Allahabad High Court
Smt. Mannu Devi vs State Of U.P. And 4 Others on 3 May, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2024:AHC:80645
Court No. - 34 Reserved
A.F.R.
Case :- WRIT - A No. - 14354 of 2023
Petitioner :- Smt. Mannu Devi
Respondent :- State of U.P. and others
Counsel for Petitioner :- Love Lesh Kumar Verma
Counsel for Respondent :- C.S.C., Gopal Krishna Pandey
Hon'ble J.J. Munir,J.
1. This writ petition is directed against an order dated 05.07.2023 passed by the Commissioner, Jhansi Division, Jhansi, dismissing the petitioner's appeal, arising out of an order dated 13.10.2022 passed by the Nagar Ayukt, Nagar Nigam, Jhansi, terminating her services.
2. The petitioner was appointed a Class-IV employee, a Safai Karmchari, by the Executive Officer, Nagar Palika Parishad, Jhansi vide an order dated 15.12.1994. The petitioner was issued with a show cause notice dated 25.07.2022 by the Nagar Swasthya Adhikari, Nagar Nigam Jhansi, the Nagar Palika being upgraded to a Nagar Nigam since the petitioner's appointment, asking her to show cause regarding the validity of her appointment within seven days. The petitioner was asked to show cause about the validity of her appointment on ground that at the time of her appointment, she had suppressed the fact that her husband, Brij Mohan, was in government service. The other reason indicated was that she was appointed after her father-in-law, Chandu son of Ramjani, a Safai Karmchari, resigned his post and in the vacancy caused by his resignation, the petitioner was appointed, about which the petitioner did not have any legal right. The petitioner says that she has been working as a Class-IV employee regularly since the date she joined. She submitted her reply to the show cause on 25.07.2022.
3. It is the petitioner's case that there is no complaint or adverse material against her during the period of her service. A memo dated 17.09.2022 was issued to the petitioner by the Nagar Swasthya Adhikari, asking her to appear for the purpose of a personal hearing on 20.09.2022 at 11:00 a.m. and have her say in the matter of validity of her appointment. In compliance with the memo dated 17.09.2022, the petitioner submitted her reply on 20.09.2022. The Nagar Ayukt, vide order dated 13.10.2022, terminated the petitioner's services on ground that it was made dehors the rules, depriving her of all terminal benefits. The petitioner appealed the order to the Divisional Commissioner, but the appeal too was dismissed vide order dated 05.07.2023.
4. Aggrieved, this writ petition has been instituted under Article 226 of the Constitution.
5. This Court vide orders dated 29.08.2023, 04.10.2023 and 16.10.2023 required the Nagar Ayukt, the Collector of Jhansi, the Commissioner of the Division and the Secretary, Urban Development, Government of U.P., Lucknow, to show cause why damages may not be awarded to the petitioner for the invaluable loss of those years of her life, when the petitioner could have secured lawful public or private employment. These orders were passed on the foot of a prima facie opinion that the petitioner was appointed to a public post dehors the rules that did not confer any right upon her to continue in public employment. By very detailed orders, it was impressed upon the various respondents, who were asked to file their personal affidavits, that the then Executive Officer of the Nagar Palika and the incumbent, who was functioning as the Collector, also holding charge of the Administrator of the Nagar Palika at the relevant time, by display of an act of mercy and on a humanitarian ground, granted appointment to the petitioner, which could never have been done. This resulted in the petitioner being made to serve the Nagar Palika, subsequently the Nagar Nigam, in terms of an appointment that was void. This caused prima facie the petitioner to be rendered directionless in the advanced years of her life and deprived of all economic security. It was these factors, which required the respondents to show cause why damages may not be awarded to her for offering her a void appointment. The orders, that was passed by this Court on 29.08.2023, and, particularly, the one on 04.10.2023, required the Executive Officer of the Nagar Palika, Jhansi, which should be understood as a reference to the Nagar Ayukt, Nagar Nigam, Jhansi and the Divisional Commissioner, to file their affidavits indicating the present location and status of the Executive Officer of the Palika, who offered the petitioner this appointment and the Divisional Commissioner of Jhansi at the relevant time. The Divisional Commissioner in his affidavit, as well as the Nagar Ayukt in the one that he filed, informed the petitioner that the appointment was made by the Executive Officer at the relevant time under the directions of the Administrator of the ex-Nagar Palika.
