Promila Verma vs State of U.P.and Others

Bhanwar Singh, J.—This petition has been filed for a writ in the nature of Certiorari quashing the Order dated June 13, 2001 passed by the Additional Director (Administration), Rajya Krishi Utpadan Mandi Parishad, Lucknow and another writ in the nature of Mandamus has been prayed for commanding the respondents to allow the petitioner to work on the post of ClerkcumTypist and pay her salary in the light of this Court''s Judgment dated August 11,2000 passed in bunch of Writ Petitions No.1470 (SS) of 1999, Sadhu Singh and others v. State of U.P. and various other connected writ petitions.

The petitioner is aggrieved of the impugned Order dated 13th June, 2001 as her right to be in service has been declined in most illegal, arbitrary and highhanded manner. By virtue of the said Order, the Additional Director (Administration), has not at all considered the principle of law laid down by this Court in its decision of 11th August, 2000 pronounced in the bunch of Writ Petitions. During the course of arguments, the petitioner has sought to have another order of November 29, 2002, quashed by means of which the Additional Director (Administration) reiterated his stand and declined to extend any benefit of the judgment of August 11, 2000 to the petitioner.

According to the factual matrix of the Writ Petition, the petitioner was initially appointed in October, 1996 on the post of ClerkcumTypist and by an Order of July 29,1997 of Additional Director (Administration) she was authorized to draw a consolidated salary of Rs.2000/ p.m. However, her services were terminated vide Order of 27th March, 1999 in pursuance of the directions of the State Government contained in order dater; 12tn February, 1999. The Order of Termination was an arbitrary action being devoid of any application of mind and judicious consideration of the petitioner''s cause. As a matter of fact, the services of hundreds of employees, identically circumstanced, were reinstated by this Court vide its decision of 11th August, 2000 passed in the bunch of Writ Petitions No.1346 (SS) of 1999 and several other connected matters. This Court had quashed the State Government''s Order dated 12th February, 1999 declaring the same as arbitrary, unreasonable and indiscriminate. This Court also quashed all other consequential orders of termination issued by the authorities of Mandi Parishad. A writ of Mandamus commanding the respondents to allow the employees to resume their duties was also issued. In compliance with the said judgment, the authorities of Mandi Parishad had permitted several hundreds of employees to resume their duties. The petitioner''s case was squarely covered by the said judgment, therefore, she was entitled to derive benefit of the said pronouncement but the Additional Director (Administration) has arbitrarily rejected her representation without considering the merit of her case. The directions issued by this Court in an earlier Writ Petition No.6479 (SS) of 2000 filed by the petitioner have not been carried out and her representation was turned down repeatedly vide Orders dated 13th June, 2001 and 29th November, 2002. The ground on the basis of which her representation was declined was that in a different writ petition this Court at Allahabad had taken a view different than the one taken by this Court in its Judgment of August 11,2000. Subsequent to the said decision of the Division Bench, the Government decided to file Special Leave Petition before the Supreme Court against this Court''s Judgment dated 11th August, 2000 pronounced in the batch of petitions. Although the operation of the Judgment dated 11.8.2000 was not stayed by the Supreme Court, yet the contempt proceedings initiated against the officers of the Mandi Parishad were stayed. The filing of S.L.P. and the stay of the contempt proceedings had been pleaded as the main ground by the Additional Director (Administration), to reject the petitioner''s representation, although in neither of the two orders in question, the Additional Director (Administration) discussed and compared the merits of the petitioners of the bunch cases and that of the writ petitioner, Ms. Promila Verma. The main consideration for the Additional Director (Administration) was, as to whether Ms. Promila Verma was entitled to derive any advantage or benefit of the verdict of August 11, 2000 of this Court. But a finding on the core issue has not at all been given by the said authority. The petitioner''s claim has been defeated by the Additional Director (Administration) without recording a finding that her case does not tally with the writ petitioners of the bunch cases. In this way, the Mandi Parishad has, by passing the two impugned orders, circumvented the observations of this Court made in its judgment, as a consequence, the petitioner was obliged to file this writ petition.

The Respondents 2 and 3 filed their reply through counter affidavit of Mr. Kashi Prasad, Section Officer, Rajya Krishi Mandi Parishad, U.P., Lucknow. According to the Section Officer, after a policy decision taken on February 12, 1999, the services of the petitioner and other similarly situated persons were retrenched with the result that a bunch of writ petitions were filed before the Allahabad High Court at Allahabad as well as at lucknow, in the writ petition No.1093 (SB) of 1999, Anshuman Misra v. State of U.P. and others, a Division Bench of this Court did not agree with the decision of 11th August, 2000 of its Lucknow Bench and held that the judgment passed in those writ petitions was per incurium. A dissident view was taken by the Division Bench in its judgment of November 13, 2000 holding that the petitioner had neither been a party in the earlier judgment nor was entitled to claim regularization of his services. Further, it was submitted that the Special Leave Petition filed against the Judgment dated 11th August, 2000 is still pending before the Supreme Court and the Supreme Court stayed the contempt proceedings, which were initiated by some of the bunch Petitioners. The case of Promila Verma was examined on merit and since her appointment was dehors the rules, her representation was rejected.

