Allahabad High Court
Surendra Nath Yadav Son Of Sri Ram Prasad ... vs State Of Uttar Pradesh Through The ... on 23 April, 2007
Equivalent citations: 2007(4)AWC3262
Author: Dilip Gupta
Bench: Dilip Gupta
JUDGMENT Dilip Gupta, J.
1. The quashing of the order dated 27th September, 2005 passed by the learned District Judge, Hamirpur terminating the services of the petitioners who were serving as Chaukidars in District Judgeship. Hamirpur has been sought in all the three petitions and, therefore, they have been heard together and are being decided by a common judgment.
2. I have heard Sri Vikas Budhwar learned Counsel for the petitioner in Writ Petition No. 68129 of 2005 and Writ Petition No. 68131 of 2005 while Sri V.K. Agninotri learned Counsel has appeared for the petitioner in Writ Petition No. 69060 of 2005. On behalf of the District Judge, Hamirpur, Sri Rajiv Gupta has made his submissions while the learned Standing Counsel has made his submission on behalf of the State of U.P. Sri M.P.S. Chauhan has put in appearance on behalf of Sri Ratnakar Dixit the then District Judge, Hamirpur.
3. Sri Surendra Nath Yadav who has filed Writ Petition No. 68129 of 2005 claims to have been appointed as a temporary Chaukidar in District Judgeship, Hamirpur by means of the order dated 25th November, 1997 w.e.f 1st December, 1997. He claims to have been subsequently transferred and posted as Process Server by means of the order dated 28th May, 2002 and then as an Office Peon by means of the order dated 7th June, 2005. He was issued a show-cause notice dated 6 th September, 2005 by the District Judge, Hamirpur calling upon him to explain why his services should not be terminated as there was no vacancy on the post of Chaukidar when he had been appointed on 1 st December, 1997. A reply to the aforesaid show-cause notice was filed by the petitioner on 21st September, 2005 and thereafter the order dated 27 th September, 2005 was passed terminating the services of the petitioner on the ground that there was no vacancy on the post of Chaukidar when the petitioner was appointed.
4. Writ Petition No. 68131 of 2005 has been filed by Govind Narain. It has been stated that he was appointed as a temporary Chaukidar by the District Judge, Hamirpur by means of the order dated 15 th February, 2005. He was thereafter transferred as a Process Server by means of the order dated 1st April, 2005 and then again as Chaukidar by the order passed in May, 2005. Soon thereafter he was again transferred as Office Peon by the order dated 31 st May, 2005. A show-cause notice dated 6th September, 2005 was issued by the District Judge, Hamirpur calling upon him to explain why his services should not be terminated as there was no vacancy to the post of Chaukidar when he had been appointed on 15 th February, 2005. A reply to the aforesaid show-cause notice was filed by the petitioner on 22 nd September, 2005 and thereafter the order dated 27th September, 2005 was passed terminating the services of the petitioner on the ground that there was no vacancy on the post of Chaukidar when the petitioner was appointed.
5. Sri Om Prakash, who has filed Writ Petition No. 69060 of 2005, claims to have been appointed as a temporary Chaukidar by the District Judge, Hamirpur by means of the order dated 15 th February, 2005. He was thereafter transferred as Orderly by means of the order dated 31st March, 2005. A show-cause notice dated 6th September, 2005 was issued by the District Judge, Hamirpur calling upon him to explain why his services should not be terminated as there was no vacancy to the post of Chaukidar when he had been appointed on 15 th February, 2005. A reply to the aforesaid show-cause notice was filed by the petitioner on 21st September, 2005 and thereafter the order dated 27 th September, 2005 was passed terminating the services of the petitioner on the ground that there was no vacancy on the post of Chaukidar when the petitioner was appointed.
6. The appointment to Class IV post in District Judgeship is provided under Rule, 4 of the U.P. Subordinate Civil Courts Inferior Establishment Rules, 1955 (hereinafter referred to as the 'Rules') and the same are as follows:
4, Method of recruitment: Recruitment to the following posts in the establishment shall be made.
