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2008 DIGILAW 365 (ALL)

MANJU TRIPATHI v. STATE OF U P

2008-02-18

S.RAFAT ALAM, VINEET SARAN

body2008
S. RAFAT ALAM AND VINEET SARAN, JJ.-, J. ( 1 ) THIS intra Court appeal, under the Rules of the Court, is preferred against the judgment of the Honble Single Judge dated 20. 11. 2007 dismissing the appellants Civil Misc. Writ Petition No. 8649 of 1997. ( 2 ) HEARD Shri Hari Prasad Pandey, learned Counsel appearing for the petitioner-appellant, learned Standing Counsel appearing for respondent Nos. 1, 4 and 5 and Shri Kapil Rathore, learned Counsel appearing for respondent Nos. 2 and 3. ( 3 ) IT appears that the petitioner-appellant along with others being aggrieved by the order of the Pramukh Chikitasa Adhikshak (Chief Medical Superintendent) of Swaroop Rani Hospital, Allahabad and Principal, Motilal Nehru Medical College, Allahabad dated 24. 2. 1997 and 21. 2. 2008 respectively cancelling their appointment as staff nurse filed the aforesaid writ petition on the ground, inter alia, that the same is arbitrary and in violation of principles of natural justice. The Honble Single Judge, having heard learned Counsel for the parties, found that the appointment made by the Principal is totally dehors the Rules and the Principal of the College has no jurisdiction or authority to make selection and appointment to the post of Subordinate Nursing Staff. ( 4 ) LEARNED Counsel for the petitioner-appellant submitted that the appointment of the appellant cannot be said to be de hors the Rules, since the state Government relaxed the condition in exercise of power under Rule 27 of the 1979 Rules and further the Joint Director vide letter dated 26. 6. 1996 directed the principal to proceed with the appointment of the nurses in the institution. Copy of the letter of the Joint Director is enclosed as Annexure-1 to the writ petition. He further submitted that the order terminating her services is bad and suffers from the vice of principle of natural justice. ( 5 ) WE are not impressed with the contention raised before us. ( 6 ) THE appointment of Subordinate Nursing Staff is governed by the Uttar Pradesh Subordinate Nursing (Non-Gazetted) Service Rules, 1979 (in short the Rules) framed by the Governor in exercise of the power vested under the proviso to Article 309 of the Constitution. ( 7 ) RULE 14 of the Rules provides about the determination of vacancies. Rule 15 provides about the procedure for direct recruitment, whereas Rule 16 provides about the procedure for recruitment by promotion. ( 7 ) RULE 14 of the Rules provides about the determination of vacancies. Rule 15 provides about the procedure for direct recruitment, whereas Rule 16 provides about the procedure for recruitment by promotion. In the case in hand, so called selection committee was not constituted as per prescription under Rule 15 nor the appointment has been made by the Director of the Health Department as required under the Rules and, therefore, the Honble Single Judge rightly held that the appointment being dehors the rules, the order of termination cannot be quashed. ( 8 ) LEARNED Counsel for the appellant, during the course of argument before us, also could not point out or place any material to show that the selection committee was constituted as per Rule 15 nor he could point out that the selection and appointment was made with the consultation of the medical and health department. He, however, relying on the letter of the Joint Director dated 26. 6. 1996 submitted that the State Government has relaxed the Rule in exercise of power under Rule 27 of the Rules and thus, there is no procedural error or any illegality in the appointment of the appellant. Let us have a look of Rule 27 of the Rules, which reads as under :- "27. Relaxation from the conditions of service.-Where the State Government is satisfied that the operation of any rule regulating the conditions of service of a person appointed to the service causes undue hardship in only particular case, it may, notwithstanding anything contained in the rules applicable to the case by order, dispense with or relax the requirements of that rule to such extent and subject to such conditions as it may consider necessary for dealing with the case in a just and equitable manner. " ( 9 ) FROM a close reading of the above provision, it is evident that it is an enabling provision and provides that the State Government, if satisfied that the operation of any of the rule regulating the service condition of a person is causing undue hardship in any particular case, may dispense with or relax the requirements of that rule to such extent and subject to such conditions as it may consider necessary for dealing with the case in a just and equitable manner. It does not authorize the State Government to delegate the power of appointment or to modify the process of selection and composition of the selection committee as a general rule. Rule 27 is to be applied in an individual case, by giving relaxation to a particular employee where it is found just and equitable to relax the requirement of that rule to such extent so far that individual employee is concerned. ( 10 ) IN the case in hand, there is no order/letter of the State Government whereby any provision for the appointment, which are applicable in the matter of selection of nurses, has been relaxed. Besides that under 1979 Rules, it is Additional Director, who is vested with the power to issue letter of appointment. There is nothing on record to show that the Additional Director has delegated his power to the principal. Besides that the Joint Director, being a delegatee, cannot further delegate its power. Therefore, the letter dated 26. 6. 1996, upon which strong reliance has been placed by the learned Counsel, is of no help to the appellant. Besides that, admittedly, the above letter of the Additional Director has subsequently been cancelled by the State Government vide order dated 30. 1. 1997, copy whereof is enclosed as Annexure 1 to the counter-affidavit. ( 11 ) IT is well settled legal position that any appointment made de hors the rules, is nullity and does not confer any right on such appointee. Thus, in view of the above legal position, we do not find any factual or legal error in the judgment of the Honble Single Judge. ( 12 ) AT this stage, learned Counsel for the petitioner-appellant submits that pursuant to the interim order passed in the writ petition the petitioner-appellant has worked for five months but the salary for the said period has not been paid. We, therefore, provide that in the event any application or representation is moved before the concerned authority, the same may be considered and disposed of in accordance with law and if it is found that the appellant has actually worked and her salary has not been paid, the same shall be paid to her expeditiously, preferably within two months from the date of filing of such representation. However, if the authority comes to the conclusion that she is not entitled for the payment of salary, it shall pass a reasoned order and communicate the same to her. ( 13 ) WITH the aforesaid observation, this appeal stands dismissed. Appeal Dismissed. .