Jharkhand High Court
Uma Kant Singh And Ors. With Sanjay Kumar ... vs State Of Bihar And Ors. on 18 July, 2001
Equivalent citations: 2002 LAB. I. C. 950, 2002 AIR - JHAR. H. C. R. 5 (2002) 1 JLJR 306, (2002) 1 JLJR 306
Author: S.J. Mukhopadhaya
Bench: S.J. Mukhopadhaya
JUDGMENT S.J. Mukhopadhaya, J.
1. All these cases relate to Technical Assistants of Animal Husbandry & Fishery Department. The petitioners have also challenged the common order, dated 23rd October, 1998, whereby and whereunder, alleging the appointments, made by the Regional Directors as illegal, it has been ordered to give notice and terminate the services of illegal appointees. In the aforesaid background, the cases have been heard together and are being disposed of by this common order.
2. The short questions, involved in these cases, are (a) whether the Regional Director of Animal Husbandry Department of State has a jurisdiction to make appointment against class III Post of Technical Assistant ? and (b) whether the appointments of the petitioners are illegal or not ?
3. To determine the issues, one must look into the background and relevant facts, as set-out hereunder. The respondent-State came out with a scheme known as (sic) Semen Bank Project'. Altogether, 400 posts of Technical Assistant were created, as is evident from letter No. 2267, dated 24th April, 1996, which are mentioned hereunder :
Ranchi 92 Palamau 70 Lohardaga 21 Gumla 32 Jamshedpur 36 Chaibasa 50 Dumka Region 100 Total 400
4. From the letter, contained in Memo No. 5192, dated 22nd July, 1993, it will be evident that all the 400 posts of Technical Assistant were created for one year and extended for subsequent years 1991-92 and 1992-93, Steps were also taken for extension of such posts for the year, 1993-94 and vide Memo No. 82-Ranchi, dated 25th January, 1992, it was decided by the State to transfer all the 400 posts of Technical Assistant to non-plan.
5. Admittedly, the power to make appointments against class III, State cadre posts was vested with the Director, Animal Husbandry Department. The respondent-State by its resolution, contained in Memo No. 218/8, dated 18th March, 1980 decided and communicated its decision, declaring the Regional Directors, Animal Husbandry, as Head of Departments of their division having same area of a Divisional Commissioner. The Regional Directors, Animal Husbandry, were also clothed with the power of the Director, Animal Husbandry, and other powers of Head of Departments.
6. The respondent-State from Animal Husbandry and Fishery Department, issued a letter No. 113/87, dated 31st December, 1987. To meet with the constitution and urgent work, the Government in special circumstances decided and permitted the Regional Directors to make appointments against class III Posts of Technical Assistant on complete temporary and short term basis, by way of ad hoc arrangement, till regular appointments are made after following the procedures.
7. It appears that after the aforesaid clearance, given by the State to make short term ad hoc arrangements by appointing Technical Assistants on temporary basis, the Regional Director, Ranchi and others made various appointments. When the matter came to the notice of the State, it issued letter No. 262, dated 21st February, 1992, prohibiting the Regional Officers to make appointment against classes III & IV Posts, including the Technical Assistants. The power delegated to the Regional Directors to make appointments of class HI employees, was taken back by the State since 21st February, 1992.
8. The ad hoc arrangements, made without following the procedures, came to the notice of the State by 21st February, 1992 and the matter was taken up. Thereafter, the State vide letter No. 2084, dated 16th April, 1996 asked to take action against the officials, who made illegal appointments and also directed to enquire the matter of illegal appointments with a further direction to release pay on the basis of sanctioned strength. It appears that certain appointments were made excess to the sanctioned posts, without following the minimum requirement and Articles 14 and 16 of the Constitution of India. In that background, the State Government vide letter No. 5021, dated 3rd October, 1996 again directed to enquire into the matter and to terminate the services of Technical Assistants, illegally appointed, after notice. Those, who were promoted from class IV posts to the higher class III posts of Technical Assistant, were asked to be paid the pay in the scale of class IV posts till the matter was finally decided.
