AI Structured Summary
Not yet generated for this judgment
Judgment
A.P. Sahi, J.—The petitioner has come up challenging the order dated 20th February, 2007 whereby the appointment of the petitioner as a Mandi Sahayak in the Mandi Samiti Ujhani, District Budaun has been cancelled on the ground that the appointment of the petitioner was not in accordance with the regulations framed by the Mandi Parishad under the Uttar Pradesh Krishi Utpadan Mandi Adhiniyam 1964, and further in view of the judgments of the Supreme Court and this Court, such an appointment being void and illegal, the continuance of the petitioner cannot be sustained.
The facts shorn of details are that the petitioner''s grand father Abdul Hakim was owner of certain land which was acquired for the purpose of construction of a Market Yard by the Mandi Parishad at Ujhani, District Budaun. This land was acquired in the year 1984.
A resolution was passed on 11th August, 1995 by the Uttar Pradesh Mandi Parishad to offer appointments on compassionate basis to one member of the family whose entire land was acquired for the construction of such market yards. This was done according to some policy of the Government framed in this regard. Reference was made in the orders passed to the Government order dated 21.2.1980. The Director Mandi Parishad issued an order on 16th March, 1996 and accordingly the Additional Director Administration issued instructions on 15th July, 1996 for the appointment of the petitioner under the aforesaid scheme. This was followed by a consequential order of the Deputy Director Administration (at Bareilly) and accordingly the petitioner was appointed on 8th September 1996 as a Mandi Sahayak in Mandi Parishad Ujhani.
The petitioner contends that a resolution was also passed by the employer on 26th February 2000 confirming the services of the petitioner as such.
In between a judgment was delivered by the Apex Court in the case of Butu Prasad Kumbhar and Others Vs. Steel Authority of India Ltd. and Others, and in the case of Janki Prasad v. State of U.P., reported in 1998 ALR (32) 407. These two judgments appear to have been made the basis for a review of such appointments having been made inasmuch as the aforesaid pronouncement dealt with similar issues and held that where land has been acquired, compensation has been awarded, further provision for compassionate appointment is unwarranted and no legal right can be claimed on the basis of any such scheme.
The director relying on the aforesaid decisions, issued directions on 25th October 2004 for cancellation of such appointments and accordingly on 28th October 2004 the appointment of the petitioner was cancelled by the Secretary Mandi Parishad Ujhani. The petitioner challenged the same by filing Writ Petition No. 7122 of 2004 and the petitioner''s cousin brother Naushad Husain who had also succeeded in getting such appointment filed Writ Petition No. 7804 of 2004 against his cancellation order. This Court passed an interim order on 23rd December 2004 staying the operation of the cancellation order but left it open to the authorities to take action after putting the petitioner to notice.
The petitioner was accordingly reinstated on 17th January 2005 and immediately thereafter he was served with a show cause notice on 23rd January 2005. The petitioner submitted a reply on 8th February 2005 whereafter the impugned decision has been taken cancelling the appointment of the petitioner.
Sri Gautam learned Counsel for the petitioner contends that the power on the authority that is the Board is conferred u/s 26F(1) of the 1964 Act. The Board, therefore, in terms of the Government Orders issued from time to time including the Government Order dated 21.2.1980 is empowered to make such appointments. The petitioner was accordingly appointed which had the sanction of law and he relies on the decision in the case of C.M. Pandey v. State of U.P. and Ors., reported in 2006 2 Education and Service Cases 1431 to contend that the power u/s 26F is available and therefore the resolution of the Board to make such appointments is in conformity with the same. Sri Gautam further submits that the services of the petitioner were on probation for one year, he was subsequently confirmed under Regulation 22 of the Regulations framed under the Act and once his services were confirmed the same could not have been cancelled by the Mandi Parishad on the pretext of certain other judgments rendered by the Supreme Court or this Court in different cases.
Sri Gautam further submits that in the case of Arshad Husain in relation to the same nature of appointments and of the same place, the claim petition filed before the U.P. State Services Tribunal, Lucknow was allowed against which the Mandi Parishad through its Director filed a writ petition before the Lucknow Bench being Writ Petition No. 1757 of 2008 in which this Court as an interim measure, admitted the writ petition and refused to stay the order. On the contrary the Court directed the employee to be restored in service forthwith and be paid salary. The payment of backwages was made subject to further orders being passed by the Court.
Sri Gautam has further invited the attention of the Court to the order of the Supreme Court dated 30th January 2009 passed against the said interim order of the Division Bench dismissing the Special Leave Petition. On the strength thereof it is submitted that the petitioner is also entitled for a similar treatment and that the stand taken by the respondent Parishad is absolutely unjustified.
Replying to the aforesaid submissions Sri B.D. Mandhyan learned Senior Counsel contends that appointments to the posts under the Parishad have to be made under the Regulations. There is no provision in the Regulations for making compassionate appointment of those whose land has been acquired for setting up a Market Yard. He submits that the resolution of the Board and the consequential action by the Director Mandi Parishad was not in accordance with law as no regulation permitted such appointments and the Government Order dated 21.2.1980 relied upon by the petitioner does not apply to the Mandi Samiti or the Mandi Parishad. He submits that the said Government Order applies only to such organizations where acquisition has been made for commercial and industrial units and since the Mandi Parishad does not carry out any such activity therefore the Government Order dated 21.2.1980 is inapplicable. He further submits that the said Government Order has been withdrawn on 10.8.2004 and therefore even otherwise the said argument cannot be advanced by the petitioner.
