Shailendra Kumar Tandon vs State Of U.P. Thorugh The Secy. ...
2023 Latest Caselaw 1417 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

High Court of Judicature at Allahabad
 
(Lucknow)
 
**********
 
Reserved on: 19.12.2022
 
Delivered on: 13.01.2023
 
Court No. - 3
 

 
Case :- WRIT - A No. - 4625 of 2011
 

 
Petitioner :- Shailendra Kumar Tandon
 
Respondent :- State Of U.P. Thorugh The Secy. Dept.Of Medical And Health
 
Counsel for Petitioner :- S.P.Shukla,Jitendra Singh
 
Counsel for Respondent :- C.S.C.,Amitabh Pratap Singh,B.K.Singh
 

 
Hon'ble Rajan Roy,J.

Heard.

By means of this petition, the petitioner has inter alia challenged an order dated 01.09.2008 passed by opposite party no.4 i.e. the then Registrar, U.P. Pharmacy Council and another order dated 14.11.2018 passed by opposite party no.3- the President of the U.P. Pharmacy Council. Inquiry Report dated 27.09.2018 containing findings of a Committee constituted by the State Government in pursuance to orders passed by this Court in these proceedings to ascertain the veracity of the appointment of the petitioner as claimed has also been challenged by way of an amendment to the writ petition.

The facts of the case in brief are that according to the petitioner he was engaged vide order dated 12.04.1982 as Junior Assistant for three months on temporary basis w.e.f. 12.04.1982 by an order of the same date. The said appointment was extended from time to time vide orders dated 11.07.1982, 08.10.1982, 07.01.1983. Ultimately, the Registrar who is the appointing authority of the said post in view of Rule 70 of U.P. Pradesh Pharmacy Rules made by the State Government under the Pharmacy Act, 1948, wrote to the President regarding arrangement for regular appointment of the petitioner or any other employee in place of Sri Yashkaran Singh whose work was not satisfactory. On this, as claimed by the petitioner, a noting was made by the President of the Council that considering report of the Registrar and the work of the petitioner, his tenure is extended but he also made the observation that regular appointment can only be made against a sanctioned post, therefore, the matter is referred to the Council. He further made the note that work should be taken from the petitioner regularly till further arrangement is made. Based on Annexure-4, the petitioner claims that the matter was placed in a meeting of the Council dated 28.07.1983. However, the said document contained in Annexure no.4 has been denied by the concerned opposite parties as it is not available in their records and it is alleged that the same is forged. The Court finds that at page no.29, the covering letter (annexed with the alleged resolution dated 28.07.1983) signed by the then Registrar-Sri S.K. Pathak does not bear the name of the addressee nor any dispatch number or date.

Vide Annexure-5 dated 24.01.1984, the petitioner claims to have been appointed/ promoted as Senior Assistant against the permanent post occupied by Smt. Usha Rani Banerji who had expired. The said letter contained in Annexure no.5 and as referred in para no.9 of the writ petition has been denied by the Pharmacy Council vide para 35 of its counter affidavit. It has been stated that the said order dated 24.01.1984 is forged and fabricated for the reason that there is no office stamp of the Registrar but in the letter it has been mentioned as Camp Letter Number. It has also been stated that since the petitioner's services were never regularized on the post of Junior Assistant, promotion/ appointment on the post of Senior Assistant does not arise as has been mentioned in the said order/ letter. Moreover, vide order dated 31.10.1983 passed in Writ Petition No.5744 (S/S) of 1983 [Pratap Narayan Mahendra vs. State of U.P. & Ors.], the High Court had been pleased to pass an interim order on 31.10.1983 to the effect - ''In the meantime, no fresh appointment of staff shall be made by the opposite parties and they will also not incur any new expenditure beyond the routine expenditure on establishment i.e. on disbursement of salary of staff' and on 24.01.1984, the said interim order dated 31.10.1983 was in operation, therefore, the said letter/ order was in violation of the interim order of this Court and it is apparently forged and fabricated. The said letter/ order was not filed along with Writ Petition No.3757 of 1991 filed by the petitioner which clearly indicates that the said letter dated 24.01.1984 is post-dated document which has been prepared to prove his alleged regular appointment. It has also been mentioned that Sri S.K. Singh was senior to Sri S.K. Pathak, therefore, question of promotion on the post of Senior Assistant on 24.01.1984 did not arise.

In rejoinder affidavit in para 31 while responding to para 35 of counter affidavit of Pharmacy Council, it has been stated that the petitioner was initially appointed on 12.04.1982 and his services were regularized on 24.01.1984. The interim order dated 30.10.1983 was passed in Writ Petition No.5744 of 1983 and this petition has been dismissed. It has also been stated that the letter bears the dispatch number and its veracity can be verified if the dispatch register is summoned from the Pharmacy Council. The validity of petitioner's appointment was challenged by Sri Yashkaran Singh by means of Writ Petition No.2119 of 1982 but the High Court while rendering the judgment dated 31.03.1993 did not quash appointment of the petitioner.