6. The Commissioner of the Division in his affidavit said that the Collector of the District was functioning as the Administrator and it was he, who sanctioned the making of a void appointment in the petitioner's favour. The identity of the Commissioner at the relevant time was disclosed, because he was dead. The name of the Nagar Ayukt at the relevant time was disclosed, but not his whereabouts. Nothing was disclosed about the District Magistrate, who had shown the act of 'mercy and compassion' in offering a void appointment to the petitioner way back in the year 1994. This Court, therefore, asked the Secretary, Urban Development, Government of U.P. to show cause why suitable compensation be not awarded.
7. In the personal affidavits filed by the Secretary, the Commissioner of the Division, the Collector, Jhansi, which are there on record, the stand taken is that the petitioner has been paid, for whatever services she has rendered, and she cannot be paid any compensation or damages because there is no provision in the U.P. Municipalities Act, 1916 or the U.P. Nagar Nigam Mahapalika Adhiniyam, 1959 or the Rules/ Regulations framed thereunder or Government Orders to pay compensation after termination of her illegal and void appointment.
8. This explanation against the damages has been given in the personal affidavit of the District Magistrate, Jhansi dated 03.11.2023. There is an identically worded explanation in an identically worded affidavit submitted by Ajay Kumar Shukla, Secretary, Urban Development, Government of U.P., Lucknow given in Paragraph No.13 of his affidavit dated 06.11.2023. There is also an identical explanation, though expressed in slightly different words, in the personal affidavit filed by the Divisional Commissioner, Jhansi. It reads:
"It is further most respectfully submitted here that the service rules, that are applicable in the case of petitioner, or any other rules for the time being in force, do not provide for awarding of any such compensation to any person and thus in absence of any such provision in the relevant rules the deponent's hands are tied, even though the deponent has full sympathies with the petitioner and the Hon'ble Court has been very considerate in taking such view in favour of the petitioner."
9. There was an earlier round of personal affidavits, one filed by the Nagar Swasthya Adhikari, respondent No.4, dated 13.09.2023; an affidavit dated 12.09.2023 filed by the Nagar Ayukt, Nagar Nigam, Jhansi; and, an affidavit dated 13.10.2023 filed by the Divisional Commissioner, Jhansi. There is another personal affidavit filed by the Nagar Ayukt dated 13.10.2023. Apart from these affidavits, there is a short counter affidavit dated 06.11.2023 filed by the Nagar Ayukt, Nagar Nigam, Jhansi and another counter affidavit dated 07.09.2023 filed by the Divisional Commissioner. There is a solitary rejoinder by the petitioner dated 27.09.2023, answering the counter affidavit dated 07.09.2023 filed by the Divisional Commissioner. This makes for all the pleadings that were exchanged between parties in compliance of the various orders that this Court passed from time to time, already detailed. The parties having exchanged all these affidavits by 06.11.2023, on the said date, it was admitted to hearing, which proceeded forthwith. Judgment was reserved.
10. Heard Mr. Love Lesh Kumar Verma, learned Counsel for the petitioner, Mr. M.C. Chaturvedi, learned Additional Advocate General assisted by Mr. Suresh Singh, learned Additional Chief Standing and Mr. Vishal Tandon, learned State Law Officer, all appearing on behalf of respondents Nos.1, 2, 3 and 6, and Mr. Gopal Krishna Pandey, learned Advocate appearing on behalf of respondent Nos.3 and 5, the Nagar Ayukt and the Nagar Swasthya Adhikari, Jhansi.
