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2020 DIGILAW 68 (ALL)

Rain Pratap v. State of U. P.

2020-01-07

MAHESH CHANDRA TRIPATHI

body2020
JUDGMENT : 1. Heard Shri Arvind Srivastava, learned counsel appearing for the petitioners and Shri Devesh Vikram, learned Standing Counsel for State respondents. 2. In these writ petitions the petitioners, who are working as Junior Clerk in the office of respondent no.4, are aggrieved by the impugned orders dated 7.5.2016 passed by the respondent no.2, Controlling Authority/District Magistrate, Controlled Area, Nagina, Bijnor, whereby one month's notice has been issued for termination of petitioners' services treating their appointment as temporary. 3. For the sake of convenience, the facts of leading Writ-A No.23895 of 2016 are being noted below:- 4. Brief background of the case, as reflected from the record, is that the State Government had issued a notification dated 9.11.1994 declaring Najibabad (Vinamay Kshetra) as Controlled Area, consisting of 42 revenue villages alongwith the areas of the Nagar Palika Najibabad, Girdawa Sahanpur and Jalalabad. The office of the same was established on 01.1.1995 and the same was duly approved by the Controlling Authority. Thereafter, the Sub Divisional Magistrate, Najibabad Controlled Area had issued a letter on 27.3.1995 in regard to appointment of a Clerk and a Peon on daily wage basis till the regular appointment is made. In pursuance thereof, the appointment of the petitioner was made by the Appointing Authority through its letter dated 4.5.1995. The appointment letter was issued by the Prescribed Authority i.e. Sub Divisional Magistrate, Controlled Area Najibabad, District Bijnor on daily wage basis. Copy of the said letter has been bought on record as Annexure No.2 to the writ petition. 5. Thereafter, a decision was taken by the Committee headed by the Controlling Authority/District Magistrate, Bijnor, Controlled Area, Najibabad in its first meeting on 5.8.1995 to accord approval to the payment of daily wages to the daily wagers and the same was adequately informed to the State Government for appointment of regular staff. The State Government issued a Government order dated 9.8.1996 addressed to all the Controlling Authorities of various controlled areas including Najibabad for creation of posts of Junior Engineer, Junior Clerk and Peon in the offices of the Prescribed Authority situated in various controlled areas. In Clause-2 of the said Government order dated 9.8.1996 it was provided that the appointment of the Junior Clerk can be done by the surplus staff of the other development authority and housing department. In Clause-2 of the said Government order dated 9.8.1996 it was provided that the appointment of the Junior Clerk can be done by the surplus staff of the other development authority and housing department. It is stated that the petitioner is continuously working since the date of his initial appointment made in the year 1995. In response of the Government order dated 30.8.1996 the State Government had also clarified on 7.1.1997 that for regularizing the incumbent, who is holding the post of Junior Engineer, the Appointment Authority/Competent Authority would be Mukhya Nagar Evam Gram Niyojak and so far as the Junior Clerk and Peon are concerned, the Appointing Authority would be the Controlling Authority, Controlled Area, Najibabad. Accordingly, the Controlling Authority/District Magistrate, Bijnor had regularized the services of the petitioner on the post of Junior Clerk in the pay scale of Rs.950-1500/- on 15.7.1997. It is also stated that the petitioner is working since the date of his initial appointment made in the year 1995. However, on 7.5.2016 the impugned order has been passed wherein it is mentioned that the petitioner's services are no longer required and accordingly, the notice of termination has been issued to him. The said order has been assailed in the present writ petition. 6. On 24.5.2016 the matter was taken up and on the said date, the Court had proceeded to pass following interim order in favour of the petitioner:- "The petitioner is working as a Junior Clerk in the office of the fourth respondent. He is aggrieved by an order dated 07th May, 2016 issued by the District Magistrate, whereby one month's notice has been issued for termination of petitioner's services treating his appointment as temporary. It is contended on behalf of the petitioner that the petitioner was initially appointed as a Clerk on 04th May, 1995 by the Prescribed Authority/Sub-Divisional Magistrate, Nazibabad Controlled Area on daily wages basis. A copy of the order dated 04th May, 1995 is on the record as annexure-2 to the writ petition. Later, the District Magistrate on 15th July, 1997 regularised the services of the petitioner on the post of Junior Clerk in the pay scale of Rs.950-1500/-. It is stated that the petitioner is continuously working since the date of his initial appointment made in the year 1995. Later, the District Magistrate on 15th July, 1997 regularised the services of the petitioner on the post of Junior Clerk in the pay scale of Rs.950-1500/-. It is stated that the petitioner is continuously working since the date of his initial appointment made in the year 1995. However, on 07th May, 2016 the impugned order has been passed, wherein it is mentioned that the petitioner's services are no longer required and accordingly, the notice of termination has been issued to him. I have heard learned counsel for the petitioner, learned Standing Counsel, who appears for the State functionaries, and Sri M.A. Misra, learned