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1998 DIGILAW 1435 (ALL)

JAWAHAR LAL SHAKYA v. DEPUTY DIRECTOR PASHU PALAN VIBHAG

1998-12-14

D.K.SETH

body1998
D. K. SETH, J. The petitioners were alleged to have been appointed in Class IV post on ad hoc basis after they had been engaged as daily wage labours for some time by the respondent No. 1. But the respondent No. 2 did not allow the petitioners to join and resume their duties pursuant to the appointment letter issued by the respondent No. 1 on the ground that the area in respect whereof the appoint ments were being made, were outside the administrative jurisdiction of the respon dent No. 1 and that the power to appoint class IV employee has since been con ferred on respondent No. 2 by a Govern ment Order dated 30th July, 1986. This order has been challenged by Mr. R. K. Porwal, learned Counsel for the petitioners. 2. Learned Counsel for the petitioners contends that one Subhash Chandra was so appointed by the respon dent No. 1 and he had moved a writ peti tion, in which an order dated 17th January, 1992 was passed directing the respondents to comply with the order dated 20th June, 1991, contained in Annexure III to the said writ petition within a fortnight. Pursuant to the said order, the said Subhash Chandra has been given appointment. Therefore, the petitioners should be al lowed to join and the appointment given to them should be made effective. He fur ther contends that the petitioners having been so selected and appointed, there is no scope for refusing employment to the petitioners when Subhash Chandra was accommodated. He further contends that respondent No. 2 having admitted to have forwarded the applications of the petitioners to the respondent No. 1, he is estopped from disputing the validity of the appointment on the alleged ground. Therefore, the petitioners should be al lowed to join their services and continue in their posts. 3. Mr. K. R. Singh, learned Standing Counsel on the other hand contends that respondent No. 1 did not have any authority to appoint Class IV staff in respect of the area on which the respon dent No. 2 had administrative control. That apart, the power to appoint Class IV staff in the project area having been delegated to the respondent No. 2 by the State Government, the respondent No. 1 cannot claim any right or jurisdiction and issue any appointment letters to the petitioners. That apart, the power to appoint Class IV staff in the project area having been delegated to the respondent No. 2 by the State Government, the respondent No. 1 cannot claim any right or jurisdiction and issue any appointment letters to the petitioners. Since there was no power con ferred on the respondent No. 1, the ap pointment made in violation of the Government Order dated 30th July, 1986, is void ab initio and cannot be sustained. The respondent No. 1 having not been empowered to appoint the petitioners, the same was rightly refused by the respondent No. 2. Therefore, he prays for dismissal of the writ petition. 4. I have heard both Mr. R. K. Porwal and Mr. K. R. Singh at length. 5. Counsel for the petitioner had relied on the interim order dated 17th January, 1992 granted in favour of Sub-hash Chandra in his writ petition and claims that the petitioners may also be equitably considered. 6. Admittedly, the interim orders are interlocutory orders and are not prece dents. Therefore, any order passed in another writ petition cannot be imported to the present one. The petitioner cannot claim similar orders in terms of the order dated 17th January, 1992. But then from Annexure CA-1, it appears that the respondent No. 1 cannot appoint the petitioners when he had no power to do so and Subhash Chandra having been ap pointed pursuant to the interim order, which is subject to the result of the writ petition, no similarity could be claim by the petitioner. Inasmuch as interim orders are not precedents and then again interim order did not lay down any ratio which could be followed. 7. In the present case, the writ peti tion is being decided finally, and, there fore, there is no scope for inviting the equity clause in respect of the interim order while deciding the writ petition finally, which is to be decided on its own merit without being influenced by any order passed in another matter. 8. Admittedly, the petitioners have not filed any rejoinder affidavit to con tradict the statements made in paras 5, 6 and 8 of the counter-affidavit. The state ments made therein, therefore, deemed to have been admitted by the petitioners since the same have not been disputed by them by means of filing any rejoinder-affidavit. 9. 8. Admittedly, the petitioners have not filed any rejoinder affidavit to con tradict the statements made in paras 5, 6 and 8 of the counter-affidavit. The state ments made therein, therefore, deemed to have been admitted by the petitioners since the same have not been disputed by them by means of filing any rejoinder-affidavit. 9. It is not disputed that by an order dated 30th July, 1986 issued by the State Government, the power to appoint Class IV staff was conferred on the respondent No. 2. This fact was brought to the notice of the respondent No. 1 by means of a letter dated 15th February, 1992, which is Annexure CA-1 pointing out that the area is outside the administrative area of the respondent No. 1 and that the power to appoint has since been conferred on the respondent No. 2 by the Government Order dated 30th July, 1986. There is nothing to show that the said Government Order stood rescinded recalled or withdrawn. It is also not stated at the Bar by Mr. Porwal that the said order has lost its force. 10. Having regard to the said Government order dated 30th July, 1986 coupled with the statements made in para graph 5 of the counter-affidavit and An nexure C. A. 1, it is very difficult to hold that the respondent No. 1 had any authority to appoint the petitioners. When there is a clear Government Order conferring power on a particular person without any reservation or delegation of power to someone else by the said person, the forwarding of the applications of the petitioners to the respondent No. 1 by the respondent No. 2 cannot operate as estop pel. There cannot be any estoppel against law. If no power is conferred on the respondent No. 1, then it was not open to him to appoint the petitioners. Since the power to appoint has been conferred on the respondent No. 2, it was for the respondent No. 2 to undertake the selec tion process and the exercise of appoint ment. Therefore, even if the petitioners are continuing, still then they cannot claim any benefit on account of such appoint ments. 11. The writ petition, therefore, fails and, is accordingly, dismissed. This order, however, shall not prevent the petitioners from seeking appointment through respondent No. 2 once again if there is any process for recruitment. Therefore, even if the petitioners are continuing, still then they cannot claim any benefit on account of such appoint ments. 11. The writ petition, therefore, fails and, is accordingly, dismissed. This order, however, shall not prevent the petitioners from seeking appointment through respondent No. 2 once again if there is any process for recruitment. In case the petitioners apply for recruitment, in that event, their case may be considered in accordance with law having regard to their experience of working if they had continued to work, after relaxing the qualification with regard to their age, if in the meantime, they had crossed the age bar provided they had been continuing in service right from the very beginning without any break till today and are otherwise qualified and illegible. 12. A certified copy of this order may be issued to the learned Counsel for the petitioners on payment of usual charges. Petition dismissed. .