(1) Daftaries and bundle litters- By promotion strictly on merits from amongst process servers, orderlies, office peons and farrashes who have put in at least five years service as such:
Provided that no person shall be promoted to these posts unless he is able to read and write Hindi in Devnagri Script' with correctness and fluency and can discharge the duties of the office satisfactorily and in the case of the post of daftari unless he also knows book binding.
(2) Process servers, orderly, peons. Office peons and farrashes-(a) by appointment of candidates on the waiting list prepared under Rule 12 or
(b) by transfer from one post to another according to suitability.
(3) Chaukidars, Malis, Waterman and sweepers- By direct recruitment on the discretion of District Judge.
7. The petitioners claim to have been appointed as Chaukidars under Rule 4 (3) which provides that they have to be appointed by direct recruitment on the discretion of District Judge.
8. A perusal of the order dated 27th September, 2005 that has been issued by the District Judge, Hamirpur terminating the temporan services of the petitioners indicates that in District Judgeship Hamirpur there are three sanctioned posts of Chaukidar and that on the said three posts, Sri Om Prakash Dhunya was working w.e.f 19 th April, 1992, Sri Ramesh Chandra Soni w.e.f 1st June, 1995 and Sri Shakil Ahmad w.e.f. 11th July, 1997. Subsequently Sri Ramesh Chandra Soni and Sri Shakil Ahmad were promoted to Class III posts sometimes in August, 2003 but on the date they were promoted, two other persons namely Sri Akhileshwar Tiwari and Sri Sahid Alam were also working as Chaukidars w.e.f. 19thApril, 2000 and 19th September, 2001. The District Judge, therefore, came to the conclusion that at the relevant time against the three sanctioned posts, Sri Om Prakash Dhuriya, Sri Akhileshwar Tiwari and in Shahid Alam were working and there was therefore, no vacancy on the post of Chaukidar when the petitioners had been appointed. He has. therefore, cancelled their temporary appointments.
9. Learned Counsel for the petitioners submitted that the finding recorded by the District Judge that there was no vacancy on the post of Chaukidar when the petitioners were appointed, is not correct. They further submitted that in any view of the matter the petitioners had worked for a considerable period of time and, therefore, a sympathetic approach should have been adopted and the services of the petitioners should not have been terminated.
10. Sri Rajiv Gupta learned Counsel appearing for the respondents, however, submitted that in the absence of any vacancy on the post of Chaukidar the temporary appointments of the petitioners were void and that in such matters sympathetic approach should not be adopted.
11. I have carefully considered the submissions advanced by the learned Counsel for the parties.
12. The contention of the learned Counsel for the petitioners that they had been appointed against the existing vacancies cannot be accepted. It has not been disputed by the petitioners that there were only three sanctioned posts of Chaukidar in District Judgeship, Hamirpur. The impugned order clearly recites that on the date the petitioners are appointed, three persons namely Sri Cm Prakash Dhuriya, Sri Akhileshwar Tiwari and Sri Shahid Alam were working. This has not been controverted by the petitioners but what they state is that since Sri Ramesh Chandra Soni and Sri Shakil Ahmad were promoted to Class III posts sometimes in August, 2003, two vacancies came into existence and, therefore, the appointments of Sri Govind Naram and Sri Om Prakash Dhuriya that were made on 15th February, 2005 were against the existing vacancies. It has also been stated that Sri Akhileshwar Tiwari and Sri Shahid Alam had been transferred from other districts and, therefore, it cannot be said that the vacancy stood filled led up. This contention cannot also be accepted because whether they had been appointed in district Hamirpur or they had come on transfer from other Districts would be of no relevance as admittedly all the three vacancies stood filled up. The petitioners were, therefore, appointed even though there existed no vacancy on the post of Clerk in District Judgeship, Hamirpur.
13. The question, therefore, that needs to be determined is whether the District Judge was justified in cancelling the appointments that had been made without their being any vacancy but at the same time it must also not be forgotten that the petitioners had been appointed on temporary basis and a temporary employee has no right to the post as has been held by the Supreme Court in the cases of State of U.P. v. Kaushal Kishore Shukla ; Triveni Shankar Saxena v. State of U.P. and Ors. ; Commissioner of Food & Civil Supplies v. Prakash Chandra Saxena ; Ram Chandra Tripathi v. U.P. Public Services Tribunal and Ors. ; Madhya Pradesh Hast Shilpa Vikas Nigam Ltd. v. Devendra Kumar Jain and Anr. .