The Court finds that copy of the judgment dated 31.03.1993 is annexed with the rejoinder affidavit and discloses that claim of Sri Yashkaran Singh was accepted by the High Court and he was directed to be appointed. This apart, the Court notices that order dated 24.01.1984 is not an order regularizing the services of the petitioner on the post of Junior Assistant i.e. the alleged post on which he was appointed on 12.04.1982 for three months. In fact, in para 41 of the writ petition, the petitioner himself has stated that only one post of Junior Assistant and one post of Senior Assistant downgraded as Junior Assistant were sanctioned against which Sri Yashkaran Singh and then the petitioner was appointed. Now, Sri Yashkaran Singh continued in service by virtue of orders of the High Court referred hereinabove and is also on record, therefore, the petitioner could not have been appointed as long as Sri Yashkaran Singh had a right against the post. The noting of the President on the recommendation of the Registrar dated 09.04.1983 contained in Annexure no.3D itself shows that the petitioner's engagement was not against any sanctioned post and the President had clearly stated that he could only be regularly appointed against a sanctioned post. There is nothing on record to show that any such post was sanctioned under the Rules framed by the State Government. Be that as it may, on 08.11.1990, the Registrar, U.P. Pharmacy Council asked the petitioner- Sri S.K. Tandon to produce the order of his regular appointment and certain other documents to facilitate consideration of sanction of leave and salary claimed for the period of leave. Similar orders were issued to the petitioner earlier also on 23.03.1990. Subsequently on 18.08.2008 also, similar queries were made from the petitioner when an interim order passed in Writ Petition No.7365 (S/S) of 2007 to the effect that if the petitioner is a permanent employee and his services have been terminated by oral orders, he should be allowed to discharge duties so that Council could take a decision in the matter as to whether he was a permanent employee or not. In response to the aforesaid, the petitioner claimed to have been confirmed and that he had already provided the documents and the relevant file earlier. He also stated that he had requested not to deduct any amount towards Contributory Provident Fund. However, the Court does not find any such order of confirmation on the record of this writ petition. In fact, the alleged appointment letters annexed by the petitioner themselves go to show that the initial appointment was a time bound appointment for a period of three months which was extended from time to time and even the President while making his order on noting of the Registrar dated 09.04.1983, did not regularize his services, in fact, he categorically stated that unless there was a sanctioned post, he could not be regularly appointed and that work may be taken from his regularly till fresh arrangement is made. There is nothing on record to show that any such post was sanctioned and, for filling the same, any advertisement was issued and selection was held from the open market wherein the petitioner may also have participated. There is no order of regular appointment. As regards the alleged order dated 24.01.1984, apart from the fact that it has been stated to be forged by the Pharmacy Council, the Court finds that the said letter refers to appointment/ promotion of the petitioner which is incongruous. The petitioner's initial engagement on temporary basis for three months was not on the post of Senior Assistant, therefore, there was no question of appointment as Senior Assistant nor of promotion, his appointment being time bound and not regular. Even if there was a permanent vacancy consequent to death of Smt. Usha Rani Banerjee, the post should have been advertised and eligible candidates should have been considered from open market in a due and proper selection. Even if the Rules made under the Act, 1948 are silent as to the procedure to be followed for such appointment against a permanent vacancy, the minimal requirement of law is that requisite eligibility conditions should have been laid down by the competent authority who in this case would have been the Registrar being the appointing authority of such post, with the approval of the President and thereafter the post should have been advertised and then based on a fair selection, candidates should have been selected for appointment. There is nothing on record to show that any such exercise was undertaken, therefore, no benefit of the order dated 24.01.1984 can accrue to the petitioner and he cannot claim to have been regularly appointed nor that his services were regularized by the said order for the reasons mentioned hereinabove.

At this stage, it is relevant to point out that the petitioner's counsel himself stated before the Court that the original petitioner did not work after 1990. Learned counsel for the Pharmacy Council submitted that he failed to provide requisite documentary proof of his regular appointment, therefore, he was not allowed to work. According to him, concealing the requisite notices issued to him as referred hereinabove, the petitioner filed Writ Petition No.3757 of 1991 before the Allahabad High Court which was transferred to this Court at Lucknow and was registered as Writ Petition No.7365 (S/S) of 2007. In the said writ petition, an interim order was passed as already referred earlier to the effect that if the petitioner was permanently appointed and his services have been terminated by oral orders then he should be allowed to discharge his duties. When this order was served, the matter was examined by the Registrar of the Council with adequate opportunity to the petitioner to place his version and based on this exercise, the order dated 01.09.2008 was passed which is annexed as Annexure No.27 to the writ petition wherein detailed reasoning has been given to arrive at the finding that the petitioner was never regularly appointed and that he had forged and fabricated the documents relied upon by him. In view of this order, the earlier writ petition referred hereinabove, which was initially filed at Allahabad and subsequently transferred to Lucknow, was dismissed on 16.04.2011, however, with liberty to the petitioner to challenge the said order dated 01.09.2008. Thereafter, the present writ petition was filed bearing Writ Petition No.4625 (S/S) of 2011.

