IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Special Appeal No. 30 of 2011

State of Uttarakhand & others. ………. Appellants

Versus

Omkar Singh & another. ..………. Respondents Mr. K.P. Upadhyaya, Addl. Chief Standing Counsel for the State of Uttarakhand / appellants. Mr. C.D. Bahuguna, Advocate for the respondents.

JUDGMENT

Coram: Hon'ble Barin Ghosh, C.J. Hon'ble Servesh Kumar Gupta, J.

BARIN GHOSH, C. J. (Oral)

Respondent No. 1 was engaged for 89 days to work as a Class IV employee in a Government school. On 12th September, 1998, the said engagement came to an end and, accordingly, respondent No. 1 was disengaged. On 14th September, 1998, respondent No. 1 was re-engaged in the self-same school on the same terms and conditions. The said engagement of respondent No. 1 came to an end on 11th December, 1998. In the meantime, on 14th November, 1998, respondent No. 2 was engaged in another Government school to serve as a Class IV employee on temporary basis until further orders. It was stated that the said engagement can be brought to an end at any time on a notice being given to that effect. The period of notice, however, was not mentioned. After 89 days' engagement of respondent No. 1, effected from 14th September, 1998, came to an end on 11th December, 1998; on 15th December, 1998, respondent No. 1, too, was engaged as a Class IV employee in the selfsame school on temporary basis until further orders.

2. By two separate orders, both dated 1st November, 1999, temporary engagements of the respondents were brought to an end with effect from the date of their engagement, as the purport of the said orders dated 1st November, 1999 was to cancel the very engagement of the respondents. The reasons were that the respondents were engaged (i) without there being any advertisement, calling for names from the Employment Exchange and without being selected by a competent selection committee; and (ii) in breach of ban on appointments imposed by Government Orders dated 17th July, 1991 and 3rd November, 1997.

3. Challenging the said orders, dated 1st November, 1999, respondents filed a writ petition before the Hon'ble Allahabad High Court. On 13th December, 1999, Hon'ble Allahabad High Court stayed the operation of the said orders dated 1st November, 1999 till further orders. The said writ petition, thereupon, stood transferred to this Court and has been decided finally by the judgment and order under appeal rendered on 17th February, 2010. Noticing that the impugned orders were passed without notice to the respondents, the learned Single Judge, who dealt with the writ petition, allowed the same by the judgment and order under appeal. The learned Single Judge, however, while doing so, did not go into any of the facts referred to in the orders dated 1st November, 1999 and the reactions of the respondents in relation thereto, as reflected in the writ petition. The learned Single Judge felt that, in terms of Rule 27 of The Uttar Pradesh Subordinate Offices Ministerial Staff (Direct Recruitment) Rules, 1985 (hereinafter referred to as the "1985 Rules"), the authority concerned was empowered to make ad hoc appointments and, accordingly, it cannot be said that the authority concerned could not make the appointments of the respondents and that the appointments were made, though on temporary basis, but since against substantive posts, non-continuation of such appointments affected civil rights of the respondents.

4. Before us, it was contended on behalf of the State that, since, on the facts accepted in the writ petition, the appointments were void ab initio; the question of the respondents suffering any civil consequence, by reason of declaration thereof as was done by the impugned orders dated 1st November, 1999; did never arise. To that, the contention of the respondents was that the respondents acquired temporary status in the Government by reason of the orders by which they were engaged and such status could only be altered by taking recourse to law, provided in The Uttar Pradesh Temporary Government Servants (Termination of Service) Rules, 1975 (hereinafter referred to as the "1975 Rules"). It was contended that, in any event, respondents, who were engaged with a promise to be remunerated, and the respondents having acted on the basis thereof; they could not simply be stopped from being engaged without even letting them know that such steps are being taken. It was contended that it was a case of livelihood of the respondents, protected under Article 21 of the Constitution of India and, accordingly, before affecting their right to life, at least, they were entitled to an opportunity of hearing.