In her rejoinder, Promila Verma staked her claim again to be entitled to the benefit of the Judgment dated 11th August, 2000 as many retrenched employees have already been reinstated in service by the Respondents 2 and 3 in compliance with the Judgment dated 11th August, 2000.

I have heard learned counsel for both the parties and perused the record.

The impugned orders, Annexures 1 and 10, have placed reliance upon the observations of the Division Bench in Writ Petition No.1093 (SB) of 1999, Anshuman Misra v. State of U.P. It appears that the petitioner Anshuman Misra of the aforesaid case sought for regularization of his appointment. He was appointed for a fixed term and he wanted extension of his service after the said period. For want of record, it is, however, not known as to whether the term of his appointment expired or not according to the appointment letters. Also it cannot be ascertained as to when Anshuman Misra was appointed and for how long he worked as an Engineer. Here, in the case in hand, this Court directed, vide Order dated 26th April, 2001 in Promiia Verma''s earlier Writ Petition No.6479 (SS) of 2000, to consider the petitioner''s representation and decide whether she was entitled to claim benefit of the decision dated 11th August, 2000. Not a word finds place in both the impugned orders, whereby Promila Verma''s representation was rejected twice, as to whether her case was covered with the said judgment or not. Nor there was any finding on the issue as to whether the petitioner was entitled to derive any advantage or benefit out of the said decision. In this way, the two Additional Directors working on the same post and in the same office at two different times have not sincerely carried out the Mandamus of this Court. Making a reference to the Division Bench judgment and the Special Leave Petition pending before the Supreme Court, they declined even to consider parity of the petitioner with that of the petitioners of bunch petitions. The Court''s order of April 26, 2001 contains the following directions:

"Having regard to the peculiar facts and circumstances of the case, the Writ Petition is disposed of finally with the direction to the Respondent No.3, Additional Director (Administration) to consider and decide the Petitioner''s representation in light of the observations and directions contained in the Judgment dated 19.10.2000 (Annexure 5) as also the Judgment in Sadhu Singh (supra) within a reasonable period of communication of this Order but not later than four weeks from the date of receipt of the copy of this Order."

The Order of October 19, 2000 passed in Writ Petition No.25376 (SS) of 1999 (copy on record) appears to indicate that the Judgment of August 11, 2000 was the basis of the said decision and the Court held that the present petitioners stand in the position of the petitioners in the Mukesh Kumar case and since their services were terminated in pursuance of G.O. dated 12th February, 1999, which has already been quashed, and further since at that juncture of time, the Government had decided not to file any Appeal against the decision of quashing the aforesaid G.O., the petitioners were held entitled to be given benefit of the former judgment.

The crucial question, which was to be answered by the Additional Director or if more than one Additional Director dealt with it, then they were under an obligation to compare the facts of the petitions headed by the petitioner Mukesh Kumar in bunch cases and that of Ms. Promila Verma. This Court would record with regret that neither Shabuddin Mohd., as he then was on June 13,2001 nor Sushil Kumar, who succeeded Shabuddin Mohd. as Additional Director (Administration) did the right sort of compliance and the essential exercise. From perusal of their orders, it appears that they arrogantly sat in appeal over and above the Court''s directions and without giving a categorical finding on the issue as to whether Promila''s case was covered by the Judgment dated 11th August, 2000 of this Court or not, rejected her claim and representation merely because a Division Bench did uphold the termination of an Engineer and furthermore, because of the Government''s revised decision to file S.L.P. before the Supreme Court against the Judgment of August 11, 2000. The Government and the Mandi Parishad having taken decision once not to file the S.L.P. derived strength to question the propriety of the said judgment on the basis of a Division Bench decision. The Hon''ble Supreme Court is seized of the matter for final decision but the Hon''ble Supreme Court did not stay the operation of the judgment in appeal. It was, however, different that the contempt proceedings for alleged breach of the said Judgment were kept in abeyance. It, thus, emerged out that the two Additional Directors dealing with the same point, one after another, failed to execute this Court''s instructions issued in the petitioner''s earlier writ petition and rejected her representation on technical grounds. They forgot that the Government''s Order dated 12th February, 1999, had been quashed, by means of the Judgment dated 11th August, 2000 on the basis of various recorded reasons.

