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2018 DIGILAW 150 (UTT)

G. L. Tyagi v. State of Uttarakhand

2018-04-03

SHARAD KUMAR SHARMA

body2018
JUDGMENT : Sharad Kumar Sharma, J. 1. Admittedly, the petitioner has retired from Kichha Sugar Factory on 30.07.2005, as an Assistant Engineer. Briefly put, his case is that on an occurrence of vacancy on the post of Junior Engineer in the Municipal Board, Kichha, he submitted an application before the Executive Officer / Chairman on 22nd October, 2005, extending his candidature for appointment against the said post, whereby, he expressed his willingness to work as Junior Engineer on a contractual basis. Based on the application as submitted by the petitioner, the Municipal Board Kichha passed a Resolution on 29th October, 2005, whereby vide Resolution No. 1, the Municipal Board resolved and took a decision that looking to the gravity of situation and exigency of services required for the post of Junior Engineer, coupled with the fact that an approval for regular appointment has not yet been received from the State Government which in itself will take time and the work of the Municipal Board is being affected, it was resolved to authorize the Chairman, Municipal Board to make an appointment against the said post. Ultimately, Municipal Board appointed the petitioner on contractual basis. It is the case of the petitioner that based on the authority of appointment as given to the Chairman vide resolution dated 29.10.2005, the Chairman, Nagar Palika, Kichha moved application before the State (respondent No.1) on 02.11.2005, informing difficulties being faced by Municipality in the implementation of developmental works, made a request to respondent No. 1 to appoint petitioner as Junior Engineer. It is the case of the petitioner that he was appointed based on the direction given by Secretary on contractual basis. It is the case of the petitioner that Secretary made an endorsement for appointment on the letter dated 02.11.2005 itself. 2. The said resolution was subject to the condition that entitlement of the salary and other benefits would be subject to the approval made by the Board. It is the contention of the petitioner that since this appointment of the petitioner as made by the Resolution dated 29th October, 2005, was approved by the Secretary, on a communication sent by the Chairman on 2nd November, 2005, whereby, he directed that the petitioner would continue to work on contractual basis. Consequent to the letter of appointment issued to petitioner on 07.11.2005, he joined services on same day and continued to work. Consequent to the letter of appointment issued to petitioner on 07.11.2005, he joined services on same day and continued to work. Hence, his argument is that he could not have been removed without a prior approval of respondent No.1. 3. As per petitioner himself, his appointment as Contractual Junior Engineer was made under Section 68 of the U.P. Municipalities Act. Section 68 of the Municipalities Act reads as under :- “[68. Appointment of Special Officers of Technical Departments. – (1) A Board may, and if so required by the State Government, shall, by special resolution, appoint the principal officers of its technical departments such as Civil Engineer, Assistant Civil Engineer, Electrical Engineer, Assistant Electrical Engineer, Water Works Engineer, Assistant Water Works Engineer, Electrical and Water Works Engineer, Assistant Electrical and Water Works Engineer or Overseer and also Secretary where there is already an Executive Officer, and Superintendent or Lady Superintendent of Education.” (2) During the absence on leave, or other temporary vacancy in the office, of any of the officers mentioned in sub-section (1), if the period of such leave or vacancy does not exceed two months, the President may appoint a person to act in such office; if the period exceeds two months an appointment shall be made by the Board in accordance with the provisions of sub-section (1). (3) When the period of vacancy in which appointment has been made under the first part of sub-section (2) is subsequently extended beyond two months due to unforeseen circumstances, the appointment made by the President may continue subject to the approval of the State Government. (4) Every person appointed under sub-section (2) may exercise the powers and shall perform the duties conferred or imposed by or under this or any other enactment on the person for whom he is appointed to act. (5) Each appointment made under sub-section (1) or the second part of sub-section (2) shall be subject to the prior approval of the State Government. (6) The salary and other conditions of service of a person appointed under this section shall be such as may be prescribed.” 