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Judgment
Rakesh Tiwari, J.—Heard Sri Sharad Kumar Srivastava for the petitioners and Sri C.K. Parekh for the respondents.
By means of this writ petition the petitioners have prayed for a writ of certiorari quashing the order dated 6.1.1997 passed by the Up Nagar Adhikari, Nagar Nigam, Varanasi, respondent No. 4 besides a writ of mandamus commanding the respondents to allow them to work upon their respective posts and to pay their salary regularly month to month.
The facts of the case, in brief, are that petitioner No. 1 was appointed as Paid Apprentice Vaccinator on 18.12.1984 for three months which was extended twice and thereafter he was appointed on ad-hoc basis w.e.f. 3.10.1985 with the approval of the Administrator. One of the conditions of his appointment was that his services may be terminated at any time without prior notice. Thereafter on the basis of recommendations of Selection Committee he was promoted on the post of Vaccinator on ad-hoc basis w.e.f. 24.3.1988.
Petitioner No. 2 was appointed as Paid Apprentice Vaccinator on 24.3.1988 by the District Health Officer, Nagar Nigam, Varanasi on ad-hoc basis on the basis of recommendations of selection committee constituted by the Administrator. He was promoted to the post of Vaccinator by order dated 23.5.1988 and in his place one Shashi Kant Sharma was appointed as Paid Apprentice Vaccinator.
The petitioners were terminated from service vide order dated 6.1.1997 in pursuance of the order of Mukhya Nagar Adhikan dated 28.12.1996 allegedly without prior notice and opportunity of hearing.
The grievance of the petitioners, inter alia, is that despite being appointed against substantive post of Vaccinator they have been terminated without any notice or affording any opportunity and that the order has been passed by an authority below in rank of the appointing authority.
While granting time to file counter affidavit and rejoinder affidavit the Court granted interim order dated 3.2.1997 staying the operation of the impugned order dated 6.1.1997.
In para 3 and 4 of the counter affidavit filed by Nagar Nigam, Varanasi it is averred that Nagar Nigam/Nagar Mahapalika does not act independently in the matter of creation or abolition of posts and for payment of salary thereon under the U.P. Nagar Mahapalika Sewa Niyamawali, 1962 read with the U.P. Nagar Mahapalika Service (Designation, Scales of Pay, Qualifications, Conveyance Allowance and Method of Recruitment) Order, 1963. In para 6 of the aforesaid counter affidavit it is averred that Section 107(3) gives power to the Mukhya Nagar Adhikari alone to make appointment after recommendation of Selection Committee constituted by the Mukhya Nagar Adhikari, Mukhya Nagar Lekhaparikshak and Head of the Department concerned as existed before 1994. The Head of the Department concerned has power to make appointments on only the posts carrying an initial salary of not more than Rs. 180/- per mensem. In 1984 the petitioners carried initial salary of Rs. 315/- and in 1988 Rs. 325/- per mensem. Thus, Nagar Swasthya Adhikari as Head of the Department had no power to appoint the petitioners u/s 107(5) of the U.P. Municipal Corporations Adhiniyam, 1959 (hereinafter referred to as the Adhiniyam) on the relevant date. It is further averred that till 1989 there were no election, hence Nagar Mahapalika was not elected and constituted, as such the Administrator exercised all the powers of appointment. By G.O. dated 10.3.1978 the State Government specifically directed that the selection committee for the posts carrying initial pay of Rs. 200/- per month must consist Administrator along with two other officers and that u/s 108 of the Adhiniyam the maximum period provided of temporary appointments was one year only.
In paragraph 7 of the counter affidavit it is further averred that under the U.P. Nagar Mahapalika Sewa Niyamawali, 1962 the appointment can only be made by Mukhya Nagar Adhikari himself for which list of vacancies is to be prepared first. Rule 19 of the Rules gives power to Mukhya Nagar Adhikari alone to make appointment in accordance with the recommendation of the selection committee and Rules 17 to 21 give power to make regular selection.
In paragraph 8 of the counter affidavit it is averred that in accordance with Government Order dated 10.3.1978 the Administrator/Mukhya Nagar Adhikari is the appointing authority and not the Nagar Swasthya Adhikari and that the post of Vaccinator is dying cadre. For eradication of small pox the post of Vaccinators were created which came to an end in the year 1982; that these posts are now not continuing in Nagar Nigam, Varanasi and that under Government Order dated 11.3.1976 all medical service staff of the Nagar Nigam has been directed to work under Family Planning Scheme.
