HAMEED ULLAH Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) This case is an example of favouritism and nepotism and its perpetuation. It shows classic bureaucratic delay leading to widespread dissatisfaction in the higher echelons of Municipal Services. After the rules came in force in 1966, the Government took ten years to hold the first regular recruitment and then the Government procrastinated for another three or four years to make substantive appointments. Meanwhile ad hoc temporary appointees who are alleged to be relations and favourites of Ministers, Members of Legislative Assemblies or Secretaries to the Govern ment, were kept on and were promoted. Temporary ad hoc appointments appear to have become a pretty permanent feature of municipal services. Each municipality in this State had its own services and posts. To improve their efficiency, the State Legislature, by U. P. Act No. 27 of 1964, added Section 69-B in the U. P. Municipalities Act No. 11 of 1916 and Sec tions 112-A to 112-G in the U. P. Nagar Mahapalika Adhiniyam, 1959. These provisions authorised the State Government to frame rules for creation of one or more services common to all or some Municipal Boards or Nagar Maha palikas of the State and prescribe the method of recruitment and conditions of service of persons appointed to such Services. The State Government framed the U. P. Palika (Centralised) Services Rules 1966. The term 'centralised Services" meant services common to the Municipal Board and Nagar Mahapalikas created under Rule 3 of the Rules. Rule 3 created 19 Centralized Services, the first of which was the U. P. Palika Administrative (Superior) Service. This Administrative Service consisted of five categories of posts first two of which were: (i) Up Nagar Adhikaris of Mahapalikas, (ii) Sahayak Nagar Adhikaris of Mahapalikas. Rule 6 provided for absorption of existing holders of the posts in the Centralised Service and also prescribed the method of future recruitment thereto. The posts mentioned in Schedule I were to be filled in by promotion in the manner laid down in Rule 20, while the posts mentioned in Schedule, II were to be filled by direct recruitment in the manner laid down in Part V of the Ruies Part V dealt with direct recruitment. The post of Up Nagar Adhikari was in Schedule I. Appointment to this post was hence required to be made by promotion under Rule 20. The post of Sahayak Nagar Adhikari was included in Schedule II. Appointment to the post of Sahayak Nagar Adhikari could be made only by direct recruitment. Part V consisting of Rules 15 to 19 laid down the method of direct recruitment. The public Service Commission was to bold an examination and prepare an approved waiting list. Rule 21 provided that on the occurrence of substantive vacancies, the Government shall make appointments to the Centralized Services from the list prepared under Rule 19 and by promotion in accordance with the provisions of Rule 20. Though the rules came in force in 1966, the first direct recruitment was held in 1976. Meanwhile in 1972, some persons including respondents 2 to 12 were appointed to the post of Sahayak Nagar Adhikari as a temporary ad hoc arrangement. As a result of the examination held by the Public Service Commission, it prepared an approved list of candidates for appointment to the post of Sahayak Nagar Adhikari in 1977. The Government, however, did not make the appointments. Some of the persons who were on the approved list filed a writ petition in this Court. (No. 279 of 1980 ). Their grievance was that though they have been placed in the approved list, yet the Government is not giving them appointments while it is continuing to retain the ad hoc appoin tees indefinitely. This Court issued an interim mandamus requiring the State Government to give the petitioners appointments within one month or show cause within that time. As a result, the appointments of persons on the waiting list were made to the post of Sahayak Nagar Adhikari by a notification dated March 11. 1980. On the same date, namely, March 11, 1980, the Government issued another notification promoting the ad hoc appointees to the next higher post of, inter alia. Up Nagar Adhikari. Curiously, the promotion order stated that the erstwhile ad hoc Sahayak Nagar Adhikars, etc. would work as 'incharge' Up Nagar Adhikaris though they will draw their pay in the higher scale admissible to the post of Up Nagar Adhikaris. It appears that the Government issued a directive that these ad hoc appointees may appear before the Public Service Commission so that they may be selected and their appointments be regularised but it further appears that the ad hoc appointees did not appear before the Public Service Commission. Nonetheless they have continued all this while in the higher posts. Their appointments have not been terminated. This state of affairs led the present petitioners who are working on the post of Sahayak Nagar Adhikari, to approach