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2016 DIGILAW 3361 (ALL)

Santosh Kumar v. U. P. P. S. T.

2016-09-30

VIJAY LAXMI

body2016
JUDGMENT Dr. Vijay Laxmi, J. – Heard Sri Paras Nath Singh, learned counsel for the petitioner and learned Standing Counsel. 2. The petitioner was appointed on the post of Sports Organizer by the Deputy Director, Harijan Evam Samaj Kalyan Vibhag on 03- 06-1986 and consequent to the appointment, he resumed duty. However, later on, by an order dated 09-02-1987, the Director Harijan Evam Samaj Kalyan Vibhag, took a decision to terminate petitioner's services and in consequence thereof, the Deputy Director, Harijan Evam Samaj Kalyan Vibhag,Varanasi had terminated his services vide order dated 25-02-1987. Learned counsel for the petitioner has submitted that the impugned order does not indicate as to what illegality was committed during the course of appointment, thus, the impugned order is liable to be quashed. 3. According to the petitioner, he was appointed on the post of Sports Organizer in pursuance of an advertisement which was published in the daily newspaper "Janvarta, in May,1986. The post was under the jurisdiction of the Deputy Director, Harizan and Social Welfare, Varanasi. He applied for the said post. His interview was held on 20-05-1988 by the Selection Committee, which was constituted for the said purpose having Deputy Director, Harijjan & Social Welfare, Varanasi Division, Varanasi as its Chairman and District Harijjan & Social Welfare Officer, Mirzapur and District Probation Officer, Varanasi as the members of the Selection Committee. The petitioner was found fit and selected to be appointed on the post of Sports Organiser. The appointing authority was Deputy Director of Harijjan & Social Welfare for the said post. The order of the appointment of the petitioner was issued by the Appointing Authority on 28-05-1986. The true copy of the order of appointment of the petitioner has been filed as Annexure No. 1 to the writ petition. The appointment of the petitioner was made on a clear vacant post in a substantive capacity. After receiving the appointment order, the petitioner joined on 03-06-1986. The work and conduct of the petitioner on the post of Sports Organiser have been thoroughly satisfactory and excellent and no adverse remark ever has been made against the petitioner by any senior officers under whom he worked. The services of the petitioner have been terminated vide order dated 25-02-1987. Copy of order of termination order has been filed as Annexure No. 3 to the writ petition. The services of the petitioner have been terminated vide order dated 25-02-1987. Copy of order of termination order has been filed as Annexure No. 3 to the writ petition. Before passing of such an order, the petitioner was not given any opportunity to defend his case. Thus, the order of termination is in gross violation of principles of natural justice and violative of Article 311(2) of the Constitution of India. The order of termination is arbitrary, illegal and void ab-initio as the same has been passed by the appointing authority without applying his mind. The petitioner has a legal right to continue on the post on which he has been appointed. The petitioner is still holding the charge of the said post at Ballia. The appointment of the petitioner was made by the Deputy Director, opposite party no. 4. The cancellation of the appointment order is made by the Director, opposite party no. 3. On the basis of cancellation of the appointment order, the termination order dated 25-02-1987 was passed by the Deputy Director. According to Sewa Samapiti Niyamawali 11th June, 1975, only the termination order can be passed by the appointing authority. Here, the termination order of the petitioner was passed without jurisdiction. The Deputy Director did not apply his mind. The first writ petition filed by the petitioner was disposed of by this court on the ground that the petitioner had an alternative remedy before the U.P. Public Services Tribunal. Thereafter, the petitioner filed a reference under section 4 before the U.P. Public Services Tribunal. The reference was admitted and the stay application was rejected on the ground that the Tribunal had no jurisdiction to pass the stay order. The Reference No. 174/F/VI of 1987 is now pending before the U.P. Public Services Tribunal No. 4, Lucknow, hence this writ petition. 4. Per contra, learned Standing Counsel has submitted on behalf of the respondents that the then Deputy Director, Social Welfare, Varanasi Division, Varanasi, Sri Yogesh Rai made appointment of the petitioner on the post of Sports Organizer in the pay scale of Rs. 330-495 without conducting any interview and even without bringing the same to the notice of the Director, Harijjan & Social Welfare, and without obtaining his approval. The act of the Deputy Director was in violation of the provisions of the Government order No. 388/26-2-83-293/81 dated 06-02-1984. 