Advocate, who has put in appearance on behalf of the complainant and has filed caveat application. Sri M.A. Misra, learned counsel for the complainant-caveator, urged that the appointment of the petitioner has been secured by fraud. He submitted that an enquiry was conducted in the matter, in which a finding has been recorded about the fraud. He has produced before the Court a copy of the enquiry report dated 29th December, 2015, which is taken on record. However, a perusal of the enquiry report, which Sri Mishra has produced before the Court, does not indicate the fact about the fraud against the petitioner. The enquiry report as well as the impugned order only indicate that initial engagement of the petitioner in 1995 was made contrary to the Government orders. Thus, I am prima facie satisfied that there was no element of fraud in the appointment of the petitioner. Sri Mishra has also pointed out that in the matter of a similarly placed person Sri Deo Nath Patel i.e. Writ-A No. 23936 of 2016 (Deo Nath Patel v. State of U.P. and others), no interim order was granted. I have summoned the record of the said case and found that in the said case the enquiry report was not produced before the Court, therefore, in the said case interim order was not passed. Concededly, the petitioner is working uninterruptedly since 1995 and by the impugned order he has been treated to be temporary employee, whereas the order of the District Magistrate dated 15th July, 1997 indicates that the petitioner's services have been regularized by the then District Magistrate. Thus, the petitioner has made out a prima facie case. The matter needs consideration. Learned Standing Counsel appears for all the respondents. Thus, the petitioner has made out a prima facie case. The matter needs consideration. Learned Standing Counsel appears for all the respondents. As prayed by him, two weeks' time is granted to file counter affidavit. Rejoinder affidavit, if any, may be filed within a week thereafter. List this case in the week commencing 25th July, 2016. Till the next date of listing the effect and operation of the impugned order dated 07th May, 2016 passed by the second respondent shall remain stayed." 7. Once the said interim order has not been complied with then the petitioner had approached this Court by preferring Contempt Application (Civil) No.4331 of 2016 (Rain Pratap vs. B. Chandrakala, District Magistrate, District Bijnor) and the same was dismissed on 29.9.2016 with following observation:- "Heard. It is not disputed that affidavits have been exchanged in the pending writ petition. If that be so, it would be appropriate for the applicant to pursue the pending writ petition, rather than in this jurisdiction, in view of the judgment of the Apex Court in the case of State of J & K Vs. Mohd. Yaqoob Khan and others, (1992) 4 SCC 167 . The contempt is dismissed as not maintainable." 8. Consequently, the said order was subjected to challenge before Hon'ble Apex Court in Special Leave to Appeal (C) No. 406/2017 (Rain Pratap vs. Shishir Kumar & Ors.), wherein following order has been passed:- "We decline to interfere with the judgement and order passed by the High Court. However, we request the High Court to decide the main Writ Petition No.23895 of 2016 and Writ Petition No.23936 of 2016 preferably within six months, provided the parties extend their full cooperation. The Special Leave Petition is disposed of accordingly. Pending applications, if any, stand disposed of." 9. In response thereof, the present matter is being placed before this Court for final disposal. 10. In this backdrop, Shri Arvind Srivastava, learned counsel for the petitioners in support of his submission has vehemently contended that in response of the Government order/notification dated 9.11.1994 Najibabad (Vinamay Kshetra) was declared as controlled area for 42 revenue villages and the same was established on 01.1.1995 by the approval of the Controlling Authority. Once controlled area came into existence then for the purpose of running the department the Competent Authority of the controlled area had appointed the petitioners on daily wage basis till regular appointments are made. Once controlled area came into existence then for the purpose of running the department the Competent Authority of the controlled area had appointed the petitioners on daily wage basis till regular appointments are made. Accordingly, necessary information has also been sent to the State Government. Even though the services of the petitioner as temporary employee have been regularized w.e.f. 15.7.1997 and he was accorded the pay scale of Rs.950-1500/- but while giving the show cause notice the only reason was assigned that as per Government order dated 9.8.1996 the appointment could only be ensured from the surplus staff of the other development authority and housing department, as such the appointment of the petitioners same was contrary to the aforesaid Government order and accordingly, 15 days' time was accorded to the petitioners to submit their response to the show cause notice. Admittedly, in the present matter, an enquiry was also got conducted by the Additional District Magistrate on 29.12.2015 behind the back of the petitioners and submitted the report to the District Magistrate directly. At no point of time the said report had ever been served upon the petitioners. Most surprisingly, relying upon on the said enquiry report the order impugned has been passed not only relying upon the aforesaid Government order dated 9.8.1996 but also took cognizance of the earlier Government orders dated 17.7.1991 and 7.5.1994, whereby, the State Government had imposed a ban on appointment of daily wage basis and directed the authorities not to make any appointment on daily wage basis, as such temporary services of the petitioners were in teeth of aforementioned Government orders and accordingly, could not sustain. 