Sunil Kumar Shukla vs The State of U.P. and Others

A.P. Sahi, J.—Heard Sri Rajeev Mishra, learned Counsel for the petitioner and Sri Neeraj Upadhyay for the respondents.

The petitioner is a class-III employee in the Family Court at Jhansi and is working since 2003. The petitioner was appointed on ad hoc basis and is continuing as such.

The High Court took a decision on the administrative side which was implemented through a letter of the Registrar General dated 5.11.2009 and the Corrigendum dated 11.11.2009. In pursuance of the letter of the Registrar General dated 5.11.2009, the learned Judge, Family Court, Jhansi, terminated the services of the petitioner on 2.12.2009 which is under challenge before this Court on various grounds.

Sri Rajeev Mishra, learned Counsel for the petitioner, contends that this issue relating to ad hoc engagement of employees in the District Judgeship became subject matter of consideration in the case of Anjani Kumar Dubey and Ors. v. High Court of Judicature at Allahabad and Ors. Civil Misc. Writ Petition No. 62910 of 2009, which was dismissed on 4.1.2010. A Special Appeal No. 65 of 2010 was filed against the aforesaid judgment and the Division Bench was pleased to pass an order on 21.1.2010 which is quoted below:

The certified copy of judgement passed by learned single judge filed by learned Counsel for the appellants is taken on record.

We have heard Shri Abhishek Mishra learned Counsel for the appellants and Shri K.R. Sirohi, learned senior counsel assisted by Shri S.P. Singh appearing for respondents No. 1 and 2. The respondents have not filed counter affidavit.

However, the registry has produced the records before us. We have gone through the records. From the records it transpires that in view of the interim report submitted by the Committee on 14.9.2009 the employees of Agra judgeship/ Appellants as well as employees of other judgeships in the State of U.P. have been ceased to work on class III and IV posts, who were appointed on ad hoc and daily wage basis and who have been regularised on vacant posts in view of U.P. Regularisation on Ad hoc Appointments (on the post outside the purview of Public Service Commission) (Third Amendment) Rules 2001. The appellants had been working on ad hoc basis by granting tenure appointments to them and three have been working since 1998, two from 2000 and two from 2001.

The officers of the registry who were present before us namely Shri Salim Ahmed Khan, Joint Registrar (Inspection) could not inform us as to whether the aforesaid Rules, 2001 has been adopted by the High Court or not.

We direct the respondents to file counter affidavit explaining

1.Whether U.P. Regularisation on Ad hoc Appointments (on the post outside the purview of Public Service Commission) (Third Amendment) Rules 2001, have been adopted by the High Court or not. If Rules, 2001 have not been adopted by the High Court then how these Rules would apply to the District Judgeships, and if these Rules have been adopted by the High Court then the Rules, 2001 would apply with full force to the High Court establishment as well as to the District Courts.

Whether the Hon''ble Chief Justice had authorised the Committee to recommend a policy decision with regard to all the class III and IV employees of Judgeships of entire State of U.P. or the authorisation to the Committee was with regard to the employees who are working on ad hoc basis or tenure appointment. If the authorisation by the Chief Justice was with regard to ad hoc/tenure appointments then the Committee could not have considered the appointments of employees working in district courts who had been taken into service on regular basis though their initial appointment may have been ad hoc or tenure appointment.

The registry shall also explain as to what is the difference between general letter or High Court circular issued under the Allahabad High Court Rules and whether letters dated 5.11.2009 and 26.11.2009 issued by the Registrar General are general letter or circular of the High Court.

Whether a policy decision with regard to class III and IV employees of subordinate courts establishment can be taken by the Chief Justice or by the Administrative Committee or by the Full Court.

Counter affidavit shall be filed by the registry by 28.1.2010 and records shall be produced before us.

Put up for further hearing on 28.1.2010 at 2.00 P.M.

After hearing the counsel for the parties, we prima facie find force the submissions made by the appellants. Prima facie the U.P. Regularisation on Ad hoc Appointments (on the post outside the purview of Public Service Commission) (Third Amendment) Rules 2001 do not apply to the instant case. If the Rules do not apply then the report of Committee would fall. Further the services of ad hoc/tenure appointees could not be terminated after about more than eight years without any opportunity of hearing. From the letter of Registrar General dated 5.11.2009 it appears that direction has been issued that Class-III and Class IV employees who have been regularised, their services also be terminated and dispensed with. This order dated 5.11.2009 appears to be arbitrary and in violation of principles of natural justice. Therefore, the appellants are entitled for interim order.

