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2018 DIGILAW 618 (ALL)

NARESH CHANDRA GUPTA v. COLLECTOR

2018-03-15

BALA KRISHNA NARAYANA, IRSHAD ALI

body2018
JUDGMENT Hon’ble Irshad Ali, J.—Heard learned counsel for the appellant-petitioner Sri V.K. Singh, Senior Advocate assisted by Sri Prakhar Tandon, Advocate and learned Standing Counsel on behalf of the respondents. 2. In the present special appeal the judgment and order dated 8.9.2008, passed by the learned Single Judge in Writ Petition No. 19356 of 1985 and in Writ Petition No. 19462 of 1985, is under challenge. 3. In the case in hand, the appellant-petitioner Naresh Chandra Gupta in Writ Petition No. 19462 of 1985 was appointed on the post of Clerk in Treasury Office at Meerut on ad hoc basis on 19.2.1985 after being selected by a duly constituted selection committee. The services of the appellant-petitioner were terminated vide order dated 15.12.1985 but before the passing of the order of termination, the writ petition was filed before this Court for issuance of writ of mandamus directing the respondents not to terminate the services of the appellant-petitioner, with a further prayer not to interfere with the functioning of the petitioner and to pay his regular salary month by month. The writ petition was filed on 12.12.1985 and vide order dated 18.12.1985 this Court directed to put up the case for admission on 10.1.1986 and respondents were directed not to terminate the services of the appellant-petitioner till then. After few adjournments and extension of interim order, on 9.12.1988 the writ petition was admitted and the interim order was directed to continue till further order. 4. The case of the appellant-petitioner is that the vacancies on the post of Clerk in the office of Treasury in district Meerut occurred, which were notified inviting applications from the eligible and qualified candidates. The appellant-petitioner, having requisite qualification, applied for the appointment and a selection committee, duly constituted as per the rules applicable in regard to the direct recruitment, selected the appellant-petitioner for appointment on the post of Clerk on ad hoc basis. The petitioner-appellant was given charge on 4.10.1985 in the pay scale of Rs. 354-550. The recruitment and service conditions of the Clerk of the Treasury Department are governed by the U.P. Subordinate Office Ministerial Staff (Direct Recruitment) Rules, 1975, which was amended by the 4th amendment in the year 1979. 5. Under the aforesaid Rules, 1975, Rule 6 provides for constitution of selection committee for making selection on the post of Clerk. 354-550. The recruitment and service conditions of the Clerk of the Treasury Department are governed by the U.P. Subordinate Office Ministerial Staff (Direct Recruitment) Rules, 1975, which was amended by the 4th amendment in the year 1979. 5. Under the aforesaid Rules, 1975, Rule 6 provides for constitution of selection committee for making selection on the post of Clerk. Rule 7 provides that recruitment to lower grade of the ministerial staff of the subordinate offices shall be made by direct recruitment through the selection committee, referred to in Rule 6, on the basis of the academic and other attainments as provided under Rule 12. 6. The petitioner-appellant took charge on the post on 4.10.1985 and started discharging his duties on the post. 7. The appellant-petitioner came to know that the department was going to make fresh selection including the post on which the appellant-petitioner was working. Thus, he preferred the writ petition before this Court with the prayer that the respondents may be directed to not to terminate his services and not to interfere in his functioning. 8. The learned Singh Judge, after examining the records of the writ petition and its accompanying annexures, came to the conclusion that the selection and appointment of the appellant-petitioner was not made by the District Level Committee under the amended Rules and his appointment was for a limited period of three months or till the regularly selected candidate joined. The regularly selected candidate joined on 16.12.1985. Thus, the service of the appellant-petitioner was terminated vide order dated 15.12.1985. The appellant-petitioner had concealed the aforesaid material fact before the Court and obtained an interim order in the writ petition on 18.12.1985. The learned Singh Judge further held that the appellant-petitioner was not entitled to claim any benefit or right to continue any further in service on the basis of the interim order granted by this Court and dismissed both the writ petition by means of a common judgment. 