5. We do not think that the 1975 Rules apply in the instant case. In terms of Sub-Rule (3) of Rule 1 of the 1975 Rules, the same apply to all persons holding a civil post in connection with the affairs of Uttar Pradesh and who are under the rule-making control of the Governor, but who do not hold a lien on any permanent post under the Government of Uttar Pradesh. While construing the definition of 'temporary service', as provided in Rule 2 of the 1975 Rules, one is required to keep in mind the provisions contained in Sub-Rule (3) of Rule 1 of the said 1975 Rules, as referred to above. In Rule 2 of the 1975 Rules, 'temporary service' has been defined by saying that the same means officiating or substantive service on a temporary post, or officiating service on a permanent post under the Uttar Pradesh Government. Therefore, in order to be temporary service, there may be officiating service in a temporary post or substantive service on a temporary post or officiating service on a permanent post. There is no dispute that the posts, in question, on which the respondents were purported to be engaged; were permanent posts. There is also no dispute, as no such contention has been put forward, that the respondents, by their engagements referred to above, were never brought in substantive service. Since they were never in substantive service, question of the respondents officiating on permanent posts, did never arise and that appears to be also not the case of the respondents in the instant case. In the circumstances, the conclusion would be that the 1975 Rules had and have no application whatsoever to the respondents.

6. In the orders dated 1st November, 1999, it was stated that before engaging the respondents, no advertisement was published nor the names were called from the Employment Exchange. This aspect of the matter was not dealt with in the writ petition. However, in the rejoinder affidavit, it was contended that, since a ban was imposed in respect of recruitments to the posts in question, there was no question of putting up an advertisement. In other words, it was accepted that there was no advertisement and, at the same time, no name was called from the Employment Exchange before the respondents were engaged. Before us, an affidavit has been filed. There it had been stated that notices were published on the Notice Board from time to time. Respondents responded to such notices. They were interviewed by the concerned District Inspector of Schools and, thereafter, they were appointed. In the backdrop of what had been pleaded in the rejoinder affidavit, the statements made in the supplementary affidavit, filed before us, are suspect and, accordingly, no credence should or can at all be given thereto. There is no just reason why those were not brought in the rejoinder affidavit, while dealing with advertisement and calling of names from Employment Exchange. Furthermore, those statements are bare statements, not supported by any evidence. The question is, in these facts and circumstances, could a discretionary court exercise its discretion in favour of the respondents? In the event, an appointment has been given to a person by picking him up from his home, as is depicted from the pleadings of the parties filed in the writ petition, could a discretionary court, exercising discretionary power, sustain such appointment even for a single day? The answer would be 'No'.

7. No doubt, as submitted by the learned counsel for the respondents, the moment respondents are disengaged, they would stop earning and, accordingly, the same would have a civil consequence insofar as they are concerned. At the same time, there cannot be any dispute that an administrative decision, having civil consequences, is within the realm of public law and, accordingly, before such decision is taken, in order to make the same fair and reasonable, it is a requirement to give notice to the person, who is likely to be affected, as emerges from the various judgments of the Hon'ble Supreme Court, relied by the learned counsel for the respondents, namely, Prakash Ratan Sinha vs. State of Bihar, (2009) 5 Supreme 416; Basudeo Tiwary vs. Sidokanhu University, 1998 (7) Supreme 361; and others, but the question is what is civil consequences. If stoppage of scope of earning of a person simplicitor is a civil consequence, then, of course, what the counsel for the respondents submits is right. However, if the person has acquired such scope of earning in breach of Articles 14 and 16 of the Constitution of India, can it be said that stoppage thereof would have civil consequence on the person, who acquired such scope of earning? If it is held in the affirmative, then the same would also tantamount to recovery of stolen goods from a thief as a theft, which, however, the law does not recognise. All the cases of the Hon'ble Supreme Court, referred to by the learned counsel for the respondents, suggest that there were disputes, in relation whereof, more than one view was possible and, by reason of taking of one view, without hearing the person likely to be affected, and thereby taking into account his view, a right, otherwise acknowledged of that person, has been affected. In the instant case, we are of the view that the respondents never acquired any right on the basis of their engagements made on 15th December, 1998 and 14th November, 1998, as the same were in breach of Articles 14 and 16 of the Constitution of India.

8. There is no dispute that, under the 1985 Rules, appropriate authority has power to give ad hoc appointments, but can the appropriate authority, competent to act under the said 1985 Rules, give appointments when the Government banned giving of appointments? We are of the view that when the ban was imposed, the same applied also to the power of giving ad hoc appointments.

9. By the judgment and order under appeal, direction has been given to permit the respondents to continue till regular appointments are made. At the same time, the judgment and order under appeal accepted that there was a ban on making appointments. The orders, imposing the ban, have not been interfered with. Therefore, the ban continues and, if that be so, no regular appointment can be made. In the meantime, the respondents shall continue. The sum and substance of this direction, as it appears to us, is that it is a new appointment to the respondents by the Court not only de hors the Rules, but also of all canons of concept and the law.

10. We, accordingly, allow the appeal and set aside the judgment and order under appeal. The writ petition is also dismissed.

G