4. (5) Each appointment made under sub-section (1) or the second part of sub-section (2) shall be subject to the prior approval of the State Government. (6) The salary and other conditions of service of a person appointed under this section shall be such as may be prescribed.” 4. Learned counsel for the petitioner submits that by the impugned resolution dated 31st July, 2006 (Annexure-10) and looking to the manner of discharging him from official responsibility which was observed to have been found to be not satisfactory, it was proposed to dispense him from the services as a contractual Junior Engineer. It is this resolution which is being impugned in the writ petition. 5. The contention of the learned counsel for the petitioner, Mr. J.C. Pandey is that since the resolution of appointment dated 29th October, 2005 was made after an approval granted by the Secretary in that eventuality, even the resolution of removal dated 31st July, 2006 ought to have been passed after obtaining prior approval of the Secretary failing which it cannot be sustained in the eyes of law. 6. To support his contention, learned counsel for the petitioner places reliance on a communication dated 19.01.2007, made by the Executive Officer to the Chairman, wherein, the Executive Officer has referred to Section 68, contending thereof that as against the available vacant post of Junior Engineer, a contractual appointment has been made under Section 68, which has continued for a sufficient long period, but, on account of the fact that no approval has been neither sought nor made by the State Government as contemplated under Sub-section (2) and (1) of Section 68, the said appointment would be subject to the approval of the State Government and Chairman was requested to take an appropriate action for the said purpose. 7. Under Section 68 of the Municipalities Act, it deals with the contingency of appointment of Special Officers of Technical Department, which contemplates that for the purposes of appointment of the Officers under Sub-section (1) of Sub-section (2), there has had to be a prior approval taken by the Municipal Board from the State for meeting the contingency of the work. 8. Admittedly, according to the resolution and as reflected from the resolution dated 29th October, 2005 itself, it was not passed with prior approval of State. 8. Admittedly, according to the resolution and as reflected from the resolution dated 29th October, 2005 itself, it was not passed with prior approval of State. The approval which has been granted in favour of the petitioner by the Secretary is that of 2nd November, 2005, which in itself happens to be subsequent to the resolution dated 29th October, 2005, hence, is not in consonance to the approval as contemplated under Sub-section (1) and Sub-section (2) of Section 68. Hence, as a matter of fact, the appointment of the petitioner even on contractual basis after his retirement from the Sugar factory was contrary to the provisions contained under Sub-section (1) and (2) of Section 68 of the Municipalities Act of 1916. 9. The contention of the learned counsel for the petitioner is that once an approval has been granted on 2nd November, 2005 by the Secretary, may it be that it was on 02.11.20015, it was even prior to passing of the impugned resolution dated 31st July, 2006, there has had to be an approval from the Secretary prior to the removal too from the services is a mis-conceived notion for the reason that Section 68, do not contemplate anywhere that prior to removal of an employee appointed under Section 68 to meet the contingency, a prior approval is required to be taken from the State because Section 68 only contemplates a prior approval for appointment of Special Officer on Technical Department to meet the contingency of work. Had the Act felt necessity to obtain a prior approval, prior to removal, it ought to have included the same in the statute, more particularly, when it was adding the provision of prior approval, prior to appointment, non mentioning of the same at the time of removal would mean Legislature was conscious that there was no necessity to incorporate the provision of prior approval before an incumbent is removed from job. 10. In that view of the matter, for reasons given above, this Court is not in agreement with the argument as extended by the learned counsel for the petitioner. Even otherwise also, the services of Engineering Department of the Municipal Board are governed by the provisions of U.P. Palika (Centralized) Services Rules, 1966. Rule 17 deals with the mode of recruitment, scrutiny of application and interviews etc. Even otherwise also, the services of Engineering Department of the Municipal Board are governed by the provisions of U.P. Palika (Centralized) Services Rules, 1966. Rule 17 deals with the mode of recruitment, scrutiny of application and interviews etc. Sub-rule (c) of Rule 17 provides the special circumstances where