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2018 DIGILAW 1348 (ALL)

ANURODH KUMAR PANDEY v. STATE OF U. P.

2018-05-28

YASHWANT VARMA

body2018
JUDGMENT Hon’ble Yashwant Varma, J.—Heard learned counsel for the petitioner and Sri Manish Goyal, learned Counsel appearing for the respondents. 2. This writ petition calls in question an order of the District Judge dated 18 January 2014 passed in terms of the directions issued by the Court on an earlier writ petition. It appears that the petitioner was appointed on ad hoc basis in the judgeship at Jalaun around January 2003. According to the petitioner his services were confirmed on that post on 24 January 2004. His services are stated to have been terminated in terms of an order dated 10 November 2006 passed by the District Judge. This order was assailed by the petitioner in Writ A No. 25005 of 2008. The writ petition was allowed by a learned Judge in terms of his judgment dated 22 November 2013 with the following operative directions: “10. Respectfully following the judgment of this Court in the case of Manoj Kumar Yadav (supra) this writ petition is allowed. The termination order dated 10.11.2006 (Annexure 1) passed by District Judge Jalaun Orai is set aside and the matter is remitted back to the District Judge Jalaun at Orai to pass an order afresh after investigating the matter as to whether the appointment of the petitioner was made validly under Rule 4(3) of the Rules of 1955, namely, whether the discretion exercised by the then appointing authority was valid or not in the light of the observation made in the case of Manoj Kumar Yadav (supra). This exercise shall be completed by the District Judge within six weeks from the date of production of a certified copy of this order. In the event, the District Judge, Jalaun at Orai finds that the appointment was validly made then the petitioner will be reinstated in service with all consequential benefits but the petitioner shall not be paid wages for the period from the date of his termination till the date of reinstatement, on the principle of “No Work and No Pay”. 11. With these observation, the writ petition is allowed. There shall be no order as to cost.” 3. 11. With these observation, the writ petition is allowed. There shall be no order as to cost.” 3. As is evident from the directions issued and extracted hereinabove, the learned Judge was of the view that before considering the validity of the appointment offered and granted to the petitioner, it was incumbent upon the concerned District Judge to bear in mind the provisions of Rules 4 to 11 of the U.P. Subordinate Civil Courts Inferior Establishment Rules, 1955 as they were construed and interpreted in the decision of the Court in Manoj Kumar Yadav v. State of U.P. and others, WP 29020 of 2007, decided on 24 July, 2008. The learned Judge had consequently remitted the matter back to the District Judge to pass an order afresh after undertaking the requisite exercise of considering whether the provisions of Rule 4(3) of the 1955 Rules had been borne in mind and whether the discretion was validly exercised by the District Judge. 4. It becomes relevant to note here that in Manoj Kumar Yadav, the Court was primarily concerned with the issue of whether the 1955 Rules provided sufficient internal safeguards so as to ensure that the power exercised by the District Judge was not rendered arbitrary. After noticing the scheme of the 1955 Rules, the Court in Manoj Kumar Yadav had made the following pertinent observations: “In the present case, the Rules of 1955 provides safeguards which puts fetters upon the appointing authority in exercising its power arbitrarily. The Rules provides a procedure which, if followed would become fair and reasonable. For example, Rule 6 provides that, the Rules of Reservation are required to be followed. Rule 8 provides that, a candidate should not be less than 18 years nor should be more than 32 years. Rules 9 and 10 provides that, the appointing authority should appoint such persons who is mentally fit and free from any physical defect, and that, his character and antecedents are such which renders the candidate suitable for an employment in the establishment. In my opinion, these are various provisions which puts a fetter in the arbitrary exercise of powers of the District Judge, and if these Rules are followed in letters and in spirit, such arbitrary exercise of discretion would be curbed and fairness and reasonableness would be writ large in the selection and appointments of the candidates. In my opinion, these are various provisions which puts a fetter in the arbitrary exercise of powers of the District Judge, and if these Rules are followed in letters and in spirit, such arbitrary exercise of discretion would be curbed and fairness and reasonableness would be writ large in the selection and appointments of the candidates. Consequently, this Court is of the opinion, that the power exercised by the District Judge under Rule 