Research › Search › Judgment

Allahabad High Court · body

2019 DIGILAW 280 (ALL)

Ashok Kumar Gaur v. State of U. P.

2019-02-01

SUDHIR AGARWAL

body2019
JUDGMENT : Sudhir Agarwal, J. 1. Heard Sri. V.K. Singh, learned counsel for petitioner, learned Standing Counsel for State and perused the material available on record. 2. Writ Petition No. 52388 of 2003 (hereinafter referred to as ‘First Petition’) under Article 226 of Constitution of India has been filed by Sri. Ashok Kumar Gaur, assailing order dated 10.11.2003, passed by Deputy Director of Agriculture (Extension) Deoria (hereinafter referred to as DDA) whereby petitioner was reverted from the post of Junior Clerk, a Class-III post to Class-IV post on the ground that reversion was without any show-cause notice or opportunity of hearing or departmental enquiry and hence, it is punitive and illegal. 3. Petitioner has pleaded in writ petition that he was a daily wage worker in Agriculture Extension Organisation (Makka), Banjaria, Deoria which was subsequently abandoned and all persons working as daily wagers were absorbed to Group "D" posts. State Government vide Government Order (hereinafter referred to as G.O.) dated 3.7.2002 sought to fill in backlog vacancies of reserved category and pursuant thereto, applications were invited from Class-IV employees working daily wager in Group "D" post for promotion to Group "C" posts by DDA vide Office Memo dated 2.8.2003. Petitioner applied and vide order dated 1.9.2003 issued by DDA, he was appointed as Junior Clerk on temporary basis in the office of DDA in the pay-scale Rs. 3050-4590/-. Aforesaid appointment was temporary and liable to be terminated at any point of time by giving one month's notice or salary in lieu thereof. Subsequently, vide order dated 17.10.2003, petitioner was transferred from the office of DDA to Regional Agriculture Extension Officer, Rudrapur, Deoria (hereinafter referred to as R.A.E.O.) against existing vacancy of Junior Clerk. 4. Joint Director Agriculture (Extension) Gorakhpur Mandal, Gorakhpur (hereinafter referred to as J.D. Agriculture), however, found aforesaid appointment/promotion of petitioner on a Group "C" post, illegal. Consequently, notice was issued to petitioner on 9.10.2003 and final order was passed on 10.11.2003 reverting him to his initial position of Group "D" post as daily wage employee. It is this order which has been challenged in the First Petition. 5. In the counter-affidavit filed by respondents, it is said that petitioner was a daily wage labour, worked at U.N.D.P. (Makka) Banjaria, Deoria and worked there for a few days. Subsequently, said project, sponsored by Government of India, was abandoned. It is this order which has been challenged in the First Petition. 5. In the counter-affidavit filed by respondents, it is said that petitioner was a daily wage labour, worked at U.N.D.P. (Makka) Banjaria, Deoria and worked there for a few days. Subsequently, said project, sponsored by Government of India, was abandoned. He was never absorbed on a Group "D" post in Agriculture Department. There was no vacant post of Junior Clerk where against he could have been considered for appointment by promotion or otherwise. No Selection Committee was ever constituted as claimed by petitioner and promotion made by the then DDA was patently illegal, hence, enquiry has been ordered against him (DDA) and he has been placed under suspension. Since order of appointment of petitioner on Group "C" post was found patently illegal having been made without following the procedure prescribed for making appointment on the post of Junior Clerk, it was cancelled and petitioner sent back to his initial position of Group "D" daily wage employee. 6. No rejoinder-affidavit has been filed by petitioner. 7. Writ Petition No. 13189 of 2004 (hereinafter referred to as "Second Petition") has been filed by same petitioner Ashok Kumar Gaur in view of subsequent event which had arisen after the interim order was passed in First Petition. In the First Petition, interim order was passed on 27.11.2003 which reads as under: "Connect with writ petition No. 51213 of 2003. In view of the averment in para 13 of this writ petition about lack of opportunity, the operation of the impugned order dated 10.11.2003 (Annexure-5 to this petition) will remain stayed till further orders. Learned standing counsel may file a counter-affidavit within one month. List thereafter." 8. Giving effect to the interim order subject to final decision, petitioner was restored to his position on a Group "C" post by DDA vide order dated 13.2.2004. Subsequently, he was issued a notice on 19.2.2004 that his appointment/promotion as Junior Clerk has been found irregular, therefore, his services may be terminated after one month. A final order of termination was passed on 18.3.2004 and Second Petition has been filed challenging said termination order. 