11. In this backdrop, Shri Arvind Srivastava submits that once the show cause notice was given relying upon only the Government order dated 9.8.1996 to which the petitioners had adequately responded, then subsequently without acknowledging the status of the petitioners, whereby their services had already been confirmed and regular pay scale was accorded to them, was treated again as temporary employees and while passing the order impugned the reliance has been placed on the earlier Government orders dated 17.7.1991 and 7.5.1994, whereby the State Government had restrained for making the appointment on daily wage basis. At no point of time, the enquiry report, which had been prepared behind back of the petitioners, has ever been served upon them. At no point of time, the enquiry report, which had been prepared behind back of the petitioners, has ever been served upon them. The impugned order is hit by principle of natural justice and on this score, the impugned order is liable to be set aside. He has also submitted that in the present matter, once the respondents are relying upon the earlier Government orders dated 17.7.1991 and 7.5.1994, whereby the State Government had restrained the authorities to make an appointment on daily wage basis and the same stand diluted and superseded by the subsequent Government order dated 9.8.1996. Once the said order has been modified/superseded then at this stage again previous rules could not be relied upon. More so, the petitioners have rendered more than 20 years of satisfactory service without any complaint then their appointment cannot be upset at this belated stage on the ground of some frivolous complaint. In support of his submission he has placed his reliance on the judgements of Apex Court in Sheo Narain Nagar and others vs. State of UP and another (2018) 13 SCC 432 ; Rakesh Bakshi and another vs. State of Jammu and Kashmir and others (2019) 3 SCC 511 (paras 12 and 13); Bilaspur Raipur Kshetriya Gramin Bank and another vs. Madan Lal Tandon 2015 LawSuit (SC) 535; Union of India & ors vs. R.P. Singh 2014 LawSuit (SC) 415; State of Karnataka and ors vs. M.L. Kesari and ors 2010 LawSuit (SC) 524. 12. On the other hand, Shri Devesh Vikram, learned Standing Counsel has vehemently opposed the writ petition on the ground that without following due process of selection the petitioner was given an appointment on the post of Clerk in Nazibabad Controlled Area on daily wages basis. The entire action has been taken in violation of provisions contemplated in Government Order dated 9.8.1996. It is stated that the appointment of the petitioners was contrary to aforesaid Government Orders and as such, there is no illegality or infirmity in the impugned order. 13. The Court has proceeded to examine the record in question and finds that the petitioners were initially appointed as Clerk on 04.5.1995 by the Prescribed Authority/Sub-Divisional Magistrate, Nazibabad Controlled Area on daily wages basis. Thereafter, their services were regularized by the District Magistrate on 15.7.1997 on the post of Junior Clerk in the pay scale of Rs.950-1500/-. 13. The Court has proceeded to examine the record in question and finds that the petitioners were initially appointed as Clerk on 04.5.1995 by the Prescribed Authority/Sub-Divisional Magistrate, Nazibabad Controlled Area on daily wages basis. Thereafter, their services were regularized by the District Magistrate on 15.7.1997 on the post of Junior Clerk in the pay scale of Rs.950-1500/-. They were continuously working since the date of their initial appointment made in the year 1995. The impugned orders have been passed on 7.5.2016, wherein it has been mentioned that the petitioners' services are no longer required and accordingly, the notice of termination has been issued to them. The present matter has been entertained by this Court on 24.5.2016 and inspite of the categorical interim order, as it has been informed that the petitioners have not been reinstated in service. 14. From the record this much is clearly reflected that there was no back door appointment or entry of the petitioners in service so as to disentitle them from continuance as envisaged in para-53 of the judgement of Apex Court in State of Karnataka vs. Umadevi 2006 (4) SCC 1 . Admittedly, in the present matter, the services of the petitioners had been regularized by the Controlling Authority on 15.7.1997. While passing the order impugned much cognizance has been taken on the earlier Government orders dated 17.7.1991 and 7.5.1994, whereby the State Government restrained the authorities not to induct an incumbent on daily wage basis. Same stand modified/diluted by the subsequent Government order dated 9.8.1996 and more so, the controlled area itself was established in the year 1995. No doubt the State Government had issued the Government order dated 9.8.1996 for creation of posts of Junior Engineer, Junior clerk and Peon in the offices of the Prescribed Authority situated in various controlled areas. The Prescribed Authority sent a letter on 16.6.1997 to the Controlling Authority for regularization of the incumbents in view of the Government order dated 7.1.1997, whereby, the modalities were provided for appointment. As exigency was apparent from the record, 42 revenue villages