Rajesh Kumar Yadav vs State of U.P. and Others

B. Amit Sthalekar, J.—1. The petitioner in this writ petition is seeking quashing of the order dated 29.09.2015 whereby his appointment on the post of Collection Amin made on compassionate ground on 24.09.2004 is sought to be cancelled.

Briefly stated the facts of the case are that the father of the petitioner late Faujdar Singh Yadav was working as Collection Amin in Tehsil Jamuniya, District Ghazipur and died on 22.07.2004 while still in service. The late Faujdar Singh Yadav left behind him his widow and two sons including the petitioner and four daughters. The petitioner applied for appointment on compassionate ground which was considered by the respondents and thereafter he was given appointment on compassionate ground on the post of Collection Amin by order dated 24.09.2004.

One Smt. Reeta Rai filed a Writ Petition No. 28452 of 2006 claiming appointment for herself under the U.P. Recruitment of Dependants of Government Servant Dying in Harness Rules, 1974 (hereinafter referred to as the Rules of 1974) and by way of illustration referred to the appointment given to the petitioner. The said writ petition was disposed of by the Court by the order dated 22.05.2006 with a direction to the respondents to take a decision in the matter of appointment of Smt. Reeta Rai within three months. It appears that while considering the matter of appointment of Smt. Reeta Rai the respondents proceeded to pass an order dated 03.12.2007 cancelling the appointment of the petitioner.

Aggrieved by the aforesaid order the petitioner filed a Writ Petition No. 1986 of 2008, Rajesh Kumar Yadav v. State of U.P. and others challenging the order dated 03.12.2007. This writ petition was disposed of by the order dated 07.08.2014 with a direction to the District Magistrate, Ghazipur to look into the matter and decide the claim of the petitioner afresh. It is in pursuance thereof that the order dated 29.09.2015 impugned in this writ petition has been passed.

I have heard Sri Vikas Budhwar, learned counsel for the petitioner and Sri Vikram Bahadur Yadav, learned standing counsel for the respondents.

The submission of the learned counsel for the petitioner is that the appointment of the petitioner was made by the respondents under the Rules 1974 and at that point of time there was no concealment of fact by the petitioner. It is submitted that his mother and other siblings had given a no objection certificate on affidavit to the appointment of the petitioner and it is on this basis that the appointment was given to the petitioner. The submission is that though the tenor of the letter of appointment dated 24.09.2004, Annexure-1 to the writ petition is that such appointment is purely temporary and liable to be terminated at any point of time but it is not disputed that such appointment was made on compassionate grounds applying the Dying in Harness Rules and in any case the petitioner cannot be treated as temporary for the last 11 years given the fact that there has been absolutely no complaint of any kind with regard to the work performed by the petitioner and in any case the petitioner had completed his probationary period to the full satisfaction of the respondents.

Per contra, the case of the respondents in their counter affidavit is that the services of late Faujdar Singh Yadav, father of the petitioner was never regularized and on being found to be unsatisfactory his services were terminated on 31.03.1995 but thereafter he was again allowed to work and again his services were terminated on 05.01.1996. He was again engaged for 42 days on 10.01.1997 and he continued as such upto 04.04.1997 and thereafter by an order dated 17.05.1997 passed by the SDM, Sadar the appointment of the father of the petitioner was made on ad hoc basis. In the meantime he was also placed under suspension on 03.05.1998 but thereafter reinstated in service by the order dated 26.08.1998 by imposing penalty of stoppage of two increments without any salary. Thereafter he was given an adverse entry but there was no recommendation regarding regularization of his services and finally the said Faujdar Singh Yadav died on 22.07.2004. It is also stated that when the matter was examined in 2007 the appointment of the petitioner was found to be illegal in view of the above facts and therefore his services were terminated by the order dated 03.12.2007. This order was challenged by the petitioner in Writ Petition No. 1986 of 2008 in which the Court had also granted an interim order on 25.02.2008 staying the operation of the order dated 03.12.2007. The said writ petition was ultimately disposed of by the Court by order dated 07.08.2014.

