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Judgment
Heard the counsel for the appellants Sri Sudeep Seth and Sri Ganga Singh for respondent no. 1.
Though respondent no. 3 has been duly served but he has not chosen to appear.
This special appeal by the Executive Officer, Nagar Palika Parishad has been filed assailing the order passed by the learned Single Judge dated 29.10.09, by means of which the termination order of the respondent no. 1 has been set aside and he has been directed to be reinstated into service forthwith with all consequently benefits.
The respondent no. 1 was engaged as tractor driver on consolidated wages of Rs. 1500/ per month vide order dated 1.1.06. He was disengaged/his services were terminated vide order dated 8.11.06 passed by the Executive Officer.
The learned Single Judge has allowed the writ petition on the sole ground that the respondent no. 1 was appointed by the Executive Officer, who was otherwise also, the appointing authority of the post of driver but his services have been terminated on the directive of the Adhyaksha, Nagar Palika Parishad i.e. his superior officer and, therefore, the termination of service is bad, the same having not been issued by exercise of independent discretion of the appointing authority. To keep the record straight it would be appropriate for this Court to mention that, in fact, the respondent no. 1 was appointed by the Administrator and not by the Executive Officer. This fact is evident by the application that he had moved of his own before the then Administrator on 31.12.05 stating therein that he was having a licence of driving truck and that he was willing to perform the said job of driver, whose services were required in the Nagar Palika Parishad. This application was addressed to the Administrator and on this application, the Executive Officer made recommendation for his appointment/engagement and consequently the Administrator appointed the respondent no. 1 on the said post.
The order dated 1.1.06 is a communication to the petitioner that his appointment has been made by the Administrator and which communication, of course, has been made by the Executive Officer.
A bare perusal of the aforesaid order dated 1.1.06 leaves no doubt that the appointment/engagement was made by the Administrator and information regarding this appointment/engagement was communicated by the Executive Officer. Therefore, the view taken by the learned Single Judge that the respondent no. 1 was appointed by the Executive Officer and the Chairman could not have issued any direction for his removal or termination of his services apparently cannot be said to be based on any exact factual position in this case.
It is also to be noted that since the respondent no. 1 was appointed by the Administrator, he cannot raise any grievance about his termination from service on the directive of the Administrator, for the reason that the Administrator was functioning in place of the Adhyaksha and all powers which were vested otherwise in the Adhyaksha, were being exercised by the Administrator, under whose authority and jurisdiction, he was given appointment. Thus, it cannot be said that the order has been passed on the directive of the higher authority as, in fact, the engagement/appointment of the respondent no. 1 can only be attributed to the Administrator and consequently to the Chairman.
Apart from this, in the counter affidavit, a specific case was taken by the Nagar Palika Parishad that the appointment of respondent no. 1 was not made after following any procedure.
It is admitted to the respondent no. 1 himself that the post was not advertised and that he does not dispute the aforesaid fact for want of knowledge. From the record, it is clear that the respondent no. 1 of his own made an application to the then Administrator seeking appointment and that appointment was given by the Administrator. Obviously, if there was no post duly created or sanctioned, no such appointment could have been made on the post of tractor driver. Besides, if any appointment was to be made,it could not have been done without following the procedure, as prescribed for appointment on the post of driver. The respondent no. 1 was engaged on 1.1.06 and his services were terminated and he was disengaged merely after ten months after his functioning as tractor driver. It appears that on resumption of charge by the elected Adhyaksha, he has been disengaged from service.
Since the respondent no. 1 had no right to continue on the post and his appointment was made by the Administrator and not by Executive Officer, we do not find any illegality in the order terminating the services of respondent no. 1. A plea has been raised by the respondent no. 1 that, in fact, the respondent no. 1 was removed for accommodating the respondent no. 3 and that if respondent no. 1 cannot be appointed, there being no sanctioned post, then the respondent no. 3 also could not have been appointed on the said post and his appointment is also per se illegal for that reason.
We are not adjudicating upon the right of respondent no. 3 for continuing on his post, but it is for the Nagar Palika Parishad to see that the rules are followed in the matter of making appointments.
It is also the case of the Nagar Palika Parishad that the respondent no. 3 was working since 2000 and he had gone on leave because of being ill and when the returned, he was allowed to resume duties. This fact is being strongly refuted by the learned counsel for respondent no. 1.
We also do not find any material to substantiate the aforesaid plea but for the fact that few receipts have been filed to show that certain payment was made to the respondent no. 3 as tractor helper.
Under the circumstances, we allow the special appeal and set aside the order dated 29.10.09 passed by the learned Single Judge but issue a further direction that if any appointment is to be made on the post of driver, the case of the respondent no. 1 shall also be considered, without being swayed by the present order, alongwith other candidates.
The special appeal is allowed.