In paragraph 10 of the counter affidavit it is averred that Government Order dated 25.2.1983 appended as Annexure C.A. 6 to the counter affidavit clearly speaks about stopping of the work of vaccination from the year 1977 and the employees of Health Department were directed to be absorbed as Health Workers under the scheme known as Bahu Uddeshiyaa Karyakarta Yojana for rural area in the State service.
The contention of the learned Counsel for the petitioners is that the impugned termination order dated 6.1.1997 has been passed in reference to Government Order dated 28.4.1984 which is not applicable to the petitioners, but to the Vaccinators of Health and Family Welfare Department of State of U.P. It is stated that the Vaccinators of State Health Department and Nagar Nigam. Varanasi were separate and the post of Vaccinators and Paid Apprentice Vaccinators of Nagar Nigam, Varanasi were not of dying cadre as has been stated by the respondents in the counter affidavit and that the fact is that the post of Vaccinators and Paid Apprentice Vaccinators in all the Mahapalikas (Now Nagar Nigams) were not only continuing upto the year 1990 but thereafter also as is also evident from Annexure R.A. 1 to the rejoinder affidavit.
It is urged that it has been wrongly stated in the counter affidavit that options were called from all the Vaccinators of Nagar Nigam, Varanasi to join as Swasthya Karyakarta as has been stated in the Government Order dated 28.4.1984 as no options were ever called from the Vaccinators working in Nagar Nigam to join as Swasthya Karyakana. It is submitted in the counter affidavit that in pursuance of order dated 25.11.1989 passed by the Director, Medical Health and Family Welfare, Lucknow, the District Health Officer. Nagar Mahapalika. Varanasi passed an order dated 12.12.1989 designating all vaccinators as Ex-officio Deputy Registrars; that the respondents in the counter affidavit have not disclosed the fact that the Mukhya Nagar Adhikari by order dated 18.5.1996 had directed all the vaccinators including the petitioners to be posted in different wards for the work of registration of birth and death; that it is not denied in the counter affidavit that the petitioners were appointed on substantive post and that their appointment was made by the selection committee and approved by the Administrator and that it is wrong to say that Swasthya Adhikari was not competent authority for appointing the petitioners as vaccinators. According to Section 107(5) of U.P. Municipal Corporations Adhininiyam, 1959 the Nagar Swasthya Adhikari being head of the Health Department was entitled to make appointment of the petitioners on the pot of Vaccinators. It is further submitted that Nagar Swasthya Adhikaris are the officers of the Public Health Department of the State Government who are sent on deputation in the Nagar Nigams and that both the petitioners are aged about 50 years, hence and in case they are thrown out of job they and their family members will suffer a lot for no fault of theirs.
The learned Counsel for the petitioners relied upon the decisions tendered in National Insurance Co. Ltd. Vs. Sarojini and Others, Kamal Kant Gautam and Ors. v. District Registrar/Addl. District Magistrate (Finance & Revenue), Muzaffarnagar and Ors. 1996 (2) A.W.C. 927 Sri Rakesh Chandra Mittal v. State of U.P. and Ors. 1995 (2) LBESR 752 (D.B.) and Rajendra Singh Yadav v. Executive Officer, Nagar Palika, Firozabad and Ors. 1996 (1) LBESR 677.
In Rajendra Prasad Srivastava (supra) it has been held that even if initial appointment of an employee is bad due to some infirmity but if he has been allowed to work for some years and thereafter further under the stay order of the Court, it will be highly unfair to remove such employee.
In Kamal Kant Gautam (supra) it has been held that since the petitioner continued to work for about 11 years on the basis of interim order of the Court he must have become over-aged and may not be able to get service in other department particularly when there is nothing on record to show that the petitioner was also a party to the irregularities in the selection, it will not be fair to terminate the services of an employee who has put in more than 11 years and the employee is entitled to be regularised.
In Rakesh Chandra Mittal (supra) it is held that even if there is some irregularity in an appointment such irregularity may be ignored particularly when an employee has put in about 20 years of service.