14. The Supreme Court has repeatedly emphasized that any appointment which has been made even in the absence of a vacancy is void and confers no right upon the appointee to continue in service.
15. In Sanjay K. Sinha-II and Ors., v. State of Bihar and Ors. 2004 AIR SCW3214 the Supreme Court observed:
...The posts to which substantive appointments were to be made were not available, therefore, there could be no appointment to the service.... This leads to the conclusion that the appointments of the respondents promotees between June and November. 1987 as ACFs were against non-existing posts.... It is settled law that appointments made contrary to the rules are merely fortuitous and do not confer benefit of seniority on the appointees over and above the regular/substantive appointees to the service....See C.K. Antony v. B. Muraleedharan and Ors. , M.S.L Patil, Asstt. Conservator of Forests, Solarpur (Maharashtra) and Ors. v. State of Maharashtra and Ors. and State of Maharashtra and Anr. A.W. Dhope and Ors. v. Sanjay Thakre and Ors. 1995 Supp (2) SCC 407....
16. In Binod Kumar Gupta and Ors. v. Ram Ashray Mahoto and Ors. the Supreme Court observed:
The District Judge, who was ultimately responsible for the appointment of Class IV staff violated all norms in making the appointments. It is regrettable that the instructions of High Court were disregarded with impunity and a procedure evolved for appointment which cannot be said to be in any way fair or above board. The submission of the appellants that they had been validly appointed is in the circumstances unacceptable. Nor can we accede to their prayer to continue in service. No doubt, at the time of issuance of the notice on the special leave petition, this Court had restrained the termination of services of the appellants. However, having regard to the facts of the case as have emerged, we are of the opinion that this Court cannot be called upon to sustain such an obvious disregard of the law and principles of conduct according to winch every judge and anyone connected with the judicial system are required to function. It we allow the appellants to continue in service merely because they have been working in the posts for the last 15 years we would be guilty of condoning a gross irregularity in their initial appointment. The High Court has been more than generous in allowing the appellants to participate in any fresh selection procedure as may be held and in granting a relaxation of the age limit.
17. In this connection reference may also be made to the decisions of the Supreme Court in State of M.P. and Ors., v. Lalit Kumar Verma 2007 AIR SCW 70 and in State of U.P. and Ors. v. Desh Raj 2007 AIR SCW 222. The Supreme Court has emphasized in these decisions that there is a distinction between the irregular appointment' and illegal appointment'. In the event the appointment is made in total disregard of the Constitutional scheme as also the recruitment rules framed by the employer, the recruitment would be illegal whereas it would be irregular if substantial compliance of the Constitutional scheme as also the rules have been made but some provision or some rule has not been strictly adhered to. It has also been observed that where the appointment was made only on the basis of an application and without there being any clear vacancy, the appointment would be illegal and such appointees would have no right to continue in service. The Supreme Court has also held that if the appointment is made in violation of the Constitutional Scheme of equality as enshrined under Articles 14 and 16, it would be illegal and void ab inito.
18. In view of the above discussion, it has to be held that the District Judge committed no illegality in cancelling the appointment of the petitioners on the ground that no vacancy existed when they were appointed.
19. This apart, what has to be noticed that all the three appointments had been made by the District Judge, Hamirpur without issuing any advertisement. The Supreme Court has emphasized that appointment to any post can be made only after proper advertisement has been made inviting applications from eligible candidates and any appointment without holding the proper selection where all eligible candidates get a fair chance to compete would be violative of Article 16 of the Constitution of India and therefore. illegal. It has also been observed that there has to be equality of opportunities in matters of public employment and this principle would also govern the mstrumentalities that come within the purview of Article 12 of the Constitution of India.
