RAKESH KUMAR SINGH Vs. DISTRICT MAGISTRATE MAHARAJGANJ

JUDGEMENT

(1.) HEARD learned counsel for the parties. These are unusual cases. Neither appointments of the petitioners nor order of cancellation of appointment is in accordance with law. Accordingly, unusual relief has to be granted to the petitioners. In the first writ petition, there are six petitioners. In the second writ petition, there are nine petitioners. In the third writ petition, there is one petitioner. In the fourth writ petition, there are two petitioners. In the fifth writ petition, there is one petitioner. In the sixth writ petition, there are two petitioners. In the seventh writ petition, there are six petitioners. Petitioners of W.P. Nos.2167, 2168 and 5513 (first three writ petitions) were appointed as clerks by District Development Officer (D.D.O.), Maharajganj on 13.01.1992. All the appointments of class III and IV employees made in the office of District Development during last six months were cancelled by D.M. Maharajganj by order dated 16.01.1992 which is only of two lines. In the first line it was mentioned that all the appointments on classes III and IV posts in the office of District Development during last six months were cancelled therewith. In the second line, it was mentioned that the all the employees appointed in this manner would be treated to have been relieved from the duty from the date of the order. Absolutely, no reason was mentioned in the termination order and no opportunity of hearing was provided. However, in the counter affidavit, excellent reasons have been provided. According to the allegations made in the first three writ petitions, advertisement for 12 clerks in the office in question was issued on 02.12.1991 and published in daily Hindi Newspaper ''Daink Jagaran' on 05.12.1991. In the advertisement, it was provided that applications could be filed by 07.12.1991 and interview would be held on 23rd and 24th December, 1991. Thereafter, another advertisement was issued in the same newspaper on 11.01.1992 to the effect that interview, which was scheduled to be held on 23rd and 24th December 1991, would be held on 13th and 14th January 1992 in the office of District Development Officer, Maharajganj. Thereafter, it is alleged that interview was held on 13.01.1992. Appointment letters are Annexure-5. Appointment letters were issued by D.D.O., Maharajganj on 13.01.1992. In W.P. Nos.2167, 2168 and 5513, petitioners, who are 16 in total, claimed to have been appointed as clerk against advertisement on 13.01.1992. It has not been explained that how against 12 advertised posts, 16 persons could be appointed. As absolutely no reason was given for cancelling the appointments, hence this Court had no option except to grant interim order in all the writ petitions. In the counter affidavit, a horrible state of affairs has been disclosed. The appointments made were a fraud played by the then D.D.O., who was to retire on 31.01.1992. In the first advertisement, which was published in the newspaper on 05.12.1991, the last date for receipt of application was mentioned as 07.12.1991, i.e. only three days' time was granted. The Supreme Court in AIR 1997 SC 399 "Chander Chinar Bada Akhara Udasin Society Vs. State of J. and K." has held that even one weeks time for applying is too short and arbitrary. Accordingly, D.M. through order dated 19.12.1991 directed that time to file applications should be extended till 30.12.1991, however D.D.O. did not comply with that and did not issue any corrigendum or second advertisement. Accordingly, D.M. through order dated 21.12.1991 cancelled the selection process. Copy of the said order is Annexure-1 to the counter affidavit. The D.M. was away from the District from 10th to 18th January 1992. Taking advantage of his absence, D.D.O. issued fresh advertisement in the newspaper on 11.01.1992 stating that the interview which had been cancelled would be held on 13rd and 14th January 1992. It is also stated that Munsif City, Maharajganj through an interim order passed in O.S. No.21 of 1992 on 13.01.1992 had stayed the interview, which was scheduled to be held on 13.01.1992. On 13.01.1992, In-charge D.M., Maharajganj issued a direction to D.D.O. not to hold the interview on 13th and 14th January 1992. In spite of these directions, interview was held on 13.01.1992. Typing test was not taken. Apart from their names, no other questions were asked from the applicants. The members of the interview board gave letters to the D.M. Maharajganj that D.D.O. compelled them to participate in the interview. On 13.01.1992, itself appointment letters were issued and selected candidates joined. Two of the selected candidates, i.e. Dharmnath Prasad and Rajeev Kumar Srivastava on the same date joined at another Vikas Khand, which is at a distance of 45-50 kms. from the head office where interview was held. It is also stated that the selection committee was not formed in accordance with relevant rules. As interview was advertised to be held on 13th and 14th hence there was no occasion to declare result, issue appointment letters and take joining reports on 13th January 1992. The tearing hurry proves only one thing, i.e. as fraud had been exposed, there was large scale hue and cry, In-charge D.M. and Munsif had issued restraint orders hence D.D.O. was not in a position to wait till 14th otherwise his plan would have failed. From the above, it is quite clear that the D.D.O. for extraneous considerations had already made the selection and advertisement, interview etc. were merely a show of fulfilment of formalities. Three days' time to file application is utterly illegal. D.M. had already directed that selection process should be cancelled. D.M. as administrative head of the District has got full authority to check illegal activities of sub-ordinate officers. However, the D.M. also did not give any reason in the order dated 16.01.1992 cancelling the appointments. If even the gist of the reasons given in the counter affidavit had been mentioned in the cancellation order, this Court would not have granted the stay orders. Local M.L.A. had written a letter to the D.M., copy of which is annexed along with the counter affidavit filed in Writ Petitions No.2168 and 5513. In the said complaint, it was stated that Sri Shiv Ram Bhatt, D.D.O. wanted to appoint two of his sons and it was for this reason that in the advertisement published on 05.12.1991, applicants were not required to give their fathers' name. This allegation is substantiated by Annexure-3 to the writ petition No.2168, which is copy of advertisement. In the proforma of the application given in the Newspaper advertisement, there is no column for father's name. One of the members of selection committee was Udai Chandra Prasad, B.D.O., Lakshmipur, Maharajaganj. He wrote a letter to D.M., Maharajganj on 20.01.1992 stating that as a Scheduled Caste member of selection committee, he was forced to participate in the interview on 13.01.1992 along with D.D.O. and Dr. Gilani. In Para-3 of the counter affidavit filed in W.P. No.2168, it has been stated that one of the members of selection committee, Dr. Gilani stated that D.D.O. got his signatures on blank papers and he had not awarded any marks to any candidate according to his performance and ability. As far as Writ Petition No.2169 of 1992 (IV petition) is concerned, it has been filed by two petitioners. They claim that they were appointed as messengers on ad hoc basis in the office of B.D.O./Shiswa and Lakshmipur on 15.10.1991. They further allege that the said posts were advertised (Para-10 of the writ petition) and they appeared before the selection committee on 13.01.1992 in the office of D.D.O. Thereafter, it is mentioned in Para-13 that posts were advertised on the notice board of the office on