this Court again. They pray that the promotion order of March 11, 1980 be quashed because then alone the petitioners will have a chance of promotion. Learned counsel for the petitioners submitted that the appointment of respondents 2 to 12 was in violation of the U. P. Palika (Centralised) Services Rules 1966 and also in violation of Article 16 of the Constitution. Under Rules 6 and 21 of the Centralised Service Rules appointment to the post of Up Nagar Adhikari can be made only by promotion in accordance with Rule 20. Rule 20 provides that for the purpose of recruitment by promotion, ' a selection on the basis of inter se seniority subject to the rejection of the unfit, shall be made in consultation with the Commission from amongst all eligible officers belonging to any lower grade of any of the Centralised Services, and a list of officers prepared. The petitioners claim that they are holding substantive post of Sihayak Nagar v. dhikari. They are entitled to be con sidered for promotion to the post of Up Nagar Adhikari under Rule 20. The Government has been remiss in its duty of preparing a list of approved candidates as contemplated by Rule 20. Respondents 2 to 12 were never con sidered by the Commission nor were they on the approved list. Learned counsel appearing for the respondents made a two-fold sub mission. In the first place, they submitted that the appointment to the post of Sahayak Nagar Adhikari and Up Nagar Adhikari is governed by the U. P. Nagar Mahapalika Services (Designations, Scales of Pay, Qualifications, Conveyance Allowance and Method of Recruitment) Order, 1963. The 1963 Order contemplated appointment to the post of Up Nagar Adhikari as well as Sahayak Nagar Adhikari by direct recruitment. It prescribed qualifications of both the posts. The qualification for the post of Up Nagar Adhikari was, inter alia, an experience of five years on a responsible executive post in a Mahapalika or Government or Class I Local Body. The petitioners did not have the requisite experience and hence they were not qualified. The respon dents were working since 1972. They had completed five years' experience on that post. They were appointed to hold the charge of the next higher post of Up Nagar Adhikari. The submission is misconceived. The 1963 order related to appointments to the various posts of Municipal Boards and Nagar Mahapalikas. Those posts vanished and were replaced by the Centralised Services under the U. P. Palika (Centralised) Services Rules, 1966. Since the enforcement of Centralised Service Rules recruitment as well as conditions of service of the posts which were centralised were exclusively governed by the Centralised Service Rules. The 1963 Order was inapplicable to the posts covered by the Centralized Services. In the next place, the 1966 Rules being later will prevail. The method of recruitment, appointment, promotion and other conditions of service of the posts which were covered by 1963 Order have been specifically prescribed in the 1966 Centralised Service Rules. If there be any conflict between the two the Centralised Service Rules will prevail. Under Rule 6 of the Centralized Service Rules appointment to the post of Up Nagar Adhikari could be made only by promotion in accordance with Rule 20. Reliance on the 1953 Order is hence futile. Rule 12 of the Centralised Service Rules provides that a candidate for appointment to any post under the Centralised Services must possess such qualifications as the State Government may, from time to time, specify. Under this provision, the State Government issued a notification on August 18. 1972 prescribing qualifications for those posts for which the Centralised Service Rules contemplated direct recruitment. Since appointment to the post of Up Nagqr Adhikari was intended to be by promotion only, naturally no qualifications were prescribed by the State Government for that post. The submission that the post of Up Nagar Adhifcari requires five years experience in a lower post is whence misconceived. In the next place, learned counsel for the respondent submitted that the appointment of respondents 2 to 12 was valid under Rule 31 of the Centralized Service Rules. Rule 31 as originally enacted appears to have been repealed by the Governments' notification dated June 6, 1974. Thereafter it appears to have been re-enacted on 13-8-1976 as follows:- "31. Notwithstanding anything contained in -Rule 21, the State Government may also make ad-hoc appointments or temporary officiating arrangements for the posts falling vacant substantively or temporarily. " Under this Rule, ad hoc or temporary arrangement may also be made by the Government for posts falling vacant substantively or temporarily. This could be done notwithstanding Rule 21. Rule 21 provided for appointments on the occurrence of substantive vacancies. Further Rule 22 contemplated that a person on direct appoint ment to a substantive vacancy shall be placed on probation for a