kumar Shukla,Govind Kumar Singh,Siddharth Khare,V.K. Singh
Counsel for Respondent :- C.S.C.
4. Case :- SPECIAL APPEAL No. - 1138 of 2009
Appellant :- Dr Mohd. Shahid Geelani
Respondent :- State Of U.P. & Others
Counsel for Appellant :- Junaid Alam,Ashok Khare, G.K. Singh
Counsel for Respondent :- C.S.C.,S.C. Dwivedi
5. Case :- SPECIAL APPEAL No. - 805 of 2009
Appellant :- Anand Kumar & Others
Respondent :- District Magistrate & Others
Counsel for Appellant :- Suresh Chandra Dwivedi,Ashok Kumar Shukla,Govind Kumar Singh,Siddharth Khare,V.K. Singh
Counsel for Respondent :- C.S.C.
6. Case :- SPECIAL APPEAL No. - 804 of 2009
Appellant :- Tripurari Chaudhary & Another
Respondent :- District Magistrate & Others
Counsel for Appellant :- Suresh Chandra Dwivedi,Ashok Kumar Shukla,Govind Kumar Singh,Siddharth Khare,V.K. Singh
Counsel for Respondent :- C.S.C.
7. Case :- SPECIAL APPEAL No. - 803 of 2009
Appellant :- Om Prakash & Another
Respondent :- District Magistrate & Others
Counsel for Appellant :- Suresh Chandra Dwivedi,Ashok Kumar Shukla,Govind Kumar Singh,Siddharth Khare,V.K. Singh
Counsel for Respondent :- C.S.C.
8. Case :- SPECIAL APPEAL No. - 1651 of 2009
Appellant :- Smt. Murati Devi & Others
Respondent :- State Of U.P. & Others
Counsel for Appellant :- Gayal Prasad Pal
Counsel for Respondent :- C.S.C.,S.C. Dwivedi
9. Case :- SPECIAL APPEAL No. - 1493 of 2009
Appellant :- Smt. Murati Devi & Others
Respondent :- State Of U.P. & Others
Counsel for Appellant :- Gaya Prasad Pal
Counsel for Respondent :- C.S.C.,Suresh Chandra Dwivedi
10. Case :- SPECIAL APPEAL No. - 1652 of 2009
Appellant :- Smt. Murati Devi & Others
Respondent :- State Of U.P. & Others
Counsel for Appellant :- Gaya Prasad Pal
Counsel for Respondent :- C.S.C.,S.C. Dwivedi
11. Case :- SPECIAL APPEAL No. - 1650 of 2009
Appellant :- Smt. Murati Devi & Others
Respondent :- State Of U.P. & Others
Counsel for Appellant :- Gaya Prasad Pal
Counsel for Respondent :- C.S.C.,S.C. Dwivedi
12. Case :- SPECIAL APPEAL No. - 1904 of 2009
Appellant :- District Magistrate, Maharajganj And Others
Respondent :- Anand Kuamr And Others
Counsel for Appellant :- A.C.S.C.
Counsel for Respondent :- Suresh Chandra Dwivedi,G.K. Singh
13. Case :- SPECIAL APPEAL No. - 1840 of 2009
Appellant :- District Magistrate And Others
Respondent :- Tripurari Chaudhary And Another
Counsel for Appellant :- A.C.S.C.
Counsel for Respondent :- Suresh Chandra Dwivedi,G.K.Singh
14. Case :- SPECIAL APPEAL No. - 1902 of 2009
Appellant :- The District Magistrate And Others
Respondent :- Om Prakash And Another
Counsel for Appellant :- A.C.S.C.
Counsel for Respondent :- Suresh Chandra Dwivedi
15. Case :- SPECIAL APPEAL No. - 1900 of 2009
Appellant :- District Magistrate, Maharajganj And Others
Respondent :- Rakesh Kumar Singh And Others
Counsel for Appellant :- M.C. Chaturvedi (Csc)
Counsel for Respondent :- Suresh Chandra Dwivedi
16. Case :- SPECIAL APPEAL No. - 1832 of 2009
Appellant :- District Magistrate, Maharajganj And Others
Respondent :- Lok Nath Ram
Counsel for Appellant :- M.C. Chaturvedi (Csc)
Counsel for Respondent :- Suresh Chandra Dwivedi
17. Case :- SPECIAL APPEAL No. - 1914 of 2009
Appellant :- District Magistrate, Maharajganj And Others
Respondent :- Rakesh Kumar Singh And Others
Counsel for Appellant :- M.C. Chaturvedi (Csc)
Counsel for Respondent :- Suresh Chandra Dwivedi
18. Case :- SPECIAL APPEAL No. - 1843 of 2009
Appellant :- State Of U.P. And Others
Respondent :- Daya Shanker Upadhyay
Counsel for Appellant :- M.C. Chaturvedi (Csc)
Counsel for Respondent :- S. Shekhar, G.K. Singh
Hon'ble Sudhir Agarwal,J.
Hon'ble Ajit Kumar,J.
(Delivered by Hon'ble Sudhir Agarwal, J.)
1. All these appeals have arisen from a common judgment dated 05.05.2009 passed by learned Single Judge (Hon'ble S.U. Khan, J.) deciding seven writ petitions collectively.
2. Learned Single Judge has found that appointments of petitioners were illegal. They all were result of fraud played by the then District Development Officer, Maharajganj (hereinafter referred to as "D.D.O.") who made appointments for extraneous considerations without following rules, hence, appointments were rightly cancelled by District Magistrate, Maharajganj (hereinafter referred to as "D.M.") vide order dated 16.01.1992. Learned Single Judge, however, instead of simply dismissing writ petitions, disposed of the same with following directions:-
"(i) Petitioners shall be permitted to continue to work on the posts they were appointed till they attained age of superannuation.
