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BAL KRISHNA PATHAK versus DIRECTOR, TRAINING AND EMPLOYMENT U.P. & OTHERS

High Court of Judicature at Allahabad

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Bal Krishna Pathak v. Director, Training And Employment U.P. & Others - WRIT - A No. 5622 of 1999 [2006] RD-AH 1369 (19 January 2006)

 

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.9

   

Civil Misc. Writ Petition No.5622/1999

Bal Krishna Pathak Vs. The Director, Training and Employment U.P. at Lucknow & others

Hon. Sunil Ambwani, J.

Heard Shri Pankaj Mittal assisted by Shri B.K. Tripathi for the petitioner and learned Standing Counsel.  

This writ petition offers strange facts, in which the petitioner and some other persons were appointed as class III employees in Regional Employment Exchange by Shri O.P. Singh, the then Regional Employment Officer  without there being any sanctioned post, advertisement, constitution of selection committee, interview or any procedure, for such appointment set out in U.P. (Outside the Purview of U.P. Public Service Commissioner) Appointment on Group-C Post Rules, 1998.

By this writ petition the petitioner has prayed for directions to set aside the order dated 29.1.99 by which his appointment dated 17.6.1998 was declared to be illegal and was cancelled.  The appointment letter dated 17.6.98 was issued without there being any post or procedure for appointment  and further that there was a complete ban by the Government order dated 3.1.97 on these appointments.

At the time of hearing of this writ petition, I passed the following order 17.5.2002:

"This writ petition has been filed by Sri Bal Krishna Pathak for setting aside order dated 27.1.1999 passed by Director Training and Employment, U.P. by which his appointment order dated 17.6.1998 as Junior Clerk in the office of Regional Employment Officer, Gorakhpur has been cancelled, on the ground;- (a) that there was no vacancy, (b) no selection committee was constituted; and (c) no process of section was adopted.

By the order dated 8.3.1999, the operation of the order has been stayed.

A counter affidavit of Pravesh Kumar Srivastava, Assistant Employment Officer, Gorakhpru has been filed on 6.4.1999 stating that there was no vacancy of junior clerk or senior clerk, existed in Regional Employment Exchange, Gorakhpur, no selection committee was constituted and no interview would have been possible for want of post.  Paragraphs 7, 8, 9 & 12 of the counter affidavit are quoted as below:

"7.  That the contents of para No.5 of the writ petition are admitted with the addition that R.E.O., Gorakhpur, Sri O.P. Singh, issued the appointment letters to various persons including the petitioner in a most irregular and illegal way and also without conforming to the prescribed procedure for selection and appointment.  He, in his own interest by misleading the petitioner, allowed him to join on the post of Lower Division Clerk (L.D.A.) in R.E.E., Gorakhpur with effect from 19.6.1998.

8.  That the contents of para No.7 of the writ petition are not admitted as stated.  The name of the petitioner sent for training as claimed, was in violation of prescribed norms.  Since the petitioner was appointed on the non/existent post in a irregular and illegal way, he should  not have been sent for training when the regular staff members were available.  It is further stated that the name of the petitioner under the signature of the Director was sent on misrepresentation of the fact by the then R.E.O., Gorakhpur, Sri O.P. Singh never informed the Director about the true status of the petitioner as also the fact that he was appointed against non/existent post in a very irregular manner.  Had this fact been known to the Director, Training and Employment, U.P., Lucknow, the name of the petitioner could not have been sponsored for such a training.

9.  That the contents of para No.8  of the writ petition are admitted to the extent that the petitioner's appointment was cancelled vide letter dated 29.1.1999 by the deponent who had assumed the charge of Regional Employment Officer, Gorakhpur on the instructions of the Director, Training and Employment, U.P., Lucknow.  It may be mentioned that the then R.E.O., Gorakhpur, Sri O.P. Singh had issued large number of appointment letters in a clandestine manner without conforming to the prescribed procedure of interview, selection and appointment.  It is pertinent to point out that no selection committee was ever formed for the purpose and also the records pertaining to the constitution of selection committee are also not available in the records of Regional Employment Exchange, Gorakhpur, Sri O.P. Singh, took away those papers in order to avoid detection of his misdeeds.

