Arvind Kumar Shukla vs State Of U.P.Thru Pramukh Sachiv ...
2017 Latest Caselaw 4976 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on 3.7.2017
 
Delivered on 5.10.2017
 
Court No. - 26
 
Case :- WRIT - A No. - 6403 of 2013
 
Petitioner :- Arvind Kumar Shukla
 
Respondent :- State Of U.P.Thru Pramukh Sachiv And Ors.
 
Counsel for Petitioner :- Vishwa Ratna Dwivedi,Bal Mukund
 
Counsel for Respondent :- C.S.C.
 
Hon'ble Mrs. Sangeeta Chandra,J.

Heard Sri Bal Mukund, learned counsel for the petitioner and Sri S.P. Mishra, learned counsel for the State respondents.

This writ petition has been filed challenging the order dated 8.8.2012 passed by Director, Urban Land Ceiling, U.P., Lucknow and the notice dated 10.9.2009 issued by the same Authority with a further prayer for mandamus commanding the respondents to allow the petitioner to perform his duties as Surveyor and pay him salary regularly and give him all consequential benefits treating his service to be continuous and permanent w.e.f. 18.3.1982 onwards.

The facts relevant for the decision of the controversy can be briefly summarized as follows:-

The petitioner was initially engaged as Surveyor in Urban Land Ceiling Department on 28.9.1978 and continued as since till 24.4.1981. Certain temporary posts were created of Junior Engineers in the Urban Land Ceiling Department on 14.4.1976 and the Government issued an order regarding new these posts were to be filled up. A copy of this order has been filed as Annexure RA-2 by the petitioner. For the districts of Lucknow and Kanpur two temporary posts of Junior Engineers were created along with other posts and these posts of Junior Engineer were to be filled up from Junior Engineers of the Department of P.W.D. on deputation, who had been rendered surplus in their own Department and their lien in their Parent Department was to be maintained.

On 16.3.1981, six Junior Engineers, who had come on deputation were called back by the Chief Engineer, Construction, P.W.D. and in the vacancies created out of repatriation of these six employees, a purely temporary engagement was made of persons like the petitioner, who was working as Surveyor in Urban Land Ceiling Office, Aligarh at the first.

The appointment order, which has been filed by the petitioner as Annexure to the writ petition shows that the said appointment came with a condition that it shall be purely temporary in nature and if the work of the employee concerned is found unsuitable or some adverse material came up in verification of character roll, then such appointment would be terminated at any time without prior notice.

On the basis of said appointment, the petitioner continued to work as Junior Engineer till a notice was issued on 10.9.1999, by the Director, Urban Land Ceiling asking him to show cause as to why his services be not terminated, as the Committee constituted to consider regularisation of adhoc employees had not found the petitioner suitable, because he had already been twice suspended on various charges and a minor penalty of censure entry had been imposed upon him on 13.7.2007, and a major penalty of withholding to two annual increments permanently had been imposed upon him on 8.4.1994. Moreover, he was facing another disciplinary proceedings for his tenure at Allahabad.

The petitioner again received a reminder on 22.12.2009 from the department and it is the case of the petitioner that the petitioner replied to each notice diligently and within time but his reply was ignored and by the order impugned dated 8.8.2012, his services were terminated in exercise of powers under a non existent Rule by an incompetent authority.

In the writ petition, the petitioner has alleged that the petitioner also filed an appeal within thirty days from the order impugned, which remained pending without any orders.

It is the case of the petitioner that in the appointment letter dated 16.3.1981, there was no mention that the petitioner's appointment was adhoc in nature. It was only mentioned that such appointment was temporary and liable to be terminated on one month's notice. The petitioner has relied upon several Government Orders issued from time to time with regard to the confirmation of temporary posts as regular posts, if they were allowed to continue for three years at a stretch, and it is his case that although he was senior to several other persons, his seniority was disregarded and he was never confirmed. It has been further alleged that all temporary employees are liable to to be confirmed after working for a maximum of three years on the post.

It has further been alleged by the petitioner that the Rule under which the petitioner has been terminated i.e. the U.P. Regularisation of Adhoc Appointments Rules, 1979, as amended from time to time, does not have any Rule, contemplating termination of service of unsuitable candidates.

It is also the case of the petitioner that the Directorate of Urban Land Ceiling had seized to function after the U.P. Urban Land Ceiling Act was repealed in 1999, and at a high level meeting held by the State Government, the Director, Local Bodies had been appointed to officiate as Director, Urban Land Ceiling, in addition to his own charge to carry out certain administrative responsibilities.

It is the case of the petitioner that since Director, Local Bodies had been made In-charge of Directorate of Urban Land Ceiling, the action of issuing notice to the petitioner on 10.9.2009 and the order terminating his service on 8.8.2012 could only have been taken by the Director, Local Bodies and not P.V. Jagmohan and Deepak Kumar, the two officers respectively, who had been entrusted with the additional charge of Director, Urban Land Ceiling.