(ii) They shall be paid salary at the lowest level of pay-scale in which they were appointed.
(iii) They would not be entitled for any increment or revision of pay subsequently affected. No allowance except dearness allowance shall be admissible to petitioners.
(iv) They shall not be entitled for any promotion and if promotion was already granted, the same shall stand withdrawn with immediate effect.
(v) They would not be entitled for any retiral benefits. Apart from the amount which they may have contributed towards provident fund.
(vi) Salary and other benefits already paid shall not be recovered.
(vii) Sri Shiv Ram Bhatt, the then D.D.O. would pay damages of Rs. 1 lac to each of petitioners. The said amount shall be recovered from him as arrears of land revenue.
(viii) If Sri Shiv Ram Bhatt has died, the amount shall be recovered from property left by him.
(ix) Recovery shall positively be made by Collector concerned within four months and the amount so recovered shall be deposited in Government Treasury.
(x) Other two Members of Selection Committee would also be liable to pay Rs. 25,000/- each per petitioner as damages to Estate and the said amount shall also be recovered from them in the same manner."
3. Aggrieved by the above directions, these intra-Court appeals under Chapter VIII Rule 5 of Allahabad High Court Rules, 1952 (hereinafter referred to as "Rules, 1952") have been filed not only by petitioners before writ Court but also by State of U.P. and its authorities. Some appeals have been preferred by legal heirs of Late Shiv Ram Bhatt, the then D.D.O., from whom learned Single Judge has directed for recovery of damages of Rs. 1 lac to each of petitioners. The then D.D.O. died on 30.04.2006 when writ petitions were pending before learned Single Judge but there was no impleadment of Late Shiv Ram Bhatt in his individual capacity as also legal representatives were not party before writ Court. Since judgment of learned Single Judge has caused serious injury to them, with application to seek leave to file appeals, legal representatives of Late Shiv Ram Bhatt have filed appeals.
4. We may give details of Special Appeals, Writ Numbers wherefrom the same have arisen and details of petitioners-appellants as follows:-
Sr. No.
Special Appeal Numbers
Arisen from Civil Misc. Writ Petition Numbers
Details of the appellants
Posts on which petitioners were appointed
1.
847 of 2009
2821 of 1992
1. Daya Shanker Upadhyaya
Driver
2.
1280 of 2009
2167 of 1992
1. Uday Chand Prasad
Junior Accounts
Clerks,
Junior Clerk
(Typist),
Junior Account
Clerks (NREP)
3.
800 of 2009
2167 of 1992
1. Rakesh Kumar Singh
2. Chandra Mohan Singh
3. Rajeev Kumar Srivastava
4. Dharam Nath Prasad
5. Pramod Kumar
6. Rana Pratap Singh
4.
1138 of 2009
2168 of 1992
1. Dr. Mohd. Shahid Geelani
Junior Clerks
(Typist),
Junior Account
Clerks (N.R.E.P.),
Junior Account
Clerks
5.
805 of 2009
2168 of 1992
1. Anand Kumar
2. Raj Nath Singh
3. Sanjai Kumar
4. Sunil Kumar Srivastava
5. Radhey Raman Yadav
6. Virendra Kumar Pandey
7. Devendra Kumar Mishra
8. Vibhuti
9. Rajesh Kumar Srivastava
6.
804 of 2009
2169 of 1992
1. Tripurari Chaudhary
2. Ashok Singh
Messengers
(Class-IV)
7.
803 of 2009
10957 of 1992
1. Om Prakash
2. Bichandi Prasad
Watchman
(Class-IV)
5. Special Appeals Nos. 1493, 1650, 1651 and 1652 of 2009 have been filed by Smt. Murati Devi widow of Late Shri Shiv Ram Bhatt, the then D.D.O. and his four sons, namely, Gajendra Bhatt, Triyugi Narain Bhatt, Bhagirathi Bhatt and Janardan Bhatt assailing judgment in question to the extent it has imposed damages upon the then D.D.O. which in lump-sum comes to around Rs. 21 lacs. They have challenged only that part of the judgment whereby damages have been imposed upon (Late) Shiv Ram Bhatt, the then D.D.O. and recovery has been ordered. Details of these appeals arising from the concerned writ petitions are as under:-
Sr. No.
Special Appeal Numbers
Arisen from Civil Misc. Writ Petition Numbers
1.
1651 of 2009
2167 of 1992
2.
1493 of 2009
2168 of 1992
3.
1652 of 2009
2169 of 1992
4.
1650 of 2009
10957 of 1992
6. Remaining Special Appeal Nos. 1904, 1840, 1902, 1900, 1832, 1914 of 2009 have been filed by District Magistrate and others and Special Appeal No. 1843 of 2009 has been filed by State of U.P. and its authorities assailing judgment in question to the extent learned Single Judge, despite upholding order of cancellation passed by D.M., cancelling appointments of petitioners, still has directed to allow petitioners to continue in service till they attain age of superannuation and other directions. A chart showing Special Appeal Nos., arising from concerned writ petitions and details of appellants is given as under:-
Sr. No.
Special Appeal Numbers
Arisen from Civil Misc. Writ Petition Numbers
Details of the appellants
Posts on which petitioners were appointed
1.
1904 of 2009
2168 of 1992
1. District Magistrate
2. District Development Officer
3. Block Development Officer
4. State of U.P.
Junior Clerks
(Typist),
Junior Account
Clerks (N.R.E.P.),
Junior Account
Clerks
2.
1840 of 2009
2169 of 1992
1. District Magistrate
2. District Development Officer
3. Block Development Officer
4. State of U.P.
Messengers
(Class-IV)
3.