4(3) has to be read and worked out in the light of the provisions made in Rules, 6, 7, 8, 9, 10 and 11 of the Rules of 1955 and only then one can find out as to whether the appointing authority had validly exercised its discretion or not. This Court is also of the opinion that Rule 4(3) read with Rules 6,7, 8, 9, 10 and 11 of the Rules of 1955 provides a procedure for appointment of Class-IV employees as specified in Rule 4(3) of the Rules. In the present case, the appointments of the petitioners has been set aside on the ground that an advertisement had not been issued. Since their appointments were made prior to the decision of Sachin Kumar’s case, this Court is of the opinion that the appointments of the petitioners on the ground of non-issuance of an advertisement cannot be invalidated. Other factors, as contemplated under Rules 6 to 11 of the Rules, are also required to be considered.” 5. It was in the aforesaid backdrop that the matter fell before the District Judge for reconsideration. In terms of the order passed by the Court, the District Judge has recorded categorical findings that no character certificate or other testimonials in evidence of good character of the petitioner was found on the record. The District Judge has further noticed that although in the joining letter issued, a reference had been made to the requirement of a character certificate being submitted, no such certificate or other material either existed on the record nor was any certificate allegedly filed at that time found on the record. He has also placed reliance upon the report submitted by the Central Nazir to similar effect. The District Judge has then proceeded to note that in Enquiry Nos. He has also placed reliance upon the report submitted by the Central Nazir to similar effect. The District Judge has then proceeded to note that in Enquiry Nos. 22 and 19 of 2006 serious charges had also been levelled against the petitioner and that the said enquiries could not be taken to their logical conclusion, since in the interregnum the services of the petitioner came to be dispensed with in terms of the order dated 10 November 2006. On an over all consideration of the above, the District Judge has proceeded to hold that the appointment made in favour of the petitioner could not be sustained and upheld bearing in mind the requirement of the 1955 Rules. 6. Before this Court, Sri Tripathi, learned counsel for the petitioner submitted that at the time of joining a character certificate was in fact submitted and that since the same had been duly provided to the respondents it was no longer the obligation of the petitioner to obtain or produce any further certificate and that too after such a long period of time. Sri Tripathi would also contend that from a reading of the order dated 7 January 2003 [the offer of appointment], it is evident that a character certificate was required and subsequently submitted. In view of the aforesaid Sri Tripathi submits that the finding of the District Judge that no character certificate existed cannot be accepted. Sri Tripathi has also contended that the District Judge has clearly been prejudiced by the fact that two other enquiries had been initiated against the petitioner and that has clearly impacted the decision taken by him. 7. Countering the said submission, Sri Goyal on the other hand submitted that it was incumbent upon the District Judge to undertake the requisite enquiry with regard to the character and standing of the petitioner before granting him appointment. Sri Goyal submits that evidently and as is borne out from the record, no certification of character existed. In his submission, the appointment accorded to the petitioner was therefore rendered arbitrary and in any view of the matter contrary to the mandate of the 1955 Rules. Sri Goyal has also laid stress upon the requirements placed by Rule 10 which obliges the District Judge to satisfy himself with respect to the character of a candidate for direct appointment. In his submission, the appointment accorded to the petitioner was therefore rendered arbitrary and in any view of the matter contrary to the mandate of the 1955 Rules. Sri Goyal has also laid stress upon the requirements placed by Rule 10 which obliges the District Judge to satisfy himself with respect to the character of a candidate for direct appointment. He submitted that there was no character certificate on file on the basis of which the satisfaction as contemplated under Rule 10 could have been recorded. Sri Goyal further submits that no recordal of satisfaction with respect to the character of the petitioner even otherwise existed on the record so as to hold that the appointment was made in accordance with the 1955 Rules. 8. Having noticed the rival submissions herein above, the Court at the outset finds that the original writ petition of the petitioner was allowed and the matter remitted to the District Judge to pass orders afresh including on the question of whether the appointment of the petitioner can be said to have been made validly in terms of Rule 4(3) and whether the discretion had been rightly exercised by the appointing authority. 