In Rajendra Singh Yadav (supra) it has been held that even if an appointment is invalid being not made by competent authority specially when there is Government Order not to make appointment on the post, the employee should be given right to be heard before cancellation of the appointment.
Per contra, learned Counsel for the respondents contends that Section 106(2) and Section 109 of the Adhiniyam give power to the State Government alone and not to the Nagar Nigam in the matter of fixing qualifications, emoluments, conditions of services of the employees of Nagar Nigam. Since the petitioners claim to be appointed by Nagar Swasthya Adhikari on 18.12.1984 and 24.3.1988 respectively the provisions as existed on the dates of their appointment and prior to amendment dated 30.5.1994 are relevant. The learned Counsel firstly submits that Nagar Swasthva Adhikari had no power to appoint the petitioners for the following reasons:
(a) Old Section 107(3)(b) gave power to the Mukhya Nagar Adhikari (now Nagar Ayukta) alone to make appointments in respect of all servants on recommendation of Selection Committee consisting of the Mukhya Nagar Adhikari, Mukhya Nagar Lekha Parikshak and Head of the Department concerned.
(b) Prior to amendment dated 30.5.1994 the provision of Section 107(5) (old) gave power of appointment to Head of the Department concerned in case the post carried an initial salary of not more than Rs. 180/- per mensem. Thus, Nagar Swasthya Adhikari being Head of Department had no power to appoint the petitioners u/s 107(5) of the Adhiniyam as the post of Vaccinator on the date of appointments of the petitioners was carrying the initial salary of Rs. 315/- in 1984 and Rs. 325/- in the year 1988.
(c) The initial salary of the post of Paid Apprentice Vaccinator as on 13.6.1988 was Rs. 315/- per month as is evident from the Government Order dated 30.12.1981 appended as Annexure C.A. 3 to the counter affidavit. Admittedly the initial salary of petitioner No. 1 on 19.12.1984 was Rs. 315/- per month. Similarly the initial salary of petitioner No. 2 on 24.3.1988 was Rs. 315/- per month as Paid Apprentice and from 13.6.1988 it became Rs. 325/- per month which is the same as on date.
The second submission of the learned Counsel for the respondents is that no selection was made as per the statutory provisions. The Nagar Nigam/Nagar Mahapalika cannot act at its own in the matter of creation or abolition of the posts and for the payment of salary thereon under the U.P. Nagar Mahapalika Sewa Niyamawali, 1962 read with U.P. Nagar Mahapalika Service (Designations. Scales of Pay, Qualifications, Conveyance Allowances and Method of Recruitment) Order, 1963. Clause 5 of the aforesaid order 1963 read with Section 106 does not give any power to Nagar Nigam to create posts, but the Nagar Nigam is to follow directions issued by the State Government. Clause 5(1) is as under:
5 (1). No posts other than the posts mentioned in the Schedule shall be created by a Mahapalika under Clause (vi) of Sub-Section (1) of Section 106 nor shall any existing post be combined with another post except with the prior sanction of the Government and on such terms and conditions as Government may specify in that behalf.
(2) Clause 5(2) provides for taking of approval of State Government.
The next submission of the learned Counsel for the respondents is that the post of Vaccinator is dying cadre. The pattern of the posts in Health Department is to be governed by the State Government under the direction issued from time to time by the Government of India. By order dated 28.4.1984 options were sought from old employees for absorption in new cadre of service and further direction was issued not to make any appointment on such posts and to cancel such appointments, if any. Another Government Order dated 6.7.1983 was also issued and an option was given to 11 Vaccinators and one Paid Apprentice Vaccinator working in Nagar Nigam to join under the Scheme referred to above, but it appears that they did not join under the Scheme as a result of which Government Order dated 28.4.1984 was issued reiterating the ban imposed on making appointment on the posts covered under the Scheme including the post of Vaccinator. Under the Uttar Pradesh State Control over Public Corporation Act, 1975 read with the provisions of Sections 106, 107 , 108-A, 109, 112-A and 112(3) of the U.P. Municipal Corporation Act the authorities of Corporation/Nagar Nigam shall be guided by directions issued on the questions of policies given by the State Government. The Government order of 1981, 1984 etc. in fact contained policy directions for the guidance of Nagar Mahapalika and its authorities.