20. In this connection reference may be made to the decision of the Supreme Court in Union Public Service Commission v. Girish Jayunti Lal Baghela and Ors. wherein it was observed:
...The appointment to any post under the State can only be made after a proper advertisement has been made inviting applications from eligible candidates and holding of selection by a body of experts or a specially constituted committee whose members are fair and impartial, through a written examination or interview or some other rational criteria for judging the inter se merit of candidates who have applied in response to the advertisement made.
21. Reference may also be made to the Constitution Bench decision of the Supreme Court in Secretary, State of Karnataka and Ors. v. Umadevi and Ors. , in which it was observed:
...Article 309 of the Constitution gives the Government the power to frame rules for the purpose of laying down the conditions of service and recruitment of persons to be appointed to public services and posts in connection with the affairs of the Union or any of the States. That Article contemplates the drawing up of a procedure and rules to regulate the recruitment and regulate the service conditions of appointees appointed to public posts, it is well acknowledged that because of this the entire process of recruitment for services is controlled by detailed procedure which specify the necessary qualifications, the mode of appointment etc. If rules have been made under Article 309 of the Constitution, then the Government can make appointments only in accordance with the rules....
In addition to the equality clause represented by Article 14 of the Constitution, Article 16 has specifically provided for equality of opportunity in matters of public employment.... In view of the interpretation placed on Article 12 of the Constitution by this Court, obviously, these principles also govern the instrumentalities that come within the purview of Article 12 of the Constitution....
Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article to of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law," has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee....
22. In the present case, all the appointments were made without issuing any advertisement. The petitioners, therefore, had no right to continue on the said post. Learned Counsel for the petitioners, however, urged that there was no requirement in law for issuing any advertisement as the appointment to the post of Chaukidar had to be made on the discretion of the District Judge. This contention cannot be accepted as even if it is to be made on the discretion of the District Judge then too the District Judge cannot make appointments in an arbitrary manner dehorse the provisions of Articles 14 and 16 of the Constitution. It has been pointed out by the Supreme Court in the above mentioned cases that where all the eligible candidates are not given a fair chance of competing in the matter relating to appointment, Article 16 of the Constitution is violated and that rule of equality in public employment is a basic feature of the Constitution.
23. Learned Counsel for the petitioners in the end submitted that a sympathetic view should be taken. In this context it may be useful to reproduce a passage from the judgment of the Supreme Court in the case of State of Madhya Pradesh and Anr. v. Dharam Bir wherein it has been observed as follows:
The plea that the Court should have a "human approach" and should not disturb a person who has already been working on this post for more than a decade also cannot be accepted as the Courts are hardly swayed by emotional appeals.
24. In Teri Oat Estates (P) Ltd. v. U.T. Chandigarh and Ors. 1], it is stated:
We have no doubt in our mind that sympathy or sentiment by itself cannot be a ground for passing an order in relation whereto the appellants miserably fail to establish a legal right....
25. As early as in 1911, Farewell, LJ in Latham v. Richard Johnson and Nephew Ltd. 1911-13 AER Reprint p. 117 observed:
We must be careful not to allow our sympathy with the infant plaintiff to affect our judgment. Sentiment is a dangerous Will O' the Wisp to take as a guide in the search for legal principles.
26. Yet again recently in Ramakrishna Kamat and Ors. v. State of Karnataka and Ors. , the Hon'ble Supreme Court observed:
...We repeatedly asked the learned Counsel for the appellants on what basis or foundation in law the appellants made their claim for ' regularisation and under what rules their recruitment was made so as to govern their service conditions, They were not in a position to answer except saying that the appellants have been working for quite some time in various schools started pursuant to resolutions passed by Zila Parishads in view of the Government Orders and that their cases need to be considered sympathetically. It is clear from the order of the learned single Judge and looking to the very directions given a very sympathetic view was taken. We do not find it either just or proper to show any further sympathy in the given facts and circumstances of the case. While being sympathetic to the persons who come before the Court, the Courts cannot at the same time by unsympathetic to the large number of eligible persons waiting for a long time in a long queue seeking employment....
27. Thus, for all the reasons stated above, there is no merit in these petitions. They are accordingly, dismissed.