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2010 DIGILAW 2503 (ALL)

PRAMOD KUMAR PANDEY v. STATE OF U. P.

2010-08-17

KASHI NATH PANDEY, SUNIL AMBWANI

body2010
JUDGMENT By the Court.—We have heard Sri P.N. Saxena, assisted by Sri Amit Saxena for the appellant. Sri P.K. Mishra, appears for respondent Nos. 2 to 4 - State Election Commission. The standing counsel appears for respondent No. 1. 2. In this intra-court appeal, the petitioner-appellant is aggrieved by the judgment of learned Single Judge dated 27.8.2004 in writ petition No. 18730 of 2003, in which a direction was issued that the benefit of giving preference allowed in the judgment of Supreme Court in U.P. State Road Transport Corporation v. U.P.P.N.S.B. Sangh, AIR 1995 SC 1115 , (in that all other things being equal the petitioner will be given preference in direct recruitment), be allowed, if the petitioner applies for any post of clerk to fall vacant for future under the State Election Commission. The Court has further directed to allow other benefits, which are available to him under para 12 of the judgment of the Supreme Court. 3. The facts given in the judgment under challenge and other judgments of this Court, deciding petitioner’s writ petitions, are that the petitioner had worked on daily wages of contract, at the rate of Rs. 45/- per day as clerk in the State Election Commission in District Sonebhadra from 26.3.1995 to 9.2.1996. He filed a writ petition No. 6570 of 1996 in which an interim order was passed on 20.2.1996 directing that the question of appointment of the petitioner for the purpose of election work in the next Parliament Election may be considered. He was allowed to continue from 1.4.1996. His wages were however paid only till 28.2.1997. The writ petition was disposed of on 20.1.1998 with following directions : “This writ petition is finally disposed of with the direction that in case the petitioner is actually working from 1.3.1997 and is still working, he shall be paid his salary of the post of clerk and that his case for regularization in service or for regular appointment against available vacancy shall be considered according to law by the respondent No. 2, who shall pass a speaking order within a month from the date of production of a certified copy of this order. The termination orders dated 9.2.1996 and 28.2.1997 shall stand quashed.” 4. The petitioner-appellant’s representation for regularization was rejected. He filed a writ petition No. 7170 of 2000, which was dismissed on 29.11.2000. The termination orders dated 9.2.1996 and 28.2.1997 shall stand quashed.” 4. The petitioner-appellant’s representation for regularization was rejected. He filed a writ petition No. 7170 of 2000, which was dismissed on 29.11.2000. The Special Appeal No. 784 of 2000 was allowed in part on 14.12.2000 with following directions : “Having considered the submissions of the learned counsel for the parties, we are of the view that in the event there are permanent vacancies available and the State Election Commission feels to fill up the same, the case of the petitioner along with other candidates should also be considered for permanent appointment and the services rendered by the writ petitioner should also be taken into account while giving permanent appointment.” 5. The petitioner-appellant thereafter filed a contempt application No. 2409 of 2001 for compliance of the order of the Division Bench in Special Appeal No. 784 of 2000. An objection was taken that the petitioner did not apply for appointment in response to the advertisement issued on 15.12.2000, for filling up of 49 posts of Clerks and Typists under direct recruitment. Learned Judge hearing the contempt application on 12.9.2002 found that there was no such direction given by the Court to the petitioner to apply, and that the consideration of his appointment was not subject to making an application. Learned Judge hearing the contempt matter summoned the opposite parties to appear before the Court on 29.10.2002 for framing of charges. The authorities appeared before the Court. On the explanation given by them, the contempt application was dismissed on 6.1.2003 holding that there was no wilful disobedience of the order of the Division Bench dated 14.12.2000. 6. The petitioner filed a Special Leave Petition against the order dated 6.1.2003 dismissing the contempt application. The Supreme Court on 7.4.2003 dismissed the SLP with the following order : “In our view impugned order passed in contempt proceedings does not call for our interference, however, if the petitioner’s rights are affected and orders passed by the Courts are not complied with, it would be open to him to resort to any other alternative remedy for execution including the filing of a fresh writ petition. The Special Leave Petition is dismissed accordingly.” 7. The petitioner therafter filed writ petition No. 18730 of 2003 which was disposed of vide order dated 27.8.2004 giving rise to this Special Appeal. 8. The Special Leave Petition is dismissed accordingly.” 7. The petitioner therafter filed writ petition No. 18730 of 2003 which was disposed of vide order dated 27.8.2004 giving rise to this Special Appeal. 8. Learned Single Judge has found that the main dispute between the parties is not regarding the requirement of filing application. If it was the only dispute then the same could be resolved within no time either by treating petitioner’s representation dated 23.12.2000 as an application to that effect or by directing the petitioner to file a formal application for appointment. The main controversy revolves around the interpretation of the judgment of Special Appeal. He found correct interpretation of the said judgment is that the petitioner has to be given preference in the appointment taking into account the period of service rendered by him. The judgment of the Division Bench cannot be read to hold that the appointment has to be given without considering him for along with other candidates. The writ petition was accordingly disposed of with directions that if the petitioner applies for any future post of Clerk under the State Election Commission, he will be given benefits as provided under para 12 of the U.P.S.R.T.C’s case (Supra). 9. The petitioner is now 40 years of age. The maximum age limit prescribed for the general category candidates to be given appointment in the State services is 35 years. 