The learned Counsel for the respondents then submitted that the petitioners have available alternate remedy by filing appeal under Rules 35 and 36 of the U.P. Nagar Mahapalika Sewa Niyamawali, 1962.
In support of his contention the learned Counsel for the respondents has relied upon the decisions rendered in Secretary, State of Karnataka and Others Vs. Umadevi and Others, and State of M.P. v. Lalit Kumar Verma (2007) 1 S.C.C. 577.
In State of Karnataka v. Uma Devi (Supra) it has been held:
The distinction between "irregular appointment" and "illegal appointment" is apparent. In the event the appointment is made in total disregard of the constitutional scheme as also the recruitment rules framed by the employer, which is a pan of the "State" within the meaning of Article 12 of the Constitution, the recruitment would be an illegal one; whereas there may be cases where, although substantial compliance with the constitutional scheme as also the rules have been made, the appointment may be irregular in the sense that some provisions of some rules might not have been strictly adhered to.
In State of M.P. v. Lalit Kumar Verma (supra), it has been held that:
Adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the acquirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. High Courts acting under Article 226 of the Constitution of India, should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because, an employee had continued under cover of an order of court, which we have described as ''litigious employment'' in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates.
After giving my thoughtful consideration to the rival contentions, I am of the view that the decisions relied upon by the learned Counsel for the petitioners are distinguishable and do not apply to the instant case.
In my opinion, the appointments of the petitioners are collusive and back door entry without following the procedure. As averred in paragraph 25 of the counter affidavit petitioner No. 1 is the son of Sri Vijay Bahadur Lal Srivastava, a retired vaccinator, and petitioner No. 2 is the nephew of Sri Kewal Prasad Dubey. Vaccinator Superintendent. It appears that the appointments of the petitioners were made to oblige the ex-employees for the reasons best known to the then District Health Officer, Nagar Nigam, Varanasi.
It is apparent that the power of appointment at the relevant time vested in the State Government and the petitioners could not have been appointed by the Nagar Swasthaya Adhikari u/s 107(5) of the Adhiniyam since the post of Vaccinator was carrying initial salary of Rs. 315/- in 1984 and Rs. 325/- in 1988. Their appointment was therefore not only in contravention of the Adhiniyam but also of the G.O. dated 30.12.1981. The selection/appointment of the petitioners was also not in conformity with the statutory powers under the U.P. Nagar Mahapalika Sewa Niyamawali, 1962 read with Clause 5 of the U.P. Nagar Mahapalika Service (Designations. Scales of Pay, Qualifications, Conveyance Allowances and Method of Recruitment) Order, 1963, Section 106(2) and Section 109 of the Adhiniyam. Options had been sought from the old employees of the Nagar Nigam for absorption in the new cadre of the scheme but the petitioners did not join under the scheme formulated by the State Government. The Nagar Nigam did not have any power to create the post and in the circumstances the petitioners had no legal right to be appointed on a post which did not exist.
The appointment letters appended as Annexures 1 and 2 to the writ petition being issued by Nagar Swasthya Adhikari who is not appointing authority of the petitioners are illegal. Moreover, there is no document on record showing approval of the Administrator to the appointment of the petitioners on the post of vaccinator. In Annexure 3 to the writ petition it is only mentioned that there was approval of the Administrator but there is no document on record to establish the averment made in Annexure 3 aforesaid. Similarly the existence of any valid selection committee consisting of the Administrator has also not been proved on record. The alleged selection committee was not consisting of competent persons, i.e., Administrator/Mukhya Nagar Adhikari as per the G.O. dated 10.3.1978. The Nagar Swasthya Adhikari is a member of Public Health Department sent on deputation under proviso to Section 107(1) of the U.P. Municipal Corporation Act and is directly under control of the Chief Medical Officer. The Nagar Swasthya Adhikari is not the appointing authority of the petitioners, hence the appointment letters appended as Annexures 1 and 2 to the writ petition cannot be read in aid of the petitioners. It also appears from para 14 of the counter affidavit that no record was available in the Nagar Mahapalika or on the file of the case showing constitution of selection committee and approval of the Administrator.
For the reasons stated above and in view of the law laid down by the apex court relied upon by the learned Counsel for the respondents which aptly apply to the instant case in the facts stated above, the writ petition is dismissed. No order as to costs.