330-495 without conducting any interview and even without bringing the same to the notice of the Director, Harijjan & Social Welfare, and without obtaining his approval. The act of the Deputy Director was in violation of the provisions of the Government order No. 388/26-2-83-293/81 dated 06-02-1984. The said appointment of the petitioner was done in an illegal manner and after coming to know about the aforesaid facts, the Director, Harijjan & Social Welfare vide letter no. 3139-8/Ha.Sa./Stha. 2/86 dated 09- 02-1987, wrote to the Deputy Director, Harijjan & Social Welfare, Varanasi Division, Varanasi, Smt. Sunita Chaturvedi to cancel the illegal appointments made by the earlier Deputy Director, Yogesh Rai and furnish a report to the Director about the details of such cancellations. It is submitted that in accordance with the relevant Government order no. 388/26-2-83-293/81 dated 06-02-1984 and 6653/26-2-83 dated 26-10-1983, the list of the selected candidates in two copies is to be produced before the Director,Harijjan & Social Welfare by the appointing authority personally after completion of the interview or within a period of one week after the interview who shall issue suitable directions to the concerned appointing authority in this respect. The Director before sanctioning approval to the appointment shall ensure that the selection took place in accordance with rules. The appointment of the petitioner was not done in accordance with law, as a consequence, his services were terminated vide office order no. 3406-8/U.Ni./Stha.PF./86-87 dated 25-02-1987. 5. It is evident from perusal of the record that operation of the impugned order was stayed by this court vide interim order dated 27-10-1987. At present the petitioner is posted as Sports Organizer, Rajkiya Smprekshan Grih (Kishore Grih),Varanasi, under subordination of Director,Woman Welfare. It is informed that vide Government order no. 10085/Do-1-1995 dated 25-09-195, Woman and Child Development Department has separately been constituted and as a result thereof 23 schemes run by Social Welfare Department have been transferred to Woman Welfare Department including the scheme pertaining to that of petitioner also vide Government order no. 7073/B-E-1-94-U.O.-250/94 dated 25-10- 1994. The Social Welfare Department does not have lien of employees of schemes transferred to Woman Welfare Department and the same is clear from Government order no. 244 Ma/26-1-98-3(115)/98 dated 12-06-1998. The Director, Social Welfare Department has informed about the present post of the petitioner vide his letter dated 05-08-2016. 6. 7073/B-E-1-94-U.O.-250/94 dated 25-10- 1994. The Social Welfare Department does not have lien of employees of schemes transferred to Woman Welfare Department and the same is clear from Government order no. 244 Ma/26-1-98-3(115)/98 dated 12-06-1998. The Director, Social Welfare Department has informed about the present post of the petitioner vide his letter dated 05-08-2016. 6. Learned counsel for the petitioner has placed reliance upon a judgment and order dated 26.08.2009 passed in writ petition No. 3178 (SS) of 1987, Smt. Malti Devi v. State of UP and others, where under similar circumstances relief was granted to the petitioner observing that the impugned order was illegal since the order of termination was not passed by the Appointing Authority. 7. According to petitioner's counsel, the appointment of the petitioner was done after due advertisement of the post by the competent authority. Admittedly, the Deputy Director Harijan Evam Samaj Kalyan Vibhag, is the appointing authority. The appointment letter of the petitioner also shows that the appointment was made against regular vacancy by the Deputy Director Harijan Evam Samaj Kalyan Vibhag, Varanasi. In view of the above, at the face of record, since the decision was taken by the Director Harijan Evam Samaj Kalyan Vibhag, to terminate petitioner's services on 09.02.1987, the impugned order seems to suffer from substantial illegality. The Deputy Director Harijan Evam Samaj Kalyan Vibhag, has virtually communicated decision of the Director Harijan Evam Samaj Kalyan Vibhag. Accordingly, the impugned order factually seems to have been not passed by the appointing authority. The order also does not disclose the illegality which was alleged to have been committed during course of appointment. Hence it also suffers from arbitrary exercise of power. In pursuance of the interim order the petitioner is continuing in service. In view of the above, the writ petition deserves to be allowed. 8. Accordingly, the writ petition is allowed. A writ in the nature of certiorari is issued quashing the impugned order dated 25.02.1987 and the order dated 09.02.1987 passed by the Deputy Director Harijan Evam Samaj Kalyan Vibhag Varanasi, and the Director Harijan Evam Samaj Kalyan Vibhag, with consequential benefits. Costs is made easy. Petition allowed.