Similar letter was issued by the State to terminate the services of illegal appointees, after show-cause notice and-reminder vide letter No. 8147, dated 7th November. 1996.
9. Thereafter, the respondents issued impugned direction vide letter No. 5530, dated 23rd October, 1998, to cancel the illegal appointments, made against the posts of Technical Assistant by direct recruitment and promotion, after notice to such illegal appointees. The grounds of alleged illegalities were mentioned for the first time, which the petitioners have challenged, as shown below :
(i) The Regional Officers had no power to appoint but the power was vested with the Director, Animal Husbandry.
(ii) The appointments were made without any recommendation of the Sub-ordinate Service Selection Board.
(iii) In terms with the order dated 31st December, 1987 the promotion and appointment could have been made by the Director. Animal Husbandry and not by other Regional Officers.
(iv) There was a ban on appointments, by the State vide Personnel & Administrative Reforms Department's order, since 1st August, 1985, that no ad hoc appointments could have been made.
(V) No advertisement was issued, giving opportunity to all eligible candidates.
(vi) Reservation rule was not followed.
(vii) Appointments were excess to the sanctioned strength.
(viii) Appointments/promotions were made without following the procedures and guidelines and
(ix) The promotions could have been granted not from the regional cadre but from the State level cadre of class IV employees, giving opportunity to all and failure of the same amounts to violation of Articles 14 and 16 of the Constitution of India.
10. Certain persons moved the Courts and obtained interim orders. In those cases, where no interim orders were issued, vide letter contained in Memo No. 4821, dated 16th September. 2000, it was ordered to remove them. Such consequential order, contained in letter, dated 16th September, 2000 has also been challenged in one or other case.
11. According to the petitioners, the Regional Directors having been delegated with the powers to make appointments vide resolution No. 218/8, dated 18th March, 1980 read with the order, contained in letter No. 113/87, dated 31st December, 1987, had power and jurisdiction to make appointments against the posts of Technical Assistants, as made in favour of the petitioners, till such power was taken away vide letter No. 8070/ 91-262, dated 21st February, 1992.
12. The aforesaid issue fell for consideration before Patna High Court in the case of Arun Kumar Singh v. The State of Bihar and Ors., CWJC No. 5080 of 1998, disposed of on 30th September, 1999, and in the case of Dayanand Jha v. The State of Bihar and Ors., CWJC No. 5533 of 1998, disposed of on 30th September, 1999, wherein, the Court taking into consideration the aforesaid resolutions, held that the Regional Directors were vested with the power to make appointments vide resolution, dated 18th March, 1980, which power was taken back in pursuance of letter No. 637, dated 28th October, 1991, followed by letter No. 262, dated 21st February, 1992. Wrong grounds having been taken to terminate the services of those petitioners, the orders were set-aside.
Similar decision was given by the Patna High Court in the case of Rajesh Kumar Srivastava v. State of Bihar and Ors., CWJC No. 1792 of 1999, disposed of on 14th October, 1999, as affirmed by a Division Bench in the case of State of Bihar and Ors. v. Arun Kumar and Ors., (LPA No. 325 of 2000, disposed of on 6th July, 2000) and in the case of State of Bihar and Ors. v. Arun Kumar Singh and Anr., (LPA No. 327 of 2000, disposed of on 6th July, 2000).
13. From the aforesaid facts and decisions of the Courts, it can be safely stated that the" Regional Directors, Animal Husbandry, had jurisdiction to make appointments by way of ad hoc arrangements against class III Posts of Technical Assistant between 18th March, 1980 to 21st February, 1992. Any appointment made between the aforesaid period against 'the posts of Technical Assistant cannot be held to be without jurisdiction or void ab initio.