9. Both in terms of Rules 4 and 10 it was incumbent upon the District Judge to have satisfied himself with regard to the character of the petitioner. This is the unequivocal command and statutory obligation placed in terms of Rule 10. However, as the order impugned indicates no material or evidence existed which may have even remotely established that the character and standing of the petitioner had been duly certified and taken on board. As noted hereinabove, the District Judge has to the contrary found that no character certificate existed on file. Even in these proceedings, the petitioner has not placed on record any certification or testimonial of good character which may have been filed, as asserted, at the relevant time. 10. The Court in this connection also records the submission of Sri Tripathi made with reference to Annexure-2 to the writ petition for it is with reference to this communication alone that Sri Tripathi has contended that a character certificate was submitted. Quite apart from the fact that no copy of the character certificate which may have allegedly been submitted being brought on record, the Court finds that even a reading of this document carries the case of the petitioner no further. Quite apart from the fact that no copy of the character certificate which may have allegedly been submitted being brought on record, the Court finds that even a reading of this document carries the case of the petitioner no further. This for the simple reason that on an ex facie reading of the said communication, all that follows is that the District Judge called upon the petitioner to furnish a character certificate after appointment. Whether pursuant to this communication any certificate was in fact submitted remains in the realm of speculation since the petitioner has not brought on record any copy of a testimonial, which may have been submitted at the relevant time. The Court is also constrained to hold against the petitioner on this aspect since the respondents have categorically asserted that no character certificate has been found on record. 11. The more fundamental issue which confronts this Court is whether any satisfaction was at all recorded and arrived at by the District Judge before according an appointment in favour of the petitioner. It is relevant to observe here that the filing of a certificate is not a mere or empty formality. In fact and to the contrary, the 1955 Rules clearly mandate the District Judge being satisfied with regard to the suitability of the applicant to be offered appointment. This as a necessary corollary would essentially require the District Judge recording his satisfaction with regard to suitability of a particular incumbent. At least the record of recruitment must reflect and establish that such satisfaction was in fact formed, arrived at and recorded. Unless this requirement is read into the 1955 Rules, the discretion vesting in and exercised by the District Judge would be rendered arbitrary. This must be recognized and held to be an essential prerequisite in order to sustain and preserve the discretion conferred under the 1955 Rules. This enunciation on the powers of the District Judge by the Court becomes imperative in order to emphasize and underline the need to recognize the checks which must be necessarily read in the 1955 Rules in order to sustain them on basic constitutional principles and to carry forward the postulates propounded in Manoj Kumar Yadav. 12. This enunciation on the powers of the District Judge by the Court becomes imperative in order to emphasize and underline the need to recognize the checks which must be necessarily read in the 1955 Rules in order to sustain them on basic constitutional principles and to carry forward the postulates propounded in Manoj Kumar Yadav. 12. Insofar as the submission with regard to the initiation of two other enquiries is concerned, while this Court finds that while the drawl of such proceedings was irrelevant for the purposes of deciding the issue consequent to the order of remand, the impugned order is not based on these incomplete enquires at all. The impugned order proceeds to hold against the petitioner on grounds which have already been noticed herein above. The mere mention of these enquiries cannot be said to have adversely impacted or clouded the ultimate decision arrived at by the District Judge. The mentioning of these enquiries in the impugned order is also an issue, which is clearly severable and does not, in the considered view of this Court, erode the ultimate conclusion recorded and arrived at by the District Judge. 13. On an overall consideration of the above, the Court finds no error, manifest or otherwise, which may warrant interference with the order impugned. 14. The writ petition fails and is consequently dismissed.