The respondents have also placed reliance upon a judgment of the Division Bench of this Court reported in , 2010 (4) UPLBEC 2633, Pawan Kumar Yadav v. State of U.P. And Others wherein the Full Bench has held that a daily wager and work-charge employee employed in connection with the affairs of the Uttar Pradesh, who is not holding any post, whether substantive or temporary, and is not appointed in any regular vacancy, even if he was working for more than 3 years, is not a ''Government servant'' within the meaning of Rule 2 (a) of U.P. Recruitment of Dependants of Government Servant (Dying in Harness) Rules, 1974, and thus his dependants on his death in harness are not entitled to compassionate appointment under these Rules. Paragraph 26 of the judgment reads as under:

"26. On the aforesaid discussion, and in view of the law laid down in General Manager, Uttaranchal Jal Sansthan v. Laxmi Devi (Supra), we answer the questions posed as follows:--

"1. A daily wager and work-charge employee employed in connection with the affairs of the Uttar Pradesh, who is not holding any post, whether substantive or temporary, and is not appointed in any regular vacancy, even if he was working for more than 3 years, is not a ''Government servant'' within the meaning of Rule 2 (a) of U.P. Recruitment of Dependants of Government Servant (Dying in Harness) Rules, 1974, and thus his dependants on his death in harness are not entitled to compassionate appointment under these Rules.

The judgements in Smt. Pushpa Lata Dixit v. Madhyamik Shiksha Parishad and others, 1991 (18) ALR 591; Smt. Maya Devi v. State of U.P. (Writ Petition No. 24231 of 1998 decided on 2.3.1998); State of U.P. v. Maya Devi (Special Appeal No. 409 of 1998); Santosh Kumar Misra v. State of U.P. & Ors., 2001 (4) ESC (Alld) 1615; and Anju Misra v. General Manager, Kanpur Jal Sansthan , (2004) 1 UPLBEC 201 giving benefit of compassionate appointment to the dependants of daily wage and work-charge employee have not been correctly decided."

The submission of the respondents therefore is that in view of the judgment of the full Bench of this Court the father of the petitioner having never been regularized as Collection Amin, therefore upon his death in 2004, the petitioner cannot have been given appointment on compassionate grounds.

Countering the submission of the learned standing counsel, Sri Vikas Budhwar, learned counsel for the petitioner then submitted that the judgment of the Full Bench was given on 22.09.2010 and therefore the same would apply prospectively and it would not invalidate appointments made prior to the said judgment. Reliance has been placed upon a Division Bench judgment of this Court reported in , 2008 (2) ESS 923 (All), Dr. U.S. Sinha v. State of U.P. and Others particularly paragraph 13 thereof which reads as under:

"13. Hence, let us go back to the question of proper understanding in respect of de facto doctrine. In , AIR 1981 SC 1473, Gokaraju Rangaraju v. State of Andhra Pradesh and Ors. a three Judges Bench of Supreme Court has held that the de facto doctrine is now well established that the acts of the officers de facto performed by them within the scope of their assumed official authority, in the interest of the public or third persons and not for their own benefit, are generally as valid and binding, as if they were the acts of officers de jure. Relying upon aforesaid judgment, Supreme Court once again held, on the factual circumstance therein, in , AIR 1988 SC 162, State of U.P. v. Rafiquddin and Ors., that judgements and orders of a de facto Judge cannot be challenged on the ground of his ineligibility for the appointment. This doctrine is founded upon sound principles of public policy and justice. The validity of the judgments and orders of a Judge whose judgeship is under challenge, cannot be challenged on the ground of legal infirmity their appointment. In paragraph 7 of the judgment of Supreme Court reported in 1993 Supple (2) SCC 734, Dr. A.R. Sircar v. State of U.P. and Ors. it was held that generally decisions taken bonafide under any law or rule in force, which is later on declared unconstitutional, are saved on the de facto doctrine for otherwise even regularisation of promotion etc. as available in the factual circumstances therein, would have to be invalidated. Therefore, in view of the analysis of the judgments of the Supreme Court as given above, the principle of de facto doctrine cannot be avoidable circumstance herein from its applicability in the case of the respondent i.e. the selected candidate who was selected in the selection impugned."