9. The sole question up for consideration in both the writ petitions whether petitioner was ever appointed/promoted on a Group "C" post in accordance with law. 10. A final order of termination was passed on 18.3.2004 and Second Petition has been filed challenging said termination order. 9. The sole question up for consideration in both the writ petitions whether petitioner was ever appointed/promoted on a Group "C" post in accordance with law. 10. Recruitment to Ministerial Staff i.e. on Group "C" post initially was governed by The Subordinate Offices, Ministerial Staff (Direct Recruitment) Rules, 1985 (hereinafter referred to as ‘Rules, 1985’) Rule 4(g) and (h) whereof defined "Ministerial Staff" and "Subordinate Offices" as under: "(g) "Ministerial Staff" shall refer to the clerical staff of the subordinate offices which is required to be appointed by direct recruitment. (h) "Subordinate Offices" shall refer to all the offices under the control of the Government excluding the Uttar Pradesh Secretariat, the offices of the State Legislature, Lok Ayukt, Public Service Commission, High Court, the subordinate Courts under the control and superintendence of the High Court, the Advocate-General, Utter Pradesh and of the establishments under the control of the Advocate-General." 11. Rule-6 provides "Source of Recruitment" and proviso thereof provides that 15 per cent of the vacancies in a particular subordinate office may be filled by appointing authority by promotion from amongst High School pass Group "D" employees of that office in accordance with the orders of Government issued from time to time. Rule-6 is reproduced as under: "6. Source of Recruitment - Recruitment to the lowest grade in the ministerial staff in a subordinate office shall be made by direct recruitment through the Selection Committee referred in Rule 17 on the basis of academic and other attainment as provided in Rule 9: Provided that up to 15 per cent of the vacancies in a particular subordinate office may be filed by the appointing authority by promotion from amongst High School pass Group "D" employees of that office in accordance with the orders of Government issued from time to time." 12. Learned counsel for petitioner, at the outset, stated that petitioner claimed to have been promoted from Group "D" post to Group "C" therefore, as per his own case, said promotion would have been referable to proviso to Rule 6 and for the purpose of procedure, various Government orders issued from time to time have to be seen. 13. Learned counsel for petitioner, at the outset, stated that petitioner claimed to have been promoted from Group "D" post to Group "C" therefore, as per his own case, said promotion would have been referable to proviso to Rule 6 and for the purpose of procedure, various Government orders issued from time to time have to be seen. 13. Before proceeding further, I may also notice that Rule 23 of Rules, 1985 prescribes procedure for selection for direct recruitment and it consists of written test as well as interview. For the post of Clerk/Typist, a typing test is also contemplated in Rule 23(5) of Rules, 1985. 14. Subsequently, another set of Rules was promulgated under the proviso to Article 309 of Constitution i.e. The Uttar Pradesh Procedure for Direct Recruitment for Group "C" Posts (Outside the Purview of the Uttar Pradesh Public Service Commission) Rules, 1998 (hereinafter referred to as ‘Rules, 1998’) published in U.P. Gazette Extraordinary dated 9.6.1998 and by Rule 2, the same was given "Overriding effect" over any other contrary provision. Aforesaid Rules, 1998 only makes provision for selection through direct recruitment and, therefore, other provisions of Rules, 1985, not otherwise affected by Rules, 1998, continued. 15. Again, a third set of Rules, i.e. Uttar Pradesh Procedure for Direct Recruitment for Group "C" Posts (Outside the Purview of the Uttar Pradesh Public Service Commission) Rules, 2001 (hereinafter referred to as ‘Rules 2001’) was promulgated and therein also procedure for direct recruitment was revised but other provisions of Rules, 1985, contrary whereto no provision was made in Rules, 2001, earlier Rules continued. 16. A fourth set of Rules, i.e. Uttar Pradesh Procedure for Direct Recruitment for Group "C" Posts (Outside the Purview of the Uttar Pradesh Public Service Commission) Rules, 2002 (hereinafter referred to as ‘Rules 2002’) was published in super-session of existing Rules and here also, I find that procedure for direct recruitment was modified but in respect of other aspects, earlier provisions continued. 