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Allahabad High Court · body

2016 DIGILAW 2510 (ALL)

SATYA PRAKASH v. STATE OF U. P.

2016-07-20

SURYA PRAKASH KESARWANI

body2016
JUDGMENT Hon’ble Surya Prakash Kesarwani, J.—Heard Sri Vipin Kumar Saxena, learned counsel for the petitioners and Sri Yatindra, learned standing counsel for the respondents. SUBMISSIONS : 2. These writ petitions were heard together on 18.7.2016 and facts as well as submissions of learned counsels for the parties, were noted as under: “Heard Sri Vipin Kumar Saxena, learned counsel for the petitioners and Sri Yatindra, learned standing counsel for the respondents. Learned counsel for the parties jointly submit that the facts and controversy involved in all the above noted writ petitions, are similar in nature and, therefore, they may be heard together. Considering the aforesaid statement, these writ petitions are heard together with the consent of the learned counsel for the parties treating the Writ Petition No. 15550 of 1985 as the leading writ petition. In paragraph-6 of the leading writ petition, it is stated that pursuant to the Government Order dated 31.10.1984, the District Selection Committee was constituted and steps were taken to prepare the list for filling up the vacancy. In paragraph-7 of the said writ petition, it is stated that the petitioner of the said writ petition, was registered in the employment exchange and from where he received intimation to appear for interview on 27.3.1985 on which date, he appeared and a list of successful candidates was pasted on the Notice Board on 28.3.1985 in which the name of the petitioner finds mention. In paragraph-8 of the said writ petition, it is stated that by order dated 18.4.1985, the Regional Employment Officer, Agra intimated the petitioner about his appointment in the office of the District Employment Officer, Etah as a peon in the pay-scale of Rs. 305-5-330 EB-6-360-EB-6-390 on purely temporary basis. It is stated that the petitioner appeared and he was issued an appointment letter dated 18.4.1985. In paragraph-9, it is stated that on 25.4.1985, the petitioner appeared before the Employment Officer, Etah and produced the relevant documents and he was appointed. In paragraph-14, it is stated that the District Magistrate, Etah issued directions by letter dated 23.9.1985 for termination of services of the employees who were appointed prior to coming into force of the Rules dated 16.3.1985. Aggrieved with the termination order dated 23.9.1985, the petitioners have filed the present writ petitions. Learned counsel for the petitioners submits that the appointments were made strictly in accordance with the provisions of the G.O. dated 31.10.1984. Aggrieved with the termination order dated 23.9.1985, the petitioners have filed the present writ petitions. Learned counsel for the petitioners submits that the appointments were made strictly in accordance with the provisions of the G.O. dated 31.10.1984. The Rules called “The Group ‘D’ Employees Services Rules 1985" dated 16.3.1985, were published on 31.8.1985. Thus, they come into force on 31.8.1985. Therefore, the appointments made prior to the coming into force of the aforesaid Rules, shall not be effected by the provisions of these Rules. He further submits that the Rules are prospective in nature and, therefore, they cannot be applied retrospectively. He also submits that no opportunity of hearing was afforded to the petitioners before terminating their services. Learned standing counsel submits that Rule 1(2) of the Rules provides that the Rules shall come into force immediately. The Rules are dated 16.3.1985 and as such, they came into force immediately, i.e. w.e.f. 16.3.1985. Publication of the Rules in the Gazette on a subsequent date, cannot prevent its operation effective from 16.3.1985. He further submits that G.O. dated 31.10.1984 provides merely for constitution of District Level Committee, but the manner and mode of the selection etc. are to be governed by the Rules. The relevant Rules for the purpose are the aforesaid Rules of 1985 effective from 16.3.1985. Since the selections were made without following due procedure of law and the petitioners were allegedly appointed on 18.4.1985 while the Rules came into force on 16.3.1985 and as such, the cancellation of selection/appointment of the petitioners, is wholly valid. Learned counsel for the petitioners prays for adjournment to make his submissions on the question of coming into force of the Rules of 1985. As prayed, put up on 20.7.2016 for further hearing.” 