11. Upon hearing learned Counsel for the parties, this Court is of opinion that the petitioner was indeed retained in service by the ex-Nagar Palika, Jhansi, now represented by the Nagar Nigam, through an order of appointment, that is void ab initio. The order of appointment dated 15.12.1994 passed by the Executive Officer, Nagar Palika Parishad, Jhansi, reads:
"पत्रांक दिनांक
श्री चन्दू पुत्र रजवानी सफाई कर्मचारी नगर पालिका परिषद, झाँसी द्वारा प्रस्तुत शपथ पत्र आवेदन पत्र एवं मुख्य चिकित्साधिकारी का प्रमाण पत्र के आधार पर स्वेच्छा से सेवा निवृत्त होने का निवेदन किया गया है कि श्री वृजमोहन की पुत्रबधू श्रीमती मन्नू को उनके स्थान पर सेवा मे रखा जाये।
जिलाधिकारी / प्रशासक ने उनके द्वारा प्रस्तुत अभिलेखो को दृष्टिगत करते हुये, दया एवं माननीय आधार पर श्रीमती मन्नू पत्नी बृजमोहन को पालिका.... मे रखे जाने की स्वीकृति प्रदान की गई है।
श्री चन्दू पुत्र रमजानी सफाई कर्मचारी नगर पालिका परिषद झाँसी स्वैच्छा से त्याग पत्र आदेश के दिनांक से स्वीकृत किया जाता है। नियमानुसार उन्हे दो माह का वेतन पालिका मे जमा करना होगा।
श्री चन्दूपुत्र रमजानी की सेवा निवृत्त के कारण हुये रिक्त पद पर श्रीमती मन्नू पत्नी बृजमोहन की अस्थाई नियुक्ति सफाई कर्मचारी से निर्धारित समान्य मे की जाती है।
श्रीमती मन्नू नियमानुसार कार्यभार ग्रहण करते हुये नगर स्वास्थ्य सरकारी कार्यालय मे उपस्थित हो और अपना चिकित्सा प्रमाण पत्र आदि प्रस्तुत करे।
ह० अस्पष्ट
अधिशासी अधिकारी
नगर पालिका परिषद, झॉसी।
पृष्ठांकन- 850 / 9211/ दिनांक 15-12-94
प्रतिलिपि :- 1- नगर स्वास्थ्य अधिकारी को आवश्यक कार्यवाही एवं सूचनार्थ।
2- लेखाकार / कार्यालय अधीक्ष को सूचनार्थ।
3- सम्बन्धित कर्मचारियो को अनुपालनार्थ।
ह० अस्पष्ट
अधिशासी अधिकारी
नगर पालिका परिषद, झॉसी।"
12. A reading of the said appointment order ex facie shows the most serious kind of malfeasance and misuse of authority in public office by the then Executive Officer of the Nagar Nigam and the Collector of Jhansi, who was functioning as the Administrator of the Palika. It shows that a Safai Karmachari, Chandu son of Ramjani had chosen to submit his resignation from service, described as 'voluntary' because of health reasons supported by a medical certificate from the Chief Medical Officer, but subject to a condition that his daughter-in-law, Smt. Mannu, the petitioner be given service in the Nagar Palika on the post vacated by Chandu. The order of appointment recites that the Collector/ Administrator, upon looking to the record showing mercy and on humanitarian grounds, had granted permission to Smt. Mannu wife of Brij Mohan, the petitioner, to be appointed to the Palika service. The order of appointment further says that the 'voluntary' resignation submitted by Chandu, Safai Karmachari is accepted from the date of the order. It was further directed that Chandu would have to deposit two months' salary with the Nagar Palika in accordance with rules. The order then goes on to say that on the post vacated by Chandu, Smt. Mannu, the petitioner is appointed a Safai Karmachari on a temporary basis in the pay scale as admissible.
13. The petitioner's appointment letter has to be read not only as the source of her right to hold the post of a Safai Karmachari with the Nagar Nigam, but also regarded as true for everything recorded therein. After all, the respondents do not disown the date of appointment and say that the Executive Officer has issued it. What they say is that the appointment, that it purports to make in favour of the petitioner, is absolutely illegal, dehors the rules, and, therefore, void. The Nagar Palika, that is the predecessor body of the Nagar Nigam, was like the Nigam, a statutory body. It was governed by the Act of 1916 and the rules framed thereunder. Sections 71, 74 and 75 of the Act of 1916 read:
"71. Power of Municipality to determine permanent staff.- Except as provided by Sections 57, 66, 58 and 70, and subject to any general or special directions as the State Government may, from time to time, issue a Municipality may, by special, resolution, determine what servants are required for the discharge of the duties of the Municipality and [their qualifications and conditions of service.
74. Appointment and dismissal of permanent superior staff.- Subject to the provisions of Sections 57 to 73, servants on posts in the non-centralised service, carrying scale of pay equal to or higher than the lowest scale of pay admissible to the clerical staff, shall be appointed and may be dismissed, removed or otherwise punished, or the services of a probationer may be terminated, by the President, subject to the right of appeal, except in the case of the termination of the service of a probationer, to such authority within such time and in such manner as may be prescribed :
Provided that appointments on the posts of Tax Superintendent, Assistant Tax Superintendents, Inspectors, Head Clerks, Sectional Head Clerks, Sectional Accountants, Doctors, Vaids, Hakims and Municipal Fire Station Officers, shall be subject to the approval of the Municipality.
75. Appointment of permanent inferior staff.- Except as otherwise provided, the Executive Officer shall appoint servants carrying scales of pay lower than the lowest scale of pay referred to in Section 74 :
Provided that in the case there is no Executive Officer, the said appointment shall be made by the President.