17. For the purpose of case in hand, what is relevant, is that for promotion of a Class-IV employee to Class-III, a certain percentage of vacancies are reserved and procedure for such promotion has to be followed as prescribed by Government Orders issued from time to time. 18. In the present case, since promotion was made in 2003-2004 therefore, G.Os. 17. For the purpose of case in hand, what is relevant, is that for promotion of a Class-IV employee to Class-III, a certain percentage of vacancies are reserved and procedure for such promotion has to be followed as prescribed by Government Orders issued from time to time. 18. In the present case, since promotion was made in 2003-2004 therefore, G.Os. dated 1.1.1970, 21.8.1976, 19.5.1979, 31.8.1982 and 3.9.1995 held the field and I propose to consider the same. 18. In the present case, since promotion was made in 2003-2004 therefore, G.Os. dated 1.1.1970, 21.8.1976, 19.5.1979, 31.8.1982 and 3.9.1995 held the field and I propose to consider the same. Procedure prescribed in G.O. dated 1.1.1970 reads as under:- ^^Øe la[;k&1 mRrj Áns'k 'kklu fu;qfDr ¼[k½ foHkkx la[;k 37&1&69&fuqfDr ¼[k½ y[kuÅ] fnukad 1 tuojh] 1970 dk;kZy;&Kki fo"k;&oxZ 4 ds deZpkfj;ksa ds fy, oxZ 3 ds fuEure Js.kh ds fyfid oxhZ; inksa esa vkj{k.kA 'kklu us ;g fu.kZ; fy;k gS fd fdlh dk;kZy; esa ÁR;sd o"kZ oxZ 3 ds fuEure Js.kh ds fyfid oxhZ; inksa esa gksus okyh LFkk;h ,oa ,d o"kZ ls vf/kd vof/k rd pyrh jgus okyh vLFkk;h fjfDr;ksa esa oxZ 4 ds gkbZ Ldwy vFkok mlds led{k ekU;rk ÁkIr ijh{kk ikl LFkk;h deZpkfj;ksa ds fy,] ftudh vk;q 45 o"kZ ls vf/kd u gks] inksUufr }kjk nl Áfr'kr vkj{k.k Ánku fd;k tk;sxkA ,slh inksUufr ds fufeRr oxZ 3 ds inksa ij HkrhZ ftl dk;kZy; esa gksuh gks mlh dk;kZy; esa dke djus okys oxZ 4 ds deZpkfj;ksa ds ekeyksa esa fopkj fd;k tk;sxkA fdUrq ;fn fdlh ftys esa dksbZ u, dk;kZy; dks [kksyk tk; rks ml dk;kZy; es oxZ 3 ds fuEure Js.kh ds 10 Áfr'kr inksa ij HkrhZ ds fy, mifjfyf[kr 'krksZ ds v/khu oxZ 4 ds lHkh LFkkuh; deZpkfj;ksa ds ekeys esa fopkj fd;k tk;sxkA fjfDr;ksa ds de gksus dh n'kk esa inksUufr dk Øe ;g jgsxk fd ÁR;sd 9 fu;qfDr;ksa ds ckn ,d fu;qfDr inksUufr }kjk dh tk;sxhA 2- vkjf{kr fjfDr;ksa ds fy, pquko Js"Brk ds vk/kkj ij ,d lk/kkj.k ijh{kk ysdj rFkk lk{kkRdkj djds fd;k tk;sxkA ijh{kk esa dsoy ,d Á'u&i= gksxk ftlesa nks loky gksaxs&,d fdlh ljy fo"k; ij fgUnh fuca/k vkSj nwljk lkekU; KkuA pquko ds fy, dqy 50 vad gksaxs] ftudk fooj.k fuEufyf[kr gS %& ¼d½ fyf[kr ijh{kk---------------30 vad ¼ÁR;sd Á'u ds 15 vad½ ¼[k½ lk{kkRdkj---------------10 vad ¼x½ pfj= iath---------------10 vad dqy---------------50 vad tgka dsoy Vadd ¼VkbZfiLVksa½ ds laoxZ esa gh HkrhZ dh tkuh gks] ogka ij Vkbi dh Hkh ijh{kk yh tk;sxhA 3- ;g vkns'k efU=ifj"kn~ dh Lohd`fr ls tkjh fd, tk jgs gSaA vr% orZeku fu;eksa esa] ;fn dksbZ gksa] eaf+=ifj"kn~ dh iqu% Lohd`fr fy, fcuk rn~uqlkj la'kks/ku dj fy;k tk;A v'kksdj dqekj eqLrQh vk;qDr ,oa lfpoA** "Serial No. 1 Government of Uttar Pradesh Niyukti (Kha) Vibhag No. 37-1-69-Niyukti (Kha) Lucknow, dated 1st January, 1970 OFFICE MEMORANDUM Subject: Reservation for Class-W employees in the lowest category of Class-III clerical posts. It has been decided by the Government that in the permanent vacancies or the temporary vacancies likely to continue for more than a year, occurring each year in any office in the lowest category of Class-III Clerical posts, 10% reservation shall be given by way of promotion to the permanent employees having passed High School or any examination recognised to be equivalent thereto and not being above 45 years of age. Class-IV Employees of the same office shall be considered for promotion where recruitments to Class-III posts are to take place. But if any new office is opened in any district, all the Class-IV local employees shall be considered for recruitments to 10% posts of the lowest category of Class-III in that office subject to the afore-mentioned conditions. In case of vacancies being a few, promotion shall be such that after every 9 appointments, one appointment shall be made by way of promotion. 2. For reserved vacancies, selection shall be made on the basis of merit by holding an ordinary examination and interview. In the examination, there shall be just one paper having two questions - one shall be a Hindi essay on any simple subject and the other one, general knowledge. For the purpose of selection, there shall be total 50 marks breakup whereof is as under: (A) Written Examination: 30 Marks (15 marks for every question) (B) Interview: 10 Marks (C) Character Roll: 10 Marks Where recruitments are to take place in the cadre of typists, a type test shall also be taken there. 3. These orders are being issued with the approval of the cabinet. Hence, amendments in the existing rules, if any, be accordingly made without further approval of the cabinet. Ashok Kumar Mustafi Commissioner and Secretary." (English Translation by Court) 19. A perusal of aforesaid G.O. makes it clear that promotion to Class-III from Class-IV is founded on a written test, interview and assessment of service record of concerned Class-IV employee. 20. Hence, amendments in the existing rules, if any, be accordingly made without further approval of the cabinet. Ashok Kumar Mustafi Commissioner and Secretary." (English Translation by Court) 19. A perusal of aforesaid G.O. makes it clear that promotion to Class-III from Class-IV is founded on a written test, interview and assessment of service record of concerned Class-IV employee. 