Pramod Kumar vs State of U.P. and Others

Rakesh Tiwari, J.—Heard learned Counsel for the Petitioner and the learned Standing Counsel for the State.

The facts of the case are that Petitioner claims to belong Scheduled Caste community and entitled to the appointment in vacancy for S.C. Candidates. It is submitted that Director Horticulture and Food Processing Lucknow, Respondent No. 2 directed all concerned to complete the back-log of Group ''C'' and Group '' D'' of direct recruitment post reserved for scheduled caste under Special Quota directed by the State Government. Similar order was also issued on 16.08.2002 and it was directed that recruitment may be made on top priority basis and information to the effect may be sent to him by fax or by special messenger. Consequently an advertisement dated 23/24.07.2003 was issued in Dainik Jagran by the District Horticulture Officer, Allahabad for filling up a vacancy of Mali by a S.C. Candidate including applications from the candidate of age limit of 18 years & above with educational qualification of having passed VIII th standard, last date for submission of application forms was 29.07.2003 and interview scheduled to be held on 30.07.2003.

The Petitioner applied for the aforesaid post of Mali and was interviewed on 30.07.2003 by the Selection Committee and was selected. pursuant thereto appointment letter was issued to the Petitioner on 27.08.2003 by the District Horticulture Officer, Allahabad and he joined his duties on the same day at Block Saidabad, Allahabad. Subsequently on 30.08.2003, the Petitioner was transferred from Saidabadd to Government Nursery, Chaka, Allahabad. Petitioner was issued a letter at Chaka on 25.09.2003 to attend training in Khusroo Bagh, Allahabad.

It is stated that the Additional Director (Administration), Horticulture and Food Processing on 29.03.2004 directed District Horticulture Officer, Alllahabad to ensure termination of service of the candidates. Pursuant to 05.07.2004 allegedly without affording any opportunity of hearing or assigning any reason.

Learned Counsel for the Petitioner at the outset submits that similar orders impugned has been quashed in Civil Misc. Writ Petition No. 19205 of 2004, Indrajeet Ram and Ors. v. the State of U.P. and Ors. decided on 28.10.2005. The order of the Court as under:

Heard Sri D.P. Mishra, Advocate on behalf of the Petitioners and learned Standing Counsel on behalf of Respondent Nos. 1 to 4.

On 10th March, 2003, the Directorate of Horticulture, Allahabad Region, Allahabad published an advertisement inviting applications for appointment of Scheduled Castes Candidates on Group ''D'' posts in the pay-scale of Rs. 2550-3200/- for the purpose of filling-up the back log quota.

The Petitioners, who are three in number and claim to be members of Schedules Castes Category, applied in pursuance of the aforesaid advertisement. The Petitioners are possesed of all the minimum qualifications prescribed in the said advertisement.

It is contended that a duly constituted selection committee held interview and after such selections the Petitioners were appointed on Group ''D'' posts (Petitioner No. 1 was appointed as Peon while Petitioner Nos. 2 and 3 were appointed as Gardeners), copies of the appointment letters have been enclosed as Annexure-2 to the writ petition. It is further stated that in pursuance of the aforesaid appointments the Petitioners joined on 27th August, 2003 and had been continuously working on the post of peon/gardeners since then to the utmost satisfaction of the authority concerned.

It is stated that after appointment of the Petitioners, necessary papers were forwarded vide letter dated 27th August, 2003 to the Director, Horticulture and Food Processing, U.P. Lucknow (Respondent No. 2) for necessary approval.

On record is a notice dated 3rd October, 2003, whereby the Petitioners were called upon to explain as to why their appointments be not cancelled in view of the letter of Respondent No. 2 dated 27th September, 2003, amongst others on the following grounds:

(a) conditions mentioned under the Government order dated 6th May, 2003 have not been complied with,

(b) prior approval before filling up the back log quota of the vacancies available had not been obtained from the Respondent No. 2.

(c) the directions issued under the letter of the Directorate dated 19th July, 2003 have not been complied with.

On receipt of the said notice, the Petitioners submitted their replies, vide letters dated 6/8/9th October, 2003 respectively and stated that copy of the letters referred to above at item Nos. 1 to 3 of the notice were not addressed to the Petitioners nor were in their knowledge and therefore, No. fault can be attributed to the Petitioners.