3. Today, Sri Saxena submits that non-observance of the Rules in recruiting the petitioners in accordance with the Government order, was merely an irregularity and for that reason, the selection and appointment of the petitioners cannot be said to be illegal or void. He further submits that since no fraud was practised by the petitioners to obtain the employment and as such merely because recruitment was not made in accordance with the Rules in force, neither post retirement benefits to those employees who have retired, can be denied nor salary received by the petitioners during continuance of interim order can be recovered. He further submits that since no fraud was practised by the petitioners to obtain the employment and as such merely because recruitment was not made in accordance with the Rules in force, neither post retirement benefits to those employees who have retired, can be denied nor salary received by the petitioners during continuance of interim order can be recovered. In support of his submissions, he relies upon a decision in the case of Chiraunji Lal Yadav v. State of U.P. and others, (2012) 3 UPLBEC 2072 (para-22). 4. Sri Yatindra, learned standing counsel submits that the Government order dated 31.10.1984 merely provides for constitution of committee, preparation of a list by that committee and to send it to the employment exchange. It does not provide for any recruitment or the procedure for recruitment. He further submits that the relevant Rules are Subordinate Officers, Ministerial Staff (Direct Recruitment) Rules 1985, dated 16.3.1985. As per Rule 1(2) of the Rules, the Rules shall be deemed to have come into force at once. He, therefore, submits that the Rules came into force w.e.f. 16.3.1985 which provide detailed procedure for recruitment including qualification and advertisement inviting applications, which has not been followed. The selection of the petitioner took place subsequent to the coming into force of the Rules and they were allegedly appointed on 18.4.1985 and as such the appointment of the petitioners being without following due procedure of law, is null and void. With regard to the enforceability, he submits that since the Rule 1(2) of the Rules provides that it shall come into force w.e.f. 16.3.1985. In support of his submissions, he relies upon a Full Bench judgment of Brij Bhushan Chaudhary and others v. State of U.P., 2002 (2) ALJ 1907 (FB) (Para-60 and 61). Questions for Determination : 5. Considering the submissions of learned counsel for the parties and with their consent, the following questions are framed for determination to resolve the controversy involved in these writ petitions: (i) Whether the relevant Service Rules for recruitment became operative from 16.3.1985 inasmuch as Rule 1(2) of the Rules provides that “the Rules shall come in force at once” ? (ii) Whether appointments of petitioners on 18.4.1985, were illegal due to non-observance of the Rules and, therefore the same were cancelled lawfully? (ii) Whether appointments of petitioners on 18.4.1985, were illegal due to non-observance of the Rules and, therefore the same were cancelled lawfully? (iii) Whether State Government is entitled to recover salary and other benefits from the petitioners which were received by them during the pendency of the writ petition? 6. Since the facts and controversy involved in these writ petitions, are similar and therefore with the consent of the learned counsel for the parties, Writ-A No. 15550 of 1985 is treated as a leading writ petition and the facts thereof are being noted. FACTS OF THE CASE : 7. Briefly stated, facts of the present case are that according to the petitioner, pursuant to a circular dated 30.10.1984; a District Selection Committee was constituted in District Etah to fill up vacancies of class-IV employees. The petitioner was registered with the employment exchange. He received intimation from the employment exchange requiring him to appear for interview on 27.3.1985. On 28.3.1985, a list of successful candidates, was pasted on the notice board. It is alleged in paragraph-8 of the writ petition that by order dated 18.4.1985 issued by the Regional Employment Officer, Agra, the petitioner was appointed in the office of the District Employment Officer. It is alleged in paragraphs-9 and 10 of the writ petition that on 25.4.1985, the petitioner appeared before the Employment Officer, Etah, alongwith relevant documents and he was appointed as a peon in the said department and since then, he is working as a peon. In paragraph-11, it is stated that to the utter surprise of the petitioner, a notice was pasted on the notice board intimating that the selection list has been cancelled by the District Magistrate and the proceedings for selection will now be started from 1.7.1985. It is alleged in paragraph-14 that on 23.9.1985, the District Magistrate issued directions to all the departments including the department of the petitioner that under the directions of Government, the service of the candidates may be terminated forthwith since all the selections made, were illegal as they were not in conformity with the Service Rules. 8. The respondents took the stand that directions were issued by the State Government for constitution of District Selection Committee mentioning that the Rules shall be sent separately. The Rules were framed by the State Government which came into force w.e.f. 16.3.1985. The Committee was mistakenly constituted before the Rules were enacted. 