20. Another G.O. was issued on 21.8.1976 which reads as under:- ^^Øe la[;k&2 la[;k 37@1@1969&dkfeZd&2 dkfeZd vuqHkkx ¼2½ y[kuÅ] fnukad 21 vxLr] 1976 fo"k; & oxZ&4 ds deZpkfj;ksa ds fy, oxZ&3 ds fuEure Js.kh ds fyfid oxhZ; inksa esa vkj{k.kA egksn;] eq>s vkidk /;ku dk;kZy; Kki la[;k 37@1@1969&fuqfDr ¼[k½] fnukad 1 tuojh] 1970 dh vksj vkd`"V djus dk funsZ'k gqvk gS ftlesa ;g funsZ'k Álkfjr fd;s x;s Fks fd fdlh dk;kZy; esa ÁR;sd o"kZ oxZ&3 ds fuEure Js.kh ds fyfid oxhZ; inksa esa gksus okyh LFkk;h ,oa ,d o"kZ ls vf/kd vof/k rd pyrh jgus okyh vLFkk;h fjfDr;ksa esa oxZ&4 ds gkbZ Ldwy vFkok mlds led{k ekU;rk ÁkIr ijh{kk ikl LFkk;h deZpkfj;ksa ds fy, ftudh vk;q 45 o"kZ ls vf/kd u gks] inksUufr }kjk nl Áfr'kr vkj{k.k Ánku fd;k tk;sxkA mijksDr vkns'kksa dk vkaf'kd la'kks/ku djrs gq, vc 'kklu us ;g fu.kZ; fy;k gS fd ftl deZpkjh us prqFkZ Js.kh ds in ij ikap o"kZ rd fujUrj lsok dj yh gks] pkgs og LFkk;h gks vFkok vLFkk;h] fyfid oxhZ; fuEure Js.kh ds inksa ij inksUufr ikus ds fy, vgZ gksxkA ;fn og gkbZ Ldwy vFkok mlds led{k dksbZ vU; ijh{kk mRrh.kZ gks rFkk 45 o"kZ ls vf/kd vk;q dk u gksA vk;qDr ,oa lfpoA** "Serial No. 2 No. 37/1/1969/Kaarmik-2 Karmik Anubhag (2) Lucknow Dated 21st August, 1976 Subject: Reservation for Class-IV employees in the lowest category of Class-III clerical posts. Sir, I have been directed to draw your attention towards Office Memorandum No. 37/1/1969- Niyukti (Kha), dated 1st January, 1970 circulating a direction that in the permanent vacancies or the temporary vacancies likely to continue for more than a year, occurring each year in any office in the lowest category of Class-III clerical posts, 10% reservation shall be given by way of promotion to the permanent employees having passed High School or any examination recognised to be equivalent thereto and not being above 45 years of age. By partially modifying the aforesaid orders, the Government has now decided that an employee who has completed 5 years of continuous service on Class-IV post, whether he/she is permanent or temporary, shall be eligible for being promoted to a clerical post of the lowest category, if he/she has passed High School or any other examination equivalent thereto and has not exceeded the age of 45. Commissioner and Secretary." (English Translation by Court) 21. Thus, G.O. dated 21.8.1976 only had effect of amending G.O. dated 1.1.1970 to the extent that all Class-IV employees, who have rendered five years service, whether permanent or temporary, would be eligible to be considered for promotion to Class-III vacancies provided he has passed High School or any equivalent examination and is not above 45 years of age. 22. Then third G.O. was issued on 19.5.1979 modifying order dated 21.8.1976 and limitation for promotion with respect to age was taken away. 23. Then G.O. dated 31.8.1982 was issued enhancing quota for promotion from 10 per cent to 15 per cent but process of selection for promotion continued to include written test, interview and assessment of service record. 22. Then third G.O. was issued on 19.5.1979 modifying order dated 21.8.1976 and limitation for promotion with respect to age was taken away. 23. Then G.O. dated 31.8.1982 was issued enhancing quota for promotion from 10 per cent to 15 per cent but process of selection for promotion continued to include written test, interview and assessment of service record. G.O. dated 31.8.1982 is quoted as under:- ^^Øe la[;k&3 la[;k 37@1@1969&dkfeZd&2 dkfeZd vuqHkkx&2 y[kuÅ fnukad 31 vxLr 1982 fo"k; & oxZ&4 ¼vc lewg ^^?k**½ ds deZpkfj;ksa ds fy, oxZ&3 ¼vc lewg ^^x**½ ds fuEure Js.kh ds fyfidh; inksa esa vkj{k.kA egksn;] mi;qZDr fo"k;d lela[;d 'kklukns'kksa] fnukad 1 tuojh 1970] 21 vxLr 1976 o 19 ebZ 1979 ds lUnHkZ esa eq>s ;g dgus dk funsZ'k gqvk gS fd bl Ádj.k ij f}rh; osru vk;ksx dh fjiksVZ esa dh xbZ laLrqfr dks /;ku esa j[krs gq, leqfpr :i ls fopkjksijkUr 'kklu }kjk ;g fu.kZ; fy;k x;k gS fd oxZ&4 ds fy, oxZ&3 ds fuEure Js.kh ds fyfidh; inksa esa vkj{k.k dh la[;k 10 Áfr'kr ls c<+kdj 15 Áfr'kr dj nh tk;A vr,o mDr 'kklukns'kksa ds Ákfo/kkuksa dks lek;ksftr djrs gq, bl Ádj.k esa v|of/kd fLFkfr fuEuor~ gksxh %& ÁR;sd o"kZ oxZ&3 ds fuEure Js.kh ds fyfidh; inksa esa gksus okyh LFkk;h ,oa ,d o"kZ ls vf/kd vof/k rd pyrh jgus okyh vLFkk;h fjfDr;ksa esa oxZ&4 ds gkbZ Ldwy vFkok mlds led{k ekU;rk ÁkIr ijh{kk ikl ,sls LFkk;h@vLFkk;h deZpkfj;ksa ds fy, ftUgksaus prqFkZ Js.kh ds in ij ikap o"kZ dh fujUrj lsok dj yh gks] inksUufr }kjk 15 Áfr'kr dk vkj{k.k Ánku fd;k tk;sxkA ,slh inksUufr ds fufeRr oxZ&3 ds inksa ij HkrhZ ftl dk;kZy; esa gksuh gks mlh dk;kZy; esa dke djus okys oxZ&4 ds deZpkfj;ksa ds ekeyksa ij fopkj fd;k tk;sxk] ijUrq ;fn fdlh ftys esa dksbZ u;k dk;kZy; [kksyk tk; rks ml dk;kZy; esa oxZ&3 ds fuEure Js.kh ds fyfidh; inksa