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2002 DIGILAW 614 (ALL)

GAURI NATH v. STATE OF U. P.

2002-04-25

ASHOK BHUSHAN

body2002
ASHOK BHUSHAN, J. ( 1 ) HEARD Sri Rajendra Rai, counsel for the petitioner and learned standing counsel. ( 2 ) BY this writ petition, the petitioner has prayed for quashing of the order dated 31st December, 1999 (Annexure-15 to the writ petition) and the order dated 23rd July, 1996 (Annexure-11 to the writ petition) by which petitioner was relieved from service from the post of Lower Division clerk. Further, a writ of mandamus to reinstate the petitioner and pay arrears of salary has been claimed. ( 3 ) THE facts of the case as emerge from the pleadings of the parties are ; petitioner claims to be retrenched employee of the Census Department. Petitioner belongs to scheduled caste category. Petitioner states that in pursuance of advertisement dated 1st January, 1993, for the post of clerk in the office of Settlement Officer of Consolidation, Azamgarh, he applied and after interview, was selected and appointed vide appointment order dated 8th February, 1993. The appointment order dated 8th February, 1993, was issued by Sri Beni Prasad. It is stated that Consolidation commissioner wrote a letter to the Deputy Director of Consolidation, Azamgarh, on 16th April, 1993 informing that irregularity has been committed with regard to appointment in the scheduled caste category by Sri Beni Prasad, Assistant Settlement Officer of Consolidation and from him, explanation be called and appointment be cancelled. It is claimed that Deputy Director of consolidation submitted report that appointments were made against vacant posts. The collector, Azamgarh, wrote a letter to Beni Prasad to cancel the appointment, Writ Petition No. 32945 of 1993 was filed by the petitioner and certain other persons praying for payment of salary in which an Interim order was passed on 17th September, 1993, to pay salary or show cause but subsequently the said writ petition was dismissed by this Court on 9th January, 1995. On 23rd july, 1996, a notice was issued by Settlement Officer of Consolidation directing that petitioner may hand over his charge and the appointment of the petitioner was cancelled. Against the said order, the petitioner filed representation to the Consolidation Commissioner and thereafter come to this Court by means of Writ Petition No. 35633 of 1998, which writ petition was disposed vide this Courts order dated 19th November, 1998 directing the Consolidation Commissioner to decide the petitioners representation/appeal dated 3rd September, 1996. Against the said order, the petitioner filed representation to the Consolidation Commissioner and thereafter come to this Court by means of Writ Petition No. 35633 of 1998, which writ petition was disposed vide this Courts order dated 19th November, 1998 directing the Consolidation Commissioner to decide the petitioners representation/appeal dated 3rd September, 1996. The representation/ appeal of the petitioner was not being decided despite the order of this Court, hence the petitioner again filed Writ Petition No. 17632 of 1999 which was disposed of on 28th April, 1999, directing the Consolidation Commissioner to decide the appeal/ representation of the petitioner as earlier directed vide this Courts order dated 19th November, 1998. The consolidation Commissioner has passed an order dated 31st December, 1999 rejecting the representation of the petitioner. While rejecting the representation of the petitioner, it has been held by Consolidation Commissioner that Beni Prasad, Assistant Settlement Officer of consolidation, who made the appointment of the petitioner, was not authority competent for making appointment, hence the illegal appointment made by him cannot be allowed to continue. This order has been challenged by the petitioner in the present writ petition. ( 4 ) LEARNED counsel for, the petitioner contended that the order of Consolidation Commissioner dated 31st December, 1999 is wholly illegal. He has submitted that appointment of the petitioner was made to fill-up the back log quota of reserved category candidates and the said appointment was made by Assistant Settlement Officer of Consolidation, Sri Beni Prasad, who was fully competent to make appointment. The counsel for the petitioner submitted that according to definition of Settlement Officer of Consolidation given in Section 3 of U. P. Consolidation of holdings Act, 1953, Settlement Officer of Consolidation includes Assistant Settlement Officer of consolidation. Thus, appointment was not made by an unauthorised person. The counsel for the petitioner further contended that prior to passing of the order by Consolidation Commissioner, this objection was never raised by the respondents. The counsel for the petitioner further relied on a order by Collector/district Deputy Director of Consolidation, dated 