PUSHPENDRA KUMAR Vs. STATE OF U P

JUDGEMENT

(1.) Heard Sri Rahul Mishra, learned counsel for the petitioner and Sri Neeraj Tripathi, learned Additional Advocate General for the State.

(2.) The respondent-State issued an advertisement for filling the vacancies of DGC (Civil) in the District Meerut in two widely circulated Newspapers on 24.7.2018. The said advertisement was issued as per the procedure prescribed under para 7.03(1) of LR Manual. The petitioner, who is a practising advocate at Meerut, also filed an application for being considered for appointment in pursuance of the said advertisement, along with the petitioner and 17 other practising advocates also applied for appointment as DGC (Civil). The District Magistrate sought the opinion of the District Judge, Meerut who in turn vide his letter dated 25.9.2018 recommended the name of three persons out of the total 18 applicants, the name of the petitioner was placed at serial no. 1 and the name of two other advocates Sri Rahul Goel and Sri Vishal Rana was also recommended in the recommendation made by the District Judge on 25.9.2018 (Annexure-4 to the writ petition). The recommendation made by the District Judge was forwarded by the District Magistrate along with his opinion to the State Government for a decision in terms of the provisions of para 7.04 of the L.R. Manual. The State Government after considering the report of the Committee comprising of the District Judge and District Magistrate, Meerut, issued an appointment letter dated 28.11.2018 bearing no. DO 1380(1)/Saat-Nayay-3-18 (Meerut) 2014 for appointing the petitioner as DGC (Civil). On the same very day i.e. 27.11.2018 the State Government informed the District Magistrate about their decision to appoint the petitioner as DGC (Civil) for a period of one year till November, 2019 (Annexure-6 to the writ petition). The petitioner alleges that despite a clear direction from the State Government the District Magistrate did not permit the petitioner to join on the post of DGC (Civil) and for the reasons best known, without following any procedure and without even consulting the District Judge, issued an appointment letter to Smt. Bhavna Bhadauria as ADGC (Civil) for a period of 14 days on 07.12.2017 in exercise of powers under para 7.10 of the L.R. Manual and since then the appointment of Smt. Bhavna Bhadauria has been extended from time to time without following any procedure whatsoever. It is alleged that Smt. Bhavna Bhadauria is the wife of spokesperson of a political party and only for that reason she has been appointed without following any procedure prescribed. The petitioner was not allowed to join despite there being an appointment letter in his favour as such the petitioner filed a writ petition before this Court being Writ - C No. 635 of 2019 seeking a writ in the nature of mandamus commanding the respondents to ensure the joining of the petitioner. The said petition came up for hearing on 11.1.2019, on which date, this Court directed the Standing Counsel to obtain instructions and fixed the matter on 22.1.2019. On 22.1.2019, learned Additional Advocate General appeared and he was granted time to file counter affidavit and the petition was directed to be listed on 28.1.2019. On the said date i.e. 22.1.2019 the learned Additional Advocate General stated before this Court that a decision has been taken for reconsideration of appointment of the petitioner as DGC (Civil). Strangely on 22.1.2019 when the Additional Advocate General made a statement before this Court that a decision has been taken for reconsideration of the appointment of the petitioner as DGC (Civil). The Special Secretary, Government of U.P. passed an order cancelling the appointment of the petitioner by means of an order dated 22.1.2019. The relevant part of the said letter is reproduced here-in-below: ...Vernacular Text Omitted...

(3.) Sri Rahul Mishra, learned Counsel for the petitioner, has argued that cancelling the appointment of the petitioner dated 22.1.2019 is wholly illegal and has been passed without even hearing the petitioner, the order suffers from the vice of arbitrariness. The same is non-speaking and unreasoned order and furthermore in the impugned order, no irregularity/illegality has been pointed out pertaining to the procedure of appointment. It is further argued that the order is in violation of Article 166 of the Constitution of India which provides that every executive action shall be in the name of the Governor, even the appointment letter dated 28.11.2018 indicates that the said appointment was made after seeking approval of the Governor whereas impugned order has been passed by the Special Secretary without there being any reference to any approval by the Governor. It is also argued that cancelling the appointment of the petitioner is on account of political intervention and only to continue the appointment of Smt. Bhavna Bhadauria on political considerations. It is specifically argued prior to appointing the petitioner that the entire procedure prescribed under the L.R. Manual was duly followed, the vacancies were duly advertised in well known Newspapers', due consultation was done with the District Judge and thus there was no occasion for the State Government to have cancelled the appointment which was regularly made. The petitioner has also questioned the acts of the State Government while alleging that on 22.1.2019, on the one hand, the Additional Advocate General made statement before this Court that the appointment of the petitioner is under consideration and simultaneously on the same day, the Special Secretary proceeded to pass the order dated 22.1.2019 cancelling the appointment of the petitioner.