esa ls 15 Áfr'kr inksa ij HkrhZ ds fy, mfYyf[kr 'krksZ ds v/khu oxZ&4 ds lHkh LFkkuh; deZpkfj;ksa ds ekeys esa fopkj fd;k tk;sxkA vkjf{kr fjfDr;ksa ds fy, pquko Js"Brk ds vk/kkj ij ,d lk/kkj.k ijh{kk ysdj rFkk lk{kkRdkj djds fd;k tk;sxkA ijh{kk esa dsoy ,d Á'u&i= gksxk ftlesa nks loky gksaxs] ,d fdlh ljy fo"k; ij fgUnh fucU/k vkSj nwljk lkekU; KkuA pquko vadksa dk fooj.k fuEuor~ gS %& ¼d½ fyf[kr ijh{kk---------------30 vad ¼ÁR;sd Á'u ds 15 vad½ ¼[k½ lk{kkRdkj---------------10 vad ¼x½ pfj= iath---------------10 vad dqy---------------50 vad tgka dsoy Vadd ¼VkbZfiLVksa½ ds laoxZ esa gh HkrhZ dh tkuh gks] ogka ij Vkbi dh Hkh ijh{kk yh tk;sxhA 3- d`i;k mDr vkns'kksa dk vuqikyu lqfuf'pr fd;k tk; rFkk orZeku fu;eksa esa] ;fn dksbZ gksa] rn~uqlkj la'kks/ku djus ij fopkj dj fy;k tk; ,oa vko';d dk;Zokgh lqfuf'pr dh tk;A** "Serial No. 3 No. 37/01/1969-Personnel-2 Personnel Section-02 Lucknow Dated 31 August, 1982 Subject: Reservation for Class-IV employees (now Group D) in the lowest category of clerical posts in Class-III (now Group C). Sir, With reference to even numbered Government Orders dated 1st January, 1970, 21st August, 1976 and 19th May, 1979 on the above-mentioned subject; I am directed to say that after due consideration of the recommendations made, in the instant matter, by the Second Pay Commission report, it has been decided by the Government that the reservation for Class-IV employees in the lowest category of class-III clerical posts be enhanced from 10 percent to 15 percent. Assimilating the provisions of the aforesaid Government Orders, the updated status in the instant matter shall be as under: In the permanent vacancies occurring in the lowest category of class-III clerical posts and in the temporary vacancies running for more than one year, 15 percent reservation shall be given by way of promotion to those permanent and temporary employees who have successfully passed High School or any examination recognised equivalent thereto and have completed continuous service of five years on a Class-IV post. For these promotions, the cases of the Class-IV employees of that very office shall be considered where the recruitments to the Class-III posts are to take place; but if a new office is being opened in any district, the cases of all local Class-IV employees, subject to the aforesaid conditions, shall be considered for the recruitment to 15 percent of the lowest category clerical posts of that office. Selections to the vacant posts shall be made on the merit basis by holding an ordinary examination and interview. For the examination, there will be only one paper containing two questions wherein one question will be essay writing in Hindi on a simple subject and the other one, general knowledge. The break-up of the selection marks is as under: Where recruitments are to take place only in the typists' cadre, a type test will also be conducted. 2. The compliance of the aforesaid orders may kindly be ensured and accordingly, amendment in the existing rules, if any, be considered, and necessary action be ensured." (English Translation by Court) 24. The aforesaid G.Os. read with Rules, 1985 make it very clear that for promotion of a Group-D employee to the extent of 15 per cent vacancies reserved in Class-III, selection has to be made on the basis of a written test, interview and assessment of character roll. 25. The aforesaid G.Os. read with Rules, 1985 make it very clear that for promotion of a Group-D employee to the extent of 15 per cent vacancies reserved in Class-III, selection has to be made on the basis of a written test, interview and assessment of character roll. 25. The quota was enhanced to 20 per cent vide G.O. Dated 3.9.1995 providing that in addition to 15 per cent promotion quota available for Class-IV employee to Class-III a further, 5 per cent promotion quota shall be made available to those Class-IV (Group-D) employees who have passed Intermediate examination or equivalent and completed 5 years of continuous service. 25. The quota was enhanced to 20 per cent vide G.O. Dated 3.9.1995 providing that in addition to 15 per cent promotion quota available for Class-IV employee to Class-III a further, 5 per cent promotion quota shall be made available to those Class-IV (Group-D) employees who have passed Intermediate examination or equivalent and completed 5 years of continuous service. G.O. dated 03rd September, 1995 reads as under:- ^^Ás"kd] Jh jke dqekj] lfpo] mRrj Áns'k 'kkluA lsok esa] 1- 'kklu ds leLr Áeq[k lfpo@lfpo@fo'ks"k lfpoA 2- leLr foHkkxk/;{k@Áeq[k dk;kZy;k/;{k] mRrj Áns'kA dkfeZd vuqHkkx&2 y[kuÅ] fnukad 3 flrEcj] 1995 fo"k; & prqFkZ Js.kh ¼lewg&?k½ ds deZpkfj;ksa dks r`rh; Js.kh ¼lewg&x½ ds U;wure Js.kh ds fyfidh; inksa esa inksUufr ds volj c egksn;] mijksDr fo"k; ij 'kklu ds lela[;d 'kklukns'k fnukad 31 vxLr] 1982 dh vksj vkidk /;ku vkd`"V djus dk eq>s funsZ'k gqvk gS] ftlesa prqFkZ Js.kh ¼lewg&?k½ ds gkbZ Ldwy