It is the case of the petitioner also that he had already been punished for alleged misconduct during his service tenure and he could not be punished again for the same misconduct by removing him from his service.

In the counter affidavit filed by the State respondents, orders dated 25.11.2008 and 28.8.2011 have been filed appointing one Dr. P.V. Jagmohan and Deepak Kumar and Director, Urban Land Ceiling, respectively by the State Government and it has been averred that the Directorate of Urban Land Ceiling, after the Act was repealed in 1999, continued to function and some employees of the department were still working having regard to the provisions of Sections 11, 12, 13 & 14 of the earlier Act of 1976.

In the counter affidavit in paragraph 6, it has been clearly stated that the petitioner was working as Surveyor in Urban Land Ceiling Department earlier and was posted on the post of Junior Engineer by the Director, Urban Land Ceiling on an adhoc basis. The Government had issued an order on 11.1.1983 which had clarified that the post of Junior Engineer in any department including the Urban Land Ceiling Department, fell within the purview of U.P. Public Service Commission, and the Government was the Appointing Authority for such posts. The Director, Urban Land Ceiling could only make posting of employees such as petitioner on an adhoc basis, and the posting of the petitioner can at-best be termed as "adhoc promotion" because he had possessed the diploma in Engineering at the time of such adhoc promotion / appointment.

It has further been clarified that on the appeal filed by the petitioner before the Government, comments had been asked for from the Directorate, which were sent by means of a letter dated 8.8.2013. A perusal of the letter dated 8.8.2013 shows that it is in response to a query made by the Government on 7.11.2012, wherein it had been informed to the Government that the petitioner was appointed as Junior Engineer at the Directorate Level, and was not appointed by the Government and such post fell within the purview of U.P. Public Service Commission, the appointment so made by the Head of the Department, the Director, Urban Land Ceiling, could only be said to be adhoc in nature.

It was also informed that all such adhoc Junior Engineers have been considered for regularisation in 1992 also, but since the petitioner's service was found unsatisfactory, he was not recommended for regularisation. Instead notices were issued to him as per Rule 8 of the U.P. Regularisation of adhoc promotion (on post within the purview of Public Service Commission) Rules, 2001, which provides under Rule 8, that all those persons found unsuitable by the Regularisation Committee shall be reverted to their substantive posts immediately.

The petitioner in his rejoinder has reiterated what had earlier been said in the writ petition and has referred to several Government Orders issued from time to time with regard to the temporary posts to be deemed permanent automatically on their continued existence for three years, and of temporary employees being deemed confirmed after rendering satisfactory service for probation period.

In paragraph no.22 of the rejoinder affidavit, a specific mention has been made of U.P. Regularisation of Adhoc Promotion (On Post Within the Purview of Public Service Commission) Rules, 1998 and an allegation has been made that if the petitioner had been found unsuitable for regularisation, then his case would have only been considered for reversion to his original post of Surveyor or instead, he was issued a notice for termination of service illegally.

In the supplementary counter affidavit filed by the State respondents, it has been clarified that the petitioner's service had been unsatisfactory throughout and that the post of Junior Engineers is within the purview of Public Service Commission and selection on the said post should be made by the Public Service Commission only and appointment had to be made by the Government i.e. the Department of Housing and Urban Planning. Instead, the petitioner had been engaged on the said post by the Director, Urban Land Ceiling, without undergoing due process of selection / direct recruitment by the Public Service Commission.

Learned counsel for the petitioner has stated before this Court that the order of termination has been passed by the respondents treating the petitioner to be an adhoc appointee under Rules which were not in existence. His appointment was made in 1981 and the appointment order does not mention word 'ad hoc' but mentions that he is being appointed on a purely temporary basis and his services can be terminated at any time by giving one month's time or one month pay in lieu thereof.

It is also the case of the petitioner that the Director, Local Bodies alone was competent to pass an order for termination of his service and not the Director, Urban Land Ceiling as although there was a Directorate in existence at the time when he was appointed in 1981, but the said Directorate came to an end after the Urban Ceiling Act was repealed in 1999 and, therefore, the Government took a decision in a High Level Committee that for all administrative decisions, the Director, Local Bodies shall be competent, and he shall act as Head of the Department for employees like the petitioner, who were initially engaged by the Director, Urban Land Ceiling.

It has also been argued by the learned counsel for the petitioner that the petitioner has been terminated/punished by the order impugned for misconduct for which he has already been punished and it amounts to double jeopardy, which is barred under the Constitution.

Additionally, it has been argued by the learned counsel for the petitioner that if the 2001 Rules are being relied upon and his appointment/promotion is being treated as ad hoc then he should have been reverted to his original post of Surveyor and he could not have been terminated. Further if the authorities are relying upon unsatisfactory service record of the petitioner then also regular inquiry proceedings should have been held instead of taking recourse to Rule 8 and terminating the services of the petitioner without any further proceedings in the matter.

On the other hand, learned Standing Counsel has relied upon the counter affidavit filed on behalf of the State respondents wherein a copy of the Regularization Rules, 2001 referring to the order impugned, as also correspondence within the Department, has been filed which shows that on all those posts, which were within the purview of the Public Service Commission, regular/temporary appointments could be made only through selection by the Public Service Commission.

