JUDGMENT V.M. Sahai and Sabhajeet Yadav, JJ.
1. The questions arise for consideration are that as to whether the legality or validity of appointment of the petitioner which was subject matter of earlier writ petition filed by him has attained the finality between the parties? If it is so as to whether same can be subjected to further scrutiny by respondent authorities on account of subsequent decision rendered by Hon'ble Apex Court in Appeal (Civil) No. 4092 of 2001 State of U.P. v. Neeraj Awashthi and Ors. decided on 16,12.2005 which was not related to the petitioner's case and arose out of retrenchments and/or termination of services of ad hoc, daily wage work-charged employees of Rajya Krishi Utpadan Mandi Parishad (State Agricultural Produce Markets Board) and Market Committees; and as to whether the termination of the services of petitioner purporting to be in compliance of the decision of Hon'ble Apex Court dated 16.12.2005 is justified under law?
2. By this petition, the petitioner has challenged the order dated 28.1.2006 passed by respondent No. 3 i.e. Director, Rajya Krishi Utpadan Mandi Parishad. Lucknow, contained in Annexure-20 to the writ petition whereby the services of petitioner were dispensed with on the grounds mentioned therein.
3. The brief facts leading to the question in controversy involved in the case are that the petitioner having being a postgraduate in Political Science and Law graduate from Allahabad University initially appointed as Administrative Officer in Hindustan Vegetable Oil Corporation in pay scale of Rs. 2100-3600 which is a corporation under the Ministry of Food & Supplies and government undertaking at its Bombay Unit. Subsequently he was promoted as Senior Administrative Officer in pay scale of Rs. 2400-4320 w.e.f. 24.2.1989. Thereafter the petitioner has joined as Manager (Administration) in the Consolidated Container India Ltd. at Bombay w.e.f. 1.1.1994 in pay scale of Rs. 10,000/- per month with other admissible allowances and facilities attached to the post. The respondent No. 2 i.e. Chairman, Mandi Parishad in order to re-organize Legal Cell in Mandi Parishad proposed to establish a full fledged legal section vide order dated 1.1.1990 and established a legal cell with one law officer at headquarter as well as one law officer at Meerut and Kanpur. For Allahabad it was noted that the Principal seat of Hon'ble High Court is at Allahabad hence one officer be posted at Allahabad. Thereafter a decision was taken by the Board of Uttar Pradesh Rajya Krishi Utpadan Mandi Parishad. Lucknow in its 74th meeting on 8.4.1996 for establishment of the legal cadre and the Chairman was authorized to establish such legal cadre, which is deemed to be decision taken by the Board contained in Annexure-2 to the writ petition The petitioner came to know about the aforesaid tact of establishment of legal cell in U.P. Rajya Krishi Utpadan Mandi Parishad. Lucknow, therefore, he sent his particulars as well as the submission offering his services to the said post of Officer on Special Duty (Legal). Having regard to the requirement of post of Office! on Special Duty (Legal) for Allahabad, the Director, Mandi Parishad vide his letter dated 4.6.1996 recommended for creation of post and sought approval from the Chairman, Mandi Parishad/Principal Secretary (Agricultural), Government of Uttar Pradesh. Lucknow/Agricultural Production Commissioner, Government of U.P., Lucknow and as such the said post of Officer on Special Duly (Legal) for Allahabad was created by the Government of U.P. on recommendations of Director, Mandi Parishad as well as Chairman, Mandi Parishad A Photostat copy of the said recommendation dated 4.6.1996 and approval order dated 5.6.1996 is on record as Annexure-3 to the writ petition. After scrutinizing the qualification and efficiency of the petitioner he was offered the said post by order dated 4.6.1996 in pay scale of Rs. 2200-4000 with four special increments. A copy of the order dated 4.6.1996 is on record as Annexure-4 to the writ petition. Consequently in pursuance of the creation of the post by the State Government, appointment letter was issued in favour of petitioner by order dated 76.1996. A Photostat copy of the said appointment letter dated 7.6.1996 is on record as Annexure-5 to the writ petition. It is also stipulated in the appointment letter that there shall be one year probation and after satisfactory service of one year the petitioner shall be confirmed on the said post. The petitioner joined his aforesaid post on 10.6.1996.
4. It is alleged that to strengthen the functioning of the Legal Cell and effective pairvi of the cases filed in Allahabad High Court, the respondent No. 2 has also established a separate office for O.S.D. (Legal) at Allahabad and conferred upon him drawing and disbursing power of his office. A true copy of the order dated 12.9.1996 is on record as Annexure-6 to the writ petition. A separate budget was also allocated to the petitioner for the purposes of running of his office by the Director. Mandi Parishad vide order dated 5.10.1996 and also conferred the power to sanction leave of the subordinate Staff working under the him by order dated 6.11.1996. True copy of the orders dated 5.10.1996 and 6.11.1996 are on record as Annexures-8 and 9 respectively to the writ petition. It is alleged that the petitioner was continuously performing his duties to the best of his ability and to the satisfaction of higher officers, as such he has been awarded excellent entries for his performance for the years 1996, 1997 and 1998, It is also alleged that the petitioner was appointed on a probation for a period of one year and there was no reference regarding the extension of probation period beyond the aforesaid period as such on expiry of aforesaid period of one year as per settled legal position he shall be deemed to be confirmed on the post in question. But while the petitioner was working on the said post, an order dated 26/28.6.1999 was passed terminating his services with immediate effect in purported exercise of power under U.P. Temporary Government Servant (Termination of Service) Rule, 1975. Feeling aggrieved against which the petitioner approached this Court by filing a writ petition No. 34356 of 1999, C.M. Pandey v. State of U.P. and Ors.. After exchange of counter and rejoinder affidavits the said writ petition was allowed by a Division Bench of this Court vide its judgment and order dated 9.9.1999 holding the petitioner's appointment as valid and in accordance with the provisions of law and under given facts and circumstances of the case, the order terminating his services was held illegal A copy of the order passed by Division Bench of this Court is on record as Annexure-11 to the writ petition.
5. It is further alleged that to challenge the aforesaid judgment and order passed by Division Bench of this Court by filing Special Leave petition before Apex Court initially the State Government has given permission but subsequently after taking legal advice the said permission was withdrawn by the State Government vide its order dated 9.12.1999. A Photostat copy of the order dated 9.12.1999 is on record as Annexure-12 of the writ petition. Consequently the Special Leave Petition filed against the judgment and order dated 9.9.1999 was withdrawn by the State Government and the Hon'ble Apex Court has dismissed the Special Leave Petition on 16.12.1999 as withdrawn. A copy of the said order is on record as Annexure-13 to the writ petition. After withdrawal of the aforesaid Special Leave Petition the Director, Mandi Parishad has passed a detailed order on 20.12.1999 whereby the petitioner has been reinstated in service with all consequential benefits of service. A copy of the order of reinstatement is on record as Annexure-15 to the writ petition. It is also stated that in the circumstances stated herein before the decision of Division Bench of this Court has attained the finality between the parties upto the stage of Apex Court and State Government has fully agreed with the judgment and observation made by Division Bench of this Court and that the order passed by Division Bench of this Court has been fully complied with and since then the petitioner was continuously working on his post with all satisfaction to the respondents and his services were also stood confirmed by legal implication.
6. After the withdrawal of S.L.P. from Hon'ble Supreme Court after lapse of much time it appears that with a view to harass the petitioner a show cause notice was served to him on 7. 5.2002 A true copy of which is on record as Annexure-17 to the writ petition. The said show cause notice was duly replied by the petitioner and thereafter the matter was dropped after being fully satisfied with the reply submitted by the petitioner. A Photostat copy of the reply submitted by the petitioner on 30.12.2002 is on record as Annexure-18 of the writ petition. But all of sudden after delivery of judgment of Hon'ble Apex Court dated 16.12.2005 in Civil Appeal No. 4092 of 2001 State of U.P. v. Neeraj Awasthi and Ors. the petitioner came to know through some reliable sources that the services of petitioner are also being terminated, taking shelter of the aforesaid decision rendered by Hon'ble Apex Court then he moved a representation through his wife stating therein that his services are not covered by the aforesaid decision of Hon'ble Apex Court and that aforesaid decision has been rendered by Hon'ble Apex Court, in cases arise out of termination of adhoc and daily wage employees of U.P. Krishi Utpadan Mandi Parishad and Market Committees who were engaged during 1.4.1996 to 30,10.1997, but without considering the facts and circumstances of the case in correct perspective, vide impugned order dated 28.1.2006 the petitioner's services were dispensed with by misinterpreting the facts and circumstances of the case purporting it to be covered by decision rendered by Hon'ble Apex Court referred above.
7. While justifying the impugned order, a detail counter affidavit has been filed on behalf of respondents No. 2,3 and 4 of the writ petition wherein respondents have taken stands in nut shell in para 7 of the counter affidavit that the termination of services of employees who were appointed between 1.4.1996 to 30.10.1997 were found valid by the Apex Court in its detail judgment and order dated 16.12.2005 rendered in Civil Appeal No. 4092 of 2001 State of U.P. v. Neeraj Awasthi and Ors. decided along with other connected civil appeals. According to them the case of petitioner is also covered by the aforesaid decision. His appointment was also made in similar fashion as Officer on Special Duty (Legal), de hors the provisions of Act, Rules and Regulations. There is no post of O.S.D. (Legal) either in State Agricultural Produce Market Board Officers and Staff Establishment Regulations, 1984 or in State Agricultural Produce Market Committee Centralize Service Rules, 1984 and there has been no amendment in the said regulations and there has been no approval by the State Government and it has also not been notified in the Gazette, therefore, the appointment of the petitioner being without following the provisions under law is void ab- initio. null and void and violative of Articles 14 and 16 of the Constitution. In para 8 of the counter affidavit it is stated that from the appointment letter dated 7.6.1996 it is apparent that the petitioner was appointed as O.S.D. (Legal) but in service regulation no such cadre is available, as neither it was created by Board nor any prior approval was taken from State Government. Moreover before making appointment neither the post was advertised nor any selection took place. Thus the appointment was de hors the regulation and was void ab-initio being in violation of Articles 14 and 16 of the Constitution. In para 9, 10, 11 and 12 of the counter affidavit it has been stated that large number of persons were recruited illegally and after due correspondence between Parishad and State Government, the State government took a decision that those persons who were illegally recruited between 1.4.1996 to 30.10.1997, their services may be dispensed with in accordance with law. Accordingly the State Government issued an order dated 12.2.1999 and in pursuance thereof in the first phase the services of those persons who were appointed on or after 1,2.1996 were dispensed with and in respect of remaining persons a report was submitted to the State Government for further direction. In pursuance of said Government order the petitioner's services were also terminated. He approached the High Court by filing a writ petition, which was allowed finally. The S.L.P. was preferred against said order, which was withdrawn under the direction of State Government. Since the persons whose services were dispensed with preferred writ petitions and a bunch of writ petitions was decided on 11.8.2000 and another bunch was decided on 5.9.2000 and third bunch was decided on 13.11.2000. After the aforesaid decisions dated 11.8.2000 and 5.9.2000 State Government issued a Government order on 27.9.2000 and 29.9.2000 with the direction not to file appeal, therefore, those persons were allowed to join their services but after decision dated 13.11.2000 the State Government in supersession of earlier Govt. Order, issued fresh Government Order dated 19.1.2001 with the direction to file S.L.P. before Hon'ble Supreme Court. The S.L.P. preferred against the judgment and order dated 11.8.2000 and 5.9.2000 by Mandi Parishad has been allowed and the S.L.P. filed against the judgment and order dated 13.11.2000 by the employees who were unsuccessful before High court has been dismissed. Consequently those retrenchment/termination order stand revived and those persons have been ousted from service.
8. We have heard. Sri R.N. Singh, learned Senior Counsel assisted by Sri K.S. Singh for the petitioner, learned Standing Counsel for respondent No. 1 and Sri B.D. Mandhyan, learned Senior Counsel assisted by Sri Satish Mandhyan for respondent No. 2, 3 and 4 of the writ petition. Since the affidavits have been exchanged between the parties therefore the case has been heard finally with the consent of the learned Counsel for the parties on merits.
9. Now before coming to the question in issue it would be useful to have a survey of the statutory provisions having material bearing with the issue. Section 26-F of the U.P. Krishi Utpadan Mandi Adhiniyam, 1964 (hereinafter referred to as the Act) provides provisions regarding appointment of officers and servants of the Board. Section 26-G provides provisions for supervision and control of the Director. Section 26-H deals with the authentication of orders and other instruments of the Board. Section 26-I deals with the delegation of powers and Section 26-X deals with the provisions regarding the framing of Regulations. For ready reference the aforesaid provisions are reproduce as under:
Section 26-F. Appointment of officers and servants.- The board may appoint such officers and servants as it considers necessary for efficient performance of its functions on such terms and conditions as may be provided for in regulations made by the Board.
(2) The Board may, with the previous approval of the State Government, appoint a servant of the Central Government or the State Government as an officer or servant of the Board or of a Committee on such terms and conditions as it thinks fit.
Section 26-G. Supervision and control of the Director.- Subject to the superintendence of the Board, the general control and direction over all the officers and servants of the Board shall be vested in the Director.