vFkok mlds led{k ;ksX;rk /kkj.k djus okys deZpkfj;ksa dks] ftUgksaus mDr in ij 5 o"kZ dh fujUrj lsok iwjh dj yh gks] r`rh; Js.kh ¼lewg&x½ ds U;wure Js.kh ds fyfid oxhZ; inksa esa 15 Áfr'kr inksUufr ds volj Ánku fd;s tkus dh O;oLFkk dh x;h gSA 2- mijksDr O;oLFkk ij 'kklu us xEHkhjrkiwoZd fopkj fd;k gS vkSj fopkjksijkUr ;g fu.kZ; fy;k gS fd mijksDr 15 Áfr'kr ds oRrZeku inksUufr ds Áko/kku ds vfrfjDr lfpoky; rFkk lfpoky; ls led{krk ÁkIr foHkkxksa dks NksM+dj vU; lHkh foHkkxksa esa prqFkZ Js.kh ¼lewg&?k½ ds bUVjehfM,V vFkok led{k ijh{kk mRrh.kZ ,sls deZpkfj;ksa] ftUgksaus 5 o"kZ dh fujUrj lsok iwjh dj yh gks] dks mi;qZDr fyfid oxhZ; inksa ij inksUufr;ksa esa 5 Áfr'kr LFkku fu;r fd;s tk;sA 3- vr% vuqjks/k gS fd Hkfo"; esa r`rh; Js.kh ¼lewg&x½ ds U;wure Js.kh ds fyfid oxhZ; inksa esa inksUufr ds volj ij fuEufyf[kr funsZ'kksa dk vuqikyu djrs gq, 'kklu ds mijksDr fu.kZ; dk fØ;kUo;u lqfuf'pr fd;k tk;s vkSj tgka vko';d gks laxr lsok fu;ekoyh ds rRdky la'kks/ku dj fy;k tk;s %& ¼1½ 15 Áfr'kr ds oRrZeku dksVs rFkk mijksDrkuqlkj c<+k;s tk jgs 5 Áfr'kr dksVs esa dh tkus okyh Á'uxr inksUufr;ksa esa inksUufr ds le; vuqlwfpr tkfr ,oa vuqlwfpr tutkfr o vU; Jsf.k;ksa ds vH;fFkZ;ksa ds fy, 'kklukns'kksa ds vuqlkj ÁHkkoh vkns'k ykxw gksaxs vkSj rn~uqlkj vkj{k.k fo"k;d dk;Zokgh lqfuf'pr dh tk;sxhA ¼2½ inksUufr ds inksa ij ^^Vkbi** ds Kku ds laca/k esa ykxw orZeku fu;e@vkns'k Á'uxr vH;fFkZ;ksa ds laca/k esa Hkh ykxw gksaxsA Hkonh;] jkedqekj] lfpoA** “From Shri Ram Kumar Secretary Government of Uttar Pradesh To, 1. All Principal Secretaries/Secretaries/Special Secretaries to the Government. 2. All Heads of Departments/Heads of Principal Offices, Uttar Pradesh. Karmik Anubhag-2 Lucknow Dated 3 September, 1995 Subject: Enhancing opportunities of promotions of the Class IV (Group D) employees to the lowest category of clerical posts in Class III (Group C). Sir, I am directed to draw your attention to the even numbered Government Order dated 31 August, 1982, wherein provision has been made for the promotion of Class IV (Group-D) employees, possessing qualification of High-School or equivalent, who have completed 5 years of continuous service on the aforesaid post, to the 15 percent of lowest category of clerical posts in Class III (Group-C). 2. The aforesaid provision has been thoroughly considered and it has been decided after consideration that in addition to the provision for promotion to aforesaid 15 percent, 5 percent posts, out of total promotional posts to the aforesaid clerical cadre posts, may be reserved in all the departments except the Secretariat and departments having parity to the Secretariat, for those Class IV (Group-D) employees who have passed Intermediate examination or equivalent and completed 05 years of continuous service. 3. Hence, it is requested that in future, while making promotions to the lowest category of clerical cadre posts in Class III (Group-D), the aforesaid decision of the Government may be ensured to be implemented and immediate amendments to be made in the relevant service rules, wherever required, while complying with the following instructions: (1) In promotions-in-question as against the existing quota of 15 percent and as against the 05 percent quota as being increased as aforesaid under the above-mentioned provision, the existing provisions for the candidates belonging to the Scheduled Castes, Scheduled Tribes and other category shall be applicable in accordance with Government Orders and reservation related proceedings shall be ensured accordingly. (2) For promotional posts, existing rules/orders as to knowledge of "Type" shall also be applicable to the candidates in question. Sincerely yours Ram Kumar Secretary." (English Translation by Court) (Emphasis added) 26. In the present case, it could not be shown that such procedure for selection and appointment was observed at all. There is no statement of facts as to when written test was conducted; when interview was conducted and when typing test was conducted since promotion is claimed on the post of Junior Clerk. In the present case, it could not be shown that such procedure for selection and appointment was observed at all. There is no statement of facts as to when written test was conducted; when interview was conducted and when typing test was conducted since promotion is claimed on the post of Junior Clerk. Unless an appointment is made in accordance with procedure prescribed in the Rules, it is illegal, hence this Court, while exercising power under Article 226 of the Constitution, is not bound to interfere since observance of principles of natural justice is not an empty formality. Where only one conclusion is possible, this Court can decline to interfere in exercise of power under Article 226 of the Constitution. 