It has further been argued by the learned standing counsel that in case of the petitioner, he was initially appointed as a Surveyor in 1978 in the Directorate of Urban Land Ceiling and later on he was given ad hoc promotion as Junior Engineer as he was already holding a diploma in engineering, which was the educational requirement at that time for appointment of Junior Engineers by an order passed by the Director, Urban Land Ceiling, who was only the Head of the Department. His appointment / promotion can only be considered as an adhoc arrangement and, therefore, he was governed by Rule 8 of the Regularization Rules 2001 and the orders have been passed in accordance with law.

It has also been brought on record that the petitioner's case for regularisation was considered firstly on 9.9.1985 and again on 26.6.1992 and lastly on 20.7.2008, but on each occasion the petitioner was found unsuitable, and in view of the U.P. Regularisation of Adhoc Appointments (on Posts under the Purview of Public Service Commission) Rules, 1979 as amended by the third amendment in 2001, on 20.12.2001, the petitioner's services have been terminated.

I have heard the counsel for both parties and have considered the record of the writ petition, the correspondence undertaken between the Department of Housing and Urban Planning and the Directorate of Urban Land Ceiling, which had been filed by the petitioner as Annexures to his various affidavits, has not been denied by the State respondents, but it has been mentioned that since writ petition had remained pending in this Court, no final decision could be taken on the pending appeal of the petitioner. The petitioner in his various affidavits has brought on record, several correspondence undertaken between the Government and the Directorate of Urban Land Ceiling with regard to true nature of appointment of the petitioner.

From a perusal of the same, it is evident that the petitioner was admittedly appointed on a post, which was within the purview of U.P. Public Service Commission, as Junior Engineers in all departments are recruited only through the U.P. Public Service Commission. Their orders of appointment are also made by the Government.

In the case of the petitioner, he was working as Surveyor in Urban Land Ceiling, Directorate, since before and he possessed diploma in Engineering and therefore he was posted on temporary basis by the Director, Urban Land Ceiling. Neither the procedure prescribed under the Rules for appointments of Junior Engineers in any department was followed, nor the recruiting agency was the U.P. Public Service Commission. The Appointing Authority i.e. the Government / Secretary, Housing and Urban Planning had not appointed the petitioner. The petitioner being appointed purely on local basis by the Director, his appointment cannot be termed as temporary appointment.

Temporary appointments are made in the same manner, as regular / substantive appointments are made, the procedure prescribed is followed by the Appointing Authority and initially a Government Servant is engaged on a temporary basis subject to his completion of his probation period satisfactorily. After such completion of probation, an order needs to be passed confirming the said temporary employee as member of service on permanent basis.

On the other hand, adhoc arrangements are made to tide over sudden need for staff till regularly selected candidates are made available.

The petitioner was engaged by the Director and although the appointment letter did not show such appointment to be "adhoc", but mentioned it as a "temporary", from a consideration of the affidavits in the writ petition, and the correspondence undertaken between the department and the Directorate, it is evident that the petitioner's engagement was only adhoc.

Now the question which arises before this Court is "whether the petitioner was promoted on an adhoc basis or whether the petitioner was appointed on an adhoc basis".

If the petitioner was promoted, then the U.P. Regularisation of Adhoc Promotions (On Posts Within the Purview of Public Service Commission) Rules, 1979 would apply as amended from time to time i.e. in 1998 and 2001.

In case it is found that the petitioner was given adhoc appointment, then U.P. Regularisation of Adhoc Appointment (on post within the purview of Public Service Commission) Rules, 1998 as amended in 2001 would apply.

The State respondents have been ambivalent in their response to various affidavits filed by the petitioner. Even in the correspondence between the Director and the Department, the possession has not been clarified at any stage, and there seems to be some confusion in this regard.

This Court having considered the Rules and the facts which have come on record through various Affidavits and Annexures filed along with various affidavits, is of the considered opinion that the petitioner's engagement was only an adhoc "promotion" and not an adhoc "appointment". The petitioner therefore was liable only for being reverted to his original post of Surveyor, having been found unsuitable for regularisation on the post of Junior Engineer as per Rule 8 of the Rules of 1979 as amended and notified on 20.12.2001. The petitioner's services could not have been terminated.

The impugned order of termination dated 8.8.2012 and the notice issued before such termination of services dated 10.9.2009, are liable to be quashed and are hence set aside.

A direction is issued to the Director, Urban Land Ceiling to pass orders afresh with regard to the petitioner, taking into account the observations made herein above, and pass appropriate orders within a period of three months from the date a certified copy of this order is produced before him.

The petitioner is also at liberty to approach the Director, Urban Land Ceiling by moving fresh representation with regard to his grievance, which shall be looked into and the petitioner shall be provided an opportunity of hearing before any order is passed by the Director, Urban Land Ceiling on this issue.

Order Date :-5.10.2017

Arif