Section 26-H. Authentication of orders and other instruments of the Board.- All proceedings of the Board shall be authenticated by the signature of Chairman or the member-Secretary and all orders and other instruments issued by the Board shall be authenticated by the signature of the Member-Secretary or such other Officer of the Board as may be authorised in this behalf by regulations.
Section 26-I, Delegation of powers.- Subject to the provisions of this Act, the Board may, by general or special order, delegate, either unconditionally or subject to such conditions as may be specified in the order, to any sub-committee appointed by it or to {the director or} the Member-Secretary or any other officer of the Board such of its powers and duties under this Act, as it may deem fit.
26-X. Regulations.- (1) The Board may, with the previous approval of the State Government make regulations, not inconsistent with this Act and rules made thereunder, for the administration of the affairs of the Board.
(2) In particular, and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the following matter, namely-
(a) the summoning and holding of meetings of the Board, the time and place where such meetings are to be held, the conduct of business at such meetings and the number of persons necessary to form a quorum thereat :
(b) the powers and duties of the officer and other employees of the Board;
(c) the salaries and allowances and other conditions of service of Officers and other employees of the Board and of officers referred to in Sub-section (2) of Section 23 ;
(d) the management of the property of the Board ;
(e) the execution of contracts and assurances of property on behalf of the Board ;
(f) the maintenance of accounts and the preparation of balance-sheet by the Board ;
(g) the procedure for carrying out the functions of the Board under this Act ;
(h) any other matter for which provision is to be or may be made in regulations.
(3) Until any regulations are made by the Board under Sub-section (1), any regulations which may be so made by it may be made by the State Government, and any regulations so made may be altered or rescinded by the Board in exercise of its power under Sub-section (1)].
10. Besides this, it appears that in exercise of powers contained under the Act, two sets of service Regulations were framed U.P. Krishi Utpadan Mandi Parishad (Officers and Employees) Establishment Regulations-1984 deals with the recruitment and terms and conditions of the services of officers and employees of establishment of Mandi Parishad. However, U.P. Krishi Utpadan Mandi Centralized Services Regulations-1984 deals with the recruitment and other terms and conditions of the services of members of Centralized Service constituted under Section 23-A of the Act.
11. The expression "employee" has been defined under the definition clause of Regulation 2(e) of U.P. Krishi Utpadan Mandi Parishad (Officers and Employees Establishment) Regulations...1984 hereinafter referred to as officers and employees establishment Regulations -1984 as under:
Employees" means every person appointed on whole time basis in Class A.B.C. and D, mentioned in Regulation 5, whether on contract basis, on deputation or otherwise but does not include persons employed on daily wages, work-charged and on part time basis. At this juncture it would also be useful to extract the provisions of Regulations 4 and 5 of the Regulations as under:
^^4& vf/kdkfj;ksa vkSj deZpkfj;ksa dh lnL; la[;k&&1& vf/kdkfj;ksa vkSj deZpkfj;ksa dh lnL; la[;k vkSj mlesa izR;sd Js.kh ds inksa dh la[;k vkSj osrueku ,Sls gkssxs tSls ifj"kn }kjk le;≤ ij vo/kkfjr dh tk;s A 2& tc rd fd ifjorZu djus ds vkns'k u fn;s tk,W vf/kdkfj;ksa vkSj deZpkfj;ksa dh lnL; la[;k vkSj mles izR;sd Js.kh ds inksa dh orZeku la[;k vkSj osrueku murs gksxs ftrus bl fofu;keoyh ds ifjf'k"V d esa fn;s x;s gS A ijUr d& fu;qfDr vf/kdkjh fdlh fjDr in ;k fdUgh fjDr inksa dh fcuk Hkjs gq;s NksM+ ldrk gS ;k ifj"kn mls vLFkfxr j[k ldrh gS ftles dksbZ O;fDr izfrdj ;k vU; izfrrks"k dk gdnkj ugh gksxk] [k& ifj"kn le; le; ij ,sls vfrfjDr LFkkbZ ;k vLFkkbZ inksa dk l`tu dj ldrh gS ftls vko';d le>k tk;s vkSj orZeku inksa dk uke cny ldrh gS A 5& inksa dk oxhZdj.k && ifj"kn ds v/khu HkrhZ inksa dh] fu;qfDr fu;U=.k vkSj vuq'kklu bU;kfn ds iz;kstuksa ds fy,] osruekuksa ds vuqlkj oxZ d] [k] x vkSj ?k esa oxhZd`r fd;k tk;sxk tSlk fd jkT; ljdkj ds v/khu le; le; ij izo`Rr inksa dk oxhZdj.k gS A
12. It is not the case of the petitioner that his appointment was made on any post under U.P. Krishi Utpadan Mandi Centralized Services Regulations. The petitioner claims his appointment, under the Establishment of Mandi Parishad. At the same time it is not the case of Respondents that the petitioner has ever been appointed on contract basis or on deputation or on daily wage work charged and/or on part time basis on any posts mentioned in classes A.B.C.D. of Regulations 5. The assertion and contention of Respondent is that the petitioner was appointed neither against any post under regulations nor on post created by the Board with previous approval of the State Government. Thus his appointment is de-hors the Regulations and provisions of Act hence null and void ab-initio therefore no right or obligation flows from such appointment.
13. In this connection, it is necessary to point out that from the perusal of proviso "Kha" appended to the Regulation 4(2) of the Regulations it is clear that Board may create additional permanent or temporary post as it considers necessary and also change the name or nomenclature of the posts already existing. At this juncture it is also necessary to point out that the proviso 'Kha' appended to Regulation 4(2) of the Regulations plays very significant role and having regard to the purpose of statute, it requires to be construed as an exception to the main enacting part of the aforesaid regulations. On such interpretation, it is clear that the power to create additional permanent or temporary post always lie with the Board and does not seem to be dependent on previous approval of the state government. Thus in our considered opinion the creation of such additional post like O.S.D. (Legal) does not require previous approval of state government. Therefore, assertion and contention of the learned Counsel for respondent-Mandi Parishad that since the post of officer on Special Duty (Legal) does not fall within any class or category of the post mentioned in Appendix A of the Regulations hence the same cannot be said to be within the frame work of Regulations and Act cannot be countenanced and has to be rejected. In this connection it is further necessary to point out that it is no doubt true that the post of O.S.D. (Legal) has not been mentioned under the posts enumerated in Appendix "A' of the Regulations and cannot be said to be a post ear-marked or identified in the list of the posts mentioned in Appendix 'A" which were existing at the time of framing of the aforesaid Regulation but from bare reading of the aforesaid proviso it is clear that the post enumerated in the Appendix are not exhaustive in nature rather it is illustrative and Board can create additional permanent or temporary post as it considers necessary under the proviso 'Kha' appended to Regulation 4(2) of the Regulation and such powers always lie with the Board therefore it cannot be said at all that the post of O.S.D. (Legal) is beyond the scope of the provisions of Regulations and Act rather we are of the considered opinion that the post in question still falls within the ambit and scope of Regulations and Act.
14. Besides this, from the perusal of relevant provisions of Regulations referred herein before along with Appendix-A, it is true that procedure for selection and appointment on the post of O.S.D. (Legal) has not been given thereunder but mere absence of such procedure for selection and appointment in respect of the post in question does not exclude the factum of creation of post from the ambit and scope of aforesaid Regulation if the power of creation of post as indicated hereinbefore otherwise falls within its ambit and post in question has been created in exercise of such powers under the proviso "Kha" of Regulation 4(2) of the Regulations and such additional permanent or temporary post of Officer on Special Duty (Legal) created thereby. Since no procedure for selection and appointment on the aforesaid post has been given under Regulations, having regard to special nature of the post, therefore, there was no difficulty in selection and appointment of the petitioner by adopting any special or peculiar mode of selection and appointment of the petitioner by the Board, which is competent authority to make appointment of the petitioner under the provisions of Act and Regulations. In this connection, the definition of "employee" given in Regulation 2(e) of Regulation also assumes significance which means a person appointed on whole time basis in Class A, B, C & D mentioned in Regulation 5 whether on contract basis or on deputation or otherwise except the persons employed on daily wage basis work charged basis or on part time basis comes within the category of expression "employees" under the Regulation. Since as indicated herein before that the petitioner was not appointed either on daily wage basis or on part time basis or on contract basis or on deputation, therefore his employment can be termed within the meaning of expression "employee" under the expression "otherwise" given under the definition of employee in Regulation 2(c) of the aforesaid Regulations.
15. Apart from it, it is also necessary to point out that the power of appointment of officers and servants of the Board has been expressly provided under Section 26-F of the Act wherein the Board may appoint such officers and servants as it considers necessary for the efficient performance of its functions on such terms and conditions as may be provided for in Regulation made by the Board. It appears that the State Legislature has enacted the Act in the year 1964 and Regulations have been framed by the Board with the previous approval of the State Government in the year 1984 after expiry of almost about 20 years therefore it cannot be assumed at all that the officers and servants of the Board could not have been appointed for such a long time. Thus the power of such appointment of officers and servants can be exercised even in the absence of Regulations made in this regard. The exercise of power cannot be halted awaiting framing of regulation and any other interpretation contrary to it would defeat the very purpose and object of enactment itself. It is not the case of the respondent that in connection of post of Officers on Special Duty (Legal) any Regulations were already framed and existing and the appointment of the petitioner was made contrary to such Regulations without following the same. Thus in our considered opinion, in view of proviso, "Kha' of Regulation 4(2) of Regulations the post in question is well within the framework of the Regulation and Act, as the same was created by the Board and petitioner's appointment thereon made by the Board, cannot be found faulty on the aforesaid score.
16. In this connection it is necessary to point out that the question whether the petitioner's appointment was validly made against duly sanctioned/created post of O.S.D. (Legal) has come up for consideration before a Division Bench of this Court in a writ petition earlier filed by the petitioner which was Civil Misc. Writ Petition No. 34356 of 1999 C.M. Pandey v. State of U.P. and Anr. decided on 9.9.1999, 1999 (4) A.W.C. 3415. While dealing with the issue mainly in para 7, 8, 9, 10, 11 and 12 of the decision this Court has held that in our opinion the Board has created the post by order of Chairman dated 5.6.1996 and has also approved the appointment of the petitioner on the said post. Hence we do not agree with the submission of the learned Counsel for the respondents that there was no post of O.S.D.(Legal). For ready reference the aforesaid paras are quoted as under:
7. We have also perused the Rejoinder affidavit. In paragraph 3 of the same, it has been slated that the Director Mandi Parishad has recommended for creation of the post and this was approved by the Principal Secretary (Agriculture) U.P. Government, who is also the Agriculture Production Commissioner and Chairman Mandi Parishad on 5.6.1996. Hence, it is alleged that the post of O.S.D. (legal) in the scale of 2,200-4,000 was approved by the State Government as well as the Chairman of Mandi Parishad. Photo copy of the proposal dated 4.6.1996 of the Director Mandi Parishad and the order of the Principal Secretary, Agriculture, U.P. Government are Annexures -R.A. 1 and R.A. 2 to the rejoinder - affidavit. In paragraph 7 of the rejoinder affidavit, it is stated that the Board by its resolution dated 8.4.1996 delegated its power for creating the post of the legal cadre to the chairman and it was resolved that any decision taken by the chairman in this regard ; shall he considered to be the decision of the Board. Hence it is alleged, that since the Chairman has been delegated the power to create the post and he exercised that power, there was no illegality in the petitioners appointment. True copy of the resolution dated 8.4.1996 is Annexure R.A. 3 to the Rejoinder affidavit. True copy of the salary sheet of the petitioner is Annexure R.A. 4.
8. In paragraph 9 of the Rejoinder affidavit it is stated that the petitioner was appointed under the orders of the competent authority who selected the petitioner after going through the due process. It is also alleged in paragraph 9 of the Rejoinder affidavit that the averment regarding abolition of the entire legal cell is false and misleading. Five employees are still working in the legal cell. It is also alleged that there is no requirement for obtaining sanction of the State Government for creation of the post but even then the approval of the State Government was granted by the Principal Secretary, agriculture, State of U.P. by order dated 5.6.1996. It is further alleged that after an independent office of the O.S.D. (Legal) started functioning a separate budget for this office was allocated by the Mandi Parishad by letter dated 5.10.1996 and a separate Bank account was opened. Hence it is alleged the post was treated as regular and of a permanent nature. In paragraph 10 of the Rejoinder affidavit it is stated that the annual confidential reports of the petitioner are very good vide Annexures R.A. 5 and R.A. 6 to the Rejoinder affidavit. In paragraph 11. It is stated that the appointment of the petitioner was made for doing pairvi of the cases of the Mandi Parishad pending in the High Court as the Mandi Parishad was incurring heavy losses due to lack of pairvi.
9. A supplementary affidavit has also been filed and in paragraph 4 of the same it has been slated that the Mandi Parishad in the Board meeting dated 8.4.1996 delegated the power to the Chairman of the Board for creation of the post and making appointment. True copy of the resolution dated 8.4.1996 is Annexure S.A.I to the supplementary affidavit. In pursuance of this resolution dated 8.4.1996 the Director, Mandi Parishad sent a proposal to the Chairman, Mandi Parishad for creation of the post of O.S.D. (Legal). This proposal dated 4.6.1996 was approved by the Chairman, Mandi Parishad on 5.6.1996 vide Annexure-S.A. 2, The Advocate General also made recommendation in favour of the petitioner vide Annexure A.A. to the supplementary affidavit.