10. Sri P.N. Saxena submits that learned Judge has not correctly appreciated the directions given on 14.12.2000 in Special Appeal No. 784 of 2000. The petitioner was required to be considered for appointment on permanent vacancies taking into account the service rendered by him. He was not required to apply, and that on 15.12.2000 when the vacancies were advertised, the judgment dated 14.12.2000 had to be complied with, by considering the petitioner for appointment irrespective of the fact that he did not apply. He submits that the order dated 14.12.2000 in Special Appeal No. 784 of 2000 has become final and has not been complied with so far. The State Election Commission is bound to give appointment to the petitioner on any permanent vacancy, after taking into account the services rendered by him. 11. He submits that the order dated 14.12.2000 in Special Appeal No. 784 of 2000 has become final and has not been complied with so far. The State Election Commission is bound to give appointment to the petitioner on any permanent vacancy, after taking into account the services rendered by him. 11. The petitioner had worked as Clerk on contract with the State Election Commission for a period of less than 11 months (between 26.3.1995 and 9.2.1996), and thereafter from 1.4.1996 in pursuance to the interim order of this Court in writ petition No. 6570 of 1996. The later period was litigious in nature, which came to an end after rejection of his representation for regularization and dismissal of writ petition No. 7170 of 2000, on 29.11.2000. The Special Appeal No. 784 of 2000 was allowed in part on 14.12.2000, with directions that in the event permanent vacancies are available and the State Election Commission decides to fill up the same, the case of the petitioner along with other candidates should also be considered for permanent appointment taking into account and giving preference to past services. 12. In Secretary, State of Karnataka v. Umadevi (3), 2006 (4) SCC 1 , the Supreme Court held that any appointment through side door would be violative of constitutional scheme of equality contained in Articles 14 and 16 of the Constitution. Para 43 of the judgment of the Supreme Court in Umadevi case (supra) is quoted hereunder : “43. Thus, it is clear 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 requirements 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. 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. The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularisation, 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 the 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. 13. In the present case, the order of the Division Bench dated 14.12.2000 in Special Appeal No. 784 of 2000 does not amount to giving any directions, to give appointment to the petitioner dehorse the service rules. The petitioner-appellant was required to apply when the advertisement was made by the State Election Commission to be considered for appointment along with other candidates. The only benefit which could be given to the petitioner-appellant was to give benefit of service rendered by him, if he is otherwise eligible, and all other things are equal in comparison with other candidates. 14. In General Manager, Uttaranchal Jal Sansthan v. Laxmi Devi and others, AIR 2009 SC 3121 , the Supreme Court held : “24. As to the first submission above, it is worth mentioning that judicial decisions unless otherwise specified are retrospective. They would only be prospective in nature if it has been provided therein. Such is clearly not the case in Umadevi (supra). Accordingly, even though the cause of action would have arisen in 2002 but the decision of Umadevi (supra) would squarely be applicable to the facts and circumstances of the case. Secondly, before a person can claim a status of a Government servant not only his appointment must be made in terms of the recruitment rules, he must otherwise fulfill the criterion therefor. Appointment made in violation of the constitutional scheme is a nullity. Rendition of service for a long time, it is well known, does not confer permanency. It is furthermore not a mode of appointment.” 15. Sri P.N. Saxena, submits that judgment dated 14.12.2000 in Special Appeal No. 784 of 2000 has become final between the parties and that any view taken or judgment delivered by the Supreme Court subsequent to that decision cannot take away the binding effect of the judgment. The State Election Commission has to comply with the directions and provide employment to the petitioner. He would submit that effect of Umadevi (3) (Supra) case is not to rewind the clock, and to take away the effect of the final orders passed by this Court deciding rights of the citizens of the country. 16. The State Election Commission has to comply with the directions and provide employment to the petitioner. He would submit that effect of Umadevi (3) (Supra) case is not to rewind the clock, and to take away the effect of the final orders passed by this Court deciding rights of the citizens of the country. 16. The Supreme Court has warned the High Court, in no uncertain terms, not to issue directions contrary to the law laid down in Umadevi (3) (Supra). Even if there are any directions given by the Court for giving appointment, dehorse the rules, after the constitution bench judgment in Umadevi (3) (supra), the High Court cannot issue a writ of mandamus to implement such direction. The Supreme Court has not only laid down the law but has also issued strict and stern directions, to adhere to the constitutionalism and to follow the direction of the Supreme Court which protect the rights of the citizens under Articles 14 and 16 of the Constitution. The Supreme Court has held that Courts in the country, under the having constitutional scheme, do not have powers to issue direction to disobey the law. If there is any such directions, the appellate Court or even the coordinate bench hearing the matter, can refuse to implement it, provided it gives sufficient reason. 17. We are thus of the opinion therefore find that the directions dated 14.12.2000 in Special Appeal No. 784 of 2000 for considering the candidature of the petitioner for permanent appointment by giving him the benefit of service rendered by him are no longer enforceable. The petitioner is required to be considered along with other candidates for selection under the statutory rules, provided he is eligible to apply and any permanent vacancy is available and is advertised. 18. The Special Appeal is dismissed with the aforesaid observations. —————