to meet a special situation or an emergent situation, the Palika can appoint a person exclusively on an intermittent basis, but, with rider attach to it, the same has to be made in consultation with the Commission because the post as defined under the Rules, 1966 are the post which fall within the purview of Public Service Commission. Sub-rule (c) of Rule 17 reads as under :- “17. Mode of recruitment, scrutiny of applications, interview, etc. - …….. (c) Notwithstanding anything contained in these rules, the Government may, in special circumstances, and in consultation with the Commission, make special or emergency recruitment of Centralised Services on the result of a Special Examination or interview conducted by the Commission. The academic qualifications, experience and age for such recruitment shall be such as may be decided by the Government in consultation with the Commission. The special examination and the interview shall be conducted in the manner laid down in sub-rule (a) or (b), as the case may be. The Commission shall prepare a list of successful candidates arranged in order of preference and forward the same to Government. The inter-seniority of such candidates shall be determined according to the position attained by them in order of merit at the special examination/interview and they shall be assigned seniority below the candidates appointed on the result of the regular examination and those appointed by promotion under Rule 20 of these rules in that particular year.” 11. Since admittedly, in the instant case, the appointment of the petitioner made on 07.11.2005 was not made after taking prior approval from the Commission, as contemplated under Sub-rule (c) of Rule 17, the appointment of the petitioner itself cannot be sustained under law. Consequently, no fault could be pointed in the resolution of 31st July, 2006 directing removal of the petitioner when the appointment itself was contrary to the provisions. 12. Admittedly, when the petitioner was appointed, he had already relieved from Sugar Factor and his appointment was made as Junior Engineer on contractual basis. Consequently, no fault could be pointed in the resolution of 31st July, 2006 directing removal of the petitioner when the appointment itself was contrary to the provisions. 12. Admittedly, when the petitioner was appointed, he had already relieved from Sugar Factor and his appointment was made as Junior Engineer on contractual basis. After his removal by the impugned resolution dated 31.07.2006, new regular incumbent has been appointed in November, 2009, which was not restrained under law and is working with the Municipal Board, Kichha. 13. Even according to the petitioner’s own case, he in para 19 of the Writ Petition has pleaded that after the impugned resolution of removing the petitioner from the post of Junior Engineer, on which, he was working on contractual basis, another incumbent has been appointed on the said post. The petitioner contends that he has received the information about the appointment of Mr. P.C. Pant under the Right to Information Act on 22nd December, 2007. It is further admitted by the petitioner that the Chairman, vide his letter dated 2nd September, 2006, has written to the Director, Urban Development, Uttarakhand, whereby, he has given the information of the removal of the petitioner as contractual Junior Engineer and the information pertaining to the appointment of Mr. P.C. Pant on the post of Junior Engineer. As a consequence of the letter of the Chairman dated 2nd September, 2006, written to the Director, he has sought approval for the removal of the petitioner from the post of Junior Engineer and appointment of Mr. P.C. Pant on the said post. In the Writ Petition, thus filed by the petitioner, despite of knowing the fact that new incumbent has been permitted to join after his selection as Junior Engineer, for which, an approval has already been sought from the office of the Director, yet the petitioner had not challenged the appointment of Mr. P.C. Pant nor has challenged the communication made by the Chairman on 2nd September, 2006, seeking an approval of Mr. P.C. Pant as Junior Engineer. 14. As a consequence of the appointment of the petitioner, he has no lien in the post, apart from the fact, he had attained age of 65 years when he filed the Writ Petition on 29.09.2010 and now he is of about 73 years of age. Hence, too, he is not under law entitled for the relief claimed. 14. As a consequence of the appointment of the petitioner, he has no lien in the post, apart from the fact, he had attained age of 65 years when he filed the Writ Petition on 29.09.2010 and now he is of about 73 years of age. Hence, too, he is not under law entitled for the relief claimed. As such, I do not find any merit in the writ petition and the same is dismissed. 15. No order as to costs.