were merged in the Najibabad Controlled Area and the Prescribed Authority had taken a decision to induct the daily wagers for running the controlled area. Eventually, the same has been acknowledged by the State Government, while relaxing the previous Government orders and permitted the appointments to be made for smooth functioning of the prescribed area. Eventually, the same has been acknowledged by the State Government, while relaxing the previous Government orders and permitted the appointments to be made for smooth functioning of the prescribed area. At no point of time the objection had ever been raised by the respondents that initial engagement of the petitioners was made by an incompetent authority, whereas this aspect has also been clarified by the subsequent Government Order wherein the Prescribed Authority was given power to run the controlled area but also competent to make an appointment. 15. It has been urged before this Court that it was not a case of back door entry or illegal appointments. In worst case, it may be taken as irregular appointment but once the services of the petitioners had been regularized on 15.7.1996 and pay scale of Junior Clerk of Rs.950-1500/- had been accorded to them then in such situation, the methodology, which has been adopted while passing the order impugned, cannot subscribe in law as the status of the petitioners was definitely changed and they have been treated regular employees for substantial long time. Whereas their services had been dispensed with treating them to be as temporary employees is perse bad and unsustainable. It has also been urged before this Court that at no point of time, the procedure has been adhered while dispensing the services of the petitioners. While issuing show cause only Government order dated 9.8.1996 was relied upon but in most illegal and arbitrary manner while passing the impugned order, much reliance has been made on the earlier restraint orders dated 17.7.1991 and 7.5.1994 and the ex-parte enquiry report. On this score no opportunity was extended on this factual aspect of the matter, which are uncontroverted, as such unsustainable and more so, hit by principle of natural justice. 16. This Court is also of the opinion that in heydays of life the petitioners are serving on exploitative terms with no guarantee of livelihood to be continued and in old age they are going to be destituted, there being no provision for pension, retiral benefits etc. There is clear contravention of constitutional provisions and aspiration of downtrodden class. They do have equal rights and to make them equals they require protection and cannot be dealt with arbitrarily. They had also rendered services with utmost satisfaction and dedication. There is clear contravention of constitutional provisions and aspiration of downtrodden class. They do have equal rights and to make them equals they require protection and cannot be dealt with arbitrarily. They had also rendered services with utmost satisfaction and dedication. Nothing has been brought on record to indicate or suggest that there was any complaint against their work and conduct. In case the petitioners are being treated as daily wagers at this stage, even though their services were regularized on 26.6.1997, then they would be serving on exploitative terms. The same view has been taken by Hon'ble Apex Court in D.S. Nakara vs. Union of India reported in 1993 (1) SCC 305. In the instant case, as per the version of the respondents they themselves have chosen to confer a daily wager to the status of confirmed employee as there was requirement of work and as per the subsequent Government order dated 9.8.1996 the posts were also created and at the particular point of time the petitioners had been engaged as daily wagers then at this belated stage it cannot be presumed that there was no post or there was blanket stay order not to induct an incumbent on daily wage basis. Obviously the orders impugned were passed ignoring their long period of services rendered by them as regular employees and treating them at this belated stage as temporary employees and the same is to be taken on exploitative terms. 17. The Hon'ble Supreme Court in the case of Sheo Narain Nagar and others versus State of U.P. and others (supra) in paragraphs 8, 9 and 10 has held as follows:- "8. When we consider the prevailing scenario, it is painful to note that the decision in Uma Devi (Supra) has not been properly understood and rather wrongly applied by various State Governments. We have called for the data in the instant case to ensure as to how many employees were working on contract basis or ad-hoc basis or daily-wage basis in different State departments. We can take judicial notice that widely aforesaid practice is being continued. Though this Court has emphasised that incumbents should be appointed on regular basis as per rules but new devise of making appointment on contract basis has been adopted, employment is offered on daily wage basis etc. in exploitative forms. This situation was not envisaged by Uma Devi (supra). We can take judicial notice that widely aforesaid practice is being continued. Though this Court has emphasised that incumbents should be appointed on regular basis as per rules but new devise of making appointment on contract basis has been adopted, employment is offered on daily wage basis etc. in exploitative forms. This situation was not envisaged by Uma Devi (supra). The prime intendment of the decision was that the employment process should be by fair means and not by back door entry and in the available pay scale. That