Roshan Lal vs State of U.P. & Ors.

Heard learned counsel for the parties.

This Special Appeal has been filed against the judgment and order dated 28102005, by means of which the writ petition preferred by the appellant for claiming salary from the year 1998 has been rejected.

It is not in dispute that the appellant moved an application for appointment on ClassIV post to the then Minister of Mahila Kalyan Department, U. P. Lucknow and on the basis of the endorsement made on the said application by the then Minister the appellant got appointment purely on temporary basis. In the appointment letter dated 1971997, there was a clearcut condition that the appointment was made on the recommendation made by the Minister, though the order further says that the appointment was purely temporary subject to approval of the Director and that regular appointment shall be made in accordance with rules later on by the Director, who is the appointing authority of the post. The services were also liable to be terminated at any time by giving notice.

The appointment so made by the District Magistrate was never approved by the Director nor any appointment order was issued by him.

It appears that since papers regarding the appointment of the appellant were not available in the Directorate, therefore, the Director could not get any information about his appointment and it was only from some correspondence on 30th December, 2000, it came to light that the appellant had been working as such, when he was to be posted at another place, in pursuance of a transfer order issued for the purpose.

A detailed order, thereafter was passed after giving opportunity to the appellant by the Director on 2282005 terminating the services of the appellant holding that the appointment of the appellant was made by the District Magistrate, Meerut, without following any prescribed procedure for appointment and that the District Magistrate was not even competent to make such appointment, he not being the appointing authority. The appointment of the appellant, thus, was wholly illegal and without any authority.

The learned Single Judge dismissed the writ petition after recording the finding that the appellant has no case for continuing in service. A detailed order has been passed by the learned Single Judge, which does not suffer from any illegality and infirmity.

Needless to mention, that if an appointment has been made by not following the regular procedure and without inviting applications or making publication in the news papers and without giving wide publicity to enable the other eligible candidates to participate in the selection process, such an appointment cannot be allowed to stand and cannot be protected. The State Government or its functionaries do not have any authority to appoint any person without following due procedure and make appointment merely on the recommendation made by the Minister and course, any officer, who is not the appointing authority, cannot make any appointment even either temporary or on ad hoc.

The Minister concerned had no jurisdiction or authority to entertain the application of the appellant for appointment straightway and then make endorsement/recommendation thereupon for such appointment to the District Magistrate.

The District Magistrate on his turn, though was not the appointing authority nor was competent to make such appointment but only for fulfilling the desire of the Minister concerned issued the letter of appointment to the appellant, which he could not have done.

It was only when the Director of the department got the information about the said illegality, he terminated the services of the appellant, after giving opportunity to the appellant.

In fact, the Minister ought not to have made any such recommendation. It would be apposite to put on record here that the Ministers and political persons must exercise restraint in making such recommendations and even if such a recommendation is made, which is wholly illegal and without jurisdiction as well as clear abuse of the powers of the Ministers, the Government authorities are not supposed to follow such instructions.

It yet remains to be explained that under which authority the then District Magistrate Meerut, had issued the appointment order, though he was not even competent to make any such appointment. If the District Magistrate or for that matter any Government officer is allowed to assume power to make appointment or to take actions even in respect of those matters, for which he has no jurisdiction or authority, merely because the politicians or the Ministers direct them and desire to do so, then in that circumstances, the whole system of administration will be set at naught, leading to complete anarchy and a go bye to the Rule of Law.

Not only this, it is a matter of serious concern that the State Exchequer had been forced to pay salary of the appellant for 89 years, though he was not entitled either for appointment or continuance in service and for payment of salary.

The District Magistrate who passed such an order, may be, therefore, liable to be proceeded with in accordance with law for making good the loss of the funds of the Government i.e. public money, which has been paid to the appellant only because of his own indiscreet, uncalled for and arbitrary action which was taken obviously, only to please the Minister. If the District Magistrate was more loyal to the Minister than to the rule of law he has to pay the price.

The action of the minister in issuing directives to the District Magistrate, for making appointment, though, he was not the appointing authority was wholly irresponsible, unreasonable, without jurisdiction and absolute misuse and abuse of power, but the conduct of the District Magistrate, in complying with such a direction and issuing appointment order, knowing fully well that he was not competent to appoint, is not only amazing but also shocking. The District Magistrate is a very responsible officer, he ought to have seen and told the Minister that he cannot give appointment to any person on a post in a department in which he was not empowered to make appointment and that he was not the appointing authority.

The District Magistrate, instead of apprising the Minister, about his compulsion in not being able to comply with his direction, adopted a queer and rather a new method of giving appointment by reciting in the appointment order that the appointment will have to be approved by the Director, who is the appointing authority and that regular appointment shall be made later on by the appointing authority.

It is not an appointment being made by the District Magistrate, in default or in ignorance of the fact that he was not competent to make such an appointment as is clear from the terms of the appointment order itself. The appointment order takes care of the in competency of the District Magistrate, in making the appointment and therefore, it recites that this appointment is subject to approval of the Director and regular appointment shall be made later on by the Director as per Rules.

Nothing could be placed before us either by the learned counsel for the appellant or by the State counsel to indicate that the District Magistrate was competent to make such appointment. Making appointment, that to in a Government Department, in such a manner, may amount to misconduct in service.

We, however, provide that since the appellant had worked for several years and the salary has been paid to him, therefore, the amount already paid to him would not be recovered from him but liberty is given to the State Government to take appropriate action for the aforesaid conduct against the erring officers including the District Magistrate, in addition to the action of making recovery of the amount paid to the appellant, salary for all the years, during which he remained in service, after affording due opportunity.

In the light of the observations made above, the special appeal has no force. It is accordingly dismissed.