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RAJYA KRISHI UTPADAN MANDI PARISHAD THRU' DIRECTOR & OTHERS versus STATE PUBLIC SERVICE TRIBUNAL AND ANOTHER

High Court of Judicature at Allahabad

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Rajya Krishi Utpadan Mandi Parishad Thru' Director & Others v. State Public Service Tribunal And Another - WRIT - A No. 47418 of 2005 [2005] RD-AH 6668 (30 November 2005)

 

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 OF ALLAHABAD

COURT NO.34

Civil Misc. Writ Petition No. 47418 of 2005

Rajya Krishi Utpadan Mandi Parishad & Ors.

Versus

State Public Services Tribunal, Lucknow & Ors.

Hon'ble Dr. B.S. Chauhan, J.

Hon'ble Dilip Gupta, J.

This writ petition has been filed against judgment and order of the U.P. State Public Services Tribunal, Lucknow (hereinafter called the ''Tribunal') dated 29.03.2005 by which the order of termination of the services of the respondent-employee has been set aside issuing a direction to treat the said employee in continuous service.

The facts and circumstances giving rise to this case are that the respondent employee made an application suo motu that he may be given employment in petitioners' Department and on his application, the Additional Director passed the order on 04.01.1997 directing the Secretary of the Mandi Samiti, Mathura to give him employment for 89 days as a stop gap arrangement on a fixed salary of Rs.1,700/- per month as a Mandi Assistant. Another order dated 26th March, 1997 was passed by the same Authority that the said employee would continue till the regular selected candidate was appointed. The employee stood transferred from Mandi Samiti Ganjdundvara, District Etah to  Mandi Samiti Koshikalan, Mathura vide order dated 30.05.1998 with a  direction to relieve him forthwith so that he could join at Koshikalan, Mathura (Annex.CA-5). He submitted the joining report in Koshikalan, Mathura but he was not permitted to join as there was no vacancy. Respondent no.2 issued an order dated 17.11.1997 that there was no allocation of budget for making the payment of salary  of the employee who had not been appointed regularly, hence he was not paid the salary and being aggrieved, he filed a claim petition before the Tribunal which had been allowed by the judgment and order dated 29.03.2005. Hence the present petition.

Shri B.D. Mandhyan, learned Senior Counsel appearing for the petitioners submitted that the employee was appointed on a tenure post for only 89 days. No vacancy had ever been advertised. The tenure was illegally extended till the regular selection was made. His appointment and extension of service has been in Mandi Parishad, Mathura. Subsequently, he had been transferred from Ganjunvara to Koshikalan, Mathura, though there was nothing on record to show as to how he could join in there. As his appointment was illegal rather void, as the same was not in consonance with the provisions of Articles 14 and 16 of the Constitution of India,, he could not claim any relief, whatsoever. It was specifically stated by the present petitioners before the learned Tribunal  on oath that no person junior to him had been retained in service, therefore, the Tribunal erred in recording a finding that the averments made in the petition had not been denied by the department. The similarly situated persons had been removed. They approached this Court by filing Writ Petition through their Union, i.e. Writ Petition No. 35830 of 1997, Employees Union of Mandi Assistants through its Secretary Ravindra Kumar & Ors. Vs. Director, U.P. Krishi Utpadan Mandi Parisahad, Kisan Mandi Bhavan & Ors., and the same was dismissed vide judgment and order dated 20.11.1997. Being aggrieved, Special Appeal No. 8 of 1998 was preferred by the said petitioners which was dismissed by the Division Bench vide judgment and order dated 12.01.1998. The said Union filed the Special Leave Petition No. 3703 of 1998 before the Hon'ble Apex Court which stood dismissed vide order dated 05.05.1998. Thus, in view of the above, it has been submitted by Shri Mandhyan that there was no question for the Tribunal to grant relief to the said employee. Thus, the petition deserves to be allowed and the judgment and order impugned is liable to be set-aside.

Shri Mithilesh Kumar Tewari, learned counsel appearing for the respondent-employee tried to defend the judgment of the Tribunal on various grounds but he has fairly conceded to the extent that the said employee had been appointed without any advertisement or calling the names from the Employment Exchange. He could not furnish any explanation as to when/how he stood transferred to Gandunvara District Etah and what was the occasion to retransfer him to Koshikalan, Mathura immediately vide order dated 30.05.1998. Mr. Tewari submitted that a large number of persons who had illegally been appointed, like the respondent-employee, are still working rather have been regularised, therefore, the petition is liable to be dismissed.

We have considered the rival submissions made by learned counsel for the parties and have perused the record.

1. Admitted facts are that the said employee had been appointed without advertising the vacancy. Thus, his appointment itself, even on a tenure post, was in utter disregard of mandatory provisions of Articles 14 and 16 of the Constitution of India.

2. It had been denied by the present petitioners in the Written Statement filed before the Tribunal that no person junior to the respondent-employee was retained in service. There may be justification for the Tribunal that it had not been specifically denied as the persons named by the said employee in his claim petition has been retained in service. There may not be strict compliance of the provisions Order VIII Rule 5 of the Code of Civil Procedure but there was no occasion for the Tribunal to draw adverse inference once the fact of not retaining a single person junior to him in service had been stated on oath in the reply to the claim petition.

3. The Tribunal did not take into consideration the fact that the appointment of the petitioner itself was illegal and void nor it tried to find out as to whether regular selection had ever been made subsequent to the appointment of the petitioner nor it tired to find out as to how such an illegally appointed person could be transferred from one District to another. The learned Tribunal has given a detailed judgment, running into 11 pages but there is nothing except repetition of the same contents time and again. The Tribunal has recorded the following findings:-

"The contention of the opposite parties that he was not appointed as per rules cannot be sustainable in the eyes of law as the petitioner was allowed to work by the Headquarter and only the Headquarter could withdraw or cancel  his order and the Sachiv had no jurisdiction on this subject."

The Tribunal did not answer the issue raised by the present petitioners that there was no question of examining the validity of the termination order as the said employee was neither a temporary nor a permanent employee but a daily wager and he was refused the work because there was no vacancy available against which he could be permitted to continue. It is settled legal proposition that Article 14 of the Constitution is not meant to perpetuate an illegally or fraud. Thus, even if there was some person illegally appointed by the petitioners junior to the said employee and had been retained, it would not confer any right upon the respondent-employee to continue in service. More so, this fact had specifically been denied on oath by the present petitioners. Law does not require to protect any appointment made by the spoiled system.

Be that a sit may, the case is squarely covered by the judgment of this Court in Writ Petition No. 35830 of 1997, duly affirmed by the Division Bench and the Hon'ble Apex Court as mentioned herein above.

In view of the above, the petition deserves to allowed and the order impugned is liable to be set-aside.

The petition succeeds and is allowed. The order dated 29.03.2005 passed by the Tribunal is hereby set aside. No cost.

30.11.2005

AHA


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