14. The other issue relates to legality and propriety of appointments of the petitioners. To determine this issue, it is necessary to take into consideration the manner in which one or other petitioner was appointed, as discussed below.
15. The petitioners Uma Kant Sinha and others of CWJC No. 3503 of 1998 (R) claim to have been appointed by the Regional Director, Animal Husbandry, as Technical Assistant, between 1st March, 1988 and 9th September, 1989. Similar claim has been made by the petitioners Sanjay Kumar Srivastava and others of CWJC No. 3769 of 1998(R) that they have been appointed between 29th August, 1988, and 25th June, 1991. Though, they have given their dates of appointments in Annexure 1 to their respective writ petitions but curiously they have not enclosed their orders of appointment to find out the nature of appointment or the officers, who issued appointment letters. However, they have enclosed the copies of orders by which they were sent for training, issued by subordinate officers, like District Animal Husbandry Officers or Project Officers, who are not the appointing authorities.
16. The petitioners Shambhu Nath Yadav and others of CWJC No. 5934 of 1999(R) have also made similar claim of direct recruitments made by the Regional Directors between 28th August, 1988 and 28th August, 1989, but curiously they have also not enclosed their orders of appointment, though they have attached the orders of training, issued by subordinate officers, namely. Project Officers, etc., who were not empowered to make appointment.
17. Petitioner Ram Shankar Ram in CWJC No. 2228 of 2001 also claims to be a direct recruit to the post of Technical Assistant. He has enclosed the order of appointment contained in Memo No. 10355, dated 20th July, 1991. The said letter shows his appointment made for six months by way of ad hoc arrangement till regular appointment is made. The said order of appointment is stated to have been extended until further orders vide order No. 60, dated 29th June, 1992, till regular appointment is made on the recommendation of the Subordinate Service Selection Board. Both the orders of appointment have been issued by the Regional Joint Director, as distinct from the 'Regional Director'. There being nothing on the record to suggest that the Regional Jo'int Director was also delegated with the power to make appointment against class III Posts of Technical Assistant, the orders, dated 20th July, 1991 and 29th June, 1992 can be held to be illegal, being without jurisdiction.
18. The petitioners of aforesaid cases, namely. CWJC Nos 3503 of 1998(R), 3769 of 1998(R), 3934 of 1999(R) and 2228 of 2001 have claimed to have been appointed by direct recruitment in pursuance of the notice, published on the notice board and on the recommendation of the Selection Committee. The aforesaid submission cannot be accepted as none of the petitioners has enclosed any copy of the notice published on the notice-board, nor even given the date or month or the year of such notice. There is nothing on the record to suggest that any interview letter was issued or these petitioners were asked to appear at the interview on one or other date.
The date of interview letters have not teen disclosed by any of the petitioners, nor their dates of interview have been given.
There is nothing on the record to suggest that any Selection Committee even for ad hoc appointment made assessment of merit nor any recommendation is on the record.
19. Counsel for the petitioners initially referred the order No. 74, dated 30th December, 1988, enclosed with CWJC No. 3503 of 1998(R) to suggest the same as recommendation of the Selection Committee. Such submission is incorrect, which will be evident from the said order, dated 30th December, 1988 itself, which merely shows the order of postings, made by the District Animal Husbandry Officer, Gumla.
20. The case was heard on a date, subsequently, when the case was taken up on 3rd July, 2001, the counsel for the petitioners, without leave of the Court, submitted a list of dates and synopsis, common for all the cases, enclosing therein the copies of certain documents. It was observed by the Court that the enclosures attached to the list of dates and synopsis shall not be taken into consideration.
21. However, in the interest of justice, I have gone through the so-called proceeding, dated 7th January, 1991, enclosed with the list of dates and synopsis. It cannot be accepted as a recommendation of Selection Committee as the appointments of the petitioners were made much prior to 7th January, 1991 and the said proceeding is of an Establishment Committee for posting against one or other post of Live Stock Supervisor and deputation against the posts of Technical Assistants from amongst the members of equivalent post of Live Stock Assistant.