1902 of 2009
10957 of 1992
1. District Magistrate
2. District Development Officer
3. Block Development Officer
4. State of U.P.
Watchman
(Class-IV)
4.
1900 of 2009
2167 of 1992
1. District Magistrate
2. District Development Officer
3. Block Development Officer
4. State of U.P.
Junior Accounts
Clerks,
Junior Clerk
(Typist),
Junior Account
Clerks (NREP)
5.
1832 of 2009
5513 of 1992
1. District Magistrate
2. District Development Officer
3. Block Development Officer
4. State of U.P.
Junior Accounts
Clerk
6.
1914 of 2009
24132 of 1992
1. District Magistrate
2. District Development Officer
3. Block Development Officer
4. State of U.P.
Junior Accounts
Clerks,
Junior Account
Clerks (NREP),
Junior Clerk
(Typist)
7.
1843 of 2009
2821 of 1992
1. State of U.P.
2. District Magistrate
3. Block Development Officer
4. District Development Officer
Driver
7. The facts in brief, though to some extent common in all the writ petitions giving rise to these appeals, but for proper appreciation, we may give brief details thereof, writ-wise, as under.
8. Writ Petition No. 2821 of 1992 was filed by sole petitioner-Daya Shankar Upadhyay challenging order dated 16.01.1992. His qualification is High School and a driving licence of four wheeler. He was appointed as Driver. Appointment letter was issued to petitioner by Block Development Officer (hereinafter referred to as "B.D.O.") wherein he referred to order dated 11.04.1991 of D.D.O. for engaging petitioner as 'Driver' on daily wage basis. Petitioner was sent to Maharajganj wherefrom returned to Development Block, Brijmanganj vide order dated 21.10.1991 passed by D.D.O. with further instructions that since no funds in contingency for payment of salary to petitioner were available in Development Block, Brijmanganj, therefore, till completion of regular recruitment, petitioner is appointed on officiating basis as 'Driver' and he shall be entitled for salary in the pay-scale of Rs. 950-1500/-. Then an order was passed by D.D.O. on 13.01.1992 stating that pursuant to approval granted by Selection Committee, officiating appointment of petitioner is made regular on the post of 'Driver'. This appointment was cancelled by D.M. vide order dated 16.01.1992 stating that all appointments made in the past six months, in Class-III and IV posts, by D.D.O., are cancelled and all appointees shall stand removed w.e.f. the date of order, i.e., 16.01.1992.
9. State of U.P. and its authorities contested writ petition filing a counter affidavit stating that appointment on the post of Group 'D' employee is governed by Group 'D' Employees Service Rules, 1985 (hereinafter referred to as "Group-D Service Rules, 1985") whereunder constitution of Selection Committee is provided which would have to include an Officer nominated by Appointing Authority. Procedure for selection is provided in Rule 19 which included requisition to Employment Exchange, advertisement in newspaper and thereafter interview by Selection Committee. No vacancy was advertised, no selection was made and in a wholly illegal manner, petitioner was appointed by the then D.D.O. In the daily newspaper "Dainik Jagran" dated 05.12.1991, D.D.O. advertised posts of Clerks which included two vacancies of Junior Clerk (Typist), seven vacancies of Junior Accounts Clerk and three vacancies of Junior Accounts Clerk (N.R.E.P.). Out of the above, four were reserved for Scheduled Caste and one for Other Backward Caste. Eligibility for aforesaid three posts was as under:-
**¼v½ dfu"B fyfid in gsrq U;wure 'kSf{kd ;ksX;rk b.VjehfM,V ds lkFk fgUnh Vad.k esa 25 'kCn izfr feuV dh Vkbi djus dh xfrA
¼c½ dfu"B ys[kkfyfid in gsrq b.VjehfM,V ijh{kk mRrh.kZA
¼l½ dfu"B ys[kkfyfid ¼,u0vkj0bZ0ih0½ in gsrq U;wure 'kSf{kd ;ksX;rk baVj dkelZ gksuk pkfg,A**
"(a) The minimum educational qualification for the post of Junior Clerk is Intermediate alongwith Hindi Typing with speed of 25 words per minute.
(b) Intermediate examination passed for the post of Junior Accounts Clerk.
(c) The minimum educational qualification for the post of Junior Accounts Clerk (N.R.E.P.) should be Intermediate Commerce."
10. The date of submission of application form mentioned in the advertisement was 07.12.1991 and date of interview was 23-24.12.1991. Since advertisement was published on 05.12.1991 and date for submission of application form was given as 07.12.1991, D.M., when got complaint about this aspect, sent a letter dated 19.12.1991 to D.D.O. directing him to extend date for submission of application forms upto 30.12.1991 by publication in newspaper and thereafter, hold selection. Since it was not complied with by D.D.O., D.M. vide order dated 21.12.1991 cancelled aforesaid recruitment. D.D.O., however, published a notice that interview for clerical posts, fixed on 23-24.12.1991, would now be held on 13-14.01.1992. Above selection was challenged by some persons in the Court of Munsif, Maharajganj in Original Suit No. 21 of 1992 (Avnish and others Vs. D.D.O. Maharajganj and others) wherein an ad interim injunction order was passed restraining any interview on 13-14.01.1992. In-charge D.M. communicated to D.D.O., vide order dated 13.01.1992 that he shall not make any selection or recruitment on 13-14.01.1992. It appears that a list of candidates allegedly selected by Selection Committee, however, was forwarded to D.D.O. for his approval though under Rules there is no such requirement. B.D.O., Laxmipur, Maharajganj vide letter dated 20.01.1992 complained that he was Member nominated for Selection Committee and forced by D.D.O. to hold interview on 13.01.1992. It was, thus, stated in the counter affidavit that alleged appointment was wholly illegal and not in accordance with Group-D Service Rules, 1985 and petitioner cannot claim any benefit pursuant to aforesaid illegal order.