8. The respondents took the stand that directions were issued by the State Government for constitution of District Selection Committee mentioning that the Rules shall be sent separately. The Rules were framed by the State Government which came into force w.e.f. 16.3.1985. The Committee was mistakenly constituted before the Rules were enacted. It is stated in paragraph-4 of the counter-affidavit that the constitution of committee and selection made in contravention of the Rules, were illegal and irregular, and the same were pointed by the then District Employment Officer, Etah to the District Magistrate, Etah and on this basis, the District Magistrate cancelled the list prepared by the District Selection Committee. In paragraph-5 of the counter-affidavit, it is stated that the District Selection Committee and the Rules both ceased to operate in view of the decision of the State Government communicated by Radiogram dated 24.6.1986, that appointments shall now be made by the Departmental Selection Committee. The contents of paragraph-6 of the counter-affidavit has been admitted by the petitioners in paragraphs-5 of the rejoinder-affidavit but it is stated that the circular dated 1.7.1986 shall not apply to the petitioner which made it clear that vacancies existing upto 30.6.1986 shall be made from the list prepared by the District Selection Committee. DISCUSSIONS AND FINDINGS : 9. The Group ‘D’ Employees Service Rules, 1985 (hereinafter referred to as ‘the Group ‘D’ Rules’) and the Subordinate Offices Ministerial Staff (Direct Recruitment) Rules, 1985 (hereinafter referred to as ‘the Ministerial Staff Rules’), both provide for sources of recruitment, qualifications, physical fitness, character, marital status, procedure for recruitment, procedure for selection and procedure for promotions and appointment. Both the Rules also deal with seniority and pay scale. Rule-2 of the Ministerial Staff Rules provides for application of the Rules. As per this provision, these Rules shall govern recruitment to all the ministerial posts of the lowest grade other than the post of stenographer, in all subordinate offices under the control of the Government excluding the Uttar Pradesh Secretariat, the Offices of the State Legislature, Lok Ayukt, Public Service Commission, High Court, the Sub-ordinate Courts under the control and superintendence of High Court, the Advocate General, Uttar Pradesh, and of the establishments under the control of the Advocate General. Rule 4(g) of the Ministerial Staff Rules defined the words “Ministerial Staff” to mean the clerical staff of the sub-ordinate offices, which is required to be appointed by direct recruitment. 10. Rule 2 of the Group ‘D’ Rules provides for application of the Rules. It provides that the Rules shall apply to all Group ‘D’ posts referred to in Rule 6 in all the sub-ordinate offices as defined in clause (h) of Rule 4. Rule 6 provides for source of recruitment to various categories of Group ‘D’ posts as under: “6. Sources of recruitment.—The sources of recruitment to the various categories of Group ‘D’ posts shall be as follows: (a) Peon, Messenger, Chaukidar, Mali, Farrash, Sweeper, Waterman/Bhisti, Tindal, Thelaman, Record Lifter and every other non-technical post. By direct recruitment (b) Peon-Jamadar By promotion from amongst peons. (c) Daftri/Bookbinder/Cyclostyle Operator By promotion from amongst qualified peons, Messenger and Farrashs (d) Farrash Jamadar By promotion from amongst permanent Farrashs (e) Sweeper Jamadar By promotion from amongst permanent Sweepers (f) Head Mali By promotion from amongst permanent Malis Provided that where no eligible suitable candidate is available for promotion to a particular post which is required to be filled by promotion, the post may be filled by direct recruitment.” 11. Clause-h of Rule 4 defines the words “Subordinate Offices” as under: “(h) “Subordinate Officers” shall refer to all the offices under the control of the Government, excluding the Secretariat, Offices of State Legislature, Lok Ayukt, Public Service Commission, High Court, Subordinate Courts under the control and the superintendence of the High Court Advocate General and the establishments under the control of the Advocate General-” 12. Thus the Group ‘D’ Rules were applicable for recruitment to the various categories of Group ‘D’ posts as mentioned in Rule-6. The Ministerial Staff Rules shall apply to the clerical staff of the subordinate offices as provided in Rule 4(g) read with Rule 2 of the Ministerial Staff Rules. Rule 1(2) of the Group ‘D’ Rules reads as under: “They shall Come into force at once.” 13. Since the Group ‘D’ Rules provide for coming into force at once and as such the Rules became operative from the date of notification, i.e. 16.3.1985. Questions No. (i) Whether the relevant Service Rules for recruitment became operative from 16.3.1985 inasmuch as Rule 1(2) of the Rules provides that “the Rules shall come in force at once”? Since the Group ‘D’ Rules provide for coming into force at once and as such the Rules became operative from the date of notification, i.e. 16.3.1985. Questions No. (i) Whether the relevant Service Rules for recruitment became operative from 16.3.1985 inasmuch as Rule 1(2) of the Rules provides that “the Rules shall come in force at once”? AND Questions No. (ii) Whether appointments of petitioners on 18.4.1985, were illegal due to non-observance of the Rules and, therefore the same were cancelled lawfully? 