10. We have carefully considered the argument of the learned Counsel for the parties and have perused the affidavits. The first point to be considered is whether there was any post against which the petitioner was appointed. In this connection Section 26F(1) of the U.P. Krishi Utpadan Mandi Adhiniyam states :
The Hoard may appoint such officers and. servants as it considers necessary for efficient performance of its functions on such terms and conditions as may he provided for in regulations made by the Board.
Section 26G states:
Subject to the superintendence of the Board, the general control and direction over all the officers and servants of the Board shall be vested in the director.
Section 26-I states that the Board may, by general or special order, delegate such of its power and duties under the act as it may deem fit to the Director or Member Secretary or any other officer of the Board.
11. A perusal of the above provisions show that the Board can appoint such officer and servant as it considers necessary and there is no requirement for first creating the post before making appointment. Hence, in our opinion, the stand of the respondent proceeds on a misconception. The respondents seem to think that there has to be first an order of creation of the post and then there has to be a second order making appointment on the newly created post. This, in our opinion, is not contemplated by Section 26F of the Act. All that Section 26F states is that the Board can appoint such officers and servant, as it considers necessary for efficient performance of its functions. In the present case, the Board by Us resolution dated 8.4.1996 Annexures S.A.1 and S.A.2 delegated its powers to the Chairman and further resolved that the decision of the Chairman shall be treated as the decision of the Board. This resolution was sent by the Director of the Parishad vide letter dated 4.6.1996 to the Chairman of the Board vide Annexure-S.A.2 and there is an endorsement dated 5.6.1996 of the Chairman of the Board (who is also the Principal Secretary, Agriculture: U.P.) approving of the same. Thus in our opinion, the Board has created the post by order of the Chairman dated. 5.6.1996 and has also approved the appointment of the petitioner on the said post. Hence, we do not agree with the learned Counsel for the respondent that there was no post of O.S.D. (Legal).
12. The impugned order of termination dated 2628.6.1999 states that the petitioner's appointment was without creation of the post and it was made in an irregular manner. We have already pointed out that there is no requirement under Section 26F for a separate order to create a post and the order of the Chairman of the Mandi Parishad dated 5.6.1996 approving the proposal of the Director dated 4.6.1996 resulted in both creation of the post as well as appointment of the petitioner on the post in question. In our opinion, therefore, the impugned order dated 26 28.6.1999 proceeds on a misconception. Moreover, the proposal dated -4.6.1996 was made by the Director who is the main executive authority in the Board. Hence, we Jail to understand how the petitioner's appointment could he said to he illegal.
17. From a close analysis of the findings and observations in the judgment and order dated 9.9.1999 passed by this Court in the writ petition filed by the petitioner earlier, it is clear that Division Bench of this Court, has clearly held that the Board has created the post and has also approved the appointment of petitioner on the said post thus there can be no scope for doubt to hold that the post was created by the Board and the petitioner was legally and validly appointed thereon and contention of learned Counsel for the respondents that the petitioner's appointment was made without creation or sanction of post and contrary to the provisions of Regulations and Act hence de hors the statutory rules has to be rejected. Besides this, this Court is not called upon to review or otherwise examine the validity or correctness of aforesaid judgment of Division Bench of this Court, therefore, the observation made by us herein before should be understood just as abundant caution in support of conclusion drawn by Division Bench of this Court while rendering the aforesaid decision and not as court of appeal or review..
18. Now it is necessary to point out that after the decision of the Division Bench of this Court dated 9.9.1999 the respondents have preferred Special Leave Petition before Hon'ble Apex Court against the aforesaid judgment. Initially the State Government has given permission to file the said S.L.P. before the Hon'ble Apex Court but subsequently after taking legal advice the said permission was withdrawn by the State Government vide its order dated 9.12.99, consequently the S.L.P. filed against judgment and order dated 9.9.99 was withdrawn by the State Government and Hon'ble Apex Court has passed order for withdrawal of the S.L.P. on 16.12.99. After withdrawal of the aforesaid S.L.P. the Director Mandi Parishad has passed a detail order on 20.12.99 whereby the petitioner has been reinstated in service with all consequential benefits. In view of these facts and circumstances of the case stated herein above the learned Counsel for the petitioner has submitted that the judgment and order dated 9.9.99 passed by the Division Bench of this Court has attained the finality between the parties and cannot be reopened for further scrutiny by the respondent as the judgment and order in question has binding effect of res judicata between the parties in as much as the respondent have warved and acquiesced their right to challenge the aforesaid order of Division Bench before Hon'ble Apex Court therefore the doctrine of estoppel will also operate against them and they shall not be permitted to reopen the same dispute and question of legality and validity of appointment of the petitioner. Further submission of the learned Counsel for the petitioner is that the recent decision of Hon'ble Apex Court dated 16.12.2005 in Civil Appeal No. 4092 of 2001 State of U.P. v. Neeraj Awasthi and Ors. decided along with other connected Civil Appeals was in respect of other employees who have been appointed on ad hoc/daily wage and work charged basis without any post and without following existing statutory Regulations in the establishment of Mandi Parishad as well as market committees thus in total different factual and legal back drop, altogether therefore cannot be stretched to cover the case of the petitioner which has already attained finality between the parties and the respondent cannot be justified in reopening the case of the petitioner on merit by re-agitating the validity of the appointment of the petitioner again at the strength of the aforesaid decision rendered by Hon'ble Apex Court. The submissions of the learned Counsel for the petitioner in this regard appears to have some substance.
19. Thus now question arises for consideration as to whether the judgment and order dated 9.9.1999 passed by Division Bench of this Court in earlier writ petition filed by the petitioner has attained finality between the parties, if it is so what would be its legal effect? In this connection it is necessary to point out that it is not in dispute that against the aforesaid judgment and order dated 9.9.1999 the respondents have preferred special leave to Appeal before the Hon'ble Apex Court. Initially the State Government has given permission to file said S.L.P. before Hon'ble Apex Court, but subsequently vide order dated 9.12.99 (Annexure-12 of the writ petition) the State Government after taking legal opinion has withdrawn the said permission for filing of S.L.P. with a view to ensure full compliance of the order passed by Division Bench of this Court in writ petition filed by the petitioner. Consequently the State Government withdrew the aforesaid S.L.P. and vide order dated 16.12.1999 (Annexure-13 of the writ petition) Hon'ble Apex Court has dismissed the aforesaid S.L.P. as withdrawn. Immediately after withdrawal of the aforesaid S.L.P.. the Director, Mandi Parishad has passed detail order dated 20.12.99 (Annexure-15 of the writ petition) whereby the petitioner has been reinstated in service with all consequential benefits. For ready reference, it would be useful to reproduce text of aforesaid letters/orders of the Government of U.P. and order of Director Mandi Parishad as under:
,usDpj & 12 izs"kd] ds'ko nsfljktq lfpo mRrj izns'k 'kklu A lsok esa] funs'kd] e.Mh ifj"kn mRrj izns'k] y[kuÅ A d`f"k vuqHkkx&5 y[kuÅ fnukad&9 fnlEcj] 1999] fo"k;& fjV ;kfpdk la[;k&[email protected]] lh0,e0 ik.Ms; cuke mRrj izns'k 'kklu o vU; es ek0 mPp U;k;ky; bykgkokn }kjk ikfjr fu.kZ; fnukad &09&9&99 A egksn;] mi;qZDr fo"k;d vij funs'kd ¼iz'kklu½ jkT; d`f"k mRiknu e.Mh ifj"kn] mRrj izns'k ds i=kad & vf/k0 ^d* ¼244½@99&1396] fnukad 21-10-99 ds lanHkZ esa eq>s ;g dgus dk funsZ'k gqvk gS fd 'kklu }kjk lE;d fopkjksijkUr ;g fu.kZ; fy;k x;k gS fd fjV ;kfpdk la[;k&[email protected]] lh0,e0 ik.Ms; cuke mRrj izns'k ljdkj o vU; esa ekuuh; mPp U;k;ky; bykgkckn }kjk ikfjr vkns'k fnukad 09&9&99 ds vuqikyu esa ;kph Jh ik.Ms; rRdky muds in ij dk;ZHkkj xzg.k djkdj muds leLr vo'ks"k ns;dks dk Hkqxrku djkus dk d"V djsa] rkfd ekuuh; U;k;ky; ds vkns'k ds voekuuk dh fLFkfr u mRiUu gks A 2& mDr ds vfrfjDr ;gka ;g Hkh mYys[kuh; gS fd Jh ik.Ms; }kjk nk;j fjV ;kfpdk esa ekuuh; mPp U;k;ky; ds foLr`r laoh>[email protected]'ku Lor% Li"V gS A vr% ekuuh; U;k;ky; }kjk ikfjr fu.kZ; fnukad 09&9&99 ds fo:ð ekuuh; mPpre U;k;ky; esa fo'ks"k vuqKk ;kfpdk nk;j djus dh dksbZ vko';drk ugh gS A vr% fo'ks"k vuqKk ;kfpdk nk;j djus dk izLrko okil ysus dk d"V djsa A d`I;k rnuqlkj dk;Zokgh lqfuf'pr djkdj 'kklu dks rqjUr voxr djkus dk d"V djsa A Hkonh;] ¼ds'ko nsfljktq½ lfpo la[;k &382 ¼1½@122&5&99&50 ¼36½@99] rnfnukad % mi;qZDr dh izfrfyfi fuEufyf[kr dks lwpukFkZ ,oa vko';d dk;Zokgh gsrq izf"kr %& ¼1½ Jh ,l0 johUnz HkV§V ¼,0 vks0 vkj0½ lqizhe dksVZ] ubZ fnYyh dks U;k; foHkkx }kjk fuxZr izfrokn vkns'k la[;k& ;w0vks0 [email protected]&6&99&50 ¼36½@99] fnukad &11 uoEcj] 1999 ds lanHkZ es bl vuqjks/k ds lkFk izsf"kr fd izdj.k esa fo'ks"k vuqKk ;kfpdk ekuuh; mPpre U;k;ky; esa nk;j u dh tk; rFkk ;fn fo'ks"k vuqKk ;kfpdk ekuuh; mPpre U;k;ky; es nk;j dh tk pqdh gks rks mls rqjUr okil ysus dk d"V djsa A ¼2½ la;qDr fof/k ijke'khZ] U;k; vuqHkkx&6 dks muds }kjk izfrokn vkns'k la[;k&[email protected]&6] fnukad &11 uoEcj] 1999 ds lanHkZ esa lqpukFkZ A vkKk ls] ¼ij'kqjke izlkn½ vuqlfpo A ,usDpj &15 vkns'k 'kklukns'k la[;k [email protected] fnukad 12-2-99 ds vuqikyu esa ifj"kn vkns'k la[;k vf/kd ¼138½@99&621 fnukad 28-6-99 ds }kjk Jh lh0,e0 ik.Ms;] fo'ks"k dk;Zvf/kdkjh fof/k] bykgkckn dh lsok lekIr dh x;h Fkh A bl vkns'k ds fo:ð Jh ik.Ms; }kjk ek0 mPp U;k;ky; esa ;kfpdk ;ksftr dh x;h A ek0 mPp U;k;ky; }kjk lsok lekfIr ds vkns'k dks fnukad 9-9-1999 esa fujLr dj fn;k x;k gS ftlds Øe esa Jh ik.Ms; us viuh ;ksxnku vk[;k fnukad 10-9-1999 ds Øe ls 'kklukns'k la[;k&[email protected]&50 ¼361½ fnukad 9-12-1999 ds }kjk funsZ'k izkIr gq, gS fd Jh ik.Ms; dks rRdky muds in ij dk;ZHkkj xzg.k djkdj muds leLr vo'ks"k ns;dks dk Hkqxrku djk;k tk; A vr% ek0 mPp U;k;ky; ds vkns'k fnukad 9-9-99 ,oa 'kklukns'k fnukad 9-12-99 ds vuqikyu esa Jh lh0,e0 ik.Ms; dh lsok, iwoZor vkns'k la0& 318 fnukad 7-6-99 ds vuqikyu esa Jh lh0,e ik.Ms; dh lsok, iqoZor vkns'k la0& 318 fnukad 7-6-96 dh lsok 'krksZ ij cgky dh tkrh gS A bUgs ogh osru HkRrs vf/kdkj ,oa drZO; izkIr gksxs tks lsok lekfIr lEcU/kh vkns'k fnukad 28-6-99 tkjh ds iwoZ izkIr Fks A xaxknhu ;kno i=kad % vf/kd ¼244½@99 [email protected]&504 fnukad 20&12&1999 izfrfyfi& v/kksfyf[kr dks lwpukFkZ ,oa vko';d dk;Zokgh gsrq izf"kr 1& Jh lh0,e0 ik.Ms;] fo'ks"k dk;kZf/kdkjh fof/k] bykgkckn A 2& lEHkkxh; mifuns'kd iz'kklu] e.Mh ifj"kn] bykgkckn A 3& izHkkjh vf/kdkjh] fof/k vuqHkkx ifj"kn] bykgkckn A 4& ofj"B ys[kkf/kdkjh] e.Mh ifj"kn A 5& vkns'k @ O;fDrxr i=koyh gsrq A 6& ,l- johUnz HkV~V] ,MoksdsV] ek0 mPpre U;k;ky;] ubZ fnYyh A ,u0ds ,l0 pkSgku l0 mifuns'kd iz'kklu ,u0ds ,l0 pkSgku l0 mifuns'kd iz'kklu
20. From a bare reading of aforesaid letter of Government dated 9.12.1999 it is clear that the Govt. had decided to implement the judgment and order dated 9.9.1999 passed by this Court in writ petition filed by petitioner and accord all consequential benefits of service to him in true sense in letters and sprit both. It appears that in pursuance of the aforesaid decision of Government, the steps were taken to withdraw the aforesaid S.L.P. and after withdrawal of the same, vide order dated 20.12.1999 passed by Director, Mandi Parishad, the judgment and order dated 9.9.1999 passed by this Court was fully complied with and the petitioner was reinstated in service according to the terms and conditions of his service stipulated in his appointment letter dated 7.6.1996 before termination of services on 28.6.99 and he was allowed to avail his all the facilities and amenities and exercise his all the powers earlier enjoyed by him. Thus, these series of events and facts and circumstances clearly demonstrates that the judgment and order dated 9.9.1999 passed by this Court in writ petition filed by the petitioner against termination of his services on 28.6.1999 on the ground of alleged illegality in his appointment has attained finality between the parties and he was restored to his earlier position as existing on prior to the date of aforesaid termination of his service and he was made to understand that now the respondents have no cause of complaint against him with regard to validity of his appointment and other terms and conditions of his service as determined by the respondents prior to the aforesaid date of termination of his service.