Reliance has also been placed upon a judgment of the Supreme Court reported in 1993 Supp. (2) SCC 734, Dr. A.R. Sircar v. State of U.P. and Others. Paragraphs 4, 5 and 6 of the said judgment read as under:

"4. In exercise of powers conferred by the proviso to Article 309 of the Constitution the Governor of the state was pleased to make the Uttar Pradesh state Colleges Medical Teachers Service Rules, 1990 for regulating the recruitment and the conditions of service of persons appointed to the state medical colleges. Rules 20 made provision in regard to the seniority. The relevant paragraph thereof reads as under:

"20. Seniority:--(1) Except as hereinafter provided, the seniority of persons in any category of posts shall be determined from the date of the order of substantive appointment and if two or more, persons are appointed together, by the order in which their names are arranged in the appointment order:

Provided that if the appointment order specifies a particular back date with effect from which a person is substantively appointed, that date will be deemed to be the date of order of substantive appointment and, in other case, it will mean the date of issue of order."

Pursuant to this rule the State Government prepared a provisional seniority list in which the Appellant was shown senior to the Respondents Nos. 4 and 5. After considering the objections received against the proposed seniority in the provisional list, the State Government published a final seniority list on 23rd March, 1991 wherein also the Appellant was shown senior to Respondent No. 4; the name of Respondent No. 5 did not find a place as he had since retired. A further scrutiny of this seniority list was made and the aberrations, if any, were corrected and the same was finalized by the State Government. Even in the finalized seniority list the Appellant was shown senior to Respondent No. 4.

The High Court by the impugned order came to the conclusion that since the appointment order of the Appellant dated 31st October, 1989 did not state that his sonority will be counted from a back date nor did it specify any particular date from which it should be effective, the Appellant could claim seniority only from the date of his actual appointment. The High Court also came to the conclusion that since the promotion of Respondents Nos. 4 and 5 under the 1988 Rules had been regularized prior to the appointment of the Appellant on 31st October, 1989, the Appellant could not claim seniority over Respondents Nos. 4 and 5 notwithstanding the fact that his selection was for filling on the 1982-83 vacancy meant for direct recruits. In this view of the matter the High Court allowed the writ petition and quashed the seniority list insofar as it related to the Appellant and Respondent No. 4 and directed that their inter se seniority should be determined afresh in the light of the observations made in the judgment and on the premises that the age of superannuation for the Appellant as well as Respondent No. 4 will be 60 years, subject of course to any direction that this Court may give in the Special Leave Petition pending before it. It may however be mentioned that learned Counsel for the State Government informed us in the course of the hearing of this appeal that the State Government had withdrawn the Special Leave Petition and had acquiesced in the judgment of the High Court striking down the Act as ultra vires Articles 14 and 300A of the Constitution. In view of this development of which the High Court was not seized it was argued that the question of seniority has to be determined as if the provisions of the Act and the Rules made thereunder had no effect.