14. The power to appoint inferior staff, as it is called by the Act of 1916, vests in the Executive Officer. The scheme of the Act of 1916, like any other public body, that is an instrumentality of the State, constituted, governed and regulated by statute, did not provide for appointment to a regular post in its establishment, according to whim and caprice of its officers, even the Appointing Authority. Every post in the establishment of the Nagar Palika has to be filled up in accordance with rules, conforming to Article 14 of the Constitution that give equal opportunity to all citizens. It would never be open to the Executive Officer to appoint a person, driven by considerations like personal favour, sympathy, acquaintance and the like. The same would hold true about the power or authority of a person placed in higher charge of a Nagar Palika like the Administrator thereof, when under the Act of 1916, the Municipal Board could be superseded and an Administrator appointed by the Collector or the Collector himself discharged those functions.
15. This Court believes from a reading of the letter of appointment issued in favour of the petitioner that it was issued by the Executive Officer with the leave and permission of the Administrator of the Nagar Palika, who was the Collector of the District at the relevant time. An attempt has been made by the incumbent Collector to bail out his predecessor by acknowledging that it was not possible to appoint the petitioner at all the way she was appointed by the Executive Officer, but wants this Court to doubt that the appointment was granted by the Executive Officer with the Collector's permission. About this issue, it is averred in paragraph No.6 of the affidavit filed by the incumbent Collector of the District dated 06.11.2023:
"6. ..... It is further reflects from the perusal of the aforesaid order that the erstwhile Executive Officer, Nagar Palika Parishad, Jhansi referred to some approval allegedly was given by the erstwhile District Magistrate/ Administrator and in pursuance thereof granted appointment to the petitioner on the post of safai karmchari that fell vacant due to resignation/ voluntary retirement of her father in law........."
16. This Court is convinced that the erstwhile Collector would have proven to be a robust support for the Executive Officer to pass a shockingly illegal order of the kind that he did while appointing the petitioner in terms of the order of appointment dated 15.12.1994. The reason is that an employee or an officer of any organization is also a citizen of the country and Indian citizens over generations have mystical faith, utterly ill-found, in the omnipotence of the Collector of the District. A reading of the appointment order dated 15.12.1994 shows that the Executive Officer has referred to the Collector's permission to appoint the petitioner in place of her father-in-law, who resigned on account of ill-health, adopting a merciful and humanitarian approach. The employment of these words show the Executive Officer's veneration for the Collector's authority, in the foreshadow of which he passed an absurdly illegal and utterly void order, appointing the petitioner to a post of the Nagar Palika establishment, borne on the public exchequer. The petitioner's father-in-law, being unwell, could have resigned his position alright, but never put a condition that his daughter-in-law be appointed in his place.
17. Appointment to public posts, as already said, has to follow a mechanism of recruitment known to law, which affords equal opportunity to all citizens. A retiring employee cannot virtually transfer his office to a member of his family, by nominating him/ her to a public authority, whose employment he is demitting. An appointment of this kind is so thickly violative of the scheme of equality in public employment enshrined under Articles 14 and 16 of the Constitution, that the appointment made in the petitioner's favour must be held void. The order of termination from service that has been passed, it is lamentable has come too late. Lamentable it is both for the petitioner and the Nagar Palika, now represented by their successor Nagar Nigam. It is so for the petitioner because the order of appointment has allowed her to live a whole life in a sand castle, which has met its logical end in the impugned order of termination. It is bad for the Nagar Palika and their successor Nagar Nigam because an employee, who was never appointed at all to the post of a sweeper in their establishment, has functioned and drawn salary borne on the State Exchequer.
18. The petitioner cannot be permitted to continue on a post, to which she has never been appointed under the rules. At the same time, since the petitioner, under the colour and by dint of whatever kind of appointment order, was issued in her favour on 15.12.1994, has rendered work as a Safai Karmachari for the Nagar Palika Parishad and then its successor Nagar Nigam, cannot be asked to pay back whatever she has drawn towards salary and other emoluments. If that were permitted, it would be making the petitioner render begar, something prohibited under Article 23 of the Constitution. Therefore, the respondents are not entitled to recover any emoluments from the petitioner for the work done by her. The petitioner, on the other hand, is not entitled to continue in the respondent Nagar Nigam's harness any further.
19. In the considered opinion of this Court, therefore, the impugned order does not call for any interference by this Court in the exercise of our jurisdiction under Article 226 of the Constitution.
20. Subject to the remarks, forbearing the respondents from recovering any emoluments already paid to the petitioner, this petition fails and is dismissed.
21. There shall be no order as to costs.
Order Date :- 03.05.2024
Anoop
(J.J. Munir, J.)