21. Now further question arises for consideration as to what would be effect of decision of Division Bench dated 9.9.1999 in writ petition earlier filed by the petitioner even if it was erroneous as contended by the learned Counsel for the respondent. In this connection a reference can be made to a decision rendered in State of West Bengal v. Hemant Kumar Bhattacharya and Ors. wherein in para 14 of the decision The Hon'ble Apex Court has held that even a wrong decision by the Court having jurisdiction is as much as binding between the parties as a right one, and may be superseded only by appeals to higher Tribunal or other procedure like review which the law provides, The observation made by Hon'ble Apex Court is under ;-
14. Before proceeding with these agreements in detail, we can dispose of second contention very shortly. This argument proceeds on a fundamental misconception as it seeks to equate an incorrect decision with a decision rendered without jurisdiction. A wrong decision by a court having jurisdiction is as much as binding between the parties as a right one and may he superseded only by appeals to higher tribunals or other procedure like review which the law provides. The learned Judge of the High Court who rendered the decision on 4.4.1952 had ample jurisdiction to decide the case and the fact that their decision was on the merits erroneous as seen from the later judgment of this Court does not render it any the less final and binding between the parties before the Court. There is, thus, no substance in this contention. The decision of the High Court dated 4.4.1952 hound the parties and its legal effect remained the same whether the reasons for the decision he sound or not.
22. Thus from the aforesaid settled legal position it is clear that even a wrong decision by the court having jurisdiction is as much as binding between the parties as a right one and may be superseded by appeals to tribunal and other procedure like review which the law provides. It is not in dispute that the Division Bench of this Court which rendered the decision dated 9.9.1999 in a writ petition earlier filed by the petitioner had ample jurisdiction to decide the case and the fact that its decision was erroneous on merit as contended by learned Counsel for the respondents at the strength of later judgment of Hon'ble Apex Court does not render it any less final and binding between the parties. Thus there appears no substance in the contention of learned Counsel for the respondents. The decision of this Court dated 9.9.1999 in earlier writ petition filed by petitioner would bind the parties and its legal effect remain the same whether the reasons for the decision be sound or not.
23. In this connection learned Counsel for the respondents has further contended that since the subsequent decision rendered by Supreme Court in Neeraj Awasthi's case (supra) has virtually altered legal situation existing earlier, therefore, the decision rendered by Division Bench of this Court dated 9.9.1999 in earlier writ petition filed by petitioner cannot be given effect to and law declared by Supreme Court under Article 141 of the Constitution of India has to be observed by the respondents, therefore the respondents have no option but to pass impugned order dated 28.1.2006 terminating the services of petitioner on the grounds mentioned therein. In support of his submission learned Counsel for the respondents has also placed strong reliance upon a decisions rendered by Hon'ble Apex Court in Mafatlal Industries Ltd. and Anr. v. Union of India and Ors. and another decision of Apex Court rendered in Director of Settlements, A.P. and Ors. v. M.R. Apparao and Anr. . Thus before proceeding further with the case it is necessary to examine the legal effect of the decision rendered by Hon'ble Apex Court in Neeraj Awasthi's case.
24. From a close analysis of decision rendered by Hon'ble Apex Court in Neeraj Awasthi's case (supra) which is on record as Annexure 16 of the writ petition it is clear that question in controversy before the Hon'ble Apex Court was as to whether the High Court has jurisdiction to issue a direction for framing of scheme for regularisation of employee of U.P. State Agricultural Produce Market Board and U.P. State Agriculture Produce Market committee. In the aforesaid case in view of the direction of State Government dated 12.2.99 the services of such daily wage, adhoc employees, appointed between 1.4.96 and 30.10.97 were terminated by Mandi Pan shad and Mandi Samiti. Feeling aggrieved against which such employees have filed writ petitions before the Lucknow Bench of this Court. In some of the petitions the employees have succeeded before this Court and Special Appeal filed by the State Government as well as Mandi Parishad have been dismissed against which unsuccessful party has preferred S.L.P. before the Hon'ble Apex Court and in some cases of the employees writ petition and Special Appeals was dismissed therefore they also approached to the Hon'ble Apex Court by filing S.L.P. and Hon'ble Apex Court by clubbing all the Civil Appeals arose from such S.L.Ps. has decided the aforesaid appeal by a common judgment referred herein before. By this judgment Hon'ble Apex Court has held that the terms of appointment and service conditions of employees of Market Board and Market Committees are governed by the existing statutory regulations framed under the Act referred herein before but their appointments were made without any sanctioned post and without following the provisions of the existing statutory Regulations therefore held that their appointments are de'hors the provisions of the Act and Regulations accordingly are null and void ab-initio and no direction for regularisation of their services could have been issued by the High Court. Consequent upon the aforesaid decision the services of adhoc and daily wage work charged employees of Mandi Parishad and Mandi Samiti have been terminated. Since the petitioner's appointment was also made between the cut of date provided in the aforesaid Govt. Order therefore while taking shelter of decision of Hon'ble Apex Court the respondent has also terminated the services of the petitioner vide impugned order dated 28.1.2006. In this connection it would be useful to refer a decision of Hon'ble Apex Court where the doctrine of precedent and ratio of decision has been considered by Hon'ble Apex Court.
25. In the State Financial Corporation and Anr. v. Jagdamba Oil Mills and Anr. , the Hon'ble Apex Court has held that the judgments of courts are not to be construed as statute. The observations must be read in context they appear. For ready reference the observations of para 19 of the decision are reproduced as under:
19. Court should not place reliance on decisions without discussing us to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are not to he read as Euclid's theorems nor as provisions of the statute. These observations must he read in the context in which they appear. Judgments of Courts are not to he construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions hut the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes, their words are not to be interpreted as statutes.
26. Thus in view of the aforesaid settled legal position it is clear that since the facts and circumstances of the case in question is quite distinct and distinguishable from the facts and situation of the case decided by Hon'ble Apex Court in a decision rendered in Neeraj Awasthi case (supra) therefore in view of the aforesaid factual and legal back drop of the case of Neeraj Awasthi (supra) we are of the considered opinion that the respondent could not have legitimately terminated the services of the petitioner by pressing the aforesaid decision of the Hon'ble Apex Court in service in case of the petitioner. As the observations made by Hon'ble Apex Court in aforesaid case should be understood in the context of question in controversy involved and decided by Hon'ble Apex Court in case before the Hon'ble Apex Court and the aforesaid decision cannot be pressed into service to reopen the dispute between the petitioner and respondents, which has attained the finality between the parties.
27. Now assuming for the sake of arguments the decision rendered by Hon'ble Apex Court in Neeraj Awasthi's case (supra) has altered earlier existing legal situation, a further question arises as to whether rights conferred by the decision of this Court dated 9.9.1999 in the earlier writ petition filed by the petitioner can be taken away by the respondents by pressing the aforesaid decision of Hon'ble Apex Court rendered in Neeraj Awasthi's case into service without taking any legal recourse against the said judgment of this Court? In this connection it is necessary to point out that a similar question has received consideration of Seven Judges constitution Bench of Hon'ble Apex Court in a slightly different context in Madan Mohan Pathak and Anr. v. Union of India and Ors. wherein it was held that an Act of Legislature cannot annul a final judgment giving effect to lights of any party. However, a declaratory judgment holding an impost or tax invalid can be superseded by validation statute. But where the factual or legal situation is retrospectively altered by an Act of Legislature the judgment stands unless reverted by an appeal or review. The observations made by Hon'ble Apex Court in para 7 and 9 are as under:
7. But before we proceed further, it would be convenient at this stage to refer to one other contention of the petitioner based on the Judgment of the Calcutta High Court in Writ Petition No. 371 of 1976. The contention was that since the Calcutta High Court had by its judgment dated May 21, 1976 issued a writ of mandamus directing the Life Insurance Corporation to pay annual cash bonus to Class III and Class IV employees for the year April 1, 1975 to March 3J, 1976 along with their salary for the month of April, 1976 as provided by the Settlement and this judgment had become final by reason of withdrawal of the Letters Patent Appeal preferred against it, the Life Insurance (Corporation was bound to obey the writ of mandamus and to pay annual cash bonus for the year April 1, 1975 to March 31, 1976 in accordance with the terms of Clause 8(ii) of the Settlement. It is, no doubt, true, said the petitioners, that the impugned Act, if valid, struck at Clause 8(ii) of the Settlement and rendered it ineffective and without force with effect from April I, 1975 but it did not have the effect of absolving the Life Insurance Corporation from its obligation to carry out the writ of mandamus. There was, according to the petitioners, nothing in the impugned Act which set at naught the effect of the judgment of the Calcutta High Court or the binding character of the writ of mandamus issued against the Life Insurance Corporation. This contention of the petitioners requires serious consideration and we are inclined to accept it.
9. The Life Insurance Corporation leaned heavily on the decision of this Court in Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality, in support of its contention that when the Settlement in so far as it provided for payment of annual cash bonus was set at naught by the impugned Act with effect from April 1, 1975, the basis on which the judgment proceeded was fundamentally altered and that rendered the judgment ineffective and not binding on the parties. We do not think this decision lays down any such wide proposition as is contended for on behalf of the Life Insurance Corporation. It does not say that whenever any factual or legal situation is altered by retrospective legislation, a judicial decision rendered by a Court on the basis of such factual or legal situation prior reasonable opportunity the alteration, would straightaway, without more, cease to be effective and binding on the parties. It is true that there are certain observations in this decision which seem to suggest that a Court decision may cease to be binding when the conditions on which it is based are so fundamentally altered that the decision could not have been given in the altered circumstances. But these observations have to be read in the light of the question, which arose for consideration in that case. There, the validity of the Gujarat Imposition of Taxes by Municipalities (Validation) Act, 1963 was assailed on behalf of the petitioners. The Validation Act had to be enacted because it was held by this Court in Patel Gordhandas Hargovindas v. Municipal Commissioner, Ahmedabad that since Section 63 of the Bombay Municipality Boroughs Act, 1925 allowed the Municipality to levy a 'rate' on buildings or lands and the term 'rate' was confined to an imposition on the basis of annual letting value, tax levied by the Municipality on lands and buildings on the basis of capital value was invalid. Section 3 of the Validation Act provided that notwithstanding anything contained in any judgment, decree or order of a Court or tribunal or any other authority, no tax assessed or purported to have been assessed by a municipality on the basis of capital value of a building or land and imposed, collected or recovered by the municipality at any time before the. commencement of the Validation Act shall be deemed to have invalidly assessed, imposed, collected or recovered and the imposition, collection or recovery of the tax so assessed shall be valid and shall be deemed to have always been valid and shall not be called in question merely on the ground that the assessment of the tax on the basis of capital value of the building or land was not authorised by law and accordingly any tax so assessed before the commencement of the Validation Act and leviable for a period prior to such commencement but not collected or recovered before such commencement may be collected or recovered in accordance with the relevant municipal law. It will be seen that by Section 3 of the impugned Act the Legislature retrospectively imposed tax on building or land on the basis of capital value and if the tax was already imposed, levied and collected on that basis, made the imposition, levy, collection and recovery of the tax valid, notwithstanding the declaration by the Court that as 'rate ', the lew was incompetent: This was clearly permissible to the Legislature because in doing so, the Legislature did not seek to reverse the decision of this Court on the interpretation of the word 'rate', hut retrospectively amended the law by-providing for imposition of tax on land or building on the basis of capital value and validated the imposition, lew, collection and recovery of tax on that basis. The decision of this Court holding the levy of tax to be incompetent on the basis of the unamended law, therefore, became irrelevant and could not stand in the way of the tax being assessed, collected and recovered on the basis of capital value under the law as retrospectively amended. That is why this Court held that the Validation Act was effective to validate imposition, levy, collection and recovery of tax on land or building on the basis of capital value. It is difficult to see how this decision given in the context of a validating statute can be of any help to the Life Insurance Corporation. Here, the judgment given by the Calcutta High Court, which is relied upon by the petitioners, is a validation statute can remover the defect pointed out by the judgment amending the law with retrospective effect and validate such impost or tax. But it is a judgment giving effect to the right of the petitioners to annual cash bonus under the Settlement by issuing a writ of mandamus directing the Life Insurance Corporation to pay the amount of such bonus. If by reason of retrospective alteration of the factual or legal situation, the judgment is rendered erroneous, the remedy may be by way of appeal or review, but so long as the judgment stands, it cannot be disregarded or ignored and it must be obeyed by the Life Insurance Corporation. We are, therefore, of the view that in any event irrespective of whether the impugned Act is constitutionally valid or not, the Life Insurance Corporation is hound to obey the writ of mandamus issued by the Calcutta High Court and to pay annual cash bonus for the year April 1, 1975 to March 31, 1976 to Class III and Class IV employees.