(2.) 12.1991. Through order of D.M. dated 16.01.1992, their appointments also stood cancelled. Admittedly posts were not advertised in any news papers, hence apart from the reasons given in the earlier part of this judgment for holding the appointments of the petitioners of first three writ petitions to be illegal, appointments of both the petitioners of W.P. No.2169 of 1992 were illegal on the additional ground that posts were not advertised in the newspapers. As far as Writ Petition No.2821 of 1992 (V petition) is concerned, its petitioner has alleged that he was appointed as driver by D.D.O., Maharajaganj on 12.04.1991 as daily wager and thereafter appointment was converted into ad hoc appointment by order of D.D.O. dated 21.10.1991. In the order dated 21.10.1991, there is a reference to some earlier order dated 05.10.1991, copy of which has not been annexed. In the said order, it is also mentioned that petitioner was being returned to Development Block, Brijman Ganj and appointed as substitute as Block Development Officer, Brijman Ganj had intimated that no fund was available in contingency fund for payment to Jeep driver. It clearly means that there was no vacant post of Jeep driver available. Accordingly, appointment of the petitioner of this writ petition was utterly illegal and it also stood cancelled by order dated 16.01.1992. As far as Writ Petition No.10957 of 1992 (VI petition) is concerned, both the petitioners of the said writ petition claim that they were appointed as watchman, that they were working on ad hoc basis since 17.07.1991, that regular vacancies of watchmen were advertised (Para-10). However, the form of advertisement is not mentioned in the said para. In Para-13, it is mentioned that on 02.12.1991, vacancies were notified on the notice board of the office. It has further been stated in Para-11 that petitioners appeared before the selection committee on 13.01.1992 in the office of D.D.O., Maharajaganj and they were issued appointment on 13.01.1992. Annexure-4 to the writ petition is appointment letter dated 01.10.1991 by the D.D.O. Maharajaganj. Annexure-5 is the appointment letter dated 13.01.1992. It also stood set aside by order dated 16.01.1992. As the posts were not advertised in the newspaper, hence appointment was also illegal on this additional ground. As far as Writ Petition No.24132 of 2003 (VII petition) is concerned, it has been filed by the same petitioners, who had filed Writ Petition No.2167 of 1992. Writ Petition No.2167 of 1992 was dismissed as infructuous on 19.04.2002. Thereafter, services of the petitioners were terminated on 08.05.2003 on the ground that writ petition No.2167 of 1992 had been dismissed. Order dated 08.05.2003 has been challenged through writ petition No.24132 of 2003. However Writ Petition No.2167 of 1992 was restored afterwards and the same is also being decided through this judgment. Accordingly, as held above, on the one hand, all the appointments were utterly illegal and fraudulent; the then D.D.O., Shiv Ram Bhatt made the appointment for extraneous considerations and no rule was followed. Appointments were made in spite of restraint order by the D.M. No interview was held for these posts. Reasonable opportunity to apply was not provided to the general public. Accordingly, all the appointments were illegal. However, I find that the cancellation order dated 16.01.1992 is also not in accordance with law as it did not give any reason and due to this callousness of the then D.M., all the writ petitioners got stay orders from this Court. Accordingly, writ petitions are disposed of with following directions: All the petitioners must be permitted to continue to work on the posts on which they were appointed until they attain the age of superannuation. However they must be paid the salary at the lowest level of the same pay scale on which they were appointed. They must not be entitled for any increment or any revision of pay subsequently affected. Petitioners of the first three writ petitions were appointed in the pay scale Rs.950-1500/-. Accordingly, they must be continued to be paid only the basic pay of Rs.950/- basic without any increment or benefit of revision of pay apart from dearness allowance admissible on Rs.950/- pay. No other allowances shall be given to them. They shall not be entitled for any promotion. If any promotion has already been granted, the same shall stand withdrawn with immediate effect. They shall not be entitled for any retiral benefit apart from the amount which they may have contributed towards provident fund. However, salaries and other benefits paid to the petitioners till date shall not be refundable. Sri Shiv Ram Bhatt, the then D.D.O. is liable to pay damages of Rs.1 lac for each of the petitioners (total Rs.21 lacs). This amount shall be recovered from him like arrears of land revenue. If he has died, the amount shall be recovered from the property left behind by him. Recovery shall positively be made by the Collector concerned within four months and the amount shall be deposited in the government treasury. The other two members of selection committee are also liable to pay Rs.25,000/- each per petitioner as damages to the State (5.25 lacs each) as they were equal partners in illegal design of D.D.O., Sri Shiv Ram Bhatt.. The said amount shall also be recovered from them in the same manner. Compliance report shall be filed within six months.