By means of the order dated 7th October, 2003 the Superintendent, Government Garden, Chandra Shekhar Azad Park, Allahabad (Respondent No. 4) stayed the appointment order of the Petitioner, Further by means of the order dated 31st March, 2004, the appointment offered to the Petitioners has been cancelled by the Respondent No. 4 only on the ground that the appointment so offered to them was subject to the approval of the Respondent No. 2, since Respondent No. 2 has not approved the appointment so offered to the Petitioners till date, the appointment of the Petitioners are being terminated on payment of one month salary in lieu of one month notice (identical letters of termination have been issued to all three Petitioners). It is against these identical orders dated 31st March, 2004 that the present writ petition has been filed.

It is submitted on behalf of the Petitioners that they were appointed against the substantive vacancies after following the procedure prescribed under the provisions of Group '' D'' Employees Service Rules, 1985. There is No. provision, which provides for any approval being obtained from the Director (Respondent No. 2) in respect of such appointment. Therefore, If the Director (Respondent No. 2 ) has not been able to consider the claim of the Petitioners ( which is not required under the provisions of Group ''D'' Employees Service Rules, 1985), the impugned order terminating the services of the Petitioners cannot be legally justified.

A counter affidavit has been filed on behalf of the Respondents and in paragraph-3 it has been stated that the selection committee has recommended the name of the Petitioners for appointment, after the process was initiated for filling up the back log vacancies. The Petitioners were appointed in contemplation of approval by the Director (Respondent No. 2) and since the approval has not been granted, the services of the Petitioners had been brought to an end.

I have heard learned Counsel for the parties and have gone through the records of present writ petition.

Appointment on the posts in question is regularized by the Rules known as " Group ''D'' Employees Service Rules, 1985". The aforesaid Rules lay down the procedure for making appointment on Group ''D'' posts, which has admittedly been followed in the facts of this case. The counter affidavit raises No. questions with regard to the process of selection. It is not in dispute that the Petitioners are possessed of all the prescribed qualifications and belonging to the reserved category for which said selections were held in order to fill the back log vacancies.

The aforesaid Rules do not contemplate any approval from Respondent No. 2 in respect of appointments to be offered to the selected candidates. Reference in that regard may be had to Rule-23 of the Group ''D'' Employees Service Rules, 1985, which read as follows:

Appointment.---(1) On the occurrence of substantive vacancies the appointing authority shall make appointments for the list of candidates prepared under Rule 21 or Rule 22, as the case may be, in the order in which their names appear in the list.

(2) The appointing authority shall also make appointment in officiating and temporary vacancies from the said list and in the manner referred to in sub rule (1).

(3) When the list of selected candidates is exhausted or No. candidate is available for appointment may be made by the appointing authority from amongst the eligible candidates.

Provided that such appointment shall not last for a period exceeding one year or beyond the next selection under these rules, whichever be earlier

In view of the aforesaid, if any internal directions has been issued by the Department for obtaining approval with regard to appointment on Class-IV post, it was purely an internal arrangement. If Respondent No. 2 has not taken any decision to either approve or disapprove the selection so held till date, the Respondents are not justified in terminating the appointment of the Petitioners."

In view of the aforesaid, the impugned order dated 31st March, 2004, cannot be legally sustained and is hereby quashed. The Petitioners shall be restored back in service and shall be entitled their salary accordingly.

However, it is provided that if the Respondent No. 2 has not processed the selection/appointment and if any illegality is noticed in the same, it shall be open to the Respondent No. 2 to pass appropriate orders in accordance with law after affording opportunity to the Petitioners.

The present writ petition is accordingly allowed.

Learned Standing Counsel has gone through the copy of the judgment quoted above and he submits that it appears that the facts of the case are similar and squarely covered by the aforesaid judgment.

In view of the aforesaid, it appears that the Petitioner is continued in service on the post of Mali and is being paid his salary in view of judgment dated 28.10.2005 rendered in Writ Petition No. 19205 of 2004, the orders impugned in this writ petition dated 05.07.2004 passed by District Horticulture Officer, Allahabad and order/letter dated 29.03.2004 passed/issued by the Additional Director (Administration), Horticulture and Food Processing, U.P. Lucknow are quashed in view of the judgment dated 28.10.2005 in Writ Petition No. 19205 of 2004, Indrajeet Ram and Ors. (supra).

This Court vide interim order dated 1.07.2004, stayed the order impugned dated 05.07.2004 in the following terms:

Until further orders of this Court, the effect and operation of impugned order dated 05.07.2004 passed by Respondent No. 3, annexure No. 1 to the writ petition shall remain stayed. The Petitioner shall be continued in service as Mali and paid his salary.

Therefore, the Respondents are further directed not to interfere in the peaceful working of the Petitioner as Mali in Government Nursery, Chaka and shall pay his salary month to month as and when it falls due.

The present writ petition is accordingly allowed. No. orders as to costs.