He further submits that the judgment in the case of C.M. Pandey (supra) as relied upon by the petitioner is totally misplaced as the same judgment recites that the appointment of the petitioner therein was under Regulation 4(2) Proviso (Kha) of the 1984 Regulations. In the instant case the appointment is not referable to any Regulation nor any procedure has been followed for making such appointments. He therefore submits that the said decision is distinguishable.
Coming to the legal submissions advanced Sri Mandhyan invited the attention of the Court to the Division Bench judgment of this Court in the case of Director Mandi Parishad and Ors. v. Sohan Lal and Anr. reported in 2003 ALJ 540 and to the judgment of the Supreme Court in the case of State of U.P. Vs. Neeraj Awasthi and Others, He further relies on the Full Bench judgment of this Court in the case of Ravindra Kumar v. District Magistrate, Agra, reported in 2004 (4) ESC 2354 to contend that such compassionate appointments in matters arising out of land acquisition proceedings have been held to be unconstitutional and illegal. He therefore submits that the action of the Mandi Parishad in cancelling the appointment of the petitioner is justified as the very appointment of the petitioner was void. He further submits that the appointment of the petitioner was beyond the capacity and the strength of the sanction staff at Ujhani and even otherwise in view of the law laid down by the Apex Court in the case of Secretary, State of Karnataka and Others Vs. Umadevi and Others, a void appointment or an appointment de hors the rules cannot be sustained.
I have considered the rival submissions and coming to the first issue raised by the petitioner with regard to the applicability of Section 26F it would be apt to quote paragraph 40 of the judgment in the case of C.M. Pandey which is extracted below:
Paragraph 40:- Thus in view of foregoing discussions, we have no hesitation to hold that petitioner''s appointment was made against duly created post of O.S.D.(Legal) by the Board (Parishad) referable under Regulation 4(2) proviso ''Kha'' of Officers and Employees Establishment Regulation 1984. His appointment was made by the Board on 7.6.1996 under the provisions of Section 26F(1) of the Act 1964. Having regard to the nature of post, in absence of procedure for selection and appointment on the post in questions in the Regulations referred herein before, his selection and appointment made by the Board cannot be found faulty either being contrary to any existing statutory provisions of Regulations or any provisions of Act itself and held to be within the ambit of the provisions of aforesaid Regulations and Act itself, therefore the same cannot be held to be de hors the existing statutory Rules and provisions of the Act as distinguished from the Neeraj Awasthi''s Case (supra) decided by Hon''ble Apex Court on 16.12.1995 except the period of appointment of petitioner and employees of the aforesaid case between 1.4.1996 to 30.10.1997, there appears no other similarity between the petitioner and employees involved in the aforesaid case. The employees of the aforesaid case were appointed without any sanctioned post though referable under aforesaid existing statutory regulations on ad hoc and daily wage, or casual basis without following the existing statutory rules rather de hors the existing statutory rules. In given facts and circumstances of the case, the approach of the respondents in drawing analogy of the aforesaid case merely on account of resemblance in period of appointment of petitioner appears to be not only erroneous and misconceived, but also malicious and cannot be held to be based on bonafide exercise of powers at all.
A perusal of the said paragraph indicates that the appointment was sought to be saved under Regulation 4(2) proviso ''Kha'' of the 1984 Regulations coupled with the provisions of Section 26F.
In view of the aforesaid provisions, the appointment was saved as it was held that it was not de hors the existing statutory rules. In the instant case no Regulations or rules have been pointed out which may authorise such compassionate appointment where the land of such a claimant has been acquired after payment of compensation. The aforesaid decision therefore is clearly distinguishable and does not come to the aid of the petitioner.
Apart from this the judgment in the case of State of U.P. v. Neeraj Awashti (supra) also reflects that in the absence of a sanctioned post and in the absence of any Regulation such appointments are void, illegal and without jurisdiction and cannot be saved on the basis of past practice. Paragraph 75, 76 and 77 of the said decision may be referred to support the said proposition. Accordingly I am of the opinion, that there was no provision available with the Mandi Parishad to proceed to make such appointments. This issue has however been dealt with by the State Tribunal in the claim petition of Arshad Husain a similarly situated employee and the claim petition has been allowed against which the matter is pending before the Division Bench at Lucknow.
The issue therefore has to be adjudicated keeping in view the law relied upon by the learned Counsel for the respondent Mandi Parishad in the Division Bench judgment in the case of Director Mandi Parishad and Ors. v. Sohan Lal and Anr. (supra), and the decision of the Full Bench in the case of Ravindra Kumar (supra).
The said issue therefore calls for a determination which in my opinion is already engaging the attention of the Division bench at Lucknow. The issue being one and the same and in relation to the same Mandi Samiti Ujhani, it would be appropriate to defer the hearing of this petition till the disposal of the matter by the Division Bench in the case of Arshad Husain pending consideration in Writ Petition No. 1757 of 2008 before the Lucknow Bench.
Accordingly let the matter be listed for hearing after decision of the petition by the Division Bench as noted herein above. Parties will be at liberty to file an appropriate application for the said purpose.