25th August, 1992, in which Beni Prasad was authorised to do various function. According to petitioners counsel in view of the aforesaid notification by the Collector, Beni Prasad was fully competent to make appointment. The counsel for the petitioner further relied on a order by Collector/district Deputy Director of Consolidation, dated 25th August, 1992, in which Beni Prasad was authorised to do various function. According to petitioners counsel in view of the aforesaid notification by the Collector, Beni Prasad was fully competent to make appointment. ( 5 ) LEARNED standing counsel refuting the submissions of counsel for the petitioner contended that the appointment of the petitioner was void since it was made by authority who was not competent. He has further submitted that immediately after the appointment objection was raised and direction was issued for cancelling the appointments. In the counter-affidavit learned standing counsel has referred and relied on notification dated 4th September, 1976, published in the U. P. Gazette Part-I dated 18th September, 1976, issued by the State Government in exercise of power under Section 44 of U. P. Consolidation of Holdings Act, 1953. It has been submitted that according to notification, the power to make appointment is vested only in Settlement officer of Consolidation and the Assistant Settlement Officer of Consolidation had no jurisdiction to make appointment. ( 6 ) FROM the submissions of counsel for the parties and perusal of record of the case, it is clear that main issue, which has arisen in this case, is as to whether the Assistant Settlement Officer of consolidation who has made appointment is empowered to make appointment exercising the power of Settlement Officer of Consolidation which is the reason given in the impugned order dated 31st December, 1999 of Consolidation Commissioner for rejecting the representation of the petitioner. The petitioner can pray for reinstatement and continuation in service only when it is proved that the authority who made appointment of the petitioner was empowered to make appointment. The appointment of the petitioner, if was made by an authority who was not competent, the petitioner cannot have any right for continuation. ( 7 ) THE submission of counsel for the petitioner that Assistant Settlement Officer of Consolidation is Settlement Officer of Consolidation for all purposes is based on provisions of Section 3 (9) of u. P. Consolidation of Holdings Act. Section 3 (9) of the said Act is quoted as below : "3. Definitions.--In this Act, unless there is anything repugnant in the subject or context :. . . . . . . . . . . . . . . . . . Section 3 (9) of the said Act is quoted as below : "3. Definitions.--In this Act, unless there is anything repugnant in the subject or context :. . . . . . . . . . . . . . . . . . . . . (9) settlement Officer of Consolidation means the person appointed as such by the State government to exercise the powers and perform the duties of a Settlement Officer, consolidation, under this Act or the rules made thereunder and shall include an Additional settlement Officer of Consolidation and Assistant Settlement Officer of Consolidation. " from the provisions of U. P. Consolidation of Holdings Act, it is clear that power to make appointment of the staff is not the duty or function entrusted to the Settlement Officer of consolidation under the U. P. Consolidation of Holdings Act. The definition given under Section 3 (9) of the Act will Include the Additional Settlement Officer of Consolidation and Assistant settlement Officer of Consolidation with regard to exercise of power and perform of duty of settlement Officer of Consolidation under the Act or the Rules. Thus, by virtue of definition given under Section 3 (9) of U. P. Consolidation of Holdings Act, it cannot be said that Assistant settlement Officer of Consolidation ipso facto becomes entitled to exercise the power of appointment. The State Government in exercise of power under Section 44 of the Act has issued notification delegating the power of appointment only on Settlement Officer of Consolidation. The notification under Section 44 has been annexed as Annexure-1 to the counter-affidavit. From the notification, it is clear that the District Deputy Director of Consolidation and Deputy director of Consolidation has been delegated different powers to make appointment. The definition of Deputy Director of Consolidation as defined in Section 3 (4a) includes the District deputy Director of Consolidation and if the definition as given in Section 3 (4a) is accepted that deputy Director of Consolidation will include the District Deputy Director of Consolidation and applying the aforesaid definition to the delegation notification, there will be overlapping and uncertainty with regard to exercise of jurisdiction. The notification dated 4th September, 