14. The Group ‘D’ Rules enacted by the State Government vide Notification No. 20/3/82-I-Personnel-2-85 dated 16.3.1985 came into force at once as per Rule 1(2). It provides complete procedure for recruitment. The Rules were in force on 27.3.1985 when the petitioners allegedly received a letter from the Employment Exchange for interview, on 28.3.1985 when a list of successful candidates was allegedly pasted on the notice board and also on 18.4.1985 when they were allegedly appointed. Thus procedure for recruitment as provided in the Rules including the procedure for selection and preparation of list under Rules 19 and 21, were not followed. Consequently, the appointment of the petitioners were not valid since they were appointed without following due procedure of law. Under the circumstances, I do not find any good reason to interfere with the impugned orders. Question No. (iii) Whether State Government is entitled to recover salary and other benefits from the petitioners which were received by them during the pendency of the writ petition? 15. It is not the case of the respondents that illegalities in the appointments of the petitioners was on account of any fraud, collusion or fault of the petitioners. There was no misrepresentation on the part of the petitioners to obtain appointments. Appointments made in breach of Rules, were the result of mistake of the respondents which was not even within the knowledge of the petitioners. The respondent No. 1 has not taken any action against the officers who mistakenly made the appointments without following the Rules. The respondents filed counter-affidavit alongwith stay vacation application dated 27.10.1986 but the order sheet shows that they never pursued their stay vacation application. Thus, on the peculiar facts of the present cases, I do not find it equitable to permit the respondents to recover salary and other benefits received by the petitioners during the period they worked/remained in employment. 16. The respondents filed counter-affidavit alongwith stay vacation application dated 27.10.1986 but the order sheet shows that they never pursued their stay vacation application. Thus, on the peculiar facts of the present cases, I do not find it equitable to permit the respondents to recover salary and other benefits received by the petitioners during the period they worked/remained in employment. 16. In the case of State of Punjab and others etc. v. Rafiq Masih (White Washer) ETC., (2015) 4 SCC 334 , Hon’ble Supreme Court considered the principles of equity and good conscience in recovery of payments mistakenly made by employer from employees belonging to class-III and class-IV service (Gorup ‘C’ and Group ‘D’ Service) and held as under: “7. Having examined a number of judgments rendered by this Court, we are of the view, that orders passed by the employer seeking recovery of monetary benefits wrongly extended to employees, can only be interfered with, in cases where such recovery would result in a hardship of a nature, which would far outweigh, the equitable balance of the employer’s right to recover. In other words, interference would be called for, only in such cases where, it would be iniquitous to recover the payment made. In order to ascertain the parameters of the above consideration, and the test to be applied, reference needs to be made to situations when this Court exempted employees from such recovery, even in exercise of its jurisdiction under Article 142 of the Constitution of India. Repeated exercise of such power, “for doing complete justice in any cause” would establish that the recovery being effected was iniquitous, and therefore, arbitrary. And accordingly, the interference at the hands of this Court. 8. As between two parties, if a determination is rendered in favour of the party, which is the weaker of the two, without any serious detriment to the other (which is truly a welfare State), the issue resolved would be in consonance with the concept of justice, which is assured to the citizens of India, even in the preamble of the Constitution of India. The right to recover being pursued by the employer, will have to be compared, with the effect of the recovery on the concerned employee. The right to recover being pursued by the employer, will have to be compared, with the effect of the recovery on the concerned employee. If the effect of the recovery from the concerned employee would be, more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer to recover the amount, then it would be iniquitous and arbitrary, to effect the recovery. In such a situation, the employee’s right would outbalance, and therefore eclipse, the right of the employer to recover. 