27. In Karnataka State Road Transport Corporation vs. S.G. Kotturappa, AIR 2005 SC 1933 , Court held: "The question as to what extent, principles of natural justice are required to be complied with would depend upon the fact situation obtaining in each case. The principles of natural justice cannot be applied in vacuum. They cannot be put in any strait-jacket formula. The principles of natural justice are furthermore not required to be complied with when it will lead to an empty formality. What is needed for the employer in a case of this nature is to apply the objective criteria for arriving at the subjective satisfaction. If the criteria's required for arriving at an objective satisfaction stands fulfilled, the principles of natural justice may not have to be complied with......" (Emphasis added) 28. In Punjab National Bank and Others vs. Manjeet Singh and Another, AIR 2007 SC 262 , Court said: "The principles of natural justice were also not required to be complied with as the same would have been an empty formality. The Court will not insist on compliance with the principles of natural justice in view of the binding nature of the award. Their application would be limited to a situation where the factual position or legal implication arising thereunder is disputed and not where it is not in dispute or cannot be disputed. If only one conclusion is possible, a writ would not issue only because there was a violation of the principle of natural justice." (Emphasis added) 29. Their application would be limited to a situation where the factual position or legal implication arising thereunder is disputed and not where it is not in dispute or cannot be disputed. If only one conclusion is possible, a writ would not issue only because there was a violation of the principle of natural justice." (Emphasis added) 29. In P.D. Agrawal vs. State Bank of India and Others, (2006) 8 SCC 776 , it has been observed by Apex Court: "The Principles of natural justice cannot be put in a straightjacket formula. It must be seen in circumstantial flexibility. It has separate facets." 30. This Court also in Writ Petition No. 31995 of 2000, Ganesh Singh vs. District Magistrate and Others decided on 29.4.2011 has held as under: "16. The principles of natural justice cannot be kept in a straightjacket formula. They apply in the facts and circumstances of each and every case. If the appointment of petitioner would have been made in accordance with law or at least some prima facie material would have to be placed to show what has been stated by respondents is not ex facie correct, then the matter may have required some further investigation. In the case in hand no such thing has been placed on record by petitioner or even pleadings to show that procedure prescribed under 1974 Rules was observed and thereafter petitioner was appointed. The appointment, therefore, is ex facie illegal and in the teeth of the Rules. 17. In the circumstances, this Court under Article 226 of the Constitution do not find it a fit case warranting interference. The writ petition, therefore, lacks merit and is dismissed." 31. This Court also in Writ Petition No. 38893 of 2008, Brijendra Singh vs. State of U.P. and Others decided on 18.5.2011 has taken somewhat similar view as under: ".....it is well-settled that if only one conclusion is possible, the Court would not interfere in the impugned order...." 32. When appointment was ex facie in the teeth of statute and facts are not disputed, in my view, in such a case, if appointment is cancelled, no opportunity need be given to petitioner. 33. In Union of India and Another vs. Raghuwar Pal Singh, (2018) 15 SCC 463 , Court has held that appointment de hors the Rules is nullity, hence, even principles of natural justice are no applicable in such cases. 33. In Union of India and Another vs. Raghuwar Pal Singh, (2018) 15 SCC 463 , Court has held that appointment de hors the Rules is nullity, hence, even principles of natural justice are no applicable in such cases. Paras 16 and 17 of judgment read as under: "16. We shall now consider the efficacy of the reason so recorded in the office order. The recruitment procedure in relation to the post of Veterinary Compounder is governed by the statutory Rules titled Central Cattle Breeding Farms (Class III and Class IV posts) Recruitment Rules, 1969, as amended from time to time and including the executive instructions issued in that behalf. As per the stated dispensation for such recruitment, the appointment letter could be issued only by an authorised officer and after grant of approval by the competent authority. Nowhere in the Original Application filed by the Respondent, it has been asserted that such prior approval is not the quintessence for issuing a letter of appointment. 