Tarun Agarwala - (1.) -The petitioner was appointed as a Caretaker in Ghaziabad Development Authority on 9.8.1984. The Ghaziabad Development Authority in its meeting dated 21.1.1985 unanimously resolved to create a post of Public Relation Officer. This resolution was sent to the State Government for its approval, inasmuch as, the power to create and sanction a post lies with the State Government. Pending consideration for the creation of the post before the State Government, the Ghaziabad Development Authority, by its order dated 3.4.1986 nominated the petitioner to work as an Assistant Public Relation Officer, in addition to the work of a Caretaker. Subsequently, by another order dated 2.9.1998, the petitioner was directed to work as a Public Relation Officer till further orders, but was not entitled to be given the perks and benefits attached to the post of a Public Relation Officer. Eventually, by an order dated 25.8.1989, the Ghaziabad Development Authority appointed the petitioner as a Public Relation Officer in the pay scale of Rs. 770-1,600 in anticipation of the sanctioning of the post by the State Government. The appointment order further stipulated that the petitioner would be required to give an undertaking to the effect that, in the event, the State Government refused to sanction the post, the excess money earned by the petitioner would be refunded.
(2.) FROM the record, it further transpires that the Ghaziabad Development Authority issued a letter of reminder dated 9.3.1990 and 14.11.1991 requesting the State Government to pass orders on the creation of the post and also intimated the State Government that in anticipation of the creation of such post, the Ghaziabad Development Authority has already appointed the petitioner on the post of Public Relation Officer, whose performance was upto the mark and also recommended the State Government to appoint the petitioner on the said post after sanctioning of the post. The State Government, by the impugned order dated 20.12.1991 intimated the Ghaziabad Development Authority that they had no jurisdiction to create the post of a Public Relation Officer nor had any business to appoint the petitioner on that post, and therefore, directed the Ghaziabad Development Authority to terminate the services of the petitioner forthwith. Against this order, the petitioner filed the present writ petition before this Court and by an interim order, the court directed the parties to maintain status quo. Based on the said interim order, the petitioner continued to work as a Public Relation Officer and is being paid his salary. The State Government, as well as, the Ghaziabad Development Authority has filed a counter-affidavit. The State Government contended that the authority to create and sanction a post lies with the State Government under the Uttar Pradesh Development Authorities Centralised Services Rules, 1985 and that, the appointing authority of a Public Relation Officer is the State Government. Further, the post of Public Relation Officer is required to be filled up through the Public Service Commission, as is clear from the Rule 14 of the aforesaid Rules read with Schedule VIII annexed to the Rules. The State Government in its counter-affidavit, submitted that the Ghaziabad Development Authority had no jurisdiction to create a post of a Public Relation Officer or appoint the petitioner on that post. The Ghaziabad Development Authority in its counter-affidavit also reiterated the same stand and further submitted that the petitioner was given the appointment on the post of Public Relation Officer on a pay scale payable to a Public Relation Officer on an undertaking given by him and that, in the event, the post was not sanctioned, he has required to refund the benefits. The authority contended that a back door entry was made by the petitioner on a post which was neither sanctioned nor created by the State Government. Consequently, the said appointment was illegal without jurisdiction and the petitioner was liable to be reverted to the post of Caretaker and was also liable to refund the excess amount. In support of his submissions, the learned counsel for the respondent, Ghaziabad Development Authority placed reliance upon a large number of decisions, namely, Indian Drugs and Pharmaceuticals Ltd. v. Workmen, 2007 (1) SCC 408 ; Secretary, State of Karnataka and others v. Uma Devi (3) and others, 2006 (4) SCC 1 : 2006 (5) AWC 5325 (SC) ; State of U. P. v. Neeraj Awasthi and others, 2006 (1) SCC 667 : 2006 (1) AWC 875 (SC) ; State of M. P. and others v. Yogesh Chandra Dubey and others, 2006 (8) SCC 67 : 2006 (6) AWC 5594 (SC) and Punjab Water Supply and Sewerage Board v. Ranjodh Singh and others, 2007 (2) SCC 491 : 2006 (7) AWC 7414 (SC), on the question that an appointment could not be made where the post was neither sanctioned or created and such an appointment made on a post which was non-existent could not entitle an incumbent for the regularisation of the services on the ground that he had worked for a long period of time. These decisions primarily are on the question of the regularisation of the services. These decisions, in my opinion, are distinguishable and are not directly applicable to the facts and circumstances of the present case.
(3.) IN the present case, the position is different. There is no question of a back door entry made by the petitioner. IN this regard, there is nothing on record to indicate that the petitioner made a back door entry for an appointment on the post of Public Relation Officer. IN fact, the record clearly indicates that the petitioner was appointed, as a Caretaker on 9.8.1984. The records further suggests that the Ghaziabad Development Authority nominated the petitioner to also work, as an Assistant Public Relation Officer in 1986 without any emoluments of the post of the Public Relation Officer and, since then, the petitioner was made to do the work of a Public Relation Officer. IN 1989, the Ghaziabad Development Authority granted him the post and pay scale of a Public Relation Officer with the undertaking given by the petitioner that he would refund the benefits, in the event, the Stale Government refused to sanction the post. These orders of the Ghaziabad Development Authority indicate clearly beyond a reasonable doubt that the Ghaziabad Development Authority itself created the post and appointed the petitioner on the post of Public Relation Officer. The petitioner did not ask for that post. The mere fact that an undertaking was provided by the petitioner did not mean that he was keen for the job of the Public Relation Officer. It did not mean that he was given the post and pay scale of a Public Relation Officer at his instance. IN fact, the order and the sequence of event indicates that the petitioner was required to furnish an undertaking because, the authority had asked him to do so. Consequently, it does not lie in the mouth to the Ghaziabad Development Authority to turn back and contend that the petitioner had made a back door entry and that his appointment was void ab initio and his services was required to be terminated. The stand taken by the Ghaziabad Development Authority in its counter-affidavit is clearly an after thought and has been made in order to protect themselves of their illegal activities. Admittedly, the Ghaziabad Development Authority resolved and passed a unanimous resolution on 21.1.1985 creating a post of a Public Relation Officer. This action itself was illegal and in violation of the Uttar Pradesh Development Authorities Centralised Services Rules, 1985. The Ghaziabad Development Authority could not have created a post of a Public Relation Officer. The authority, to appoint a Public Relation Officer, was the State Government through the Public Service Commission. The Ghaziabad Development Authority had no power to create or appoint any person on the post of Public Relation Officer. The initial action made by the Ghaziabad Development Authority was wholly illegal and without jurisdiction and now, the Ghaziabad Development Authority is trying to cover up their illegal steps by asserting that the petitioner was appointed by a back door entry. This contention is patently erroneous. The judgments cited by the learned counsel are distinguishable.;