Rama Kant Ram vs State of U.P.and others

K.L. Sharma, J.—This writ petition has been directed against the judgment and order dated 17792 contained in Annexure10 to the writ petition rendered by the Public Services Tribunal in Claim Petition No. 31/F/III/89. A writ of mandamus has also been asked for commanding the opposite parties to allow the petitioner to continue as a Clerk against the vacancy of the year 198586 and to pay him the arrears of salary and grant him other benefits accordingly.

That facts leading to this writ petition under Article 226 of the Constitution are briefly stated as follows.

The petitioner was an ad hoc Clerk in the office of District Election Officer, Ghazipur. The District Selection Committee of the District Ghazipur made selections for the posts of Clerks/Typists in the vacancies of the different District level offices of Ghazipur in accordance with U.P. Subordinate Offices Ministerial Employees (Direct Recruitment) Rules, 1985 (hereinafter referred to as the Rules of 1985). The petitioner was placed at Sl. No. 16 in the select list of 20 candidates. The persons selected at Serial No. 1 to 15 were appointed. The name of the petitioner at Sl. No. 16 was recommended for appointment to the District Election office, Ghazipur where he was already serving as ad hoc employee. He was also appointed but unfortunately he was restrained from taking over charge in pursuance of his appointment on the alleged ground that there existed some prohibitory orders passed by the Civil Judge, Ghazipur in a civil suit. The petitioner on being advised filed Civil Suit in the court of Munsif, Ghazipur. The suit was dismissed by the 1st Additional Munsif, Ghazipur, against which the petitioner preferred Civil Appeal No. 158 of 1988. This appeal was, however, allowed on 15.12.88 and the petitioner was directed to file a Claim Petition before the U.P. Public Services Tribunal. He then filed the Claim Petition No. 31 of 1989 before U.P. Public Services Tribunal No. III Lucknow in January 1989. This Claim Petition was contested by the District Election officer Ghazipur. After hearing both the parties, the Tribunal held that the petitioner was not entitled to be appointed and paid salary with effect from 30.6.86, and the claim petition was also barred by limitation. Accordingly, he dismissed the claim petition.

In this writ petition directed against the impugned judgment and order passed by the Public Services Tribunal, the petitioner has further alleged that the remaining selected candidate placed at Serial. No. 17 to 20 have also been appointed in other offices of the District Ghazipur in pursuance of the Judgment dated 16.10.89 of the Hon''ble High Court rendered in writ petition No. 8647 of 1986 (Prem Prakash Lal and others v. State of U.P. and others), and it is now only the petitioner who has been left out of appointment even though he belongs to the Scheduled Caste category. The petitioner has also stated that he was entitled to be appointed on the basis of the selection made by the District Selection Committee for the year 198586 in the vacancies existed upto 30.6.1986 in any of the district level offices of district Ghazipur. The great injustice has been done to him despite his constant efforts.

No counter affidavit has been filed before this Court. The learned Standing Counsel Mr. O.N. Zutshi appeared on behalf of the opposite parties and argued the case on the ground that the counter affidavit had been filed on behalf of the opposite parties before the Public Services Tribunal, and the same counter affidavit may be considered on behalf of the opposite parties.

In the counter affidavit filed before the Public Services Tribunal, vide Annexure2 it was stated that the petitioner had put in 7 months 29 days ad hoc service only, and he could not be allowed to take over charge of the regular post of Clerk on the basis of his selection by the District Selection Committee because there was some prohibitory order by the Civil Judge, Ghazipur in a Civil Suit filed by one Gur Saran Lal, It was further stated that the petitioner could not be subsequently appointed because the posts of the District Election Office were taken out of the District Selection Committee on the basis of the Government Order dated 18th March,1986, and in the selection made by the District Election officer in October 1986 and in January 1987 the petitioner had not been successful, and other successful candidates, namely, Ram Jatan Ram and Kaushal Kumar were respectively appointed.

I have heard the learned Counsel for the petitioner Mr. Y.S. Lohit and the learned Standing Counsel for the opposite parties Mr. O.N. Zutshi and perused the entire record.