Until further orders of this Court, the operation of order dated 4.1.2010 passed by the learned single judge, in civil misc. writ petition No. 62910 of 2009, the effect and operation of letter No. LN14763/ Admin. (D) Section/Allahabad dated 5.11.2009 and clarification letter No. 15968/Admin. (D) Section dated Allahabad : November 26, 2009 issued by Registrar General, High Court Allahabad in the matter of appointments of ad hoc Class-III and Class -IV employees and further proceedings before the Committee constituted by the High Court in this matter shall remain stayed.

The same Division Bench further passed an order on 28.1.2010, which is to the following effect:

We have heard Shri K.N. Mishra assisted by Shri Abhishek Mishra learned Counsel for the appellants and Shri. K.R. Sirohi learned Senior Advocate assisted by Shri S.P. Singh, Advocate appearing for respondents.

Shri. K.R. Sirohi prays for and is allowed three weeks'' further time for filing counter affidavit. Learned Counsel for the petitioners informs the Court that since 1998 no regular appointment of Class-IV employees has been made in Agra Judgeship. Sri K.R. Sirohi shall explain in counter affidavit as to why these persons were engaged on ad-hoc basis though the regular vacancies were available and why no appointment was made on regular vacancy. He shall also explain in the counter affidavit as to whether the termination of Class-III and Class-IV employees in the Subordinate Courts have taken place only in Agra or in entire State of Uttar Pradesh. He shall also explain that whether in pursuance of Letter dated 5.11.2009 of the Registrar General, services of the regular employees have also been terminated. It will further be explained in the counter affidavit as to whether under Rule IV sub-rule 3 of Uttar Pradesh Subordinate Civil Courts Inferior Establishment Rules, 1955 discretion of District Judge could be curtailed or taken away and the appointment made under Rule 4(3) at the discretion of District Judge could be found faulty by the High Court. It is also to be explained that how many employees are working on ad-hoc basis or in tenure appointments in the District Courts of the entire State of U.P. on 01.07.2009 and since how long they have been working. A detailed chart is to be submitted along with the counter affidavit.

It has to be explained in the counter affidavit as to whether at all times there was requirement of making appointment by District Judge under Rule 4(3) after making advertisement in newspaper having wide circulation and whether the rules provide for any advertisement, since when the requirement of advertisement has come and since when it has been enforced by the High Court. Whether the provision of advertisement affects or curtails the discretion of District Judge as the rule making authority never intended that the District Judge should exercise discretion under Rule 4(3) after advertisement. It shall also be explained that under Rule 12 read with Rule 4(2) of the aforesaid Rules of 1955 how and in what manner the waiting list has to be prepared.

Shri K.R. Sirohi is further directed to produce the records with regard to each employee/appellant as to how payments were made to them and whether the payments and budget was approved by the High Court for making payment of ad-hoc employees appointed in Agra Judgeship because if the payment of these employees were sanctioned and budget was granted by the High Court then these appointments cannot said to be continuing without the permission of the High Court.

We have examined the records and find that a recommendation was made by Agra Judgeship for granting extension to the appointments of the appellants as per report dated 30.8.2009 submitted by Officer-in-Charge, Nazarat, Civil Court, Agra. Since the appellants had been functioning on ad-hoc basis from 1998, 2000 and 2001, it was expected that their approval would be granted by the High Court. But it appears that no formal approval has been granted by the High Court though the appellants have put in more than eight years of service and even when extension was neither sought nor granted by the High Court, budget was sanctioned by the High Court for payment of salaries of the appellants. Therefore, it is clear that the appointments of the appellants on ad-hoc basis was in the knowledge of High Court and it had impliedly approved their appointments and their payments of salaries was made to the appellants.

In this view of the matter, we direct that the appellants shall continue on ad-hoc basis till the disposal of the special appeal and their salary shall be paid by the respondents.

List on 23.2.2010 at 10.00 a.m. for further hearing.

It would, thus, be seen that several questions have been framed by the Division Bench to be decided in the said Special Appeal.