28 Thus from the aforesaid settled legal position it is clear that even if the subsequent decision rendered by Hon'ble Apex Court in another's case namely Neeraj Awasthi's case has virtually altered the legal situation existing at the time of decision of Division Bench of this Court in writ petition filed by the petitioner even then the binding character of writ issued by this Court against the respondents cannot be said to have lost its efficacy and we are of the considered opinion that such judgment rendered by this Court is still binding between the parties unless it is reversed in appeal or review. It is true that there are certain observations in the decision of Hon'ble Apex Court in Neeraj Awasthi's case seems to suggest that the decision could not have been given in altered circumstances but these observations have to be read in the light of question which arose for consideration in that case as pointed out earlier that the aforesaid decision has been rendered in different factual and legal back drop of the aforesaid case, therefore, the same cannot be pressed into service to cover the case of petitioner in which the judgment rendered by this Court has already attained the finality between the parties on the question in issue.
29. Now coming to the cases relied upon by learned Counsel for the respondent, it is to be seen that in Mafatlal Industries Ltd. and Anr. v. Union of India and Ors. (supra) the Hon'ble Apex Court in para 4 and 6 of the judgment the majority opinion expressed are as under:
4. Ordinarily, no assessee can be allowed Jo reopen proceedings that have been finally concluded against him on the basis of a favourable decision in the case of another assessee. This is because an order which has become final in the case of an assessee will continue to stand until it is specifically recalled or set aside in his own case.
6. Reddy, J. has moulded an exception to the above stated principle. He has held that where a person approaches the High Court or the Supreme Court challenging the constitutional validity of a provision but fails, he cannot take advantage of the declaration of unconstitutionality obtained by another person on another ground; this is for the reason that so far as he is concerned, the decision has become final and cannot be ignored or put aside as if it did not exist on the basis of the decision in another person's case. However, in my opinion, since the levy of tax has been held to be unconstitutional (which would lead to the conclusion that it should never have been levied in the first place) such an interpretation would be unfair to an assessee who had the foresight to discern the unconstitutionality of the provision (albeit on a different ground) but was unfortunate in not being able to convince the court concerned of the unconstitutionality of the provision. Considering the gravity of the case, in my opinion, it should be left open to such an assessee to use such legal remedy as may he available to him to have the earlier order reviewed or recalled on the basis of the order made in the subsequent case. If he succeeds, well and good; if he fails, "he must take the consequence of an adverse order against him.
30. Thus from a close analysis of the observation made by Hon'ble Apex Court in Mafatlal Industries case (supra) it is clear that once an order which has become final in case of an individual will continue to stand until it is recalled or set aside in the aforesaid particular individuals, case itself. In our considered opinion the proposition of law laid down by a majority opinion of Nine Judges constitution Bench of Hon'ble Apex Court, in Mafatlal Industries case, is clearly against the respondent. In the case in hand, the decision of Division Bench of this Court dated 9.9.1999 rendered in the case of the petitioner, which became final between the petitioner and the respondent will continue to stand until it is specifically recalled or set aside in his own case, and the respondent cannot be allowed to reopen proceedings that have been finally concluded against the respondent, on the basis of alleged favourable decision of Hon'ble Apex Court in Neeraj Awasthi's case which, in our opinion, is distinguishable on facts also.
31. Now coming to the another decision of Hon'ble Apex Court rendered in Director of Settlements, A.P. and Ors. v. M.R. Apparao and Anr. A.I.R. 2002 S.C. 1598. The observations made by Hon'ble Apex Court in para 16 of the decision has been strongly pressed into service by the learned Counsel for respondents. The aforesaid observations are as under:
16. So far as the second question is concerned, it is no doubt true that the judgment of the Andhra Pradesh High Court in favour of the respondents, not having been challenged, has reached finality. The High Court in the aforesaid two cases, following the reasoning and conclusion of the earlier decision in Venkatagiri's case in Writ Petition No. 4709 70 dated 22.9.71 issued a writ of mandamus to make payments to the petitioners in accordance with law laid down in Writ Petition No. 4709 of 1970 dated 22.9.71. Notwithstanding the aforesaid direction in favour of the respondents in writ petition Nos. 3293 and 3294 of 1975, interim payments not having been made, the respondents approached the High Court again, by filing afresh writ petition, which was registered as writ petition No. 730 of 1978. The High Court disposed of the matter on 28.3.78. directing the State to implement the earlier order dated 7.6.77 within a month from the date of the said order. Yet, no interim payments had been made and in the meantime. Supreme Court reversed the judgment of the Andhra Pradesh High Court in Venkatagiri's case in C.A. Nos. 398 and 1385 of 1972 by judgment dated 6.2.1986. While reversing the judgment of the Andhra Pradesh High Court in Venkatagiri's case, independent of the concession made by the counsel for the said Venkatagiri, the Court also held that the amended provision is constitutionally valid and further directed that interim payments would he payable only till the date of the original determination made by the Director under Section 39(1) of the Act and on the deposit of the amount by the State, so determined. The original mandamus in favour of the respondents having been based upon the sole ground of the decision of the Andhra Pradesh high Court in Venkatagiri's case and that decision of Venkatagiri, having been reversed by the Supreme Court, the question of right of the respondents emanating from the judgment in their favour, requires to be decided. Mr. P.P. Rao, in this connection argued with vehemence that the mandamus in favour of the respondents, could not have been ipso facto nullified on account of reversal of the decision of the high Court in Venkatagiri's case and, therefore, the same would be enforceable even now, and in fact the Division Bench of the High Court has allowed such relief. Mr, Rao relies upon the decision of this Court in the case of Satyadhyan Ghosal and Ors. v. Smt. Deorajin Debi and Anr. , wherein, the court was considering the principle of resjudicata. The Court in that case came to the conclusion that the principle of res judicata applies as between the past litigation and future litigation and when a matter, whether on a question of fact or on a question of law has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher Court or because the appeal was dismissed, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again. It was further held that the principle of rex judicata applies as between to states in the same litigation. Mr. Rao also relied upon the decision of this Court in the case of State of West Bengal v. Memant Kumar Bhattacharjee and Ors. 1963 Supp.(2) SCR 542, where under the question for consideration was whether the earlier decision of the High Court regarding the unconstitutionality of Section 4(1) of the West Bengal Criminal Law Amendment Act, would be binding between the parties and the correctness could not be collaterally or incidentally challenged'? The Court held that it would not be permissible for the State Government to challenge the correctness of the earlier judgment either collaterally or incidentally, no appeal having been taken from the earlier decision. Mr. Rao further relied upon the decision of this Court in the case of B.N. Nagarajan and Ors. v. State of Mysore and Ors. , whereunder while allowing the appeals filed by the State as well as private persons and setting aside the judgment of the high Court, the Court also observed that those who have not prosecuted their appeals, they would also have the benefit of the judgment and this the Supreme Court could do in exercise of its power under Article 142 of the Constitution. We really fail to understand as to how the aforesaid decision is of any application. According to Mr. Rao, since in Venkatagiri's case there has been no such observation notwithstanding the reversing the judgment of the High Court, those of the persons against whom, the Slate did not come up in appeal, their rights are concluded by the earlier judgment of the High Court and that must be allowed to operate. It is however difficult for us to accept this contention in the facts of the present case, particularly in the context of the issuance of mandamus by the Court. Mr. Rao also strongly relied upon the judgment of this Court in the case of Authorised Officer (Land Reforms) v. M.M. Krishnamurthy Chetty . In this case, this Court held that the order of the High Court, directing the Authorised Officer to examine the dispute in the tight of the judgment of the High Court in the case of Naganatha Ayyar v. Authorised Officer, became final although the very judgment on which the grievance had to be examined itself was reversed later by the Supreme Court and, therefore, the orders which may not be strictly legal, having become final and binding between the parties, if they are not challenged before the superior Courts, the same has to be followed. The aforesaid judgment of a two Judge Bench of this Court, undoubtedly supports Mr. Rao's contention but it had not taken into consideration a three Judge Bench decision in Shenoy and Co. v. Commercial Tax Officer, Circle II, Bangalore and Ors. 1985 (2) SCC 572, wherein under identical circumstances, this Court had held that when large number of writ petitions were filed challenging the Act and all those writ petitions were grouped together, heard together, and were disposed of by the high Court by a common judgment and the dispute in the cause between the State and each of the petitioner had no personal or individual clement in it, and on the other hand, challenge was to the constitutional validity of 1979 Act, when the Supreme Court held that the Act is constitutionally valid, it would he difficult to contend that the law laid down in the judgment would bind only Hansa Corporation, who has approached the Supreme Court and not the other petitioners against whom the State of Karnataka hand not filed any appeal. According to the aforesaid judgment to do so, would be to ignore the binding nature of a judgment of this Court under Article 141 of the Constitution. The Court further held that if the law which was declared invalid by the High Court is held constitutionally valid, effective and binding by the Supreme Court, then the mandamus for hearing the authorities from enforcing its provisions would become ineffective and the authorities cannot be compelled to perform a negative duty. The declaration of the law is binding on everyone and it would, therefore he futile to contend that the mandamus would still survive in favour of these parties against whom appeals were not filed. In our considered opinion, the ration in the aforesaid case fully applies to the case in hand, particularly when the Court is examining the question whether while issuing a mandamus, the earlier judgment notwithstanding having been held to be invalid, can still he held to he operative. Mr. Rao also relied upon the judgment of this Court in Ram Bai v. Commissioner of Income-tax , which was a case arising from an assessment made under the Income-tax Act. Having examined the aforesaid decision at length, we do not find anything stated therein which will he of any assistance to the respondents in the present case. Mr. Rao, no doubt submitted with force that in Shenoy's case, the Court never focused its attention as to the finality of the earlier judgment and the principle of res judicata and accordingly, the said decision require a consideration by a larger Bench, But we are not persuaded to accept this submission inasmuch as when the Court is examining the question of any right having emanated from a judgment of the High Court and the said judgment squarely having emanated, on following an earlier judgment of the said Court, without any further reasoning advanced and no question of facts involved hut purely a question of constitutionality of an Act, the moment the earlier judgment of the high Court is reversed by the Supreme Court, that becomes the law of the land, binding on all parties. In other words, the judgment of the Andhra Pradesh high Court in Venkatagiri's case, holding the amendment Act to be constitutionally invalid, on being reversed by the Supreme Court on a conclusion that the said amendment is constitutionally valid, the sand dictum would be valid throughout the country and for all persons, including the respondents, even though the judgment in their favour had not been assailed. It would in fact lead to an anomalous situation, if in the case of the respondents, the earlier conclusion that the amendment act is constitutionally invalid is allowed to operate notwithstanding the reversal of that conclusion in Venkatagiri's case and only in Venkatagiri's case or where the parties have never approached the Court to hold that the same is constitutionally valid. This being the position, notwithstanding the enunciation of the principle of res judicata and its applicability to the litigation between the parties at different stages, it is difficult for us to sustain the argument of Mr. Rao that an indefeasible right has accrued to the respondents on the basis of the judgment in their favour which had not been challenged and that right could be enforced by issuance of a fresh mandamus. On the other hand, to have the uniformity of the law and to have universal application of the law laid down by this Court in Venkatagiri's case, it would be reasonable to hold that the so-called direction in favour of the respondents became futile inasmuch as the direction was on the basis that the amendment Act is constitutionally invalid, the moment the Supreme Court holds the Act to he constitutionally valid. We are, therefore, of the considered opinion that no indefeasible right on the respondents could be said to have accrued on account of the earlier judgment in their favour notwithstanding the reversal of the judgment of the High Court in Venkatagiri's case.
