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2018 DIGILAW 2275 (ALL)

Bharat Bhusan v. State of U. P.

2018-11-01

DEVENDRA KUMAR ARORA

body2018
ORDER : Dr. Devendra Kumar Arora, J. 1. Heard Sri Alok Mishra, learned Counsel for petitioners and Sri Akhilesh Kumar Srivastava, learned Counsel appearing for U.P. Co-operative Union Limited (opposite party No. 2). 2. In all the aforesaid writ petitions common question is involved, therefore, they have been clubbed together and are being decided by a common order. 3. Petitioners have approached this Court challenging the order dated 12.10.2011 passed by the Managing Director, U.P. Co-operative Union Limited, whereby the representations of petitioners have been rejected on the ground that after expiry of term as shown in their appointment letter, services of petitioners have automatically come to an end. In the impugned order, it has also been observed that appointment of petitioners were made in contravention of the provisions of Regulation 5 of the U.P. Co-operative Societies Employees Service Regulations, 1975. 4. Submission of learned Counsel for petitioners is that petitioners were appointment on temporary basis in between 2008 to 2010 for a specific period i.e. 89 days but after expiry of the said period, their services were extended from time to time. In the meantime, the services of petitioners were terminated orally which was questioned by the petitioners in Writ Petition No. 5368 (SS) of 2011, Writ Petition No. 1973 (SS) of 2011 and Writ Petition No. 2592 (SS) of 2011. All these writ petitions were disposed of vide order dated 05.09.2011 with a direction to the Managing Director, U.P. Co-operative Federal Authority to look into the matter and pass appropriate orders. In deference of the said court's order, representations preferred by petitioners were considered and rejected by the impugned order dated 12.10.2011. 5. It has been asserted by the learned Counsel for the petitioners that under Regulation 15(1) of the U.P. Cooperative Federal (Business) Regulations, 1976, it is crystal clear that the terms and conditions of the appointments made by the Federal Authority will be governed by the provision contained in Regulations, 1976 itself as such there was neither any basis nor any justifiable reason to observed that service conditions of the petitioners are governed by the U.P. Cooperative Society Employee Service Rules, 1975. Therefore, the respondents had proceeded on a wrong premise while rejecting the representation of the petitioners, which has resulted into grave injustice. 6. Therefore, the respondents had proceeded on a wrong premise while rejecting the representation of the petitioners, which has resulted into grave injustice. 6. Refuting the allegations of the petitioners, it has been urged on behalf of the contesting respondents that appointments were made for a fixed term without there being any advertisement and process of selection and de hors the Rules as the appointments were to be made strictly in accordance with Regulations 1975 or Regulations 1976. The Managing Director, U.P. Cooperative Union is ex-officio Chairman of the U.P. Co-operative Federal Authority and he can make regular appointment only after selection is made through the Board. It has also been asserted that simply for the reason that the posts are existing in the office of contesting respondents, it would not ipso facto creates a right in favour of the petitioners to be appointed on the post in question through back-door. 7. At the out set, it is relevant to mention that Section 2(a-4) of the U.P. Co-operative Societies Act, 1965 deals with the Apex level societies. The U.P. Co-operative Union Limited, Lucknow is also a registered Apex level cooperative society as it names find place at item No. 5 of Section 2(a-4) of the Act. It may be added that in exercise of the powers conferred under Section 122 of the 1965 Act framed service regulations known as U.P. Co-operative Employees Service Regulations, 1975. The State Government constituted an authority known as U.P. Cooperative Institutional Service Board for recruitment, training and disciplinary control over the employees of Apex level societies. Regulation-5 of the 1975 Regulations deals with recruitment and says that recruitment for all posts in a cooperative society shall be made through the Board whether recruitment is direct or by promotion. 8. In Secretary, State of Karnataka & others Vs. Umadevi & others 2006 (4) SCC 1 , it has been held by the Apex Court in explicit words that The Apex Court has also cautioned the Courts that they must be careful in ensuring that they do not interfere unduly with the economic arrangement of the affairs of the State or its instrumentalities or lend themselves an instrument to facilitate by passing of the constitutional and statutory mandates. Following Uma Devi' case (supra), in Srinder Prasad Tiwari Vs. Following Uma Devi' case (supra), in Srinder Prasad Tiwari Vs. U.P. Rajya Krishi Utpadan Mandi Parishad & others, 2006 (7) SCC 684 , in para-35, 37 and 38, it was held: "35. Equal opportunity is the basic feature of our Constitution. Public employment is repository of the State power. Certain status and powers emanate from public employment. "37. Our constitutional scheme clearly envisages equality of opportunity in public employment. The Founding Fathers of the Constitution intended that no one should be denied opportunity of being considered for public employment on the ground of sex, caste, place of birth, resident and religion. This part of the constitutional scheme clearly reflects strong desire and constitutional philosophy to implement the principle of equality in the true sense in the matter of public employment. "38. In view of the clear and unambiguous constitutional scheme, the courts cannot countenance appointments to public office which have been made against the constitutional scheme. In the backdrop of constitutional philosophy. It would be improper for the courts to give directions for regularization of services of the person who is working either as daily-wager, ad employee, probationer, temporary or contractual employee, not appointed following the procedure laid down under Articles 14, 16 and 309 of the Constitution. In our constitutional scheme, there is no room for back door entry in the matter of public employment." 9. Elaborating the procedure of regular appointment, in Union Public Service Commission Vs. Girish Jayanti Lal Vaghela 2006 (2) SCC 482 , the Court observed that regular appointment to a post under the State or Union cannot be made without issuing advertisement in the prescribed manner, which would include inviting of applications from the employment exchange where eligible candidates get their names registered. Any regular appointment made on a post under the State or Union without issuing advertisement inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would violate the guarantee enshrined under Article 16 of the Constitution. This view has been referred and approved in Uma Devi (supra) and reiterated in National Fertilizers Ltd. Vs. Somvir Singh 2006 (5) SCC 493 observing that the "State" within the meaning of Article 12 of the Constitution is bound to comply with the constitutional mandate under Article 14 and 16. 10. This view has been referred and approved in Uma Devi (supra) and reiterated in National Fertilizers Ltd. Vs. Somvir Singh 2006 (5) SCC 493 observing that the "State" within the meaning of Article 12 of the Constitution is bound to comply with the constitutional mandate under Article 14 and 16. 10. In view of the aforesaid legal proposition, petitioners have no legal right for continuance in service unless their appointment is made in accordance with the relevant rules and regulation. Even assuming that the posts in reserved category are existing then too, same are to be notified by the Board and petitioners have to compete in the examination and no legal right is accrued in their favour. The authorities have also taken a stand in the counter affidavit that any ad hoc appointment has been made in regard to exigencies of work in a stop gap arrangement, such employees cannot claim as a matter of right to be appointed rather they have also to be compete in the selection as and when vacancy is notified. 11. I also find force in the arguments advanced by the contesting respondents that the Managing Director of Cooperative Union, who is ex-officio Chairman of the U.P. Co-operative Federal Authority and he can make regular appointment only after selection is made through the Board. Therefore, the Managing Director, who is Chief Executive Officer of the Society cannot usurp the powers of the Institutional Service Board and it is wrong to say that appointments were made in accordance with law. 12. For the reasons aforesaid, the court is of the view that petitioners have failed to point out infringement of any constitutional or statutory right. Therefore, the writ petitions lack merit and are hereby dismissed. Costs easy.