11. In the rejoinder affidavit filed by petitioner, it was pleaded that 'Driver' is a Class-III post and hence Group-D Service Rules, 1985 will not govern his appointment. However, averments of counter affidavit made in para 3(m) to (u) are not denied stating that the same needs no reply. In general, rejoinder affidavit says that once petitioner was appointed, could not have been terminated without following procedure prescribed.
12. Writ Petition No. 2167 of 1992 was filed by six petitioners, appointed on the posts of Junior Clerk (Typist) and Junior Clerk (Accounts). Their case is that pay-scale of Junior Clerk (Typist) and Junior Clerk (Accounts) is Rs. 950-1500/- and D.D.O. is the Competent Appointing Authority to the post where salary is below Rs. 1200/- per month. Reliance is placed on a Government Order dated 19.01.1977 wherein it was provided that such posts where minimum of pay-scale is not more than Rs. 230/-, Appointing Authority would be Additional District Magistrate (Finance)/D.D.O. Pay-scale of Rs. 200-320/- was revised w.e.f. 01.01.1986 to Rs. 354-550/- and Rs. 364-550/- and further revised w.e.f. 01.01.1996 in the scale of Rs. 950-1500/-. Advertisement dated 02.12.1991 was issued which was published in daily newspaper "Dainik Jagran", dated 05.12.1991, inviting applications by 07.12.1991. Pursuant thereto, petitioners applied and initially date of interview was fixed on 23-24.12.1991 which was postponed to 13-14.01.1992. Petitioners appeared before Selection Committee on 13.01.1992, which was constituted in accordance with U.P. Subordinate Offices Ministerial Staff (Direct Recruitment) Rules, 1985 as amended in 1986 (hereinafter referred to as "Ministerial Rules, 1985"). Petitioners were selected and appointment letters were issued on 13.01.1992 by D.D.O. appointing Rakesh Kumar Singh, Chandra Mohan Singh as Junior Account Clerks, Rajeev Kumar Srivastava as Junior Clerk (Typist), Dharam Nath Prasad and Rana Pratap Singh as Junior Account Clerks (N.R.E.P.), Pramod Kumar as Junior Clerk Accounts. Petitioners joined on 14.01.1992, 13.01.1992, 15.01.1992, 23.11.1991, 02.09.1991, respectively. Thereafter, order of termination was passed on 16.01.1992 which is illegal since D.M. has no power of appointment of petitioners, hence could not have cancelled their appointments.
13. The case set up by State of U.P. and its authorities was same as we have already referred in the context of Civil Misc. Writ Petition No. 2821 of 1992.
14. In Writ Petition No. 2168 of 1992, there are nine petitioners who were appointed either as Junior Clerk (Typist) or Junior Clerk (Accounts). In all other respect, facts of this writ petition are similar to that of Writ Petition No. 2167 of 1992.
15. Writ Petition No. 5513 of 1992 was filed by sole petitioner-Lok Nath Ram who was appointed as Junior Accounts Clerk by order dated 13.01.1992 and his appointment was also cancelled by D.M. vide order dated 16.01.1992. All other facts of this matter are also similar to Writ Petition No. 2167 of 1992.
16. Writ Petition No. 24132 of 2003 was filed by six petitioners, namely, Rakesh Kumar Singh, Chandra Mohan Singh, Rajeev Kumar Srivastava, Dharam Nath Prasad, Pramod Kumar and Rana Pratap Singh who were appointed as Junior Accounts Clerk or Junior Clerk (N.R.E.P.) or Junior Clerk (Typist). In all other aspects, facts of this writ petition are similar to Writ Petition No. 2167 of 1992 except that these petitioners challenged order of termination initially by filing Writ Petition No. 2167 of 1992 wherein an interim order was passed on 05.03.1992 which reads as under:-
"Connect this petition with writ petition no. 4740 of 1992. List this petition alongwith aforesaid writ petition on 06.06.1992.
Until further orders of this Court, the operation of the order dated 10.01.1992 and 17.01.1992 passed by respondent no. 1 and 3 shall remain stayed and so far as they relate to the petitioner."
17. Pursuant to interim order, aforesaid six petitioners continued but after exchange of pleadings when writ petition came up before Court on 19.03.2002, it was dismissed as infructuous. Aforesaid order was recalled on 12.05.2003 but in the meantime, as a result of dismissal of writ petition, petitioners were relieved by order dated 08.05.2003. This relieving order dated 08.05.2003 has been challenged in Writ Petition No. 24132 of 2003. Therefore, Writ Petition No. 2167 of 1992 and present writ petition are by same petitioners.
18. Writ Petition No. 10957 of 1992 has been filed by two petitioners, namely, Om Prakash and Bichandi Prasad, who were appointed as Watchman (a Class-IV post) in the scale of Rs. 750-940/- by D.D.O. vide order dated 13.01.1992 and cancelled by D.M. vide order dated 16/17.01.1992. The case set up by these two petitioners is that they were appointed as Chowkidar on purely officiating basis vide order dated 17.07.1991 by the then D.D.O. Subsequently, selection was made by Selection Committee on 13.01.1991 and on the same date, the then D.D.O. vide order dated 13.01.1992 made appointment of petitioners regular. D.M., however, without any opportunity, in a wholly illegal manner, cancelled aforesaid appointments vide order dated 16.01.1992 which was communicated to petitioners by B.D.O. vide order dated 17.01.1992.