spirit of the Uma Devi (supra) has been ignored and conveniently over looked by various State Governments/ authorities. We regretfully make the observation that Uma Devi (supra) has not be implemented in its true spirit and has not been followed in its pith and substance. It is being used only as a tool for not regularizing the services of incumbents. They are being continued in service without payment of due salary for which they are entitled on the basis of Article 14, 16 read with Article 34 (1) (d) of the Constitution of India as if they have no constitutional protection as envisaged in D.S. Nakara v. Union of India, AIR 1983 SC 130 from cradle to grave. In heydays of life they are serving on exploitative terms with no guarantee of livelihood to be continued and in old age they are going to be destituted, there being no provision for pension, retiral benefits etc. There is clear contravention of constitutional provisions and aspiration of down trodden class. They do have equal rights and to make them equals they require protection and cannot be dealt with arbitrarily. The kind of treatment meted out is not only bad but equally unconstitutional and is denial of rights. We have to strike a balance to really implement the ideology of Uma Devi (supra). Thus, the time has come to stop the situation where Uma Devi (supra) can be permitted to be flouted, whereas, this Court has interdicted such employment way back in the year 2006. The employment cannot be on exploitative terms, whereas Uma Devi (supra) laid down that there should not be back door entry and every post should be filled by regular employment, but a new device has been adopted for making appointment on payment of paltry system on contract/adhoc basis or otherwise. The employment cannot be on exploitative terms, whereas Uma Devi (supra) laid down that there should not be back door entry and every post should be filled by regular employment, but a new device has been adopted for making appointment on payment of paltry system on contract/adhoc basis or otherwise. This kind of action is not permissible, when we consider the pith and substance of true spirit in Uma Devi (supra). 9. Coming to the facts of the instant case, there was a direction issued way back in the year 1999, to consider the regularization of the appellants. However, regularization was not done. The respondents chose to give minimum of the pay scale, which was available to the regular employees, way back in the year 2000 and by passing an order, the appellants were also conferred temporary status in the year 2006, with retrospective effect on 2.10.2002. As the respondents have themselves chosen to confer a temporary status to the employees, as such there was requirement at work and posts were also available at the particular point of time when order was passed. Thus, the submission raised by learned counsel for the respondent that posts were not available, is belied by their own action. Obviously, the order was passed considering the long period of services rendered by the appellants, which were taken on exploitative terms. 10. The High Court dismissed the writ application relying on the decision in Uma Devi (supra). But the appellants were employed basically in the year 1993; they had rendered service for three years, when they were offered the service on contract basis; it was not the case of back door entry; and there were no Rules in place for offering such kind of appointment. Thus, the appointment could not be said to be illegal and in contravention of Rules, as there were no such Rules available at the relevant point of time, when their temporary status was conferred w.e.f. 2.10.2002. The appellants were required to be appointed on regular basis as a one-time measure, as laid down in paragraph 53 of Uma Devi (supra). Thus, the appointment could not be said to be illegal and in contravention of Rules, as there were no such Rules available at the relevant point of time, when their temporary status was conferred w.e.f. 2.10.2002. The appellants were required to be appointed on regular basis as a one-time measure, as laid down in paragraph 53 of Uma Devi (supra). Since the appellants had completed 10 years of service and temporary status had been given by the respondents with retrospective effect in the 2.10.2002, we direct that the services of the appellants be regularized from the said date i.e. 2.10.2002, consequential benefits and the arrears of pay also to be paid to the appellants within a period of three months from today." 18. In Civil Appeal No.2835 of 2015 (Amarkant Rai v. State of Bihar & Ors.) decided on 13.3.2015 Hon'ble Supreme Court clarifying the case of Uma Devi, (2006) 4 SCC 1 has set aide the judgement of High Court and regularised the services of the temporary employee working for more than 29 years and has held that if an irregular not illegal employee served for more than 10 years in any department, he shall have a right to be confirmed. 19. Therefore, in view of the aforesaid facts and circumstances the impugned orders dated 7.5.2016 are set aside order impugned cannot sustain and are set aside. 20. For the aforesaid reasons both the writ petitions are allowed and the respondents are directed to forthwith allow the petitioners to join and be paid all consequential benefits. As it has been informed that since passing the impugned order dated 7.5.2016 the petitioners have not discharged their duties, therefore, on the principle of no work and no pay they would not be entitled for salary for the interregnum period but they would be entitled for all consequential benefits.