A perusal of the Judgment dated 13th November, 2000 passed in Anshuman Misra''s case (supra) would reveal that the judgment of 11th August, 2000 has not been discussed at all. The observation that the said judgment suffers from per incurium appears to be based on the fact that the ruling of Raja, Ram Maurva v. U.P. Krishi Utpadan Mandi Parishad (1998 (1) UPLBEC 690) was not brought to the notice of the Division Bench, while deciding the case of Rajneesh Varshney v. State of U.P.. Writ Petition No.537 (SB) of 1999. Meaning thereby that the Division Bench of this Court, while dealing with Anshuman Misra''s case, did not consider the citation of Raja Ram Maurya (supra). There was no discussion, at all, about the judgment of 11th August, 2000, by which a bunch of cases were decided. Had it been observed that the judgment dated 11th August, 2000 was per incurium, the position would have been different. However, it is abundantly clear from the perusal of Anshuman Misra''s judgment that the Division Bench did not discuss at all the facts and principles of law laid down by the Court in its judgment of 11th August, 2000, i.e., the decision in the light of which, Respondents 2 and 3 were directed to consider Promila Verma''s representation for reinstatement of her service.

In view of this situation, it can be observed that the Additional Directors as named above recklessly, blatantly and brazenly violated the instructions of this Court issued in the petitioner''s earlier Writ Petition. Both these officers are, therefore, censured for their reckless dealing of the matter. Now, it becomes necessary for this Court to deal with the petitioner''s case in the light of the judgment of August 11, 2000 passed in the batch of writ petition.

The salient features, as observed in the said Judgment, may be reproduced as below:

(1)Till the date of the Judgment dated 11th August, 2000, not a single appointment has been made in accordance with the Regulations of 1965 or 1984.

(2) The Government has not evolved any policy to deal with the ad hoc employees, who have been working for number of years.

(3)The Government Orders, as contained in G.O. dated 12th February, 1999, were discriminatory. As such, orders directed for termination of those ad hoc employees, who were employed between 1.4.1996 and 30.10.1997, leaving all ad hoc employees to continue in service, who were employed on ad hoc basis before 1.4.1996 and after 30.10.1997.

(4) No principle was evolved on the basis of which the ad hoc appointees, prior and after to the aforesaid dates, were retained in service.

(5) No rational classification was made as to why ad hoc employees appointed after October 30, 1997 were allowed to continue in service and why ad hoc appointees prior to the said date and upto April 1, 1999 were selected to be terminated.

(6) By not evolving any policy, the Government as held in Raja Ram Maurya''s case, had not taken a rational decision.

(7) The Government''s directions issued under Section 26F of the Mandi Parishad Act were not exercised on the basis of some policy and haphazard instructions were issued by the Government vide its letter of February 12,1999.

(8) The Government''s move to terminate the services of the employees, who were recruited by the Directors Sri P.M. Misra and Dr. Raja Ram, was mala fide with a view to embarrass and penalize these two officers.

(9) The ad hoc appointments made by the other Directors were protected, which amounted to discrimination and the same was covered by invidious discrimination.

(10) The contention that the Mandi Parishad or Samithis did not regularize the services of the ad hoc appointees fell to the ground as numerous appointments after mass termination were again made on ad hoc basis.

(11) Lot many posts were lying vacant and further, the Mandi Parishad or Samithis were running in profit.

(12) After serving for a long term like the petitioner, an ad hoc appointee is entitled to continue until regularly selected candidate is appointed on the post he/she is occupying.

(13) Even the ad hoc employees were held to be eligible to apply for regular selection.

(14) The termination orders issued by the competent authority under instructions of a superior authority are illegal and ultra vires the rules.

(15) there were no financial constraints with the Mandi Parishad. Its business has enormously increased with the load of the work requiring more hands.

In the light of the above findings arrived at in the Writ Petition No.1470 (SS) of 1999, Sadhu Singh and others v. State of U.P. alongwith other similar writ petitions, it may be held that the petitioner''s termination order having been issued without application of mind under the orders of the Government, which were earlier declared to be absolutely discriminatory, was illegal. The impugned orders with jugglery of words and phrases were not passed in the light of the Judgment dated 11th August, 2000 which was also the basis of another judgment dated 19.10.2000 passed in Writ Petition No.25376 of 1999 Manoj Kumar and others and the order of the same date in Writ Petition No.7553 of 2000 and the Additional Directors had deviated from the right track of the instructions issued in the Petitioner''s earlier Writ Petition No.6479 (SS) of 2000.

Obviously, as has been said above, the Respondents 2 and 3 failed to carry out the mandatory directions passed by this Court in the judgment referred to above. Hence, this writ petition succeeds and is hereby allowed with costs. Both the impugned orders are accordingly quashed and a writ of Certiorari is issued to this effect. A writ of Mandamus is issued commanding the Respondents 2 and 3 to allow the petitioner to resume her duty as ClerkcumTypist in the light of the judgment dated 11th August, 2000, referred to above, in this Judgment.

(Petition allowed)