19. Writ Petition No. 2169 of 1992 is also filed by two petitioners, namely, Tripurari Chaudhary and Ashok Singh, who were appointed as Class-IV employees, i.e., Messengers. They also claimed to have been appointed on ad hoc basis by the then D.D.O. vide orders dated 01.10.1991 and 26.10.1991, respectively, and made regular vide order dated 13.01.1992 which has been cancelled by D.M. vide order dated 16.01.1992.
20. Learned counsel appearing for petitioners-appellants contends that once Court has allowed petitioners to continue in service on the post on which they were appointed, respectively, it is wholly illegal on the part of learned Single Judge in denying normal consequences which would have accrued to petitioners as a result of continuance in service like annual increments, promotions, etc. and in denying the same, learned Single Judge has erred in law.
21. Case set up in appeals no. 1651, 1493, 1652, 1650 of 2009 is that Sri Shiv Ram Bhatt, the then D.D.O. retired from service on 31.01.1992. A departmental inquiry was conducted against him but ended in his exoneration and retiral benefits have also been directed by State Public Services Tribunal (hereinafter referred to as "Tribunal") vide judgment and order dated 02.07.2002 passed in Claim Petition No. 930 of 2000. Sri Shiv Ram Bhatt, the then D.D.O. died on 30.04.2006 leaving behind widow, four sons and three daughters. He was never made a party in the writ petitions and had no knowledge of the litigation pending before learned Single Judge in various writ petitions and has no occasion or opportunity to place his defence and contest the matter before learned Single Judge. The judgment of learned Single Judge against him is in utter violation of principles of natural justice; without giving opportunity to him and without making him party in the matter. In fact, when the matter was decided by learned Single Judge, Sri Shiv Ram Bhatt, the then D.D.O. was no more alive having already died on 30.04.2006 and hence order passed by learned Single Judge is against a dead person and without giving any opportunity to the person concerned when he was alive and/or thereafter to legal heirs.
22. Legal heirs of Late Shiv Ram Bhatt, the then D.D.O., have assailed judgment of learned Single Judge to the extent there is a direction for recovery of damages of Rs. 1 lac per petitioner. It is contended that Sri Shiv Ram Bhatt in his individual capacity was never made party in writ petitions, had no opportunity of hearing and, in any case, he having already died on 30.04.2006, during pendency of writ petitions, and legal representatives were not party in writ petitions, no order against a dead person could have been passed. Therefore, judgment of learned Single Judge to this extent is bad in law.
23. Learned Standing Counsel appearing for State of U.P. and its authorities has assailed judgment of learned Single Judge to the extent petitioners have been allowed to continue in service. He urged that once appointments were held illegal and order of cancellation of appointments passed by D.M. was upheld, learned Single Judge having not set aside order of D.M., whereby appointments were cancelled, erred in law in directing continuance of petitioners in service on the post on which they were appointed though such appointments were already cancelled and order of cancellation dated 16.01.1992 was upheld by learned Single Judge. Therefore, ultimate directions of learned Single Judge are contrary to findings recorded by him. He also argued that appointments, if made illegally, and result of a fraud, are nullity in the eyes of law, hence, no relief of continuance in service could have been granted to petitioners. Therefore, to that extent, judgment of learned Single Judge is bad in law.
24. It is an interesting case where a single judgment has given cause of grievance not only to petitioners and respondents but also to a third party who in official capacity was impleaded but as a matter of fact, judgment of learned Single Judge affects him in individual capacity and there he was not a party in writ petitions. During pendency of writ petitions, he had died, still directions have been issued to his detriment giving rise to grievance to legal representatives of deceased Officer.
25. We have heard the matter at length and perused record.
26. First of all, we propose to consider the question of validity of appointments of petitioners on Class-III post, i.e., ministerial cadre, i.e., Junior Clerk Accounts, Junior Clerk (Typist) and Junior Clerk (N.R.E.P.).
27. It is admitted by learned counsel for parties that recruitment to Ministerial Staff, i.e., Junior Clerk Accounts, Junior Clerk (Typist), Junior Clerk (N.R.E.P.) and similar other clerical appointments at the relevant time were governed by Ministerial Rules, 1985. Aforesaid rules are applicable to all the subordinate offices under the control of Government. Rule 2 reads as under:-
"2. Application these rules. - (1) These rules shall govern recruitment to all the ministerial posts of the lowest grade, other than the posts of Stenographer (which are required to be filled by direct recruitment and which are outside the purview of the Public Service Commission), in all subordinate offices under the control of the Government excluding the Uttar Pradesh Secretariat, the offices of the State Legislature, Lok Ayukt, Public Service Commission, High Court, the Subordinate Courts under the control and superintendence of the High Court, the Advocate General, Uttar Pradesh, and of the establishments under the control of the Advocate General.
(2) Recruitment against all the vacancies of ministerial posts to which these rules apply shall be made in accordance with the provisions of these rules."
28. Rule 3 gives overriding effect to Ministerial Rules, 1985 if anything in the already existing rules is contrary to Ministerial Rules, 1985 but it provides that any specific rule subsequently made if contained a different provision that shall prevail.
29. The terms "Appointing Authority" and "Ministerial Staff" are defined in Rule 4(a) and (g) and read as under:-
"4.(a) "Appointing Authority" in relation to a ministerial post in a subordinate office refers to the authority empowered under the relevant rules or orders to make appointments on that post;
(g) "Ministerial Staff" shall refer to the clerical staff of the subordinate offices which is required to be appointed by direct recruitment."
30. Eligibility qualifications for appointment are contained in Part-III which has Rules 7 to 15 and procedure for recruitment is given in Part-IV which contains Rules 16 to 24. Selection Committee is to be constituted as provided under Rule 17 and it reads as under:-
"17. 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 Castes/Scheduled Tribes, 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 officer 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 are not available in his department or organization, such suitable officer 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."