In this writ petition, the Court passed an order on 01.08.2011, inter alia, to the effect that there appears to be some inter se dispute between the officials and the officers. The petitioner's appointment is also questioned, therefore, the Court expressed the view that it may need inquiry by some independent agency for which the Court called upon the Standing Counsel to disclose the authority to control the Pharmacy or to indicate the agency who can inquire the whole matter. Inspite of it, no counter affidavit was filed, therefore, on 04.08.2011, another order was passed imposing cost as to why counter affidavit has not been filed. It is in pursuance to this order that an Inquiry Committee was constituted by the State Government vide order dated 09.02.2018 comprising of the then Director, Para Medical, Medical and Health Services, U.P., Lucknow, Joint Secretary, Medical Health and Family Welfare Department, Government of U.P. and Special Secretary, Medical Health and Family Welfare Department, Government of U.P. to enquire into appointment and alleged removal of the petitioner from service. The said Inquiry Committee gave opportunity of hearing to all concerned including son of the petitioner as the petitioner had expired by then. It recorded the statement of all the personnel involved in the functioning of U.P. Pharmacy Council whose statements were relevant to the issue and thereafter submitted its report with covering letter dated 27.09.2018. The report is on record and has been challenged. The Court has perused the report and its conclusions are as under:-

‟fu"d"kZ

n QkesZlh ,DV&1948 dh /kkjk&46 dh 'kfDr;ksa dk iz;ksx dj Jh jkT;iky ds vuqeksnu ls m0iz0 QkesZlh dkmafly ds dk;ksZa ds lapkyu gsrq ‟m0iz0 QkesZlh :Yl&1958˝ iz[;kfir dh x;h] ftlds fu;e&70 esa jkftLVªkj dks v/;{k ds vuqeksnu ls m0iz0 QkesZlh dkmafly esa fyfidh; ,oa vU; LVkQ fu;qDr djus dk izko/kku fd;k x;k gS fu;e&70 fuEuor gSa%&

"Subject to the approval of the President, the Register shall appoint the ministerial and other staff and may engage such temporary personnel as may be required time to time and pay a reasonable remuneration to such personnl provided it does not exceed the rates sanctioned by the President for corresponding permanent staff".

bl izdkj m0iz0 QkesZlh dkmafly }kjk miYkC/k djk;s x;s vfHkys[kksa] fofHkUu cSBdksa esa izLrqr fjiksVZ~l ,oa m0iz0 QkesZlh dkmafly esa fu;qDr vf/kdkfj;[email protected];ksa ,oa ;kph Jh lkSjHk V.Mu ds fyf[kr c;kuksa rFkk n QkesZlh ,DV&1948 ,oa m0iz0 QkesZlh :Yl&1955 ds v/;;u ,oa fopkj&foe'kZ ds ckn lfefr bl fu"d"kZ ij igqaph gS fd m0iz0 QkesZlh dkmafly esa deZpkfj;ksa dh fu;qfDr dk vf/kdkj v/;{k ds iwokZuqeksnu ls jftLVªkj esa fufgr gSA Jh 'kSysUnz dqekj V.Mu dks voj oxZ lgk;d ,oa ys[kk lEizs{kd ds in ij i= la[;k&5ih0,[email protected]] fnukad 12-04-1982 tks fd v/;{k ds gLrk{kj ls tkjh fd;k x;k Fkk] fu;eksa ds vUrxZr ugha FkkA m0iz0 QkesZlh :Yl&1958 ds fu;e&70 ds vuqlkj v/;{k ds vuqeksnu ls fu;qfDr i= tkjh djus dk vf/kdkj jftLVªkj dks fn;k x;k gSA vr% ;g fu;qfDr voS/kkfud FkhA vxszrj ;g fu;fer fu;qfDr ugha Fkh cfYd dke pykÅ O;oLFkk ds vUrxZr ek= 03 ekg ds fy;s FkhA ckn esa Jh V.Mu }kjk lsokfoLrkj ds tks vkns'k izLrqr fd;s x;s muds ewy vfHkys[k m0iz0 QkesZlh dkmafly esa miyC/k u gksus ds dkj.k mudh izekf.kdrk lafnX/k gSA mUgsa fo'oluh; ugha ekuk tk ldrk gS vkSj u gh muds vk/kkj ij Jh V.Mu ds [email protected];hdkj.k dks oS/k Bgjk;k tk ldrk gSA vf/kdkfj;[email protected];ksa ds c;kuksa ls ;g Hkh Li"V gqvk fd Jh V.Mu dk vkpj.k ,d deZpkjh ls dh x;h vis{kk ds vuq:i ugha FkkA os fooknkLin fdLe ds O;fDr FksA vr% muds }kjk dwV jpuk dk iz;ksx dj QthZ vfHkys[k rS;kj djus rFkk mUgsa izLrqr djus dh lEHkkouk ls bUdkj ugha fd;k tk ldrk gSA ek0 mPp U;k;ky; ds vkns'k fnukad 08-08-2008 ds vuqikyu esa vkns'k la[;k&;[email protected]@08] fnukad 01-09-2008 m0iz0 QkesZlh :Yl ds izko/kkuksa ds vuq:i tkjh fd;k x;k gS vr% mls oS/k ik;k x;kA Jh V.Mu dh fu;qfDr vLFkkbZ :i ls ek= 03 ekg ds fy, dh x;h Fkh] tks fd lsokfoLrkj ds vHkko esa Lor% lekIr gks x;hA