The decision of the High Court is primarily based on the proviso to Rule 20(1) extracted earlier which clearly state that if the appointment order specifies a particular back date with effect from which a person is substantively appointed that date will be the date of his substantive appointment, otherwise the relevant date will be the date of the order of appointment. The order of October 31, 1989 which has been reproduced in the judgment of the High Court does not specify and back date and, therefore, ordinarily the Appellant''s appointment would be taken as from the date of issuance of the order. But the order clearly state that the appointment is on the basis of selection by direct recruitment. It may be mentioned that in the counter affidavit filed on behalf of the State Government it has been clarified in paragraph 3(k) that the direct recruitment was for the vacancy of 1982-83 but on account of a clerical omission this fact was not mentioned in the appointment order. This statement clarifies that although the appointment was made on 31st October, 1989. It related to the vacancy of 1982-83. That is even otherwise obvious from the fact that the advertisement issued in December, 1984 was for filling up the vacancy of the year 1982-83 by direct recruitment. There can, therefore, be no doubt whatsoever that the appointment of the Appellant was for the vacancy of 1982-83. Had it not been for the intervening stay order granted by the High Court in Writ Petition No. 1545/86, the Appellant would have been appointed long before the regularisation of promotion of Respondents Nos. 4 and 5 under the 1988 Rules. Respondents Nos. 4 and 5 who were instrumental in seeking the interim order from the High Court staying the implementation of the select list cannot be allowed to take advantage of their own wrong. The dismissal of their petition on 24th July, 1989 goes to show that they had successfully blocked the regular entry of the Appellant on a substantive vacancy of the year 1982-83 by filing an untenable Writ Petition. The interim order passed by the High Court kept the Appellant out from securing a regular appointment on a substantive vacancy and in the meantime Respondents Nos. 4 and 5 by virtue of the 1988 Rules secured regularisation of their ad hoc appointments as Professors of Medicine. It is, therefore, obvious that on the one hand they precluded the Appellant from occupying the substantive vacancy of the year 1982-83 and on the other they got their ad hoc appointments regularized under the 1988 Rules. If the imagining stay order had not prevented the Appellant''s appointment to the substantive vacancy, there can be no doubt that the Appellant would have occupied that post earlier in point of time if Dr. Aggarwal was not prepared to join. In that case the Appellant would have been senior to Respondents Nos. 4 and 5. One cannot lose sight of the fact that Respondents Nos. 4 and 5 had competed along with the Appellant for selection to the post as a direct recruit but had failed. It, therefore, stands to reason, both in principle and in equity that Respondents Nos. 4 and 5 are not permitted to take advantage of the situation of their creation. Even if the Act is taken as non est and the Rules framed thereunder are ignored, on first principles also, there is no reason why the Appellant should be denied the benefit of appointment in the vacancy of 1982-83 on Dr. Aggarwal declining to join. Throughout in the seniority list prepared by the state authorities the Appellant was shown to be senior to Respondents Nos. 4 and 5. The High Court, however, went strictly by the language of the proviso to Rule 20(1) and concluded that since the appointment order of the Appellant did not specify the back date, the seniority of the Appellant must be reckoned from the date of the order of appointment. But the High Court failed to realize that the selection of the Appellant was for the vacancy of 1982-83 meant for direct recruits. The Appellant was appointed under the order of 31st October, 1989 pursuant to his selection and empanelment in the select list. Therefore, the Appellant''s appointment must relate to the vacancy of 1982-83. Even the appointment order specifically state that the appointment is ''on the basis of selection by direct recruitment''. The draftsman had, therefore, the vacancy of 1982-83 in mind. It is true that the Appellant was at Serial No. 2 and could claim placement in the slot of 1982-83 only if Dr. Aggarwal declined to join. Unfortunately because of the intervening stay order the wish of Dr. Aggarwal could not be ascertained till after the dismissal of the Writ Petition on 24th July, 1989. We are, therefore, of the view that the High Court was not right in fixing the date of entry of the Appellant into the regular service as 31st October, 1989."

Reliance has also been placed on the judgment of the Supreme Court in the case of Union of India v. Madras Telephone SC & ST Social Welfare Association and connected cases , 2006 (8) SCC 662. Paragraphs 18, 21 and 22 of which read as under:

"18. The question then arises as to whether the applicants can claim the protection of their seniority and consequent promotion on the basis of observations and the clarification contained in the judgment of this Court in Madras Telephone. Having considered all aspects of the matter we are satisfied that those whose cases stand on the same footing as that of Parmanand Lal cannot now be adversely affected by re-determination of their seniority to their disadvantage relying on the later judgment of this Court in Madras Telephone as affirmed by this Court in its judgment in Madras Telephone.