32. Thus from the close analysis of law laid down by Hon'ble Apex Court in M.R. Apparao's case (supra) it is clear that in the aforesaid case a mandamus in favour of respondents having been based upon sole ground of decision of Andhra Pradesh High Court in Venkatagiri's case was issued and that decision of Venkatagiri's case having been reversed by the Supreme Court. The question of right of respondents of the aforesaid case, emanating from the judgment in their favour was under consideration and in this connection the question as to whether the aforesaid mandamus in favour of respondents could not have been ipso facto nullified on account of reversal of the decision of the High Court in Venkatagiri's case and as to whether the same would be enforceable even now, and the Division Bench of the High Court has allowed such relief was correct or not was under consideration. After survey of plethora of decisions on the point including the question of binding effect of principles of res judicata, the Apex Court has held that," any right having emanated from a judgment of the High Court and the said judgment squarely having emanated, on following an earlier judgment of the said Court, without any further reasoning advanced and no question of facts involved but purely a question of constitutionality of an Act, the moment the earlier judgment of the High Court is reversed by the Supreme Court, that becomes the law of the land, binding on all parties. In other words, the judgment of the Andhra Pradesh High Court in Venkatagiri's case, holding the amendment Act to be constitutionally invalid, on being reversed by the Supreme Court on a conclusion that the said amendment is constitutionally valid, the said dictum would be valid throughout the country and for all persons, including the respondents, even though the judgment in their favour had not been assailed. It would in fact lead to an anomalous situation, if in the case of the respondents, the earlier conclusion that the amendment Act is constitutionally invalid is allowed to operate notwithstanding the reversal of that conclusion in Venkatagiri's case and only in Venkatagiri's case or where the parties have never approached the Court to hold that the same is constitutionally valid. This being the position, notwithstanding the enunciation of the principle of res judicata and its applicability to the litigation between the parties at different stages, it is difficult for us to sustain the argument of Mr. Rao that an indefeasible right has accrued to the respondents on the basis of the judgment in their favour which had not been challenged and that right could be enforced by issuance of a fresh mandamus. On the other hand, to have the uniformity of the law and to have universal application of the law laid down by this Court in Venkatagiri's case, it would be reasonable to hold that the so-called direction in favour of the respondents became futile as the direction was on the basis that the amendment Act is constitutionally invalid, the moment this Court holds the Act to be constitutionally valid. We are, therefore, of the considered opinion that no indefeasible right on the respondents could be said to have accrued on account of the earlier judgment in their favour notwithstanding the reversal of the judgment of the High Court in Venkatagiri's case.
33. In view of the aforesaid discussions, it is clear that the law laid down by Hon'ble Apex Court in M.R.Apparao's case (supra) has no application in the facts and situation of the instant case. In the aforesaid case the decision of Andhra Pradesh High Court rendered in favour of the respondent of aforesaid case before Apex Court was based on Venkatagiri's case. A mandamus was issued in favour of the respondent on assumption that the amendment Act in question was constitutionally invalid. The said decision of A.P.High Court rendered in Venkatagiri's case has been subsequently reversed by Hon'ble Apex Court wherein the Amendment Act under consideration in Venkatagiri's case was found valid, Although the decision given in respondent's case by A.P.High Court was not challenged before the Hon'ble Apex Court, but in the aforesaid facts and circumstances of the case the Hon'ble Apex Court has held that since the judgment of A.P.High Court in Venkatagiri's case holding the amendment Act to be constitutionally invalid has been reversed by the Supreme Court on a conclusion that the said amendment is constitutionally valid. The said dictum would be valid throughout the country for all the persons including respondent, even though the judgment in their favour had not been assailed. Thus the so called direction of A.P.High Court in favour of the respondent became futile as direction was on the basis that the amendment Act was constitutionally invalid, the moment Supreme Court holds that the Act to be constitutionally valid no indefeasible right on the respondent could be said to have accrued on account of the earlier judgment in their favour notwithstanding the reversal of the judgment of the High Court in Venkatagiri's case. Contrary thereto in the instant case there is nothing to indicate that while rendering the decision in favour of the petitioner the decision of Division Bench of this Court dated 9.9.1999 was based on any other decision of this Court which has been reversed by the Supreme Court in its subsequent decision. It is also not the case of the respondent that the aforesaid decision has been rendered by the Division Bench of this Court holding any provisions of Act or Regulations as constitutionally invalid and the same has been found valid by the Supreme Court on being challenged in Another's case i.e. in Neeraj Awasthi's case. Thus in our considered opinion the decision rendered by Hon'ble Apex Court in M.R.Apparao's case hardly lends any support to the case of the respondent, therefore, the same can be of no assistance to them. Besides this as held earlier the decision rendered by Hon'ble Apex Court in Neeraj Awasthi's case has been rendered in entirely different facts and circumstances of the aforesaid case, therefore, no analogy of M.R.Apparao's case can be drawn by the respondent in view of the decision rendered by Hon'ble Apex Court in Neeraj Awasthi's case (supra).
34. Now before concluding the issue it is also necessary to examine the status and the right of the petitioner at the strength of his appointment letter and continuity of service in pursuance thereof, therefore, it is necessary to examine the content and import of the letter of appointment of the petitioner dated 7.6.1996, contained in Annexure-5 of the writ petition. For ready reference the contents of letter of appointment of the petitioner are extracted as under:
,usDpj &5 vkns'k orZeku le; esa ek0 mPp U;k;ky; bykgkckn [.M ihB es yxHkx 1200 fjV ;kfpdk;sa fopkjk/khu gS A blh izdkj ek0 mPp U;k;ky; y[kuÅ [k.M ihB ,oa ek0 loksZP; U;k;ky; es Hkh dkQh la[;k esa fjV ;kfpdk;sa yfEcr gS ftuds vUrxZr e.Mh ifj"kn @ e.Mh lfefr;ks dh fo'kky /kujkf'k Hkh vUrZfufgr gS A ,Slk vuqHko fd;k x;k gS fd ftu oknks es fo'ks"k /;ku nsdj O;fDrxr #fp yh x;h gS mu oknks ds fuLrkj.k QyLo#i foHkkx dks yk[kks #i;s dk ykHk gqvk gS A LVkQ dh deh rFkk dk;kZf/kD; ds dkj.k ftu egRoiw.kZ oknksa esa fo'ks"k /;ku ugh fn;k tk ldk gS mues foHkkx dks yk[kksa #i;s dk uqdlku Hkh gqvk gS A mijksDr fLFkr dk ifj"kn dh 74oha cSBd fnukad 8-4-96 es fopkj gqvk Fkk ij fof/k 'kk[kk dks lqn`<+ djus dk fu.kZ; fy;k x;k A blh Øe es leLr fLFkr ij fopkj djus ds mijkUr tufgr dks /;ku es j[k dj ifj"kn us mDr ifjfLFkr ij izHkkodkjh fu;U=.k ds fgr esa fo'ks"k dk;kZf/kdkjh ¼fof/k½ dk ,d in bykgkckn mPp U;k;ky; es nk;j oknksa dh iSjoh gsrq Jftr djrs gq, bl in ij Jh lh0,e0 ik.Ms; tks fd iwoZor ,MfefuLV~s'ku dkUlkfyMsVsM dUVsujh fy0 8 vuqie bUMfLV~;y LVsV ua0 2 30 ,y0 ch0 ,l0 ekxZ eqyqUM ¼if'pe½ eqEcbZ esa eSustj ds in ij dk;Zjr gS] dks osrueku @ 2200&4000 ds vUrxZr : 2500-00 izfr ekg ij fu;qDr djus dh vuqefr nh x;h gS A Jh lh0 ,e ik.Ms; dh fu;qfDr vLFkkbZ ,oA rnFkZ gksxh vkSj ,d o"kZ dh ifjoh{kk vof/k ds mijkUr rFkk lUrks"kizn ik;s tkus dh fLFkr es bUgs fu;fer tk;sxk A Jh ik.Ms; bl vkns'k ds Øe es viuh ;ksxnku vk[;k lEHkkxh; mifuns'kd ¼iz'kklu½ bykgkckn dks lfEefyr djsxs A dk;ZHkkj xzg.k djus dh frfFk iwoZ vuds }kjk fuEufyf[kr izek.k i= izLrqr fd;k tkuk vfuok;Z gksxk A 1& 'kSf{kd ;ksX;rk @ vad i=ks dh Nk;k izfr;ka ¼izekf.kr½ 2& tUe frfFk izek.k i= dh izekf.kr izfrfyfi 3& nks jktif=r vf/kdkfj;ksa }kjk iznRr pfj= izek.k i= 4& eq[; fpfdRlkf/kdkjh }kjk iznRr LOkkLFk izkek.ki= ewy#i es 5& py vpy lEIfRr dh ?kks"k.kk i= A 6& LFkk;h @ vLFkkbZ irk A mi;qZDr izek.k i= izLrqr djus ij gh bUgs ;ksxnku dh vuqefr nh tk;sxh rFkk Jh ik.Ms; viuh ;ksxnku vk[;k fu;qfDr i= izkfIr ds 15 fnu ds vUnj viuh rSukrh ds LFkku ij izLrqr djsaxs A fuf/kkZfjr vof/k ds vUnj ;ksxnku u fd;s tkus dh fLFkfr es ;g fu;qfDr vkns'k Lor% lekIr gks tk;sxk A dk;ZHkkj xzg.k djus gsrq bUgs ifj"kn ls dksbZ ;k=k HkRrk ns; ugh gksxk A ;g vkns'k v/;{[email protected]`f"k mIrknu vk;qDr egksn; ds vuqeksnrksijkUr tkjh fd;k tk jgk gS A ¼ih0,u feJ½ e.Mh funs'kd jkT; d`f"k mRiknu e.Mh ifj"kn mRrj izns'k y[kuÅ A i=kad vf/kd &[email protected]&318 fnukad 7-6-96 izfrfyfi fuEufyf[kr dks lwpukFkZ ,oa vko';d dk;Zokgh gsrq izf"kr A 1& Jh lh0 ,e0 ik.Ms;
35. From a bare reading of the letter of appointment and other relevant records show that the petitioner's appointment was made in pursuance of decision taken by the Board dated 8.4.10% on a newly created post by the Board on 4/5.6.%. The resolution of Board dated 8.4.96 is already on record as Annexure-2 of the writ petition whereby the Chairman of Board has been authorised to accord approval of recommendations for creation of legal cadre or post in the cadre on behalf of the Board. The recommendation of Managing Director for creation of post of Officer on Special Duty (Legal) in Class II services in scale of Rs. 2200-4000/- is on record as Annexure-3 of the writ petition which was approved on 5.6.96 by Principal Secretary, Agriculture, Government of Uttar Pradesh and Agriculture Production and Village Development Commissioner, Uttar Pradesh who was also Chairman of the Board. From perusal of letter of appointment dated 7.6.96, contained in Annexure-5 of the writ petition it is clear that the petitioner's appointment was made on duly created and sanctioned post by the Board on temporary and ad hoc basis for a period of one year probation and after successful completion of the aforesaid probationary period he was intended to be made confirmed/( Regular) on the aforesaid post. At this juncture it is necessary to point out that it is well settled that where a newly appointed employee is placed on probation his appointment is treated to be in substantive capacity i.e. on regular basis in accordance of the provisions of law whereas contrary to it, if the appointment is made on casual or Ad hoc basis he is not required to be placed on probation. Thus the petitioner's appointment on probation is indicative of fact that his appointment was made in substantive capacity on regular basis as known in service law jurisprudence and there was no occasion to mention it as adhoc. But under some sort of misconception, it appears that while making the aforesaid appointment the expression "ad hoc" has been used inadvertently and as superfluously after the word temporary in the letter of appointment and similarly in the phrase the appointment of petitioner shall be made regular, the expression "regular" also appears to be inadvertently used instead of expression "confirm" to be used therein for simple reason that it is well known in service law jurisprudence that where the appointment is made on regular basis only in that eventuality the employee so appointed is to be placed on probation. Therefore, we are of the considered opinion that the aforesaid appointment of the petitioner is to be treated as regular in substantive capacity and after successful completion of one year period of probation if the term and condition of the appointment does not provide further extension of period of probation then on expiry of the aforesaid period of probation the petitioner shall be deemed to be automatically confirmed by implication.
36. In this connection a reference can be made to a decision of Hon'ble Apex Court rendered in High Court of Madhya Pradesh through Registrar and Ors. v. Satya Narayan Jhavar , wherein Hon'ble Apex Court has examined almost all the relevant case laws in context of stipulations in the letter of appointment and existing services rules. It would be useful to refer only few, paragraphs of the decision, which have material bearing with the question in controversy involved in the case as under:
14. Again Constitution Bench In the case of State of Uttar Pradesh v. Akbar Ali Khan , was considring the question of confirmation of a probationer with reference to Rules 12 and 14 of Uttar Pradesh Subordinate Revenue Executive Service (Tehsildar) Rules, 1944 which read thus: -
Rule 12 - Every listed candidate on appointment in or against a substantive vacancy shall he placed on probation. The period of probation shall be two years.
Rule 14 - If it appears at any tune during or at the end of the period of probation that a person appointed on probation has not made sufficient use of his opportunities or has failed to pass the departmental examination completely or if he has otherwise failed to give satisfaction, he may be reverted to his substantive appointment:
Provided that the Board may extend the period of probation to three years. An extension beyond this period shall require the sanction of the Governor. Every extension whether granted by the Board or the Government shall specify the exact date up to which it is granted.