On the said issue, the Court has been informed that in a matter relating to appointment of a class-IV employee on the post of driver in the District Judgeship of Kaushambi, the selection held and the appointment made was challenged by some non-selected candidates in Civil Misc. Writ Petition No. 3790 of 2004 (Rajesh Kumar Srivastava and Ors. v. State of U.P. and Ors.). The writ petition was dismissed by the learned single Judge on 29.4.2007 where the selections had been questioned. The writ petitioners filed a Special Appeal and the said Special Appeal was allowed setting aside the judgment of the learned single Judge as well as the entire selections of class-IV employees of the judgeship of district Kaushabi with a further direction to hold fresh selections after advertisement. While allowing the appeal, the Division Bench observed and directed as follows:

In the end, we can not refrain over selves in mentioning that right under the nose of the High Court selections are being made arbitrarily very often without any sense of responsibility. In respect of this very advertisement of the Judgeship of Kaushambi wherein selection of class - III employees was made the same was struck down by this Court vide judgment and order dated 25.5.06 with exemplary cost of Rs. 50,000/- each to be paid by Sri C.B.D. Mishra, then District Judge Kaushambi and Sri Krishan Chandra, Chairman of the selection committee. The court therein had taken note of series of writ petitions filed regularly challenging the selection of class III and IV employees of the various District Judgeships and which have been allowed quashing all such selections. Despite the note of caution sounded therein it appears that no one has learnt any lesson and there is no sign of improvement.

The menace of such illegal and arbitrary selection for whatever reasons has acquired alarming proportion and has almost continued unabated. Therefore, it requires to be dealt with an iron hand forthwith. Conscious of the fact that we are not supposed to legislate, but in order to control the malady of such unlawful selection at least in subordinate judiciary, in exercise of supervisory jurisdiction, we consider it suitable in the fitness of things to lay down the following guidelines to facilitate fair selection by supplementing the Rules in the area in which they are silent.

1.A selection committee of three persons headed by the District Judge concerned and two senior most judicial officers of the judgeship be constituted in every judgeship.

2.First of all, every year all class - III posts within the promotional quota from amongst the class - IV employees be filled up and the process in this regard be completed latest by 31st December every year.

Thereafter, all the vacancies of class - III and class - IV posts in each judgeship, as far as possible, may be advertised in a district level news-paper in the month of January/February every year so that the selection process is completed by 31st of March every year.

The selection process should be based upon a written test of maximum 75 marks to test the workable knowledge of Hindi followed by an interview of maximum 25 marks.

On the basis of merit in written test candidates to a maximum of thrice the number of vacancies advertised to be filled up, should ordinarily be called for interview.

A combined merit list on the basis of the marks obtained in written test and interview should be drawn along with a waiting list of equal number of candidates as the vacancy advertised and then the selection be made from the said merit list.

Accordingly, with the above observation and guidelines, this special appeal succeeds and is allowed. The judgment and order of the learned single Judge in writ petition No. 3790 of 2004 Rajesh Kumar Srivastava and Ors. v. State of U.P. and Ors. is set aside and the entire selection of class - IV employees of the Judgeship of Kaushambi pursuant to the advertisement dated 28.5.2003 are quashed. The selection process shall be completed afresh after fresh advertisement in accordance with law within a period of four months from today in this particular case. In the advertisement it shall be provided that those candidates who participated in the earlier selection need not apply afresh and they shall be permitted to participate in the fresh selection.

The original record is returned to the judgeship.

A copy of this judgment be placed before the Registrar General for necessary follow up action and circulation of guidelines to all District Judges.

Against the aforesaid judgment of the Division Bench, the selected candidates preferred a SLP before the Apex Court being Civil Appeal No. 1139 of 2010 in which initially there was an interim order but the SLP was ultimately dismissed on 29.1.2010 by the following order:

Leave granted.

Heard learned Counsel for the petitioners and also learned Counsel for the High Court.

In the District of Kaushambi vacancies of 21 Class-IV employees were notified for selection and appointment. Total 2423 candidates submitted their applications for selection. Though written test was not a requirement for the selection process, the Committee thought of conducting a written test but no marks were assigned for the written test and all candidates were called for interview and the same was held within two days and the appellants herein were selected and they were appointed. Some of the candidates who were unsuccessful in the selection, filed writ petitions challenging the selection. The learned Single Judge rejected their contentions and approved the selection made by the Committee.