9. The doctrine of equality is a dynamic and evolving concept having many dimensions. The embodiment of the doctrine of equality, can be found in Articles 14 to 18, contained in Part III of the Constitution of India, dealing with “fundamental rights”. These Articles of the Constitution, besides assuring equality before the law and equal protection of the laws; also disallow discrimination with the object of achieving equality, in matters of employment; abolish untouchability, to upgrade the social status of an ostracised section of the society; and extinguish titles, to scale down the status of a section of the society, with such appellations. The embodiment of the doctrine of equality, can also be found in Articles 38, 39, 39A, 43 and 46 contained in Part IV of the Constitution of India, dealing with the “directive principles of State Policy”. These Articles of the Constitution of India contain a mandate to the State requiring it to assure a social order providing justice - social, economic and political, by inter alia minimizing monetary inequalities, and by securing the right to adequate means of livelihood, and by providing for adequate wages so as to ensure, an appropriate standard of life, and by promoting economic interests of the weaker sections. 10. In view of the aforestated constitutional mandate, equity and good conscience in the matter of livelihood of the people of this country, has to be the basis of all Governmental actions. An action of the State, ordering a recovery from an employee, would be in order, so long as it is not rendered iniquitous to the extent, that the action of recovery would be more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer, to recover the amount. An action of the State, ordering a recovery from an employee, would be in order, so long as it is not rendered iniquitous to the extent, that the action of recovery would be more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer, to recover the amount. Or in other words, till such time as the recovery would have a harsh and arbitrary effect on the employee, it would be permissible in law. Orders passed in given situations repeatedly, even in exercise of the power vested in this Court under Article 142 of the Constitution of India, will disclose the parameters of the realm of an action of recovery (of an excess amount paid to an employee) which would breach the obligations of the State, to citizens of this country, and render the action arbitrary, and therefore, violative of the mandate contained in Article 14 of the Constitution of India. 18. It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law: (i) Recovery from employees belonging to Class-III and Class-IV service (or Group C and Group D service). (ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery. (iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued. (iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post. (v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer’s right to recover.” phasis supplied by me) 17. (v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer’s right to recover.” phasis supplied by me) 17. In the case of Syed Abdul Qadir v. State of Bihar, (2009) 3 SCC 475 (Para-58), Hon’ble Supreme Court held that the relief against recovery is granted by Courts not because of any rights in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardships that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, Courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. Similar views have also been expressed by Hon’ble Suprement Court in Sahib Ram v. State of Haryana, 1995 Supp. (1) SCC 18, Shyam Babu Verma v. Union of India, (1994) 2 SCC 521 , Union of India v. M. Bhaskar, (1996) 4 SCC 416 , V. Ganga Ram v. Director, (1997) 6 SCC 139 , B.J. Akkara v. Government of India, (2006) 11 SCC 709 , Purshottam Lal Das and others v. State of Bihar, (2006) 11 SCC 492 ; Punjab National Bank v. Manjeet Singh, (2006) 8 SCC 647 and Bihar SEB v. Bijay Bahadur, (2000) 10 SCC 99 . 18. Considering the facts of the case of the petitioners, the findings recorded in Para-15 above and the law laid down by Hon’ble Supreme Court in the afore-noted judgments, I find that it would be iniquitous, more unfair and unwarranted to permit the respondents to recover the payments made to the petitioners for the period they worked/remained in employment. 19. In view of the aforesaid, the impugned order cancelling appointment of the petitioners, is upheld. However on facts, it is directed that salary and other benefits received by the petitioners from the respondents shall not be recovered from them. 20. All the Writ Petitions are disposed of and interim orders are vacated. 19. In view of the aforesaid, the impugned order cancelling appointment of the petitioners, is upheld. However on facts, it is directed that salary and other benefits received by the petitioners from the respondents shall not be recovered from them. 20. All the Writ Petitions are disposed of and interim orders are vacated. There shall be no order as to costs.