19...........

20...........

Having regard to the above observations and clarification we have no doubt that such of the applicants whose claim to seniority and consequent promotion on the basis of the principles laid down in the Allahabad High Court''s judgment in Parmanand Lal''s case have been upheld or recognized by Court or Tribunal by judgment and order which have attained finality will not be adversely affected by the contrary view now taken in the judgment reported in 1997 (10) SCC 226. Since the rights of such applicants were determined in a duly constituted proceeding, which determination has attained finality, a subsequent judgment of a Court or Tribunal taking a contrary view will not adversely affect the applicants in whose cases the orders have attained finality. We order accordingly.

Before parting with this judgment we may observe that we have not laid down any principle or law having universal application. We have only clarified and given effect to an earlier judgment of this Court rendered in an extraordinary situation."

In my opinion neither of the judgments referred to by the petitioner has any application to the facts of the present case. In fact in the case of Madras Telephone (supra) the Court had held that the decision in the case of Parmanand Lal and Brij Mohan reported in (1997) 10 SCC 226 had already attained finality and therefore the rights of the applicants having already been determined in a duly constituted proceeding which had attained finality would not be adversely affected by any subsequent judgment of the Supreme Court or thereafter taking a contrary view. In the present case what is noteworthy is that the petitioner was appointed on compassionate grounds by order dated 24.09.2004 and while examining the case of Smt. Reeta Rai when this fact came to light that the petitioner could not have been given appointment on compassionate grounds the said judgment was cancelled by order dated 03.12.2007. Therefore it is not a case where the respondents were taking action to terminate the services of the petitioner after the judgment of the Full Bench of this Court in Pawan Kumar Yadav (supra). Action to terminate the services of the petitioner had already been taken on 03.12.2007, long before the judgment in the case of of Pawan Kumar Yadav (supra). This order was challenged by the petitioner in Writ Petition No. 1986 of 2008 in which the Court had granted an interim order on 25.02.2008 staying the operation of the order dated 03.12.2007. The writ petition stood disposed of finally by order dated 07.08.2014 and if the petitioner continued in service till then it was only under the interim order of the Court.

The Supreme Court in the case of Secretary State of Karnataka v. Umadevi, , 2006 (4) SCC (1) while holding appointments made dehors the rule to be illegal and invalid being contrary to the Constitutional scheme and also held that those decisions which run counter to the principle has been settled or in which directions run counter to this decision will stand denuded of their status as precedent. It has also been clarified that regularization, if any made, but not sub judice, need not be reopened based on the judgment. Paragraph 53 of the said judgment reads as under:

"53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. NARAYANAPPA (supra), R.N. NANJUNDAPPA (supra), and B.N. NAGARAJAN (supra), and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme."

However, the Supreme Court also added that the services of persons irregularly appointed, who have worked for 10 years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals should be regularized as a one time measure.

In the present case the matter relating to the appointment and its subsequent cancellation and termination of services of the petitioner was sub judice in the High Court since the filing of the Writ Petition No. 1986 of 2008 in which the petitioner had also obtained an interim order on 25.02.2008 and continued in service till the said writ petition was disposed of on 07.08.2014 with a direction to the respondents to decide his case afresh and it is only in pursuance of the said direction that the order impugned in the present writ petition has been passed. Therefore the petitioner would not be entitled to the benefit of the judgment of the Supreme Court in the case of Madras Telephone (supra).

Therefore, on a conspectus of facts and the law laid down by the Supreme Court, I do not find any illegality or infirmity in the impugned order. The writ petition lacks merit and is accordingly dismissed.