31. Notification of vacancies for recruitment is provided in Rule 22 and reads as under:-
"22. Notification of Vacancies to the Employment Exchange.- The appointing authority shall determine the number of vacancies to be filled during the course of the year as also the vacancies to be reserved under Rule 7. The vacancies 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 pasting a notice for the same on the Notice Board. All such applications shall be placed before the Selection Committee."
32. Rule 23 lays down procedure for selection which says that Selection Committee shall prepare a merit list of candidates on the basis of percentage of marks at minimum qualifying examination obtained by candidate and for every higher examination passed an additional 10% of marks secured in each such final examination shall be entered. Thereafter, an interview has to be conducted by Selection Committee awarding separate marks to candidates in respect of General Knowledge, Proficiency in sports and Retrenched employee, as the case may be. The total marks obtained by candidate in the aforesaid manner shall be clubbed and a merit list, accordingly, shall be prepared. In regard to the post of Clerk Typist, a typing test shall also be conducted. Selection list shall be forwarded by Selection Committee to Appointing Authority who shall make appointments in the order in which names are arranged in the list.
33. Rules 13 and 15 also require verification of character and physical fitness of candidate before appointment and same read as under:-
"13. Character.- The character of a candidate for direct recruitment to a post in the Service must be such as to render him suitable in all respects employment in Government Service. The Appointing Authority shall satisfy on this point.
15. Physical fitness.- No candidate shall be appointed to a post in the service unless he be in good mental and bodily health and free from any physical defect likely to interfere with the efficient performance of his duties. Before a candidates is finally approved for appointment he shall be required to produce a Medical Certificate of fitness in accordance with the rules framed under Fundamental Rules 10 contained in Chapter III of the Financial Handbook, Volume II, Part III."
34. In the present case, copy of advertisement published in the daily newspaper "Dainik Jagran" dated 05.12.1991 clearly shows that last date for submission of application form was 07.12.1991. Thus, only two days were given for submission of application forms. Further, in respect to post of Junior Clerk (Typist), advertisement clearly says that candidate must possess minimum educational qualification upto Intermediate with Hindi typing speed of 25 words per minute. It is not the case of petitioners that any typing test was ever conducted for the reason that according to their own case, dates of interview by Selection Committee were 13/14.01.1992. All petitioners were issued appointment letters on 13.01.1992 itself, though interview had to be conducted on 13/14.01.1992, both. In what circumstances Selection Committee completed interview on 13.01.1992 and made its recommendation on the same date, appointment letter was issued on the same date and many petitioners also joined on the same date, is not very clear. It per se speaks volume of clandestine manner in which appointments have been made. There was no typing test conducted and nothing has been pleaded in this regard. With regard to authority of D.D.O. for making appointment on clerical post, petitioners have relied on a Government Order dated 19.01.1977 which says that post wherein minimum of pay-scale is not more than Rs. 230/-, appointment can be made by Additional District Magistrate (Finance)/D.D.O. but in other cases, power of appointment has been conferred upon D.M. It is said that in 1977, post which was in the scale of Rs. 230-385/- came, after revision in the scale of Rs. 400-625/-, w.e.f. 01.01.1986 and Rs. 975-1660/- w.e.f. 01.01.1996. Similarly, post which was in the scale of Rs. 200-320/- in 1977 came to be revised in the scale of Rs. 354-550/- and Rs. 364-550/- w.e.f. 01.01.1986 and scale of Rs. 354-550/- was revised to Rs. 950-1500/- w.e.f. 01.01.1996.
35. We find that aforesaid Government order has been misconstrued inasmuch as pay-scale of Rs. 950-1500/- is effective from 01.01.1996 while petitioners claimed to have been appointed in 1992 in the scale of Rs. 950-1500/-. Therefore, in 1992, Competent Authority for appointment to post in question as per own showing of petitioners was D.M.
36. Even if, we assume that D.D.O. was competent Appointing Authority, there would be no advantage to petitioners for the reason that admittedly procedure prescribed in Ministerial Rules, 1985 was not followed for making selection.
37. Rule 22 contemplates that vacancy shall be notified to Employment Exchange. It is not the case of petitioners that vacancies were notified to Employment Exchange. Moreover, advertisement published in the newspaper gave only two days for filling up application form clearly shows that there was no intention to give an appropriate opportunity to intending candidates to apply and, therefore, a very short time of two days was allowed probably for the reason that persons who were planned to be appointed were already aware and have made their applications and ultimately got selection and appointment. When appointment is not made by proper advertisement of vacancies as provided in Rules, it means that there is clear violation of equal opportunity of employment to all eligible persons and this is also violative of Article 16(1) of Constitution of India. Any appointment made in these circumstances is clearly illegal and entire facts and circumstances including fact that the then D.D.O. was going to retire on 31.01.1992 leaves no doubt that appointments made were fraudulent in its nature.
38. Learned counsel for petitioners have not challenged judgment of learned Single Judge insofar as it has held that appointments were illegal and rightly cancelled by D.M. Their contention is only to the extent that once petitioners were allowed to continue then all subsequent benefits which could have accrued to them after rendering continuous service, could not have been denied.
39. In our view, once learned Single Judge found appointments illegal and did not set aside order dated 16.01.1992 passed by D.M. cancelling appointments, there was no occasion for learned Single Judge to allow petitioners to continue in service with whatever other detrimental conditions. In our view, learned Single Judge ought to have dismissed writ petitions without any further direction.
