R.P.MISRA AND SHISHIR KUMAR, JJ. - (1.) THE present writ petition has been filed for quashing the order dated 19.10.2001 (Annexure 1 to the writ petition) and a writ of mandamus directing the respondents not to recover the disputed amount on the basis of citation (Annexure 1 to the writ petition).
(2.) THE facts arising out of the present writ petition is that the petitioner was elected as a President of Nagar Panchayat Roza, District Shahjahanpur, which is known as Railway Settlement Nagar Panchayat Roza District Sahajahanpur. The petitioner took oath on 1.12.1995 and remained president of Nagar Panchayat Roza till November, 2000 and during his tenure as President the petitioner was authorised to appoint employees in Nagar Panchyat under the provision of United Provinces Municipalities Act, 1916, under Section 70 of the act which provides that in case of emergency, the petitioner can appoint temporary servants subject to the conditions given in Section 70 of the U.P. Municipalities Act. The Stale Government issued an order dated 21.11.1991 through which it was provided that services of retired employees in local bodies should not be extended and they also should not be re -appointed on the basis of contract. Another Government Order was issued on 26.6.1992 by the State Government in connection with the appointment on regular vacancies arising in local bodies and through the said order it was provided that employees from outside can be appointed only when there is no daily wages in the local body. It is expedient to mention that one person Sri Kant Sharma applied for service in the Nagar Panchayat Roza and his application was forwarded by the Executive Officer, Nagar Panchyat Roza District Shahjahanpur upon which the petitioner appointed Sri Kant Sharma on consolidated salary of Rs. 1200/ - per month with effect from 28.2.1996. One Munish Kumar Saxena, was Working as clerk in the Nagar Panchyat Roza and he was sent as Sahayak Pariyojna Adhikari Zila Nagriya Vikas Adhikari Sahahanpur with effect from 14.5.1996 and from that date he was not drawing the salary from Nagar Panchayat Roza as he was not discharging the work as a clerk of Nagar Panchayat, Roza. It appears that some members of Nagar Panchayat Roza made a complaint regarding the financial indiscipline alleged to have been made by the petitioner. On the basis of said complaint an enquiry was made by the Additional Commissioner Bareilly on 15.1.1997 and he did not object in his enquiry report regarding of appointment of Sri Kant Sharma. Only a query was made by the Commissioner from the Executive Officer regarding the daily wages class IV employees alone. Sri Munish Kumar Saxena remained on deputation in District Urban Development Agency up to 31.3.2000. Sri Kant Sharma moved an -application on 1.5.1997 for being appointed on the post of clerk on regular basis in the pay scale of Rs. 950 - 1500/ -. An affidavit to that extent was also given that Munish Kumar Saxena has gone on deputation, as such, in the aforesaid vacancy he may be appointed as clerk and in case of any objection by any authority he will refund the amount of salary which has been received by him through Nagar Panchayat. Then the Executive Officer, Nagar Panchayat, Roza forwarded the application with recommendation that Sri Srikant Sharma has worked satisfactorily and the post is already sanctioned so the services of Sri Kant Sharma can be regularised in the pay of Rs. 950 -1500/ -. On the basis of the recommendation of Executive Officer, the petitioner appointed Sri Kant Sharma by exercising powers under Section 70 of the U.P. Municipalities Act. A copy of the recommendation as well as the application has been filed as Annexure 9 to the writ petition. On the basis of the aforesaid recommendations an order was passed for appointment of Sri Kant Sharma purely as a temporary employee with an indication that his services may be discontinued at any point of time and a copy of the said order was also forwarded to Collector, Shahjahanpur and no objection to that effect was raised. As no objection was raised till July, 2000, when the Collector Shahjahanpur sent a letter dated 29.7.2000 to the petitioner that why the services of Sri Kant Sharma were not discontinued prior to completion of 240 days and how he has been appointed. An explanation to that effect was also called. The aforesaid letter was issued by the District Magistrate on the behest of one Rakesh Kumar Vishwakarma who was political rivalry with the petitioner. Subsequently, an order was issued by the Collector by name to the petitioner and explanation to that effect was called from the petitioner regarding the aforesaid appointment. Immediately, after the aforesaid letter dated, 15.9.2000 the petitioner passed an order that appointment of Sri Kant Sharma was continued only as employee on contract basis on consolidated salary The petitioner also submitted an explanation to the Collector shahjahanpur on 26.9.2000 and explained each and every thing regarding appointment of Sri Kant Sharma. It was specifically been stated in the said explanation that the said appointment was made on the basis of recommendation of the then Executive Officer and no explanation has been called from the Executive Officer. After the aforesaid statement of the explanation of the petitioner, the petitioner has got no information regarding enquiry and the petitioner completed his tenure in the month of November, 2000. Subsequently, the petitioner came to know that the appointment of Sri Kant Sharma has been held illegal by the Stale Government and letter was issued on 10.4.2001 by the President, Nagar Panchayat Roza cancelling the appointment of Sri Kant Sharma under the provisions of Section 74 of the Municipalities Act. The petitioner was never informed even after the cancellation of appointment of Sri Kant Sharma, a recovery certificate was sent by the Collector Shahjahanpur through S.D.M. Sadar to the respondent No. 2 for making recovery of Rs. 2,08,667.19p from the petitioner, on the basis of recovery, the respondent No. 2 has issued citation on 4.10.2001 and asked the petitioner to deposit the aforesaid amount up to 19.10.2001. Petitioner after coming to know about the aforesaid fact submitted an application to the District Magistrate on 10.10.2001 and asked for a copy of the recovery order through which recovery is being made and other relevant papers to verify the fact as on what basis the liability has been fixed upon the petitioner but no document has been supplied to the petitioner.
(3.) IT has been submitted on behalf of the petitioner that before issuance of the recovery certificate no opportunity was given to the petitioner even the orders passed for recovery of the alleged amount of salary paid to Sri Kant Sharma from the petitioner, has not been served upon the petitioner. The appointment of Sri Kant Sharma was made as a temporary employee only on the basis of the recommendation of the Executive Officer. It is also relevant to mention here that Sri Munish Kumar Saxena worked on deputation from 14.5.1996 till 31.3.2000 and during this period Sri Kant Sharma has worked on the post of clerk and in lieu of his working he has been paid salary up to 31.3.2000. It has further been submitted that recovery of the amount of salary paid to an employee which is being recovered from the petitioner is against the principle of natural justice, as he was initially appointed on contract basis and subsequently he was given a temporary appointment on the post of clerk. The Executive Officer on whose recommendation appointment was made has already been suspended for the aforesaid reasons as the salary bill is always being prepared and forwarded by the Executive Officer, the President of Nagar Panchayat cannot be held to be responsible and liable for the salary paid to an employee. As the order passed by the respondents is wholly illegal and against the principle of natural justice, as such, the petitioner has approached this Court.;