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2008 DIGILAW 1532 (ALL)

CHANDRAHAS v. STATE OF UTTAR PRADESH

2008-08-06

TARUN AGARWALA

body2008
JUDGMENT Hon’ble Tarun Agarwala, J.—It transpires that applications were invited for appointment on the post of Junior Clerk. The petitioner’s name was sponsored by the Employment Exchange. The petitioner appeared in the written test and was declared successful, and thereafter, was called for the interview. A select list was published, which included the name of the petitioner, and the respondents thereafter, issued an appointment letter dated 5th of November, 1997. The petitioner joined the services as a Junior Clerk on 6.11.1997 and discharged his duty till 12th of November, 1997, on which date, the services of the petitioner was terminated on the ground that the State Government has issued an order dated 3rd of November, 1997 imposing a ban on all appointments in the State of U.P., and therefore, the petitioner could not be appointed pursuant to the ban order issued by the State Government. The petitioner, being aggrieved by the said order, filed a Writ Petition No. 38644 of 1997. The writ Court, by a judgment dated 17th February, 2003, quashed the order of termination and directed the respondents to pass a fresh order after giving an opportunity of hearing to the petitioner. Based on the said direction, the respondents passed an order dated 16th September, 2003, rejecting the representation of the petitioner, holding that it was not possible to take back the petitioner in service again. The petitioner, being aggrieved by the said order, filed the present writ petition, and during the pendency of the writ petition, an interim order was issued directing the authorities to pass a reasoned and speaking order, since the impugned order dated 16th September, 2003 did not contain any reason. Based on the interim order of the Court, the respondents passed an order dated 23rd June, 2005 rejecting the claim of the petitioner, holding that the petitioner could not be appointed since a ban was imposed by the State Government by an order dated 3rd of November, 1997. 2. In the meanwhile, the respondents issued an advertisement on 6th of August, 2002 and again on 9th of August, 2007, inviting applications for the post of Junior Clerk. These advertisements were stayed by an interim order of the Court. 3. 2. In the meanwhile, the respondents issued an advertisement on 6th of August, 2002 and again on 9th of August, 2007, inviting applications for the post of Junior Clerk. These advertisements were stayed by an interim order of the Court. 3. After hearing Shri R.P. Tiwari, learned Counsel for the petitioner and the learned Standing Counsel for the respondents, this Court is of the opinion that the action taken by the respondents cannot be sustained and the impugned orders issued by the authorities from time to time was liable to be quashed. In the first place, the order of the State Government dated 3rd November, 2007 imposing a ban on all appointments appears to be an arbitrary exercise of power by the State Government. No reasons whatsoever has been disclosed in the said order as to why such a drastic decision had been taken by the State Government imposing a ban on all appointments in the State of U.P. Appointments on a public post are made pursuant to the provisions indicated in the statute and the procedures evolved under the said statute. The exercise of filling up of posts cannot be stopped arbitrarily on the whims and fancies of the State Government, for oblique purposes. 4. In the present case, the Court finds that the exercise for filling up the vacancies was initiated much prior to the issuance of the Government Order of 3rd November, 1997, and only the ministerial task of issuance of the appointment letter by the competent authority was left and which had been issued by the competent authority on 5th of November, 1997. 5. In my opinion, assuming that the State Government had the power to impose a ban on all the appointments, such imposition of a ban could only be made prospectively and would not apply where the selection process had already been initiated and was nearing completion. 6. Quite apart from the aforesaid, it has come on record that the respondents had issued an advertisement on 6th of August, 2002, and again, on 9th of August, 2007, inviting applications for filling up the post of Junior Clerks. The issuance of the advertisement necessarily implies that the State Government has lifted the ban. Once the ban is lifted, the selection made in the year 1997 was required to be carried out. 7. The issuance of the advertisement necessarily implies that the State Government has lifted the ban. Once the ban is lifted, the selection made in the year 1997 was required to be carried out. 7. In Excise Commissioner, U.P., Allahabad and others v. Sanjay Kumar Yadav and another, 2004 (1) ESC 438, a Division Bench of the Court held that once a ban has been lifted by the State Government, it would mean that the stay on issuance of such appointments on such posts had been withdrawn, and therefore, those candidates validly selected for appointments on the said posts, would be entitled again for appointment immediately on withdrawal of such ban. The Court held as follows : “In the present case the only reason given by the Government for not giving appointment to the writ petitioners was because of the Government Order dated 4.11.1997. By the said Government Order, the appointments and joining of the candidates had only been stayed. Once the State Government has accepted that the vacancies still exist and had even issued fresh advertisement for filling up such vacancies, it obviously means that the stay on the issuance of the appointment on such post had been withdrawn. The writ petitioners who had been validly selected for appointment on such post would thus be entitled for appointment immediately on the withdrawal of such stay/ban on the appointments. Hence the writ petitioners would be entitled for appointment in pursuance of the selection held on the basis of Advertisement No. 17701. However, although they shall be entitled to the seniority and other consequential benefits but they shall be entitled for payment of salary only from the date of their appointment pursuant to this order. The appellants shall give appointment to the writ petitioners within a period of three months and in case if such appointment is not given, they shall be entitled for payment of salary immediately after expiry of three months from today.” 8. In Manoj Kumar and others v. State of U.P. and others, 2007 (7) ADJ 355 , pursuant to the select list, some of the selected candidates were issued appointment letters, and based on that, some were allowed to join, but subsequently, on the basis of the ban order, the appointments were cancelled. In Manoj Kumar and others v. State of U.P. and others, 2007 (7) ADJ 355 , pursuant to the select list, some of the selected candidates were issued appointment letters, and based on that, some were allowed to join, but subsequently, on the basis of the ban order, the appointments were cancelled. The Court held that once the ban order was lifted and the selection procedure was not found to be invalid, the cancellation of the selection process and refusal to give appointment to the selected candidates was not justified. The Court directed the respondents to issue appointment letters on the basis of the selection held by them. 9. In view of the aforesaid, it is clear that the appointments of the petitioners were cancelled in consequence of the ban order. Since no irregularity in the selection process was found by the respondents, and since the ban order has now been lifted, the petitioner, who was earlier given the appointment letter, is now liable to be issued a fresh appointment on the basis of the selection held in the year 1997. 10. Consequently, the impugned orders dated 12.11.1997, 16.9.2003 and 23.6.2005 passed by the respondents are all quashed. The writ petition is allowed. The advertisement dated 9th August, 2007, issued by the respondents will not be given effect to, and the Court directs the respondents to issue an appointment letter to the petitioner pursuant to the selection held by them in the year 1997 within four weeks from the date of the production of a certified copy of this order. The relief for consequential benefits of service and salary from 12.11.1997 cannot be granted on the principle of ‘no work no pay’. ————