40. We may also notice at this stage that one of the persons similarly situated with petitioners who was appointed in ministerial staff filed Special Appeal No. 829 of 2009 which had arisen from Writ Petition No. 5513 of 2009 (Lok Nath Ram Vs. State of U.P. and others) challenging this part of judgment of learned Single Judge wherein increment, etc. have been denied to petitioners has already been dismissed by Division Bench of this Court vide judgment dated 15.06.2009.
41. Therefore, in our view, Special Appeals No. 1280, 800, 1138, 805 of 2009 which relate to appointments of petitioners on Class-III posts deserve to be dismissed and Special Appeals No. 1900, 1904, 1914 and 1832 of 2009 filed by State of U.P. and its authorities deserve to be allowed.
42. Now, we come to Special Appeals which relate to appointment of Class-IV employees. These matters may not detain longer for the reason that similar matter has already attained finality upto Apex Court. In Civil Misc. Writ Petition No. 5512 of 1992 (Krishna Chand Vs. District Magistrate, Maharajganj and others) (2010) 2 UPLBEC 1566, one Krishna Chand appointed as Class-IV employee vide order dated 13.01.1992 by the then D.D.O. challenged the order dated 16.01.1992 passed by D.M. cancelling said appointment. Said writ petition came to be decided by a detailed judgment delivered by one of us (Hon'ble Sudhir Agarwal, J.) on 14.12.2010. Court took the view that once appointment has been found illegal it was rightly cancelled and that be so, no further benefit can be allowed to petitioners. Paragraphs 13, 22, 23, 24 of said judgment are reproduced as under:-
"13. In my view once it is evident that the appointment of petitioner was illegal and fraudulent, no question of indulgence granting any relief to petitioner would arise for the simple reason that fraud vitiates everything. If that is so, question of considering the order cancelling fraudulent order, whether having passed in accordance with law, may not be necessary to be considered since the very basis on which the appointment is claimed by an incumbent is a nullity in the eyes of law and once the very basis of the right of an incumbent goes, the subsequent order passed by the authority of mere declaration of such fraudulent order to be illegal would not confer any life to such fraudulent order if the subsequent order passed by the authority even if found to be not in accordance with law.
22. It is well settled that where an order of appointment is wholly illegal and void ab initio, neither the principles of natural justice would be attracted in such a case nor any irregularity in the order passed by the authorities concerned declaring the fraudulent orders to be illegal would make it valid for any purpose whatsoever.
23. Even otherwise, the petitioner having invoked equitable extraordinary jurisdiction of this court under Article 226 of the Constitution cannot seek the revival of an illegal order by stressing that since the order cancelling such illegal order is in violation of principle of natural justice or without reason, therefore, this court is under an obligation to revive an illegal order of his appointment. It is well settled that this Court shall be justified in refusing to grant any indulgence in a case where setting aside of an order would result in revival of another illegal order.
24. In view of the above discussion, I find no merit in the writ petition. Dismissed. No costs."
43. This matter was taken in intra Court appeal under Chapter VIII Rule 5 of Allahabad High Court Rules, 1952 (hereinafter referred to as "Act, 1952") before a Division Bench of this Court by Krishna Chand in Special Appeal No. 788 of 2010 but the same was dismissed vide judgment dated 13.08.2015. The operative part of judgment of Division Bench reads as under:-
"Rules 19 provides that the appointing authority shall issue an advertisement in local daily newspaper besides pasting the notice for the same on the notice board. Admittedly, advertisement has not been made in the present case for the purpose of the appointment and therefore appointment of the appellant was not in accordance to the procedure provided in Rule 19. It would be appropriate to refer the Rule 32 which has been relied upon by the learned counsel for the appellant which reads as follows;
32. Relaxation from conditions of Service.- Where the State Government is satisfied that the operation of any rule regulating the conditions of service of persons appointed to the Establishment causes undue hardship in any particular case, it may, notwithstanding anything contained, in the rules applicable to the case, by order, dispense with or relax the requirements of that rule to such extent and subject to such conditions as it may consider necessary for dealing with the case in a just and equitable manner.
On perusal of Rule 32, it is clear for the relaxation of any conditions, it is necessary that there should be satisfaction of the State Government and specific order be passed dispensing with or relaxation the requirements of the rule. No order has been produced before us passed by the State Government in exercise of power under Rule 32, therefore, the argument of the learned counsel for the appellant that appointment made on recommendation was valid, has no substance.
In view of above, the appeal is devoid of any merit and is accordingly dismissed."
44. The matter was then taken to Supreme Court in Special Leave to Appeal (C) No. 31851 of 2015 (Krishna Chand Vs. District Magistrate, Maharajganj and others) but it was dismissed vide order dated 23.11.2015.
45. Learned counsel for petitioners argued that relaxation of rule relating to conditions of service can be deemed by conduct of Officers and for that purpose, no specific order need be passed. The contention having already been rejected by Division Bench in similar matter, we do not find any reason to permit re-agitation of the same but still to satisfy ourselves, we have examined the matter. Rule 32 of Group-D Service Rules, 1985 reads as under:-
"32. Relaxation from conditions of Service.- Where the State Government is satisfied that the operation of any rule regulating the conditions of service of persons appointed to the Establishment causes undue hardship in any particular case, it may, notwithstanding anything contained in the rules applicable to the case, by order, dispense with or relax the requirements of that rule to such extent and subject to such conditions as it may consider necessary for dealing with the case in a just and equitable manner." (emphasis added)
46. A bare perusal of aforesaid rules shows that it empowers State Government to relax any rule relating to "conditions of service". We may notice at this stage that Group-D Service Rules, 1985 have two kinds of rules. One relating to 'recruitment' and 'appointment' and others relating "conditions of service".
47. Rules relating to "conditions of service" are such which governs an employee on and after appointment in service but before appointment; Rules relating to 'recruitment' are different and they cannot be said to be rules relating to "conditions of service".