22. It is not in dispute that no advertisement was published before appointments of the petitioners. Admittedly, the Subordinate Service Selection Board, Patna, was the recommending body, which never recommended the name of anyone or other. On the other hand, from letter No. 8070/91-262, dated 21st February, 1992, it will be evident that appointment of Technical Assistant having been made excess to the strength, the selected and recommended candidates of Subordinate Selection Board were not appointed. Aforesaid fact shows that those, who were competent in test after due advertisement, interview and selection, were deprived of their right of consideration for appointment against the posts of Technical Assistant, all the posts having been filled up by so-called ad hoc arrangements.
23. This apart, it will be evident that the State Government since 21st bf February, 1992, issued directions to remove the illegal appointees including the direction given vide letter No. 5021, dated 3rd October. 1996, but for one or other reason, appropriate order, terminating the services of illegal appointees could not be issued because of order(s) of stay, passed by one or other Court of law, as was passed in the present cases.
24. Thus, the appointment of all the petitioners having been made by way of ad hoc arrangement, without following the procedure, without giving opportunity to all similarly situated persons in violation of Articles 14 and 16 of the Constitution of India, are illegal.
25. So far the petitioners Rabindra Cope and others of CWJC No. 3813 of 2000(R) are concerned, they claim to have been promoted against class III Posts of Technical Assistant. Admittedly, they were appointed against class IV Posts and later on promoted to the higher posts of Technical Assistant. One order No. 226, dated 2nd July, 1986 was issued by the Regional Director, Animal Husbandry, whereby, the petitioners were promoted to the posts of Technical Assistant. It was temporary in the nature and they were asked to attend training of six months. Subsequently, another order No. 25 was issued on 1st February, 1988, whereby, orders of promotion of these petitioners were issued on purported recommendation of a Selection Committee, on completion of training. This order of promotion, dated 1st February, 1988 was shown to be provisional and was issued by the Regional Joint Director, Animal Husbandry.
It has already been taken into consideration that the Regional Joint Director(s) was/were never clothed with any power to make appointments against class III Posts. Thereby, the order No. 25, dated 1st February, 1988 being without jurisdiction, petitioners Rabindra Gope and others cannot derive advantage of the same. Accordingly, the Court holds their promotion as illegal.
26. Apart from the aforesaid facts, there is nothing on the record to suggest that the State framed any rule or guideline bringing the post of Technical Assistants in a cadre for promotion from amongst class IV employees. In absence of such rule or guideline, no promotion could have been given against the class III Post of Technical Assistant from amongst class IV employees, even if, eligible.
27. This Court has also taken into consideration the guideline issued by the State to fill-up class III posts (50%) from amongst the eligible class IV employees, circulated vide personal departments resolution No. 2215, dated 11th February, 1985, printed at page 4 of 'Appointment, Seniority, Promotion, Transfer & Posting Guideline', published by Malhotra Books. In pursuance of said circular, only 50% of class III Posts of Correspondence Clerk, Typist and Routine Clerk are to be filled-up from amongst the eligible class IV employees through limited competitive examination. No separate provision made therein to fill-up class III Posts of Technical Assistants by promotion from amongst eligible class IV employees.
On this account also, the promotion of the petitioners Rabindra Gope and others cannot be held to be legal.
28. In the result, no relief can be granted and all the writ petitions are fit to be dismissed.
29. However, taking into consideration the fact that all the petitioners are working for about ten years or above, the State Governments are directed to give certain weightage to these petitioners as and when they fill-up the posts of Technical Assistant on regular basis, by giving appropriate age relaxation, if so required, and weightage over the outsiders.
30. All the writ petitions are hereby dismissed. However, in the circumstances, there shall be no order as to costs.
31. Writ petitions dismissed.