Allahabad High Court
C. M. Pandey vs State Of U. P. And Another on 9 September, 1999
Equivalent citations: 1999(4)AWC3415
Author: M. Katju
Bench: M. Katju, D. R. Chaudhary
JUDGMENT M. Katju, J.
1. This writ petition has been filed for a writ of certiorari to quash the order dated 26/28th June, 1999, Annexure-6 to the petition by which the service of the petitioner as Officer on Special Duty (Legal) in the service of the Mandi Parishad, U. P. was terminated. The petitioner'has also claimed a writ of mandamus restraining the respondents from interfering with the functioning of the petitioner as O.S.D. (Legal).
2. The petitioner was appointed as Administrative Officer in Hindustan Vegetables Oil Corporation Ltd. which is a Government of India undertaking at Bombay Unit and he was promoted as Senior Administrative Officer in the pay scale of Rs. 2,400-4,320 from 24.2.1989. Subsequently, the petitioner Joined as Manager (Administration) w.e.f. 1.1.1994 in Consolidated Containers (India) Ltd. at Bombay on the basic pay of Rs. 10,000 per month plus allowances and other perquisites. It is alleged In paragraph 5 of the petition that the Director, Mandi Parishad in order to reorganize the legal cell proposed to have a full fledged legal section and hence vide order dated 1.1.1996 he established a Legal Cell with one Law Officer at the Head Quarter as well as one law officer at Meerut and Kanpur. For Allahabad, it was noted that the seat of the High Court is at Allahabad and hence one officer be posted at Allahabad. True copy of the order dated 1.1.1996 Is Annexure-1 to the writ petition.
3. The petitioner applied for appointment as an officer in legal matter at Allahabad. The respondent No. 2 recommended that a post of Officer on Special Duty (Legal) in the pay scale of Rs. 2,200-4,000 be created at Allahabad. After perusing the particulars rendered by the petitioner, the respondent No. 2 recommended that on the said post which is to be created, the petitioner may be appointed as he is highly qualified and experience holder. In paragraph 8 of the petition, it is alleged that the Mandi Parishad in its meeting held on 8.4.1996 delegated the powers to approve creation of the post to the Chairman of the Mandi Parishad who is also holding the post of Agriculture Production Commissioner, U. P. In paragraph 9, it is alleged that the Chairman, Mandi Parishad on 5.6.1996 approved the proposal dated 4.6.1996 regarding appointment of the petitioner on the post of O.S.D. (Legal). Consequently, the respondent No. 2 Issued appointment letter dated 7.6.1996 appointing the petitioner on the post of O.S.D. (Legal) and the petitioner was placed on one year probation.
True copy of the appointment letter dated 7.6.1996 is Annexure-2 to the petition. In paragraph 11. it is alleged that to strengthen the functioning of the legal branch and for effective pairvi of the cases filed in Allahabad High Court, the respondent No. 2 also established a separate office for O.S.D. (Legal) at Allahabad and also conferred drawing and disbursing power upon him along with the Regional Accounts Officer, Mandi Parishad, Allahabad. True copy of the office order dated 12.9.1996 is Annexure-3 to the petition. In paragraph 12, it is alleged that separate budget was also allocated to the petitioner for running the office and he was conferred power to sanction leave of subordinate staff working under the petitioner. True copy of the order dated 6.11.1996 is Annexure-4 to the petition.
4. In paragraph 14, it is alleged that the petitioner performed his duties to the best of his ability and his work was appreciated by the higher officers. It is also alleged that the petitioner was awarded outstanding character roll entries for the years 1996-97 and 1997-98. The Standing Counsel, Mandi Parishad in the High Court Sri B. D. Mandhyan sent a letter to the Director of Mandi Parishad appreciating the work of the petitioner. True copy of the said letter dated 8.6.1999 is Annexure-5 to the petition. However, by the impugned order dated 28.6.1999 the petitioner's service was terminated. True copy of the order dated 26/28.6.1999 is Annexure-6 to the petition.
5. In paragraph 18 of the petition. It is alleged that the petitioner made enquiries about the reason for passing the Impugned termination order and came to know that the respondent No. 1 issued an order dated 12.2.1999 directing the respondent No. 2 to terminate the services of all such employees of the Mandi Parishad who were appointed irregularly between 1.4.1996 to 30.10.1997. True copy of the letter dated 12.2.1999 is Annexure-7 to the petition. Aggrieved this petition has been filed in this Court.
