- (1.) HEARD learned counsel for the petitioner and the learned Standing Counsel.
(2.) THE petitioner has been appointed as a Nazarat Peon by the appointment letter dated 13th August, 1997, issued by the District Magistrate. In the appointment letter itself it was clearly mentioned that the petitioner is being appointed purely on temporary basis and the services could be terminated without giving any prior intimation. THE appointment of the petitioner has been terminated by the order dated 29th December, 1997 on the ground that several complaints have been received with regard to the appointment of the petitioner and on the receipt of the complaints, the Sub Divisional Magistrate has been directed to make an enquiry. THE Sub Divisional Magistrate, vide enquiry report, dated 21.11.1997, informed that the appointment of the petitioner has been made without giving any intimation relating to the vacancy to the Employment Exchange, as required under U.P. Group D Employees Services Rules, 1985, as amended from time to time. Learned counsel for the petitioner submitted that the appointment of the petitioner has been made by the District Magistrate against the vacant post on approval by the Selection Committee. The operation of the termination order dated 29.12.1997 has been stayed and the petitioner is still working. Learned Standing Counsel submitted that the appointment of the petitioner was ab initio illegal. The appointment of the petitioner was wholly temporary and in the appointment letter itself, it was clearly stated that the service of the petitioner could be terminated without giving any prior notice. Rule 19(1) of the Rules of 1985 provides that the appointing authority shall notify the vacancy along with the reservation, if any, to the Employment Exchange and in addition the appointing authority may invite the applications from the candidates registered with the Employment Exchange for which the appointing authority shall publish a notice on the notice board and in a local daily news paper, but in the present case, the vacancy has not been notified under Rule 19(1). Rule 16 provides for constitution of the Selection Committee consisting of the appointing authority, an officer belonging to the Scheduled Caste and Scheduled Tribe and an officer belonging to the minority community, which shall take interview of the candidates, but such procedure has not been followed in the present case. Therefore, the appointment of the petitioner was dehorse to the U.P. Group D Employees Services Rules, 1985 and is in contravention of the Article 14 of the Constitution of India. Reliance is placed on the decision of the Apex Court in the case of Krishan Yadav and another vs. State of Haryana, reported in AIR 1994 SC 2166. I have considered the rival submissions and perused the records. Rules 19 and 16 of the Group 'D' Employees Service Rules 1985 reads as follows: 19. Procedure for Selection. - (1) The appointing Authority shall determine the number of vacancies to be filled during the course of the year as also the number of vacancies to be reserved for the candidates belonging to the Scheduled Castes, Scheduled Tribes and other categories. The vacancy shall be notified to the Employment Exchange. The Appointing Authority may also invite application directly from the persons who have their names registered in the Employment Exchange. For this purpose, the Appointing Authority shall issue an advertisement in a local daily newspaper besides posting the notice for the same on the notice board. All such applications shall be placed before the Selection Committee. (2) When the names both of the general candidates and reserve candidates for whom vacancies are required to be reserved under the orders of the Government have been received by the Selection Committee it shall interview and select the candidates for various posts. (3) In making selection the Selection Committee shall give weightage to the retrenched employees awarding marks in the following manner : (i) For the first complete year ....5 marks. (ii) For the next and every completed year of service .....5 marks. Provided that the maximum marks awarded to a not trenched employee under this sub-rule shall not exceed 15 marks. (4) The number of the candidates to be selected will be larger (but not larger by more than 25 per cent) than the number of vacancies for which the selection has been made. The names in the selection list shall be arranged according to the marks awarded at the interview. 16. Constitution of Selection Committee. -For the purpose of recruitment to any post, there shall be constituted a Selection Committee as follows: (1)Appointing Authority; (2)An officer belonging to Scheduled Caste/Scheduled Tribe, nominated by the District Magistrate if the Appointing Authority does not belong to Scheduled Caste/Scheduled Tribe. If the Appointing Authority belongs to Scheduled Caste/Scheduled Tribe, an office other than belonging to Scheduled Caste, Scheduled Tribe, Minority Community and Backward Class to be nominated by the District Magistrate; (3)Two officers nominated by the Appointing Authority, one of whom shall be an officer belonging to Minority Community and the other to backward class. If such suitable officers are not available in his department or organization, such officers shall on the request of the Appointing Authority, be nominated by the District Magistrate and on his failure to do so, by reason of non-availability of suitable officers, such officers shall be nominated by the Divisional Commissioner. Rule 19 (1) provides that the appointing Authority shall determine the number of vacancies to be filled during the course of the year as also the number of vacancies to be reserved for the candidates belonging to the Scheduled Castes, Scheduled Tribes and other categories and shall notify the vacancy to the Employment Exchange and may also invite application directly from the persons who have their names registered in the Employment Exchange and in this regard the Appointing Authority shall issue an advertisement in a local daily newspaper besides posting the notice for the same on the notice board. All such applications shall be placed before the Selection Committee. Thereafter, the Selection Committee shall interview and select the candidates for various posts. Rule 16 provides for constitution of the Selection Committee, consisting of the Appointing Authority, an officer belonging to the Scheduled Caste and Scheduled Tribe and one officer belonging to the minority community.
(3.) IN the present case neither any Selection Committee has been constituted nor the petitioner has been interviewed. The procedure contemplated under Rule 19 has also not been followed. Only one application of the petitioner has been entertained on which the petitioner has been appointed. Thus, it is apparent that the appointment of the petitioner was without following the Rules, motivated by extraneous consideration and was made as a result of favouritism. The petitioner is not able to justify his appointment under the Rules. In the appointment letter itself it was made clear that the appointment of the petitioner was wholly temporary and could be terminated without any prior notice. Therefore, even if the termination order has been passed without giving any opportunity to the petitioner, the same cannot be said to be illegal. The petitioner has fullest opportunity in this Court to challenge the impugned order on merit but the petitioner failed to do so. Merely because the petitioner has worked under the interim order of this Court, the petitioner's appointment cannot be justified and the petitioner cannot be allowed to continue. The illegal appointment of the petitioner has taken away the rights of the several persons, who were also entitled for the appointment and could be better candidates but they were deprived to exercise their rights. Therefore, in such a situation, the petitioner is not entitled for any equitable considerable. In the case of Krishan Yadav and another vs. State of Haryana (Supra), the Apex Court has held that "As regard the selection made without interview, fake and ghost interviews, tampering with the final records, fabricating documents, forgery, an inference that all was motivated by extraneous considerations can be drawn. The entire selection thus is arbitrary and is liable to be set aside. The plea that innocent candidates should not be penalised for the misdeeds of others is not applicable to such cases. The effect of setting aside the selection would mean the selectees will have no right to go to the office. Normally they will have to repay the entire salary and perks which they have received from the said office" ;