In the light of aforesaid rules, the Court in that case while laying down the law observed thus at pages 825 and 826 :-
The respondent was posted as a Tehsildar and placed on probation for two years. The initial period of probation was liable to be extended by the Board of Revenue or by the Governor. There is no rule that on the expiry of the period of probation the probationer shall be deemed to have been confirmed in the post which he is holding as a probationer. If a probationer was found not to have made sufficient use of his opportunities or had failed to pass the departmental examination "completely" or if he had otherwise failed to give satisfaction he may be reverted to his substantive appointment again confirmation in the appointment at the end of the period of probation could only be made if the probationer had passed the departmental examination for Tehsildars "completely" and the Commissioner reported that he was fit for confirmation and that his integrity was unquestionable. It is common ground in this case that the respondent had not passed the departmental examination before 1955. He had therefore not qualified himself for confirmation.
The scheme of the rules is clear: confirmation in the post which a probationer is holding does not result merely from the expiry of the period of probation, and so long as the order of confirmation is not made, the holder of the post remains a probationer. It has been held by this Court that when a first appointment or promotion is made on probation for a specified period and the employee is allowed to continue in the post, after the expiry of the said period without any specific order of confirmation he continues as a probationer only and acquires no substantive right to hold the post. If the order of appointment itself states that at the end of the period of probation the appointee will stand confirmed in the absence of any order to the contrary, the appointee will acquire a substantive right to the post even without an order of confirmation. In all other cases, in the absence of such an order or in the absence of such a service rule, an express order of confirmation is necessary to give him such a right. Where after the period of probation an appointee is allowed to continue in the post without an order of confirmation, the only possible view to take is that by implication the period of probation has been extended, and it is not a correct proposition to state that an appointee should be deemed to be confirmed from the mere fact that he is allowed to continue after the end of the period of probation.
17. Amongst the other line of cases, the sheet anchor of the respondent is a Constitution Bench decision of this Court in the case of State of Punjab v. Dharam Singh , which has been heavily relied upon. In that case the Court was considering effect of a probationer continuing on the post after expiry of the maximum period of probation prescribed under Rule 6 of the Punjab Educational Service (Provincialised Cadre) Class III Rules, 1961 which runs thus:-
Rule 6. (1) Members of the Service, officiating or to be promoted against permanent post, shall he on probation in the first instance for one year.
(2) Officiating service shall he reckoned as period spent on probation, but no member who has officiated in any appointment for one year shall he entitled to he confirmed unless he is appointed against a permanent vacancy.
(3) On the completion of the period of probation the authority competent to make appointment may confirm the member in his appointment or if his work or conduct during the period of probation has been in his opinion unsatisfactory, he may dispense with his services or may extend his period of probation by such period as he may deem fit or revert him to his former post if he was promoted from some lower post.
Provided that the total period of probation including extension, if any, shall not exceed three years.
(4) Service spent on deputation to a corresponding or higher post may be allowed to count towards the period of probation, if there is a permanent vacancy against which such member can he confirmed.
The respondent in that case was appointed on Ist October, 1957 on permanent post and under Rule 6(3) he continued to hold the post on probation in the first instance for one year. Maximum period of probation fixed by the Rule was three years which expired on October 1, 1960, but the respondent continued to hold the post after October 1, 1960 and no formal order confirming him in his post was passed. On February 10, 1963 service of the respondent was terminated and when the matter was challenged before the Punjab High Court by filing a writ application, the same was rejected on the ground that the respondent was a temporary employee. Thereafter, when the appeal was preferred before the Division Bench, the same was allowed holding that the respondent was not temporary employee, he held the post on probation and on the expiry of maximum period of three years of probation he must be deemed to have been confirmed on his post, as such the order of termination was really an order of removal from service by way of punishment without holding any inquiry as such violative of Article 311 of the Constitution.
18. When the. matter was brought to this Court, appellate order of the High Court was confirmed and it was held that under Rule 6(3) referred to above, jour courses of action were open to the appointing authority, namely, (a) to extend the period of probation, provided the total period of probation, including extensions, would not exceed three years, or (b) to revert the employee to his former post if he was promoted from lower post, or (c) to dispense with his services if his work or conduct during the period of probation was not satisfactory, or (d) to confirm him in his appointment. It was held that though the initial period of probation of the respondent in that case expired on 1st October, 1958, by allowing him to continue in his post thereafter without any express order of confirmation, the competent authority must be deemed to have extended the period of probation upto October 1, I960 by implication which is the maximum period of probation, but under proviso to Rule 6(3) the probation period could not extend beyond October 1, 1960. The Court observed that in view of the proviso to Rule 6(3) it was not possible to presume that the competent authority extended the probation period after October 1, 1960 or that thereafter the respondent continued to hold the post as prohatiner. While laying down the law, this Court observed thus at pages 5-6:-
...as in the present case, the service rules fix a certain period of time beyond which the probationary period cannot be extended, and an employee appointed or promoted to a post on probation is allowed to continue in that post after completion of the maximum period of probation without an express order of confirmation, he cannot be deemed to continue in that post as a probationer by implication. The reason is that such an implication is negatived by the service rule forbidding extension of the prohatinary period beyond the maximum period fixed by it. In such a case, it is permissible to draw the inference that the employee allowed to continue in the post on completion of the maximum period of probation has been confirmed in the post by implication.
(Emphasis added) While considering the matter, the Court further observed thus at pages 6-
Immediately upon completion of the extended period of probation on October 1, 1960, the appointing authority could dispense with the services of the respondents if their work or conduct during the period of probation was in the opinion of the authority unsatisfactory. Instead of dispensing with their services on completion of the extended period of probation, the authority continued them in their posts until sometime in 1963, and allowed them to draw annual increments of salary including the increment which fell due on October 1, 1962. The rules did not require them to pass any test or to fulfil any other condition before confirmation. There was no compelling reason for dispensing with their services and re-employing them as temporary employees on October 1, I960, and the High Court rightly refused to draw the inference that they were so discharged from service and re-employed. In these circumstances, the High Court rightly held that the respondents must be deemed to have been confirmed in their posts. Though the appointing authority did not pass formal orders of confirmation in writing, it should be presumed to have passed orders of confirmation by so allowing them to continue in their posts after October 1, 1960. After such confirmation, the authority had no power to dispense with their services under Rule 6(3) on the ground that their work or conduct during the period of probation was unsatisfactory.
(Emphasis added).
19. From the aforesaid passage, it would he clear that as Rule 6 did not require a person to pass any test or to fulfill any other condition he/ore continuation, this Court was of the view that upon the expiry of maximum period of probation the probationer could he deemed to have been confirmed which goes to show that if such provision would have been there in the rules the conclusion might have been otherwise.
37. Now coming to letter of appointment and relevant facts and circumstances of the case again, it is not in dispute that the post held by the petitioner has not been enumerated in posts mentioned in the Appendix-A to the Regulations, his post is referable to the proviso "Kha" of the Regulations 4(2) of the aforesaid Regulations, though having regard to the requirement of the post it is to be treated as permanent post but so far as Regulations 16 and 17 of Regulations are concerned, which deals the period of probation and confirmation of employees of establishment of Mandi Parishad (Board) have no application with the case of petitioner but even assuming their application for sake of arguments even then in view of the term and condition of letter of appointment and law laid down by the Apex Court since the petitioner has successfully completed one year period of probation on 9.6.1997 from the date of joining his service on 10.6.96 and there was nothing to indicate in the letter of appointment or otherwise under said rules that the aforesaid period of probation was extended for any further period therefore after successful completion of one year period of probation he was to be made confirmed (regular) on the post and further since his work and conduct has never been found unsatisfactory on the post in question, therefore, his services shall be deemed to be confirmed on expiry of the aforesaid period of probation by implication and the petitioner's services could not be treated to be temporary or ad hoc basis by the respondents while taking impugned action against him.
38. Now before coming to the impugned order passed by respondents for better appreciation of the question involved in the case, it is necessary to extract the complete order of termination of services of petitioner dated 28.1.2006.
,usDpj &20 jkT; d`f"k mRiknu e.Mh ifj"kn] m0iz0 fdlku e.Mh Hko foHkwfr [k.M] xkserh uxj] y[kuÅ la[;k vf/k0 d&2 ¼O;0i0&224 @ 73½ 2006&1915 fnukad 28-1-2006 Jh lh0,e ik.Ms;
fo'ks"k dk;Zkf/kdkjh ¼fof/k½] fu;fer ls fHkUu }kjk & laHkkxh; mi funs'kd ¼iz'kklu½ jkT; d`f"k mRiknu e.Mh ifj"kn] bykgkckn vki voxr gSa fd fu;qfDr ifj"kn vkns'k la0&318 fnukad 7-6-1996 }kjk fcuk in ds o fcuk p;u izfØ;k viuk, xSj fu;fer < ax ls fo'ks"k dk;kZf/kdkjh ¼fof/k½] ds #i esa rnFkZ ,oa vLFkkbZ rkSj ij dh x;h Fkh vkSj i= la[;k &621 fnukad 28-6-1999 }kjk vikdh lsok,a lekIr dj nh x;h Fkh A lsok lekfIr ds fo#ð vki }kjk ek0 mPp U;k;ky; bykgkckn esa nk;j fjV & ;kfpdk la[;k [email protected] esa fn;s x;s fu.kZ; fnukWd 9-9-99 esa vkidks uSlfxZd U;k; ds vUrxZr dkj.k crkvks uksfVl u fn;s tkus ds dkj.k mlh Lrj LVsVl ij lsok esa cgky fd;k x;k rFkk ek0 mPp U;k;ky; ds fo#ð e.Mh ifj"kn ,oa m0 iz0 'kklu }kjk ek0 lkoksZPp U;k;ky; esa nk;j dh x;h ,l0,y0ih0 okil ys yh x;h A bu dk;Zokb;ksa ls vkil fu;qfDr vkns'k fnukWd 7-6-96 rFkkor cuk jgk vkSj vkidks ifj"kn vkns'k i=kad vf/k0 d ¼224½@ 99&[email protected]&599 fnukad 20-12-99 }kjk iwoZ#i es ;ksxnku djk fy;k x;k vkSj vkSj vki mlh #i es dk;Z djrs pys vk jgs gS A ek0 mPp U;k;ky; ds vkns'k fnukad 9-9-99 es ;g mYys[k gS fd vkidks lquokbZ dk volj iznku fd;s cxSj gh vkidh lsok;s lekIr dh x;h gS A blh vk/kkj ij vkids lsok lekfIr dks ek0 mPp U;k;ky; }kjk fujLr dj fn;k x;k Fkk A vr% lsok lekfIr djus ds iwoZ vkidks lquokbZ dk volj iznku fd;s tkus gsrq dkj.k crkvks uksfVl i=kad &309 fnukad 7-5-2002 tkjh fd;k x;k A bl lEcU/k esa vkidk mRrj izkIr gqvk A vkidh fu;qfDr fnukad 1-4-96 ds i'pkr dh gS] vr,o fnukad 1-5-96 ls vfu;fer fu;qfDr;ksa ds dfeZ;ksa ds ekeys esa ek0 mPp U;k;ky; es e.Mh ifj"kn o 'kklu }kjk nk;j ,l0,[email protected] ds yfEcr gksus ds dkj.k vkidks fo"k; es dksbZ vxzsrj dk;Zokgh ek0 mPp U;k;ky; ds fu.kZ; dh izrh{kk es ugh dh xbZ A fnukad 16-12-2006 dks ek0 loksZPp U;k;ky; }kjk flfoy vihy la[;k &4092 lu~ 2001 mRrj izns'k ljdkj cuke uhjt voLFkh o vU; es fn;s x;s fu.kZ; es e.Mh ifj"[email protected];ksa es tks fu;qfDr;ka p;u izfØ;k viuk;s cxSj dh x;h gS mues lafo/kku ds vuq0 16 ds foijhr gksus ds dkj.k izkjEHk ls gh 'kwU; ¼okbM ,schuhf'k;ks½ gksus rFkk 'kwU; fu;qfDr dk fofu;fer dj.k fd;k tkuk laHko u gksuk crk;k gS ek0 ifj"kn }kjk dfri; rnr fu;qfDr;ka fd;s tkus ds lEcU/k es ek0 loksZPp U;k;ky; us ;g Li"V fd;k gS fd og Hkh bl ifjf/k es vkrh gS blfy;s mudks cS/k gksuk ugh dgk tk ldrk A ek0 loksZPp U;k;ky; ds fu.kZ; fnukad 16-12-2005 es ;g izfrikfnr fd;k x;k gS fd %& The Board and the Market Commutes were bound by the Act, the Rules and Regulations framed thereunder in making appointments, Statutory provisions as also the constituional requirements were required to be complied with....