6. A counter-affidavit has been filed by the respondent and in paragraph 7 of the same, it is stated that according to the office order dated 1.1.1996, legal cells were to be opened at Allahabad and Meerut and the legal cell at the headquarter was to look after the litigation but there was no provision for creation of a post and no such post was created under the Regulations of 1984. It was further urged that without sanction of the post or making necessary amendment in the Regulation and without making selection as provided under the Regulation, the petitioner was made O.S.D. (Legal) at Allahabad. In paragraph 11 of the counter-affidavit, it is stated that on 8.4.1996 only a resolution for organising the legal cell Mandi Board was passed and the said resolution was sent to the Chairman of the Mandi Parishad for approval. It is urged that there was no proposal in the meeting held on 8.4.1996 for appointment of O.S.D. (Legal). The Chairman granted approval on 5.6.1996 with the rider that it will be subject to the creation of the post but till date, no approval has been obtained from the Mandi Parishad for creation of the post. Hence it is alleged that the petitioner was appointed as O.S.D. (Legal) without creation of any post. In paragraph 12, it is stated that the petitioner's appointment was an ad hoc appointment and it was irregular as no advertisement was made nor any selection committee was constituted. The petitioner alone applied for the post and he was appointed. The appointment letter Itself states that the petitioner's appointment was temporary and ad hoc. The petitioner's appointment not being according to the Regulations and not being by regular selection process, his appointment cannot be treated as a substantive appointment in the eye of taw. It is stated in paragraph 17 that against the termination order, the petitioner made a representation to the Minister of Agriculture and Chief Minister but the same were rejected. In paragraph 18, It is stated that out of 1997 persons appointed between 1.4.1996 to 31.10.1997, the services of about 1022 employees were decided to be terminated. The Mandi Parishad accordingly by office order dated 9.3.1999 terminated the services of these employees but the petitioner's case was considered sympathetically and his service had not been terminated immediately and the matter was placed before the Agriculture Minister. The Agriculture Minister passed an order that if in future there is any appointment, the petitioner will be given preference. In paragraph 19, it is alleged that there was no post of O.S.D. (Legal) and no such post was created. In paragraph 20. it is stated that the termination order is not illegal.
7. We have also perused the rejoinder-affidavit. In paragraph 3 of the same, it has been stated that the Director Mandi Parishad has recommended for creation of the post and this was approved by the Principal Secretary (Agriculture) U. P. Government, who is also the Agriculture Production Commissioner and Chairman Mandi Parishad on 5.6.1996. Hence, it is alleged that the post of O.S.D. (Legal) in the scale of 2,200-4.000 was approved by the State Government as well as the Chairman of Mandi Parishad. Photo copy of the proposal dated 4.6.1996 of the Director Mandi Parishad and the order of the Principal Secretary, Agriculture. U. P. Government are Annexures-R.A. 1 and R.A. 2 to the rejoinder-affidavit. In paragraph 7 of the rejoinder affidavit, it is stated that the Board by its resolution dated 8.4.1996 delegated its power for creating the post of the legal cadre to the Chairman and it was resolved that any decision taken by the Chairman in this regard shall be considered to be the decision of the Board. Hence, it is alleged, that since the Chairman has been delegated the power to create the post and he exercised that power, there was no Illegality in the petitioner's appointment. True copy of the resolution dated 8.4.1996 is Annexure-R.A. 3 to the rejoinder-affidavit. True copy of the salary sheet of the petitioner is Annexure-R.A. 4.
8. In paragraph 9 of the rejoinder-affidavit it is stated that the petitioner was appointed under the orders of the competent authority who selected the petitioner after going through the due process. It is also alleged in paragraph 9 of the rejoinder-affidavit that the averment regarding abolition of the entire legal cell is false and misleading. Five employees are still working in the legal cell. It is also alleged that there is no requirement for obtaining sanction of the State Government for creation of the post but even then the approval of the State Government was granted by the Principal Secretary, Agriculture, State of U.P. by order dated 5.6.1996. It is further alleged that after an Independent office of the O.S.D. (Legal) started functioning a separate budget for this office was allocated by the Mandi Parishad by letter dated 5.10.1996 and a separate Bank account was opened. Hence it is alleged the post was treated as regular and of a permanent nature. In paragraph 10 of the rejoinder-affidavit it is stated that the annual confidential reports of the petitioner are very good vide Annexures-R.A. 5 and R.A- 6 to the rejoinder affidavit. In paragraph 11 it is stated that the appointment of the petitioner was made for doing pairvi of the cases of the Mandi Parishad pending in the High Court as the Mandi Parishad was incurring heavy losses due to lack of pairvi.
9. A supplementary affidavit has also been filed and In paragraph 4 of the same it has been stated that the Mandi Parishad in the Board meeting dated 8.4.1996 delegated the power to the Chairman of the Board for creation of the post and making appointment. True copy of the resolution dated 8.4.1996 is Annexure-S.A. 1 to the supplementary affidavit. In pursuance of this resolution dated 8.4.1996 the Director, Mandi Parishad sent a proposal to the Chairman, Mandi Parishad for creation of the post of O.S.D. (Legal). This proposal dated 4.6.1996 was approved by the Chairman, Mandi Parishad on 5.6.1996 vide Annexure-S.A. 2. The Advocate General also made recommendation in favour of the petitioner vide Annexure-A.A. 7 to the supplementary affidavit.