1976, gives separate power to the Deputy Director of Consolidation and District Deputy Director of consolidation which suggests that these two authorities have been separately treated for appointment and definition given in Section 3 (4a) is not applicable with regard to appointments. Thus the delegation to the Settlement Officer of Consolidation to make appointment has to be treated as delegation only to the Settlement Officer of Consolidation and not to Assistant Settlement Officer of Consolidation as per the intendment of various provisions of U. P. Consolidation of Holdings Act, 1953. ( 8 ) FROM the aforesaid, it is clear that Assistant Settlement Officer of Consolidation is not empowered to make appointment on the post pay scale of which does not exceed Rs. 320. Thus the Assistant Settlement Officer of Consolidation, Sri Beni Prasad, had no jurisdiction to make appointment and the appointment of the petitioner made by authority not competent was void ab-initio. ( 9 ) THE next contention of counsel for the petitioner is that at no point of time earlier to passing of the impugned order, this objection was raised that Beni Prasad was not competent to make appointment. The letter of Consolidation Commissioner dated 16th January, 1993, (Annexure-2 to the writ petition) was a general letter which did not note the particular facts of the office of settlement Officer of Consolidation, Azamgarh. It was stated in the letter that appointment by beni Prasad was made against sanctioned strength irregularly. The said letter only directed the deputy Director of Consolidation to take steps for terminating the irregular appointments. The deputy Director of Consolidation submitted a report to the Consolidation Commissioner. It is not on the record that what action was taken on the aforesaid but since the categorical finding has come in the order dated 31st December, 1999, of the Consolidation Commissioner that appointment was made by Assistant Settlement Officer of Consolidation, who was not authorised to make appointment, the said reason cannot be ignored. The reasons given in the order since relates to very power of making appointment, the said reason is valid and has rightly been considered by Consolidation Commissioner. ( 10 ) THE submission of counsel for the petitioner that disciplinary enquiry against Sri Beni Prasad was terminated since charges were not proved cannot help the petitioner in any manner. The reasons given in the order since relates to very power of making appointment, the said reason is valid and has rightly been considered by Consolidation Commissioner. ( 10 ) THE submission of counsel for the petitioner that disciplinary enquiry against Sri Beni Prasad was terminated since charges were not proved cannot help the petitioner in any manner. Appointment of the petitioner can be saved only when the authority competent has made the appointment. The exoneration of said officer from charges may be indicating of fact that there was no misconduct committed by the said officer but that fact cannot validate the appointment which was void ab initio. The counsel for the petitioner also laid much emphasis on the fact that petitioner was retrenched employee and was appointed to fill-up the quota of reserved category. Those facts may be relevant if the appointment was made in accordance with the procedure prescribed in law. When the appointment of the petitioner was not made by the authority competent, no benefit can be claimed by the petitioner from the aforesaid facts. ( 11 ) THE last submission of counsel for the petitioner on the basis of the notification issued by the collector dated 25th August, 1992, (Annexure-16 to writ petition) is to be considered. From a perusal of Annexure-16 to the writ petition. It is clear that Collector/district Deputy Director of consolidation has authorised Sri Beni Prasad under Financial Hand Book Khand-V, Bhag-I, rule 47 (g) pertaining to papers regarding payment of salary and for other matters. The power of appointment is vested in the State Government, which can be delegated only by a notification contemplated under Section 44 of the U. P. Consolidation of Holdings Act. The Collector/district deputy Director of Consolidation cannot delegate the power of appointment to the Assistant settlement Officer of Consolidation in violation of Section 44 of U. P. Consolidation of Holdings act. The said authorisation by the Collector may be relevant for financial purposes but the said order by the Collector/district Deputy Director of Consolidation cannot empower the Assistant settlement Officer of Consolidation to make appointment. The submission of counsel for the petitioner on the basis of aforesaid averments cannot be accepted. ( 12 ) IN view of the foregoing discussions, none of the submissions raised by counsel for the petitioner have any merit. The writ petition lacks merit and is dismissed. .