In view of our findings aforementioned, we are of the opinion that the judgment and order dated 11.8.2000 passed by the learned Single Judge which has been upheld by the Division Bench by its judgment and order dated 13.11.2000 passed by a Division Bench of the Lucknow Bench of the Allahabad High Court in Writ Petition No. 1093 (S/B) of 1999 lays down the law correctly. In the result, Civil Appeal arising out of SLP (C) No. 15797 OF 2001 is dismissed and other civil appeals filed by the board and the State of Uttar Pradesh as also civil appeal arising out of SLP (C) No. 15677 of 2003 filed by the Board are allowed.
vius mDr fu.kZ; es ek0 loksZPp U;k;ky; us ;g Hkh dgk gS fd uSlfxZd U;k; dk fl)kaUr 'kwU; fu;qfDr;ksa ij ykxw ugh gksrk A bl fu.kZ; es 'kklu dh fnukad 12-02-1999 dks fu/kkZfjr uhfr fd& fnukad 01-04-1996 ds i'pkr fcuk p;u izfØ;k viuk, dh x;h fu;qfDr;ks dks lekIr fd;k tk, dks ek0 loksZPp U;k;ky; us mfpr ekuk gS rFkk fjV & ;kfpdk la[;k 1093 ¼,l0ch½@1999 va'kqeku feJk cuke LVsV vkQ ;w0ih o vU; es ikfjr ek0 mPp U;k;ky; ds fu.kZ; fnukad 13-11-2000 dks lgh ekuk gS vkSj fiVh'kuj }kjk ,l0,y0ih la[;k [email protected] dks fujLr dj fn;k gS A mYys[kuh; gS fd vkidh iRuh Jherh oUnkuk us bl fo"k; es vkidh fu;qfDr dks ek0 mPp U;k;ky; es mDr vihy es i{kdkj O;fDr;ksa ls fHkUu gksus rFkk vkidh lsok muds leku u gksuk crkrs gq, ek0 mPp U;k;ky; }kjk fnukad 16-12-2005 ds fu.kZ; ds Øe es lsok lekIr u dh tkus dh izkFkZuk dh gS A mlds ijh{.ksijkUr ;g ik;k x;k fd vkidh fu;qfDr fouk lsok fofu;ekoyh ds izkfo/kku viuk;s fMgkslZ nh #Yl dh xbZ gS vkSj og 'kklu ds uhfrxr vkns'k fnukad 12-02-1999 dh ifjf/k es vkrh gS ek0 mPp U;k;ky; us 'kklu ds fnukad 12-02-1999 ds 'kklukns'k ds Øe es fudkys x;s dfeZ;ks dks iqu% vius dk;ksZ ij iwoZor j[ks tkus vkSj chp dh vof/k dk osru u fn;s tkus vkSj u mudks N% ekg es fofu;fer fd;s tkus dk fu.kZ; fnukad 11-08-2000 dks ikfjr fd;k A 'kklu }kjk mlds fo#) ,l0,[email protected] vihy u fd;s tkus dk fu.kZ; fy;k x;k A vr% mDr dehZ iwoZor lsok es j[k fy;s x;s] fdUrq vU'kqeku feJk ds izdj.k es ek0 mPp U;k;ky; ds fMohtu csUp us fnukad 12-02-1999 ds 'kklu ds uhfrxr fu.kZ; dks mfpr crkrs gq, mldh fjV ;kfpDk la[;k &1093 ,[email protected] es ikfjr fu.kZ; fnukad 13-11-2000 dks [kkfjt dj nh A rc 'kklu us fof/k fOkHkkx ls fof/kd fLFkr dks iqu% ijh{k.k djk;s tkus ds i'pkr ek0 mPp U;k;ky; ds vkns'k fnukad 11-08-2000 rFkk mlds vk/kkj ij vU; fMohtu csUp }kjk fn;s x;s fu.kZ; fnukad 05-09-2000 ds fo#) ,l0,[email protected] nk;j djus dh vuqefr ns nh A QyLo#i 'kklu rFkk ifj"kn dh vksj ls nk;j ,l0,[email protected] ek0 loksZPp U;k;ky; }kjk fnukad 16-12-2005 ds fu.kZ; }kjk Lohdkj dh xbZ vkSj ek0 mPp U;k;ky; ds fnukad 11-08-2000 o 05-09-2000 ds fu.kZ; dkj.kksa lfgr fof/k ds fo#) gksuk crkrs gq, fujLr dj fn;s x;s vkSj vU'kqeku feJk ds izdj.k es ek0 mPp U;k;ky; ds vkns'k 13-11-2000 dks vkSfpR;iw.kZ ekuk rFkk mldh vihy fujLr dj nh A ek0 mPp U;k;ky; us vius fu.kZ; es mDr leLr fcuk fu;qfDr izfØ;k viuk;s fMgkslZ nh #Yl fu;qfDr;ks dk okbM ,chuhf'k;ksa ekuk vkSj muds lEcU/k es uSlfxZd U;k; ds fl)kUr ds vk/kkj ij dkj.k crkvks uksfVl dh vko';drk ugh crkbZ A vkidk dsl iw.kZr% ek0 mPpre U;k;ky; ds fnukad 16-12-2005 ds fu.kZ; ds vUrxZr fMgkslZ n #Yl j[ks x;s dfeZ;ks dh HkkWfr vr% vkidks ek0 mPp U;k;ky; ds fu.kZ; fnukad 9-9-99 ds dkj.k crkvks uksfVl u fn;s tkus ds dkj.k iqu% lsok es fy;s tkus dh ckr o vkns'k ds fo#) ,l0,y0ih0 okil fy;s tkus ls vkids [email protected] es dksbZ vUrj ugh iM+rk A ek0 mPpre U;k;ky; ds fnukad 16-12-2005 ds fu.kZ; ds dkj.k vkils fnukad 16-12-2005 ds ek0 mPpre U;k;ky; ds Øe es dk;Z djrs jgus dk vf/kdkj dkuwu lekIr gks pqdk gSA bl izdkj ek0 mPpre U;k;ky; dh mDr fof/kd O;oLFkk fnukad 16-12-2005 ls e.Mh ifj"[email protected];ksa ds xSj fu;fer deZpkfj;ks ij ykxw gks tkrh gS vkSj vkidh fu;qfDr fnukad 1-4-1996 ds i'pkr fcuk p;u izfØ;k viuk;s xSj fu;fer #i ls gksus ds dkj.k ek0 mPpre U;k;ky; ds vkns'k ls vPNkfnr gS A vkils mDr Øe es fnukad 27-12-2005 ls dk;Z fy;k tkuk cUn dj fn;k gS A vrnuqlkj fnukad 27-12-2005 ls vkidh lsok;s lekIr le>h tk;sxh A M0 jktuh'k nwcs e.Mh fnus'kd
39. From the perusal of impugned order it is clear that the petitioner's services were terminated firstly by treating him temporary and ad hoc and secondly under the impression that since the petitioner's appointment was made between the period i.e. 1.4.1996 to 30.10.1997, between the cut of dates mentioned in Government Order dated 12.2.99 under the impression that the petitioner's case is also covered by decision rendered by Hon'ble Apex Court dated 16.12.05 in Neeraj Awasthi's case without holding any disciplinary inquiry against him. The recital of impugned order also indicates that his appointment was not made against duly created and sanctioned post by State Government and it was also without proper selection as provided under Regulations. The recitals made in the impugned order also indicates that since the petitioner's appointment was made de hors the provisions of Regulations and Act, therefore, void ab-initio. hence observance of principles of natural justice is not required.
40. Thus in view of foregoing discussions, we have no hesitation to hold that petitioner's appointment was made against duly created post of O.S.D.(Legal) by the Board (Parishad) referable under Regulation 4(2) proviso "Kha" of Officers and Employees Establishment Regulation 1984. His appointment was made by the Board on 7.6.1996 under the provisions of Section 26F(1) of the Act 1964. Having regard to the nature of post, in absence of procedure for selection and appointment on the post in questions in the Regulations referred herein before, his selection and appointment made by the Board can not be found faulty either being contrary to any existing statutory provisions of Regulations or any provisions of Act itself and held to be within the ambit of the provisions of aforesaid Regulations and Act itself, therefore the same cannot be held to be de hors the existing statutory Rules and provisions of the Act as distinguished from the Neeraj Awasthi's Case (supra) decided by Hon'ble Apex Court on 16.12.2005 except the period of appointment of petitioner and employees of the aforesaid case between 1.4.1996 to 30.10.1997, there appears no other similarity between the petitioner and employees involved in the aforesaid case. The employees of the aforesaid case were appointed without any sanctioned post though referable under aforesaid existing statutory regulations on ad hoc and daily wage, or casual basis without following the existing statutory rules rather de hors the existing statutory rules. In given facts and circumstances of the case, the approach of the respondents in drawing analogy of the aforesaid case merely on account of resemblance in period of appointment of petitioner appears to be not only erroneous and misconceived, but also malicious and cannot be held to be based on bona fide exercise of powers at all.
41. Besides this, the legality and validity of appointment of the petitioner was under challenge in earlier proceeding before this Court, in W.P. No. 34356 of 1999, which was tiled by petitioner against his termination from service vide order dated 28.6.99, in purported exercise of powers by the Respondent No. 3 under U.P. Temporary Government Servant Termination of Service Rules, 1975, which was allowed by Division Bench of this Court vide detail judgment and order dated 9.9.1999, holding the petitioner's appointment valid and well within the provisions of Act. In given facts and circumstances of the case, the decision tendered by this Court has attained finality between the parties on question in issue and there can be no scope for doubt to hold that the action of the respondents authorities are barred by the principles res judicata, waiver, estoppel and acquiescence thus the action of respondents authorities subjecting the aforesaid decision for further scrutiny at the strength of decision of Hon'ble Apex Court in Neeraj Awasthi's case is not permissible under law. The approach of respondents authorities in this regard while reopening and reagitating the same issue again and again besides misconceived and erroneous, also appears to be malicious and not bona fide under law. As held earlier the case of petitioner is neither covered by Neeraj Awasthi's case nor the services of petitioner could be treated to be temporary or on ad hoc basis instead thereof after expiry of one year maximum period of probation in absence of any adverse material regarding work and conduct of petitioner during the period of his probation found by appointing authority, his services shall be treated to be of a permanent and continued employee in the legal parlance and could not have been dispensed with in the manner indicated in the impugned order without holding any full-fledged disciplinary inquiry against him. In given facts and circumstances of the case the writ issued by this Court in earlier writ petition filed by the petitioner cannot be held to have lost its efficacy and rendered futile on account of decision rendered by Hon'ble Apex Court in Neeraj Awasthi's case (supra), and the same shall continue to bind the parties unless the decision is reversed in appeal or review, if at all permissible under law but since in given facts and circumstances of the case, we have held that the respondent authorites have already waived and acquiesced their right to challenge the aforesaid decision and bar of principle of res-judicata would also apply and since decision of Hon'ble Apex Court in Neeraj Awasthi's case is also distinguishable on facts and does not furnish any legitimate ground to re-open the dispute against earlier decision of this Court even in appeal or review against the aforesaid decision therefore, the respondent authorities has no authority to interfere in the functioning of the petitioner except in accordance with the provisions of law.
42. Thus the observations recited in the impugned order dated 28.1.2006 contrary to our observations made herein before are wholly erroneous, misconceived and not sustainable in the eye of law and liable to be quashed. Accordingly the impugned order dated 28.1.2006 is hereby quashed. In the result, the petitioner is reinstated in service with all consequential benefits of continuity of service and arrears of salary and other admissible allowances attached to his post. His services shall be treated to be regular and confirmed and cannot be treated to be temporary or on ad hoc basis in view of observations made herein before.
43. Thus in view of aforesaid discussions and observations made herein before, the respondents are directed to reinstate the petitioner forthwith in service by treating him to be continued in service with all consequential benefits of service admissible to the post held by the petitioner. The respondents are further directed to pay the arrears of salary of the petitioner for the period in which he has not been paid his salary and other admissible allowances on account of impugned order dated 28.1.2006 passed against him within a month from the date of production of certified copy of this order produced before the Respondent No. 3 and further directed to pay continuously his salary regularly month to month as and when it becomes due to him and also permit him to continue on his post unless his services are dispensed with as a measure of disciplinary action taken against him.
44. Before parting with the judgment, we wish to observe that in para 30 of the writ petition, it is also alleged that respondent No. 4 is working as Legal Advisor of Mandi Parishad since 1.2.1990. after his retirement from Higher Judicial Service in the year 1989 and likely to attain his age about 80 years. The post on which he is now working in Mandi Parishad has neither been sanctioned by the State Government nor he can be otherwise engaged in the capacity in which he is working and admittedly drawing fixed salary in tune of Rupees 20,000/- twenty thousand per month from Mandi Parishad along with other admissible allowances to the aforesaid post, but on account of his old age, and other physical, disability, he cannot discharge the duties and responsibilities of his post, and inspite of request of respondent No. 3 in year 2001, for posting a Legal Advisor in Mandi Parishad from amonst the members of Higher Judicial Service no posting has been made so far by the Government. On the basis of aforesaid averments the petitioner has tried to draw support for his case. But since we have already examined the case of petitioner independently, therefore, we need not to examine this matter for the said purpose. However, on the basis of the aforesaid averments it appears that respondent No. 4 is working and continuing on the aforesaid post and drawing aforesaid amount of salary and other admissible allowances from Mandi Parishad, which is public corporation owned and controlled by the State Government, but in absence of sufficient pleading and relief against the respondent No. 4 no further inquiry can be made at this stage and same can be examined in appropriate case.
45. With the aforesaid observations and directions, the writ petition succeeds and allowed with costs payable to the petitioner. In given facts and circumstances of the case a sum of Rs. 5000/- cost would meet the requirement and ends of justice.
46. The respondents are further directed to pay aforesaid sum of cost to the petitioner along with arrears of salary to be paid to him.