17. For taking this contention forward, we may assume, for the time being, that the then Director Incharge H.S. Rathore, Agriculture Officer had the authority to issue a letter of appointment. Nevertheless, he could do so only upon obtaining prior written approval of the competent authority. No case has been made out in the Original Application that due approval was granted by the competent authority before issue of the letter of appointment to the Respondent. Thus, it is indisputable that no prior approval of the competent authority was given for the appointment of the Respondent. In such a case, the next logical issue that arises for consideration is: whether the appointment letter issued to the Respondent, would be a case of nullity or a mere irregularity? If it is a case of nullity, affording opportunity to the incumbent would be a mere formality and non grant of opportunity may not vitiate the final decision of termination of his services. The Tribunal has rightly held that in absence of prior approval of the competent authority, the Director Incharge could not have hastened issuance of the appointment letter. The act of commission and omission of the then Director Incharge would, therefore, suffer from the vice of lack of authority and nullity in law." (Emphasis added) 34. The Tribunal has rightly held that in absence of prior approval of the competent authority, the Director Incharge could not have hastened issuance of the appointment letter. The act of commission and omission of the then Director Incharge would, therefore, suffer from the vice of lack of authority and nullity in law." (Emphasis added) 34. The Court also relied on its earlier judgment in Kendriya Vidyalaya Sangathan and Others vs. Ajay Kumar Das and Others, 2002 (4) SCC 503 , wherein Court had observed that if appointment letters are nullity, having been issued by an officer who did not wield authority to do so, there was no question of observance of principles of natural justice even though affected party was not before Court. 35. In Union of India and Another vs. Raghuwar Pal Singh (supra), Court clearly held that letter of appointment issued by Director Incharge, without prior approval of Competent Authority is a nullity and that being so, principles of natural justice are not attracted. It has also held that it was not an essential requirement and would have been an exercise in futility. 36. Moreover, petitioner has not been able to show that he was ever substantively appointed on a Group "D" post and, therefore, he was not even eligible for promotion to Group "C" post as it is one of the conditions in the Government orders, noticed above. 37. In view thereof, I do not find any fault in the order passed by the then Joint Director, cancelling appointment by promotion of petitioner on Group "C" post and restoring him to his position of Class-IV employee, impugned in First Petition, and, therefore, First Petition deserves to be dismissed. 38. However, order dated 18.3.2004, impugned in the Second Petition, results in terminating services of petitioner. If his appointment by promotion to Group "C" post was found illegal, then he should have been restored to his status of daily wage Group "D" employee and, therefore, said order of termination cannot be sustained. 39. 38. However, order dated 18.3.2004, impugned in the Second Petition, results in terminating services of petitioner. If his appointment by promotion to Group "C" post was found illegal, then he should have been restored to his status of daily wage Group "D" employee and, therefore, said order of termination cannot be sustained. 39. If an order of promotion or appointment on higher post is found illegal and it is quashed, the concerned incumbent is entitled to be restored to its earlier position but when respondents passed order of termination on 18.3.2004, they not only terminated him from Class-III post but terminated altogether, though with regard to employment of petitioner as daily wage Class-IV employee, neither any per se illegality has been pointed out nor it is the case of respondents that services of petitioner were no longer required even as a Class-IV employee and, therefore, Employer intended to terminate him from the status of even a daily wage Class-IV employee. In that view of the matter, I am clearly of the view that termination order dated 18.3.2004, which instead of restoring the status of petitioner rendered him completely unemployed on the ground that his promotion on Class-III post was illegal, cannot be sustained as it goes beyond what the Employer intended to do by cancelling employment of petitioner on Class-III post which was not in accordance with law. 40. In the result, Writ Petition No. 52388 of 2003 (First Petition) which has been filed challenging order dated 10.11.2003, whereby respondents have found petitioner's appointment/promotion to Group "C" post illegal and, therefore, he has been restored back as daily wage Class-IV employee, cannot be said to be faulty in any manner, therefore, First Petition is dismissed. 41. Writ Petition No. 13189 of 2004 (Second Petition) whereby petitioner has been terminated, is allowed and termination order dated 18.3.2004 is hereby set aside.