12.  That the contents of para No.11 of the writ petition are misconceived, hence no admitted.  As already stated in above paras, the appointment letter was issued against the non-existent post by the then R.E.O., Gorakhpur, Sri O.P. Singh.  After the transfer of Sri O.P. Singh, the then R.E.O. Gorakhpur, a larger number of illegal appointment on the post of L.D.C. in the Regional Employment Exchange, Gorakhpur were detected about which the matter  was reported to the Director, Training and Employment, U.P./ Lucknow.  The Director, on reference, issued office order No.132/E-1/0903/Ka.Li./Avaidh Niyuktian/ Gorakhpur, dated 27.1.1999 to the deponent i.e. Respondent No.2 to scrutinize all such cases and declare such illegally issued appointment letters be cancelled forthwith.   Accordingly, the appointment of the petitioner which was also illegal and without any post, was also cancelled by order dated 29.1.1999 by the deponent."

Annexure CA-4 is an order passed by Director of Training and Employment, U.P., Lucknow dated 27.1.1999 by which an order was issued to Sri Sushil Kumar.  Regional Employment Officer, Gorakhpur to enquire into the illegal appointment of his predecessor Sri O.P. Singh, and that those orders which have not been issued and have been found fraudulent should be immediately cancelled.

The facts of the case raises an alarming picture of state of affairs in the State of U.P.  An officer of the rank of Regional Employment Officer, has been found by the Director of the department  to have made illegal appointment.  The fact that there were no vacancy and no selection procedure were followed makes these appointments fraudulent.  Counsel for petitioner informs that Sri O.P. Singh, the  Officer concerned,  has been promoted and is at present posted at Varanasi.

Learned Standing Counsel is granted four weeks time to file copy of the inquiry report on the basis of which the petitioner's appointment letter was cancelled and to inform the Court fi any action has been taken against the officer concerned.  The copy of this order shall be transmitted by the Registrar General, to the Chief Secretary, U.P. for information.

List for further hearing on 16.7.2002.  A copy of this order shall be given to learned Standing Counsel for compliance."

On 18.5.2004 following order was passed:

"While hearing this writ petition on 17.5.2002, I found that Sri O.P. Singh, who was then posted as Regional Employment Officer, Gorakhpur, at the relevant time in June, 1998, had played fraud with the department in making appointments for in excess of sanctioned strength of Clerks.  The appointments were made without following the procedure prescribed in law.  In the counter affidavit of Sri Pravesh Kumar Srivastava, Assistant Employment Officer, Gorakhpur dated 6.4.1999, these facts were brought on record.  The department has admitted that Sri O.P. Singh has made large number of appointment on the post of Lower Division Clerk in  the office of Regional Employment Exchange, Gorakhpur and the matter was reported to the Director of Training & Employment U.P., Lucknow, whereupon these appointments were cancelled.  However, it did not appear from the record that any action was taken against Sri O.P. Singh, and thus this Court directed on 17.5.2002 (two years from now) to file a copy of the enquiry report on the basis of which petitioner's appointment was cancelled and to inform the Court if any action has been taken against the officer.

Learned standing counsel states that a supplementary counter affidavit has been filed annexing a copy of the enquiry report dated 27.12.1998 in which the Senior Research Officer, Directorate of Training & Employment, U.P. Lucknow found that Sri O.P. Singh had made a larger number of unauthorized appointments.   As against 67 posts, he gave a report that these posts are 82 to mislead the department.  There is nothing in the supplementary counter affidavit of Sri K.N. Srivastava, Regional Employment Officer, Gorakhpur as to what action has been taken against Sri O.P. Singh, the then Regional Employment Officer, Gorakhpur.

The Court is deeply concerned with this matter.  Although, the enquiry was held and it was found that Sri O.P. Singh, the then Regional Employment Officer, Gorakhpur, has played fraud by misleading the department but no action has been taken.

In order to maintain transparency and purity in the public administration, it is necessary y to firmly dead and take action against the guilty officer.  Even after two years of order dated 17.5.2002, the appropriate reply has not been given to the Court.

In the facts and circumstances of the case, the Chief Secretary, Government of U.P. is directed to take immediate appropriate action in the matter and to submit a report to this Court with regard to the action taken against the guilty officer by 16th July, 2004.

List on 16th July, 2004.

Let a copy of this order be given to the learned Chief Standing Counsel for necessary action in the matter without any further delay."