9. Learned counsel for the appellants Sri V.K. Singh, Senior Advocate submitted that the writ petition was got reported on 11.12.1985 and was filed in the Court on 12.12.1985 and was taken up on 18.12.1985, on which date interim protection was granted by this Court. 10. 9. Learned counsel for the appellants Sri V.K. Singh, Senior Advocate submitted that the writ petition was got reported on 11.12.1985 and was filed in the Court on 12.12.1985 and was taken up on 18.12.1985, on which date interim protection was granted by this Court. 10. On the pointed query being made by this Court, that in case the writ petition was heard on 18.12.1985 then why the order terminating services of the appellant-petitioner was not brought on record or no disclosure was made before the Court in that regard, Sri V.K. Singh, Senior Advocate answered the query by pointing out that the order of termination had never been served upon the petitioner-appellant. It only came to the knowledge of the petitioner-appellant after service of counter-affidavit upon him on 6.12.2008. Sri V.K. Singh further submitted that the case of the appellant-petitioner is covered under the Uttar Pradesh Regularisation of Ad hoc Appointments (on post outside the purview of the Public Service Commission) Rules, 1979, which were amended from time to time. Thus, his claim is liable to be considered under the aforesaid rules for regularization. 11. On the other hand learned Standing Counsel raised serious objection in regard to the non-challenge of order of termination passed on 15.12.1985. He submitted that the appellant-petitioner has willfully and deliberately not brought on record the order of termination passed on 15.12.1985. Thus, this appeal is liable to be dismissed on the ground of concealment of material fact. 12. Learned Standing Counsel further submitted that as the appellant-petitioner is continuing in service on the basis of an interim order granted by this Court, therefore they are not entitled to get benefit of regularization rules. On the merit of selection the learned Standing Counsel submitted that the selection proceeding was initiated under the old rules but, during the pendency of the selection, the rule was amended by U.P. Subordinate Office Ministerial Staff (Direct Recruitment) Rules, 1985. Thus, the selection and appointment of the petitioner-appellant should have been made under the amended rules by constituting a selection committee at the district level. 13. Rebutting the submissions of the learned Standing Counsel Sri V.K. Singh, Senior Advocate submitted that the order of termination dated 15.12.1985 was never served upon the appellant-petitioner. It came in the knowledge of the appellant-petitioner only after service of the counter-affidavit to which the order of termination was appended. 13. Rebutting the submissions of the learned Standing Counsel Sri V.K. Singh, Senior Advocate submitted that the order of termination dated 15.12.1985 was never served upon the appellant-petitioner. It came in the knowledge of the appellant-petitioner only after service of the counter-affidavit to which the order of termination was appended. The order of termination was passed in violation of the principles of natural justice, as at no point of time any notice or opportunity of hearing was afforded to the petitioner-appellant prior to passing of the said order. He further submitted that the appeal is in continuation of the writ petition, thus the petitioner-appellant has moved an application for the amendment of prayer/challenging the order of termination on the ground of violation of principle of natural justice. 14. After having heard the rival submissions made by the parties, we proceed to consider the first question, which arises before this Court, i.e. whether the selection proceeding initiated under the existing rules, which was amended after initiation of the selection proceedings, will be governed by the amended rules or under the old rules. 15. The controversy in this regard is very well-settled by this Court as well as by the Apex Court in number of decisions. In the latest judgment in the case of P. Mohanan Pillai v. State of Kerala and others, AIR 2009 SC 2840 , the Apex Court has held that once a selection proceeding has been initiated and during the pendency of the selection proceeding, if rule is amended, that will not effect the selection proceeding already going on. Meaning thereby once the game has started, the rules of the game cannot be changed. Thus, the argument advanced by the learned Standing Counsel on the point that the selection should have been made in accordance with the amended rules is ruled out and has no substance. The relevant paragraph 8 of the aforesaid judgment is being quoted below: “8. Why such a decision had been taken after the publication of the result