The position emerging from the pleadings of the parties and documents brought on record is that the petitioner, a scheduled caste candidate was selected by the District Selection Committee for appointment to the vacancies existing for the year 198586 in different district offices of the district of Ghazipur. All the candidates except the petitioner placed at Serial No. 16 of the select list have been actually appointed in different offices. The petitioner was also recommended for appointment in the District Election Office, Ghazipur and was actually appointed, but he was restrained from taking over charge of the post on the alleged prohibitory order passed by the Civil Judge, Ghazipur in a Civil Suit filed against the District Election officer itself. By Government Order dated 18th March, 1986, the posts of the District Election Office were taken out from the purview of the District Selection Committee and a different procedure for selection was provided. The District Election Officer accordingly proceeded to make fresh selection on 29th May, 1986, against which one ad hoc employee filed the Civil Suit and obtained a stay order. The District Magistrate cancelled the selection as well as appointment of the petitioner. The District Election Officer made a fresh selection in October 1986 and appointed the successful ad hoc employee Ram Jatan Ram., The District Election Officer again held selection in January 1987 and appointed the successful ad hoc employee Kaushal Kumar. The petitioner also participated in the e selections but could not succeed. The petitioner filed Civil Suit in the court of Munsif, Ghazipur for his appointment in the District Election Office on the basis of his selection at Sl.No.16 made by the District Selection Committee for vacancies in all Government Offices for the year 198586. He failed before the learned Munsif as well as before the District Judge in the appeal filed by him and also before the Public Services Tribunal in the Claim Petition filed by him.

On perusal of the judgment rendered by the Tribunal, I find that the real points of controversy have not been appreciated by the learned Tribunal and even the question of limitation was not properly considered and the Claim Petition was illegally dismissed. The question of Limitation would have been considered on appreciation of the facts that on legal advice the petitioner had filed Civil Suit in the court of Munsif in the year 1986, and he pursued the appeal in the court of District Judge in the Year 1988. After he obtained the certified copy of the judgment of the appellate court on 4.1.89, he filed a Claim Petition before the Public Services Tribunal. The petitioner was even on that date a Government servant being an ad hoc employee in the District Election Office, Ghazipur. The Cause of action had arisen to the petitioner, of course, on 30.6.86 when he was appointed in the District Election Office, but was not allowed to take over charge of the post. The entire intervening period till January 1989 was consumed in judicial proceedings taken by the petitioner before the local Civil Courts. All this period was not to be computed in the limitation of one year prescribed for the filing of the Claim Petition before the Public Services Tribunal. If the learned Tribunal had focussed its attention towards these materials and undisputed facts, it would have held that the Claim Petition presented to the Tribunal was well within limitation of one year. Therefore, the finding recorded by the learned Tribunal on the question of limitation is wholly bad and unsustainable.

Now the question requiring consideration is the entitlement of the petitioner to be appointed to a vacancy occurring during the period starting from July 1, 1985 and ending on 30th June, 1986. The admitted position indicated above shows that the petitioner on being selected by the District Selection Committee during the year 198586 was entitled to be appointed against a vacancy during that period occurring in any of the district level offices. If the District Election Office was excluded from the purview of the District Selection Committee by Government Order dated 18th March, 1986 after the selection had already been made by the District Selection Committee and he was not to be appointed in the District Election Office, he should have been forwarded to other Government Office for appointment, Instead of doing so, the District Election Officer accepted the recommendation of the selection committee and appointed him to the regular post, but on receiving subsequently the Government Order dated 18th March, 1986 he proceeded to make a fresh selection in the vacancy which had occurred during the period 198586. This Government Order dated 18th March, 1986 could not be retrospectively applied and it was to apply for vacancies occurring after 30th June, 1986, i.e., for the fresh recruitment year starting from July 1, 1986. The claim of the petitioner could not be refused by the District Election Officer on the basis of this Government Order because the vacancy had already been intimated to the District Selection Committee and selection had already been made, and the petitioner being a scheduled caste candidate was recommended for appointment, and the appointment was actually made. The prohibitory order of the Civil Judge, Ghazipur did not relate to the petitioner, and in fact it related to the selection made by the District Election Officer on 29th May, 1986 when one ad hoc employee Gur Saran Lal was not informed of the selection. This selection was cancelled subsequently by the District Magistrate, but the petitioner''s appointment was illegally cancelled by the District Magistrate who was not justified to do so in respect of the vacancy occurring during the period 198586. The District Election Officer made fresh selection subsequently in the vacancy already filled in by the petitioner. This was not justified at all. Even if the posts of the District Election Office were taken out of the purview of the District Selection Committee, as already stated, this Government Order was to apply prospectively for the fresh recruitment year starting from July 1, 1986. Therefore, I am of the opinion that the petitioner was entitled to be appointed and to hold the post of Clerk in the office of the District Election Officer, Ghazipur with effect from 30.6.1986 and was entitled to be paid salary of that post with effect from that date.