10. We have carefully considered the argument of the learned counsel for the parties and have perused the affidavits. The first point to be considered is whether there was any post against which the petitioner was appointed. In this connection Section 26F (1) of the U. P. Krishi Utpadan Mandi Adhlniyam -states :
"The Board may appoint such officers and servants as it considers necessary for efficient performance of its functions on such terms and conditions as may be provided for in regulations made by the Board."
Section 26G states :
"Subject to the superintendence of the Board, the general control and direction over all the officers and servants of the Board shall be vested in the Director."
Section 26-1 states that the Board may, by general or special order, delegate such of Its power and duties under the Act as it may deem fit to the Director or Member Secretary or any other officer of the Board.
11. A perusal of the above provisions show that the Board can appoint such officer and servant as it considers necessary and there is no requirement for first creating the post before making appointment. Hence, in our opinion, the stand of the respondent proceeds on a misconception. The respondents seem to think that there has to be first an order of creation of the post and then there has to be a second order making appointment on the newly created post. This. In our opinion, is not contemplated by Section 26F of the Act. All that Section 26F states is that the Board can appoint such officers and servant as it considers necessary for efficient performance of its functions. In the present case, the Board by its resolution dated 8.4.1996 Annexures-S.A. 1 and S.A. 2 delegated its powers to the Chairman and further resolved that the decision of the Chairman shall be treated as the decision of the Board. This resolution was sent by the Director of the Parishad vide letter dated 4.6.1996 to the Chairman of the Board vide Annexure-S.A. 2 and there Is an endorsement dated 5.6.1996 of the Chairman of the Board (who Is. also the Principal Secretary, Agriculture. U. P.) approving of the same. Thus, in our opinion, the Board has created the post by order of the Chairman dated 5.6.1996 and has also approved the appointment of the petitioner on the said post. Hence, we do not agree with the learned counsel for the respondent that there was no post of O.S.D. (Legal).
12. The impugned order of termination dated 26/28.6.1999 states that the petitioner's appointment was without creation of the post and it was made in an irregular manner. We have already pointed out that there is no requirement under Section 26F for a separate order to create a post and the order of the Chairman of the Mandi Parishad dated 5.6.1996 approving the proposal of the Director dated 4.6.1996 resulted in both creation of the post as well as appointment of the petitioner on the post in question. In our opinion, therefore, the impugned order dated 26/28.6.1999 proceeds on a misconception. Moreover, the proposal dated 4.6.1996 was made by the Director who is the main executive authority in the Board. Hence, we fail to understand how the petitioner's appointment could be said to be illegal.
13. It has been alleged in paragraph 20 of the writ petition that the Impugned termination order was passed without giving opportunity of hearing to the petitioner. In this connection, the petitioner has relied on the decision of the Supreme Court in Basudeo Tiwary v. Sido Kunhu University and others, JT 1998 (6) SC 464, wherein it was held by the Supreme Court that the order of the Vice Chancellor declaring that the petitioner's appointment as lecturer was contrary to the provisions of the Rules was illegal since no opportunity of hearing was given to the petitioner. Similarly in Virendra Prasad Stngh v. State of U. P., 1998 (3) ESC 2248, this Court held that termination of service of the petitioner on the ground that his appointment was illegal or Irregular was illegal since no opportunity of hearing was given to the petitioner prior to the passing of the impugned order. The same view has been taken by this Court in Pancham Ram and others v. Chief Engineer. U. P. Jal Nlgam and others. Writ Petition No. 35490 of 1997. decided on 26.11.1998. In Basudeo Tiwary's case (supra) this Court held that the termination of service was illegal. In Pancham Rom's cose (supra) the Court relied on several decisions of the Supreme Court for holding that the termination of service of an employee on the ground that his appointment was irregular and unauthorised will be illegal If no opportunity of hearing was given before passing the Impugned order. We respectfully agree with the decision of the Court in Pancham Rani's case (supra). In the present case also, the petitioner's service was terminated without giving opportunity of hearing while holding that his appointment was irregular. Since no opportunity of hearing was given before passing the Impugned order dated 26/28.6.1999. we hold that the said order is illegal.
14. Learned counsel for the respondent urged that the petitioner's appointment dated 7.6.1996 was temporary and In ad hoc capacity and on probation for one year. In our opinion, even If the appointment was In a temporary and ad hoc capacity, the termination of service cannot be done in an arbitrary manner as arbitrariness violates Article 14 of the Constitution as held in Maneka Gandhi v. Union of India, AIR 1978 SC 597. The Impugned termination order was passed in a wholly arbitrary manner and more over no Opportunity of hearing was given to the petitioner before passing of the impugned order. Hence, we quash the impugned order dated 26/28.6.1999.
15. The petition is allowed. No order as to costs.