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MANOJ KUMAR versus COMMISSIONER SAHARANPUR DIVISION & OTHERS

High Court of Judicature at Allahabad

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Manoj Kumar v. Commissioner Saharanpur Division & Others - WRIT - A No. - 33800 of 2002 [2007] RD-AH 16115 (28 September 2007)

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No.31

Civil Misc. Writ Petition No. 33800 of 2002

Manoj Kumar .......................................................Petitioner

Versus

Commissioner, Saharanpur Division & others... Respondents

Hon'ble Sudhir Agarwal, J.

Writ petition has been restored to its original number vide order of date passed on restoration application.

Learned counsel for the petitioner requested that since this matter is pending for the last more than five years, it may be heard and disposed of finally. The request if not opposed by the learned Standing Counsel. In view of the above, with the consent of learned counsel for the parties, I have heard this matter and proceed to decide it finally at this stage under the Rules of the Court.

This writ petition is directed against the order dated 17th July, 1995 and 10th May 2002 whereby appointment of the petitioner made by Special Land Acquisition Officer has been cancelled on the ground that the same was not made by competent authority, i.e., the appointing authority. Learned counsel for the petitioner submitted that pursuant to the Government Order No. 2-2(4)/85-205 Rajasva-13, dated 8.5.1986, Special Land Acquisition Officer appointed the petitioner, therefore, his appointment was valid.

Learned Standing Counsel, however, submitted that appointment of the petitioner on the post of Amin is governed by statutory rules and under Rule 3(a) of the Uttar Pradesh Land Acquisition (Revenue Department) Amin Service Rules, 1993 (hereinafter referred to as 1993 Rules), the appointing authority is Collector of the district concerned and the procedure for recruitment is also given under Rule 15 therein. Since neither the appointment of the petitioner was made by the competent authority, i.e., Collector nor the procedure prescribed therefor under Rule 15 of the 1993 Rules has been observed, the appointment of the petitioner is absolutely illegal and void ab initio, hence, it was rightly cancelled by respondent no.2 vide order dated 17th July, 1995 impugned in this petition. Appeal filed by the petitioner against the order dated 17th July, 1995 was also rightly rejected by respondent no.1 vide order dated 10.5.2002.

Having heard learned counsel for the parties and perused the record, it is evident that the appointment for the post in question is governed by statutory provisions of 1993 Rules. In this view of the matter, reliance placed by learned counsel for the petitioner on the Government Order dated 8th May 1986 would not help him for the reason that when recruitment is governed by the statutory rules, framed under proviso to Article 309 of the Constitution, executive orders providing otherwise, would be of no assistance since the provisions of statutory rules cannot be superseded by the executive orders. Rule 3(a) of 1993 Rules defines 'appointing authority' as under:

"(a) 'appointing authority' means Collector of the district concerned."

Under Rule 5 of 1993 Rules, there are two sources of recruitment, namely, 85% by direct recruitment and 15% by promotion from amongst the substantively appointed Chairman who have completed five years service and possess a certificate of High School from the Board of High School and Intermediate Education or equivalent examination. The procedure for direct recruitment is contained in Rules 14 and 15. Thereafter the persons who are selected have to be placed on a select list to be prepared by the Selection Committee under Rule 17. Those who are selected are to be appointed by the appointing authority under Rule 18 of 1993 Rules. Rules 14, 15, 17 and 18 which are relevant in this case are reproduced as under:

"14. Determination of vacancies.--(1) The appointing authority shall determine and notify to the Director, the number of vacancies to be filled during the course of the year as also the number of vacancies to be reserved for candidates belonging to the Scheduled Castes, Scheduled Tribes and other categories under Rule 6.

(2) The Director shall notify to the Employment Exchange in accordance with the rules and orders for the time being in force, the number of vacancies to be filled during the course of the year as also the number of vacancies to be reserved for candidates belonging to Scheduled Castes, Scheduled Tribes and other categories under Rule 6."

"15. Procedure for direct recruitment.--(1) For the purpose of recruitment there shall be constituted a Selection Committee in accordance with the Subordinate Offices Ministerial Staff (Direct Recruitment) Rules, 1985, as amended from time to time.

(2) The Selection Committee shall scrutinize the applications and require the eligible candidates to appear in a competitive examination and interview.

(3) After the marks obtained by the candidate in the written test have been tabulated the selection committee shall, having regard to the need for securing due representation of the candidates belonging to Scheduled Castes, Scheduled Tribes and other categories in accordance with Rule 6, call for interview such number of candidates as on the result of the written examination have come up to the standard fixed by the committee in this respect. The marks awarded to each candidate in the interview shall be added to the marks obtained by him in the written test.

(4) The Selection Committee shall prepare a list of candidate in order of merit as disclosed by aggregate of marks obtained by them in the written test and the interview. If two or more candidates obtain equal marks, the candidate obtaining higher marks in the written test shall be placed higher. The number of the names in the list shall be larger (but not larger by more than 25 per cent) than the number of the vacancies."

"17. Combined Select List.-- If in any year of recruitment appointments are made both by direct recruitment and by promotion, the Director shall prepare a combined select list by taking the names of candidates from the relevant lists, in such manner that the prescribed percentage is maintained the first names in the list being of the persons appointed by promotion."

"18. Appointment.--(1) Subject to the provisions of sub-rule (2) the Director shall forward the requisite number of names from the lists prepared under rules 16 and 17 to the appointing authority from whom the requisition of vacancies are received under rule 14 who shall make appointment in the order in which they stand in the list.

(2) Where, in any year of recruitment appointments are to be made both by direct recruitments and by promotion regular appointments shall not be made unless selections are made from both the sources and a combined list is prepared in accordance with rule 17.

(3) If more than one order of appointments are issued in respect of anyone selection, a combined order shall also be issued by the Director mentioning the names of the persons in order of seniority as determined in the selection or, as the case may be as it stood in the cadre from which they are promoted. If the appointments are made both by direct recruitment and by promotion names shall be arranged, in accordance with the cyclic orders referred to in Rule 17. The appointing authority shall make appointment by taking the names of the candidates in the order in which they stand in the list prepared under Rule 17."

There is nothing on record to show that the procedure aforesaid was followed. Moreover, neither it is the case of the petitioner nor it is argued by learned counsel for the petitioner that he was appointed in accordance with 1993 Rules. In view of the the statutory provisions, it cannot be said that the Special Land Acquisition Officer possessed any power for making appointment of any person on the post of Amin in Land Acquisition Department. Therefore, it is evident that the appointment of the petitioner was absolutely inconsistent and not in accordance with 1993 Rules and also was made by a person who was not competent under law to do so. In this view of the matter, no error can be said to have been committed by respondents no.1 and 2 in passing the impugned orders, cancelling appointment of the petitioner on the post of Amin made by Special Land Acquisition Officer.

The writ petition, therefore, lacks merit and is accordingly, dismissed. There shall be no order as to costs.

Dated: 28.9.2007

Akn.


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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