¼Mk0 Kku izdk'k½ ¼jes'k dqekj f=ikBh½ ¼th0,l0 uohu dqekj½

rRdkyhu funs'kd¼iSjk0½@ la;qDr [email protected] fo'ks"k [email protected]

lnL; tkap lfefr lnL; tkap lfefr lnL; tkap lfefr

fpfdRlk ,oa LokLF; lsok;sa fp0Lok0 ,oa i0d0 foHkkx] f p0Lok0 ,oa i0d0 foHkkx]

mRrj izns'k y[kuÅA m0iz0 'kkluA m0iz0 'kkluA˝ "

The aforesaid conclusions are preceded by a detailed discussion of facts and evidence collected and findings based thereon. The statements of various officers and personnel are also annexed with the Inquiry Report. The Inquiry Committee comprising of high officials has clearly recordings its finding that the petitioner was never appointed on a regular basis and possibility of the documents relied by the petitioner to claim extension of service, being forged and fabricated, cannot be ruled out.

From a discussion made hereinabove as already stated, there is nothing on record to show that the petitioner was ever regularly appointed. As regards challenge to the Inquiry Committee's report, this would involve disputed questions of fact which this Court under Article 226 of the Constitution of India is not suited to go into, especially in view of denial of the documents filed by the petitioner by the Pharmacy Council. Even otherwise, the said documents do not persuade the Court to hold that the petitioner was regularly appointed after due and proper procedure in conformity with the requirements of Article 14 and 16 of the Constitution of India by way of laying down of eligibility conditions, advertisement of vacancy, if at all there was vacancy on any sanctioned post, followed by a fair and objective selection of all the eligible candidates from the open market.

Heavy reliance was placed by learned counsel for the petitioner on para 41 of the writ petition to contend that other similarly appointed persons have been regularized, however, this aspect has already been dealt with earlier. Further, on a perusal of the said paragraph itself it comes out that there were only two sanctioned posts one of Junior Assistant and another of Senior Assistant. The petitioner himself has stated that the persons referred therein were working as Clerk though without any post and without any selection, therefore, even as per the stand of the petitioner there is no question of any parity being given to the original petitioner, who, in fact, has died on 13.10.2015, and his legal heirs have been substituted in his place, as there can be no parity in illegality i.e. there can be no negative parity. Moreover, even in the said paragraph, it has been stated that those persons were initially appointed on daily wages and thereafter they are being treated as regular. If it is so, then it is for the concerned authorities to see as to how it is so but no parity can be given to the petitioner. The Court also takes note of the fact that no deductions were made towards Contributory Provident Fund from the alleged salary paid to the petitioner, a fact which has also been taken note of by the three member Inquiry Committee. The contention of the petitioner that he had asked that his deductions towards C.P.F. be not made, does not cut much ice as it is necessary as per the relevant rules i.e Rule 72 read with Appendix B and there is no exemption of the petitioner on record. Moreover, as already stated, there is nothing on record to establish the regular appointment of the petitioner or his confirmation on any post as per law. It is also the case of Pharmacy Council that on 24.01.1984, the then President's tenure had come to an end and there was some restraint order, therefore, he could not have given any approval for the alleged appointment vide letter dated 24.01.1984 which in any case cannot be said to be legal and in accordance with law.

In view of the above discussion, no ground is made out for interference in the matter in favour of the petitioner. Accordingly, the writ petition is dismissed.

(Rajan Roy,J.)

Order Date :- 13.01.2023

Shanu/-