On 6.8.2004 the Court passed further orders as follows:

"R.S. Parihar has sought instructions and states that a Vigilance Enquiry is pending against Sri O.P. Singh, the then Regional Employment Officer, Gorakhpur, at present posted at Varanasi.  He has produced a Fax Message sent by the Superintendent of Police, U.P. Vigilance Establishment, Gorakhpur to the Director, Training and Employment, U.P. Lucknow on 20.7.2004 informing him that on the basis fo open enquiry No.118/1999, in which the allegations against Sri O.P. Singh with regard to illegal appointments were found to be true, a First Information Report was lodged against Sri O.P. Singh being Case Crime No.1619/2003 under Section 13 (1) (d) read with Section 13(2) of Prevention of Corruption Act, 1998 and Section 5 (1) of the U.P. Public Services Reservation (for SC, ST and OBC) Act, 1992 and that the investigation is still pending.

Sri R.S. Parihar is no in a position to give statement whether any disciplinary action has been taken against Sri O.P. Singh.  The Court finds that once it has been found by the State Government in an open enquiry that the officer is guilty of suppressing fact and playing fraud with the State Government and making illegal appointments for which an FIR was lodged against him under the Prevention of Corruption Act and Reservation Act, the State was required to  consider to initiate disciplinary proceedings against him.  The Court finds that inspite of the aforesaid allegations and the investigation pending under the Prevention of Corruption  Act, the officer is still serving.

In the special facts and circumstances of the case, the Chief Standing Counsel is directed to file an affidavit of the Director, Training and Employment, U.P. Lucknow, explaining whether any disciplinary action has been taken against the officer concerned.  Let the required affidavit  be filed within next three weeks.   Copies of the order dated 18.5.2004 and the order passed today shall be supplied to the Chief Standing Counsel on free of cost for compliance.

List on 10.9.2004.  The record of Writ Petition No.5969/1999 decided on 16.4.2004 shall also be placed before this Court at the next date fixed in the matter."

The Director, Training and Employment, U.P., Lucknow has not filed his affidavit explaining as to how Shri O.P. Singh, the then Regional Employment Officer against whom prima facie the charges were established for having made appointment beyond the sanctioned post without following any procedure, was reinstated and as to what happened in the charges against him.

Learned counsel for the petitioner submits that similar petitions have been allowed by this Court  and has relied upon a judgment in Miraz Ahamad & others Vs. State of U.P. & others, writ petition No.5969/1999 dated 26.5.2004 where the writ petition was allowed on the short point of failing to observe the principle of natural justice at the time of cancellation of the order.

I find that the State Government instead of placing the order passed in this writ petition before the learned Judge  hearing the similar petitions, conceded the issue of observance of natural justice, and the writ petitions in which similar cancellation orders were challenged, were allowed on the short point. Shri Pankaj Mittal informs that the State Government has filed special appeal against the judgment.  

In the present case, all the relevant facts have come on record.  The State has established that there were no vacancies to be filled up and that there was no advertisement and constitution of selection committee at all.    There was a ban placed by the State Government on the appointments and that Shri O.P. Singh, Regional Employment Officer, Gorakhpur in complete defiance of that ban proceeded to make appointments and sent the appointees to training.    When an inquiry was made followed by a report which has been annexed to this counter affidavit of Sri K.N. Srivastava, Regional Employment Officer, Gorakhpur,  it was discovered by Shri D. Prasad, Sr. Research Officer or Director, Training and Employment, Government of U.P. dated 9.12.98, that these appointments were made beyond the sanctioned process without observing the rules for recruitment.

There is no averment in the writ petition nor the counsel for the petitioner could establish that there was any advertisement and that any selection committee was constituted.  The date of selections or on which the petitioner was interviewed, has not been given.

When these facts were stated in the counter affidavit, it was necessary for the petitioner to atleast satisfy the Court  that some form and advertisement or selection had taken place before the petitioner was appointed.    No one can be given employment dehorse the statutory rules of selection and when he fails to establish the same, it will be absolutely futile to direct the appointing authority to hold inquiry into the matter and to give the petitioner an opportunity to show cause before his appointment order is cancelled.

In the aforesaid facts and circumstances I find that the petitioner was appointed without there being any post and without making any advertisement or following any procedure of selection.  His appointment dehorse the rules of 1998 cannot be sustained.

Before parting with the case I must observe that the department has failed to satisfy the Court as to how Shri O.P. Singh against whom the charges of making appointment beyond the sanctioned post and without following any procedure of law were established  and against whom a case under Prevention of Corruption Act was instituted, was allowed to be reinstated without concluding the trial.

This judgment shall be placed by the learned Chief Standing Counsel before the Secretary of the concerned department for taking appropriate action.

The writ petition is dismissed with the aforesaid observations.                                            

Dt.19.1.2006

SP/


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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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