The learned Standing Counsel for the opposite parties contended that the petitioner cannot be retrospectively appointed for want of vacancies because by subsequent fresh selections the vacancies have been regularly filled in by the District Election Officer. This contention does not have any substance for the simple reason that if the District Election Officer, or the District Magistrate further have illegally cancelled the appointment of the petitioner and have not allowed him to function, the petitioner cannot be deprived of his legal right by the illegal act of the appointing authority. The vacancies had occurred and selections were made, but if such a situation arose as in the present case, even a supernumerary post can be created to accommodate the candidate illegally deprived of an appointment. Moreover, it was the duty of the District Magistrate to have accommodated the petitioner who is a scheduled caste candidate, in the vacancies available in the other Government offices during that year of 198586. It could not be justified that despite the availability of a selected scheduled caste candidate, a fresh selection was held by the District Election Officer on 29.5.86. The ad hoc employees of the District Election Office who became entitled to be considered for appointment in accordance with the revised procedure of selection under Government Order dated 18th March, 1986 would have been accommodated in the vacancies occurring after 30th June, 1986.

The learned Counsel for the petitioner further pointed out that the candidates at Serial No. 17 to 20 selected by the District Selection Committee have been appointed in other Government offices of the district Ghazipur in compliance with a mandamus of the Hon''ble High Court in writ Petition No. 8647 of 1986 decided on 16th October, 1989. It is only unfortunate petitioner who has not yet been accommodated on any regular post either in the District Election Office, or in any other Government office in the district of Ghazipur, despite his several representations to the opposite parties and the legal proceedings undertaken by him in continuation before judicial authorities referred to above. He has also brought to the notice of the Court that for last two years, the Government has itself made selections exclusively for the appointment of scheduled caste candidates in order to fill in the vacancies reserved for scheduled castes. It is an irony of fate that the petitioner is being refused appointment even though he was duly selected in accordance with the relevant service rules for the vacancy of the year 198586. It is also mockery of the Government policies that on the one hand selections are being exclusively made for scheduled1 castes candidates and scheduled tribes candidates, and on the other hand the available selected scheduled castes candidate is being refused appointment. I find substance in the contention of the learned Counsel for the petitioner. Injustice has really been done to the petitioner who has not yet been appointed even though he was duly selected scheduled castes candidate, and the District Election Officer had appointed him, but restrained him from taking over charge. There does not appear to be any genuine difficulty before the administration to get a supernumerary post created even if all the other vacancies have been filled up, to accommodate the petitioner in the same District Election Office, Ghazipur where the petitioner has been serving from time to time on ad hoc basis. The administration can also appoint the petitioner in a vacancy available in any other Government office of the district because the selection was made for the vacancies in all the Government offices combined together.

The Counsel for the petitioner also pressed the claim for payment of salary and grant of consequential benefits on the basis that the petitioner was entitled to be appointed and had been appointed as a Clerk on being duly selected in accordance with the rules to the vacancy then existing in the office of the District Election Officer, Ghazipur, but was prevented from working on that post in view of the alleged Court order. There was no fault on the part of the petitioner for not discharging the functions of the post. It was due to the fault of the District Election Office that the petitioner did not perform the duties on the post. In these circumstances, the petitioner becomes entitled to get the salary of the post with effect from 30.6.1986, in order to get the same he has been going from one door to another and has been spending money in these proceedings for last about seven years. All these circumstances create a special consideration for the petitioner who is entitled in law to get the arrears of pay and benefit of his continuous service with effect from 30.6.1986 from the office of the District Election Officer, Ghazipur.

In the result, this writ petition succeeds, and the impugned judgment and order dated 17792 passed by the Public Services Tribunal in Claim Petition No.31/F/III/89 are hereby quashed. A writ of mandamus is hereby issued commanding the opposite parties No. 1 to 3 to treat the petitioner as duly appointed to the post of Clerk in the District Election Office, Ghazipur and to pay him the salary of the said post with effect from 30.6.1986 upto date and to pay him regularly every month hereinafter, within a period of four weeks from the date of the receipt of the certified copy of this judgment and to grant the petitioner all other service benefits perquisites and entitlements on the basis of his deemed continuous service as Clerk, within a period of eight weeks from the date of the certified copy of the judgment and to communicate the formal orders to the petitioner within a week thereafter. If no vacancy exists in the District Election Office, Ghazipur, the opposite party No. 1 is hereby directed to create a supernumerary post for the petitioner with effect from 30.6,1986 till the regular vacancy becomes available to the petitioner, but the petitioner shall be treated to be in continuous service as a duly selected candidate with effect from 30.6.1986 and will get his seniority in accordance with service rules on the basis of this deemed continuous service, even though he had not been allowed to work actually on the said post. The opposite Party No. 2 is also directed to pay a sum of Rs. 2500 as costs to the petitioner within four weeks from the date of the receipt of the certified copy of this judgment. It is, however, open to the opposite No. 1 to take disciplinary action against the District Election Officer, or the District Officer, Ghazipur who had during the relevant period illegally refused appointment and work to the petitioner, a duly selected scheduled castes candidate and proceeded to make a selection on 29586.