period of two years and then confirmed. Continuous service in an officiating and temporary capacity was to be counted towards the period of probation. Appointment by promotion could be made under Rule 21 in accordance with list prepared under Rule 20. In order to provide for emergent situations, for instance, where the list prepared under Rule 20 may have exhausted and a fresh list may not be available, resort can be had to Rule 31 and ad hoc temporary officiating arrangements may be made. Similarly, where direct recruitment may have been delayed for some unforeseen reason and the Government feel that it will not, in the interest of administration, be proper to keep the post vacant, the Government could also make ad hoc or temporary appointments. Evidently Rule 31 enabled the State Government to make temporary arrangement. Rule 31 cannot be construed so as to supplant or abrogate the other rules or the scheme of the Centralised Service Rules. Under the scheme appointments can be made only by direct recruitment or promotion. In both such modes, the Public Service Commission is directly involved. Ad hoc or temporary appointments will rot be within the ambit of Rule 31 where either direct recruits or officers eligible for promotion, are available. If Rule 31 is construed so as to give the Government a blanket power to disregard at its which, the various other rules and the existence of such recruits and officers, it will amount to conferment of an arbitrary power on the Government. So read, Rule 31 would clearly violate Articles 14 and 16 of the Constitution. Further an adhoc or temporary arrangement cannot last for ten or fourteen years. The continuation for such length of time is virtually making permanent appoint ments without consulting the Public Service Commission, which is outside the purview of all the rules including Rule 31. Respondents 2 to 12 were appointed Sahayak Nagar Adhikari by way of ad hoc temporary arrangement in 1972. Although in 1977 an approved waiting list prepared by the Public Service Commission for appointment to the post of Sahayak Nagar Adhikari was available yet the temporary appointments were continued while the direct recruits were kept waiting. This was a clear case of abuse of power. Being compelled by an order of this Court, the direct recruits were given appointments in March, 1980. One could have expected the Government to simultaneously terminate the services of the ad hoc appoin tees. But this was not done on the other hand, the Government promoted them, though they were designated as In charge Up Nagar Adhikaris, etc. In the writ petition it was alleged that the ad hoc appointees were relations or favourites of some Secretaries or Deputy Secretaries and Ministers. In reply, it was stated in the counter affidavit that "it is borne out by anything on the record that respondents 2 to 12 were relations of favourites of secret aries, Deputy Secretaries or Ministers. " In the rejoinder affidavit which was filed quite some time back, it has been stated that respondent ' No. 6 is the son of Mr. Tarkeshwar Pandey who was a Member of Parliament and belonged 'to Congress Party which was in power at the time when respondent No. 6 was appointed in 1972. Respondent No. 12 is brother of Mr. Devi Dayal who was Deputy Secretary, Local Self Government Department, U. P. , at the time when respondent No. 12 was appointed. Mr. Devi Dayal also appointed one of his brothers Rameshwar Dayal to the post of Executive Officer of a Municipality. Respondent No. 3 is the son of Mr. K. N. Singh, former Deputy Secretary to U. P. Government. The submission made on behalf of the petitioners that since the relations and favourites of persons in power were appointed, they were continued because of the clout that they wielded, even though they did not appear before the Public Service Commission in accor dance with the order issued by the Director, Local Bodies, U. P. dated April 23, 1977 with a view to regularise their services. It has been alleged in the counter affidavit that the post of Officers incharge are not posts of the Palika Centralised Services. If so, how was Rule 31 employed to appoint respondents 2 to 12 ? The submission that the post of Officer Incharge is not a post of Centralised Service is startling. Even accepting this allegation, learned counsel has not been able to point out any post called "officer Incharge Up Nagar Adhikari" under any other rule or provision. Even on this score, the appointment of respondents 2 to 12 on the so-called post of Officer Incharge is untenable and invalid. In the result, the writ petition succeeds and is allowed. The appointment of respondents 2 to 12 on the post of Up Nagar Adhikari Incharge or other wise is quashed. The respondents are directed to forthwith prepare a list of officers as contemplated by Rule 20 and to make appointments as required by Rule 21 of the Centralized Service Rules. The petitioners will be entitled to costs. .