of the written examination and after calling 36 candidates for interview is not known. Why the Company intended to enlarge the zone of consideration from 1: 3 to 1: 4 has also not been disclosed. Why the cut-off mark was also lowered remained a mystery. Why such a decision had been taken after the publication of the result of the written examination and after calling 36 candidates for interview is not known. Why the Company intended to enlarge the zone of consideration from 1: 3 to 1: 4 has also not been disclosed. Why the cut-off mark was also lowered remained a mystery. It may be that in a given situation, a decision of the State may be changed, but therefore good and sufficient reasons must be assigned. The Company failed to do so. The decision taken in this behalf smacks of arbitrariness. It prejudiced the candidates like the appellant. It is now well-settled that ordinarily rules which were prevailing at the time, when the vacancies arose would be adhered to. The qualification must be fixed at that time. The eligibility criteria as also the procedures as was prevailing on the date of vacancy should ordinarily be followed.” 16. In view of the aforesaid law report, the submission advanced by the learned counsel for the appellant-petitioner has substance. On the date of initiation of selection proceedings district level committee was not constituted, thus the objection to the selection of appellant-petitioner on the ground that it was not made under the amended rules is not sustainable in law. 17. The second submission of the learned Standing Counsel in rebuttal of the submissions made by Sri V.K. Singh is that once the services of the appellants-petitioners were terminated prior to the passing of the order of this Court, thus the petitioner-appellant should have disclosed the said fact before getting the interim order on 18.12.1985. On this point, upon hearing the parties and on perusal of records of the writ petition and the counter-affidavit, it is apparent on the face of record that the order of termination dated 15.12.1985 was never served upon the appellant-petitioner. The learned Standing Counsel has failed to produce any documentary evidence in regard to the service of order of termination dated 15.12.1985 upon the appellant-petitioner. Thus, the allegation of concealment of fact is not sustainable in law. The impugned order of termination has civil consequence, which requires notice and opportunity prior to taking legal rights from the appellant-petitioner. Respondents have failed to establish that the order of termination was sent through registered post or it was served personally to the appellant-petitioner. 18. Thus, the allegation of concealment of fact is not sustainable in law. The impugned order of termination has civil consequence, which requires notice and opportunity prior to taking legal rights from the appellant-petitioner. Respondents have failed to establish that the order of termination was sent through registered post or it was served personally to the appellant-petitioner. 18. In absence of any material on record, we hold that the order of termination is ex parte and has never been served upon the petitioner-appellant except by annexing it to the counter-affidavit. Thus, the impugned order of termination dated 15.12.1985, being passed behind the back of the appellant-petitioner with ill motive without notice and opportunity of hearing, suffers from vice of principle of natural justice and is not sustainable in law. 19. The third submission of the learned counsel for the appellant-petitioner is that the appellant-petitioner is covered under the Amended Regulations of 2001 and the appellant-petitioner fulfills all eligible criteria for consideration of regularization on the post of Clerk. 20. This Court is not expressing any opinion on the point of regularization. We are keeping it open to the respondents to consider the claim of the appellant-petitioner for regularization under the amended Rules of 2001. 21. In view of the above, we allow the present special appeal and writ petition and set aside the judgment and order of the learned Singh Judge dated 8.9.2008, passed in Writ Petition No. 19462 of 1985 and the order of termination dated 15.12.1985 (Annexure-1 to the counter-affidavit, which bears the date of termination as 16.12.1985) with the direction to the authority concerned to consider the claim of regularization of the petitioner-appellant after summoning the relevant records and to pass a reasoned speaking order within a period of three months from the date of service of certified copy of the order passed today. 22. With the aforesaid observation/direction the writ petition as well as the special appeal both are allowed. No order as to costs.