Aggrieved by the same, they filed Writ Appeals before the High Court and the Division Bench, by the impugned judgment, set aside the selection and thereafter the appellants'' services were terminated from 2008. Pursuant to the directions issued by the Division Bench, we are told that the process of second selection is on and fresh applications have been called for and those who have not already submitted their applications were not required to submit fresh applications and they were also to be considered. In view of these circumstances, we do not propose to interfere with the impugned judgment. Accordingly, these appeals fail. However, we make it clear that in case any of these appellants are found to be over-aged, that shall not be ground for their disqualification for being selected for appointment.

With the above observations, we dispose of these appeals. No costs.

From a perusal of the interim orders passed by the Division Bench in Special Appeal No. 65 of 2010 and from the operative part of the judgment in the case of Rajesh Kumar Srivastava (supra) as upheld by the Apex Court, there appears to be a direct conflict of opinion in relation to the procedure to be followed by the subordinate judiciary in proceeding to make appointment against class-III and class-IV posts. The Division Bench judgment, which has been upheld by the Apex Court on 29.1.2010, clearly prescribes guidelines and guideline No. 3 specifically provides for an advertisement in a district level newspaper. The view expressed by the Division Bench in the interim orders passed in Special Appeal No. 65 of 2010 may ultimately run counter to the aforesaid view expressed by the Division Bench. The matter, therefore, requires to be resolved at the earliest as the entire selections and appointments on account of the claim of such ad hoc appointees would be withheld. The rules of Procedure relating thereto, therefore, should be propounded at the earliest through an authoritative pronouncement finally either by a Division Bench or by a larger Bench which may be appropriate in the opinion of Hon''ble the Chief Justice to be constituted to resolve the aforesaid conflict. There are some other decisions which have to be taken notice of while dealing with the said issues which are as follows:

(i)Ramesh Chandra and Ors. v. State 2008 (3) ESC 1968; and

(ii) 2005 (4) ESC 357 & 367.

Accordingly, let the papers of this case along with the following writ petition numbers and the records of Special Appeal No. 65 of 2010 be placed before Hon''ble the Chief Justice/Senior Judge for passing appropriate orders keeping in view the urgency of the matter.

(i) Civil Misc. Writ Petition No. 1627 of 2010;

(ii) Civil Misc. Writ Petition No. 62166 of 2009;

(iii) Civil Misc. Writ Petition No. 62546 of 2009;

(iv) Civil Misc. Writ Petition No. 65086 of 2009;

(v) Civil Misc. Writ Petition No. 65093 of 2009;

(vi) Civil Misc. Writ Petition No. 66760 of 2009;

(vii) Civil Misc. Writ Petition No. 66762 of 2009;

(viii) Civil Misc. Writ Petition No. 66764 of 2009;

(ix) Civil Misc. Writ Petition No. 66778 of 2009;

(x) Civil Misc. Writ Petition No. 66946 of 2009;

(xi) Civil Misc. Writ Petition No. 66947 of 2009;

(xii) Civil Misc. Writ Petition No. 66948 of 2009;

(xiii) Civil Misc. Writ Petition No. 67233 of 2009;

(xiv) Civil Misc. Writ Petition No. 67236 of 2009;

(xv) Civil Misc. Writ Petition No. 68004 of 2009;

(xvi) Civil Misc. Writ Petition No. 68654 of 2009;

(xvii) Civil Misc. Writ Petition No. 68835 of 2009;

(xviii) Civil Misc. Writ Petition No. 68853 of 2009;

(xix) Civil Misc. Writ Petition No. 67236 of 2009;

(xx) Civil Misc. Writ Petition No. 43394 of 2001;

(xxi) Civil Misc. Writ Petition No. 3765 of 2010;

(xxii) Civil Misc. Writ Petition No. 3959 of 2010;

(xxiii) Civil Misc. Writ Petition No. 4125 of 2010;

(xxiv) Civil Misc. Writ Petition No. 37187 of 2002;

Since the Division Bench has already passed interim orders which have been followed by the learned single Judge in other matters, the petitioner is also entitled for an interim relief.

Until further orders of the Court, the operation of the order dated 2.12.2009 shall remain stayed and the petitioner shall be allowed to continue as a class-III employee in the Family Court of the District Judgeship of Jhansi and obtain salary in lieu thereof.

Learned Counsel for the respondents may file a counter-affidavit within 3 weeks. Rejoinder-Affidavit may be filed within a week thereafter.

List thereafter.