Appointment should be made after following due procedure of the law: SC

RANA PRATAP SINGH V VITTIYA EVAM LEKHA ADHIKARI, DISTRICT BASIC EDUCATION OFFICER AND ORS. DECEMBER 18, 2019. CIVIL APPEAL NO. 9220 OF 2019 (ARISING OUT OF SLP(CIVIL) NO. 7505 OF 2018)

The appeal was brought to the Supreme Court of India before the bench consisting of Honourable Justice Ashok Bhushan and Honourable Justice Navin Sinha.

This appeal has been filed against the Division Bench judgment of Allahabad High Court dated 06.02.2018 in Special Appeal No.432 of 2012 by which judgment the Special Appeal filed by the appellant questioning the judgment of learned Single Judge dated 02.02.2012 in writ petition No.15408 of 1993 has been dismissed.

ISSUES RAISED BY THE COURT

Whether the appointment of the appellant on the post of Junior Accounts Clerk on 21.12.1990 was not validly made in accordance with the law?

Whether by the dismissal of Writ Petition No.Nil of 1992 on 04.12.1992 filed against the consequential order dated 11.11.1992 issued to the petitioner, the appellant’s right to continue on his post shall come to an end?

Whether reappointment of the appellant dated 01.01.1993 been limited only till 27.02.1993 after efflux of the said period appellant’s right to continue on the post shall come to an end?

Whether by the dismissal of W.P.No.44384 of 1992 Shiv Kumar Rai versus Director Basic Education and others on 15.09.2001 shall result in terminating the vacancy on the post of Junior Accounts Clerk on which appellant was appointed and was working?

APPELLANTS CONTENTION

Learned Counsel for the appellant submitted that learned Single Judge while dismissing the writ petition on 02.02.2012 had made the observation that appointment of the appellant was made without following the procedure known to a law which observation was neither correct nor was based on material on record. Learned counsel for the appellant submitted that his appointment was made by duly constituted Selection Committee as per 1985 Rules and after calling names from the Employment Exchange, Azamgarh, who forwarded twelve names, which included the name of the appellant. There was no challenge to the appointment of the appellant at any point of time nor appointment was questioned by anyone. Learned counsel further submitted that learned Single Judge erred in observing that on the dismissal of first writ petition of the appellant on 04.12.1992, his removal became final and the subsequent appointment did not survive for consideration before the Court. It was further submitted that observation of learned Single Judge that subsequent appointment of the appellant dated 01.01.1993 being limited till 27.03.1993, thereafter appellant cannot continue was also erroneous. The Order dated 01.01.1993 although mentioned reappointment, in essence, the order was only of reinstatement of the appellant on the post in pursuance of his earlier appointment dated 21.12.1992. There is no fresh process of appointment, there was no question of any reappointment.

RESPONDENTS CONTENTION

Learned counsel for the respondents refuting the submission of the learned counsel for the petitioner contended that the petitioner’s appointment was made against the procedure prescribed by law. No advertisement was issued on 05.12.1990 in the Daily News Paper ‘Dainik Devvrat’ as claimed by the petitioner. The writ petition was dismissed on 02.02.2012 and there being no interim order in the special Appeal, how he continued and received salary after 02.02.2012, is not explained. The petitioner concealed his dismissal of a writ petition from the Department and was not entitled to any relief from this Court. There had been several complaints received against the petitioner with regard to which enquiries were held and the respondent No.1 had taken action against the petitioner. Learned counsel for the respondents had also submitted that the conduct of the appellant was not such that he may be entitled to any relief. It was submitted that when the writ petition was dismissed by learned Single Judge on 02.02.2012 and special appeal came to be dismissed on 06.02.2018, the appellant was not entitled to continue or receive any salary. He submitted that he had concealed the dismissal of a writ petition from the department.

OBSERVATION MADE BY THE COURT

A perusal of the order of the High Court dated 02.02.2012 indicated that learned counsel for the parties was heard. The order dated 02.02.2012 was not an ex parte order and the appellant immediately filed a special appeal which was numbered as Special Appeal No.432 of 2012. The arguments of the respondents cannot be accepted that the appellant concealed dismissal of the writ petition from learned Single Judge. More so, the appellant was allowed/continued by the respondents on his post and by order dated 01.08.2012, an order of confirmation was also passed by the Department confirming him on the post of Junior Accounts Clerk from 22.12.1990 and on the post of Assistant Accountant w.e.f. 22.12.2004. The appellant was also given the promotional scale of Assistant Accountant w.e.f. 22.12.2004. The Department has continued the appellant and granted him promotion and confirmation, it cannot be said that the appellant committed any concealment or misrepresentation. It was further observed that that appellant had been continuing on his post for the last twenty six years and even after dismissal of writ petition of Shiv Kumar Rai on 15.09.2001 more than eighteen years have passed. The appellant had been promoted on the next higher post and working on the next higher post as on date.

JUDGMENT DELIVERED

Thereby, this Honourable Court, after inferring the facts and circumstances of the case, gave its decision as under,

“Learned Single Judge has not correctly appreciated the issues as noticed and discussed above. The Division Bench rested its opinion on one issue without taking into consideration subsequent events and the fact that the writ petition was dismissed as infructuous by efflux of time. Taking into consideration entire facts and circumstances, we are of the view that the judgment of learned Single Judge dated 02.02.2012, as well as the Division Bench, deserves to be set aside. We Order accordingly. The appeal is allowed.”

View/Download Judgment:Rana Pratap Singh v. Vittiya Evam Lekha Adhikari, District basic education officer & Ors.

-Tanvi Srivatsan

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