48. This phraseology has been used in Article 309 of Constitution of India which reads as under:-
"309. Recruitment and conditions of service of persons serving the Union or a State.- Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State:
Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act."
(emphasis added)
49. The distinction between rule of 'recruitment' and "condition of service" is no more res integra having already been settled by Apex Court in a catena of cases. In State of U.P. Vs. Shardul Singh 1970 (1) SCC 108, Court held that term "conditions of service" means all those conditions which regulate holding of a post by a person right from the time of his appointment till retirement and even pension etc. It was reiterated in I.N. Subbareddy Vs. State of A.P. 1997 (1) SCC 554. In Syed Khalid Rizvi Vs. Union of India 1993 Supp (3) SCC 575, Court held where a rule permits relaxation of provisions pertaining to "conditions of service", same would be applicable to condition after appointment to service in accordance with rules. It also held that "conditions of recruitment" and "conditions of service" are distinct and the latter is preceded by an appointment according to rules, but the former cannot be relaxed.
50. Rules relating to procedure for selection which includes advertisement, etc. are the rules relating to 'recruitment'. They are beyond the scope of Rule 32 since Rule 32 talks of rules relating to "conditions of service" and not that of 'recruitment'. Therefore, argument advanced by learned counsel for petitioners-appellants in the appeals arising from those matters where petitioners were appointed on Class-IV posts cannot be accepted and has no substance at all.
51. In view of above, Special Appeals No. 804 and 803 of 2009 deserve to be dismissed and Special Appeal Nos. 1840 and 1902 of 2009 filed by State of U.P. and its authorities deserve to be allowed.
52. Now the only matter remains is Special Appeal No. 847 of 2009 wherein petitioner was appointed as 'Driver'. Here also all other facts are identical and this is also admitted that there was no advertisement of vacancy at any point of time. The clandestine manner in which appointments were made by the then D.D.O. is writ large and in this regard finding has already been recorded by learned Single Judge.
53. We may also notice at this stage that none of the counsels appearing for petitioners in all the aforesaid appeals advanced any argument to assail findings of learned Single Judge that appointments were made illegally, without following the procedure prescribed under Rules and without advertisement and in a clandestine and arbitrary manner.
54. Learned Single Judge, therefore, has rightly upheld order dated 16.01.1992 passed by D.M. cancelling all the appointments made by the then D.D.O. In this backdrop and in the light of discussions made above, Special Appeal No. 847 of 1992 deserves to be dismissed and Special Appeal No. 1843 of 2009 filed by State of U.P. and its authorities is allowed.
55. Now remains the Special Appeals filed by legal heirs of Late Shiv Ram Bhatt, the then D.D.O. The facts speaks volume and self-evident to show illegality on the part of the then D.D.O. in making aforesaid appointments and we have no manner of doubt that their appointments were made for reasons other than bonafide particularly in the backdrop of the fact that incumbent was going to retire on 31.01.1992 itself. Learned Single Judge, therefore, has rightly held the then D.D.O. was responsible for the entire mischief. In normal circumstances, we would have upheld the direction issued by learned Single Judge penalizing said Officer by imposing compensatory damages and in that view of the matter, Rs. 1 lac per petitioners cannot be said to be excessive. However, in this particular case, there are some more facts in the light whereof we find it justified to set aside the judgment of learned Single Judge to the extent it has imposed compensatory damages of Rs. 1 lac. Our reasons are that Late Shiv Ram Bhatt himself was not a party in any of the writ petitions before learned Single Judge. He had no occasion in his individual capacity to place his stand before Court. Writ petitions were decided by learned Single Judge on 05.05.2009 but much before it Sri Shiv Ram Bhatt, the then D.D.O. had died on 30.04.2006. Neither Late Shiv Ram Bhatt nor his legal heirs had contested the matter before learned Single Judge. Moreover, an order passed against an individual after his death is a nullity and cannot be sustained. Had he been party to proceedings and after his death, his legal heirs would have been substituted, there could have been a good ground to impose compensatory damages and direct it to be recovered from the estate left by deceased Officer since legal heirs are also benefited by valid or invalid earnings of Officer concerned. But in the present case, direction of learned Single Judge amounts to a judgment against a deceased person who was not even a party in proceedings. This is a serious legal lapse which render the judgment improbable. Thus, we also find it difficult to sustain this part of the judgment wherein compensatory damages have been awarded against the then D.D.O. Late Shiv Ram Bhatt. Therefore, appeals preferred by legal heirs of Late Shiv Ram Bhatt, i.e., Special Appeal No. 1493, 1650, 1651 and 1652 of 2009 are allowed and part of the judgment whereby compensatory damages of Rs. 1 lac per petitioners was awarded to petitioners against Late Shiv Ram Bhatt, the then D.D.O. is set aside.
56. In the result; (i) Special Appeal Nos. 847, 1280, 800, 1138, 805, 804, 803 of 2009 are dismissed; (ii) Special Appeal Nos. 1904, 1914, 1840, 1902, 1900, 1843, 1832 of 2009 are allowed and judgment of learned Single Judge insofar as various directions have been issued to permit continuance of petitioners in service and other connected directions are hereby set aside; (iii) Special Appeal Nos. 1651, 1493, 1652, 1650 of 2009 are also allowed and direction for compensatory damages of Rs. 1 lac per petitioners is set aside.
57. Since order cancelling termination of petitioners in view of our discussions stands upheld has also been upheld by learned Single Judge and this part of judgment has been upheld, therefore, it results in dismissal of all writ petitions filed by petitioners, and we order accordingly.
58. There shall be no order so as to costs.
Order Date :- 13.12.2017
Shubham
