Heard Sri Anil Tiwari, learned counsel for the petitioner and Sri Samir Sharma, learned counsel for the respondents.
The petitioner herein was appointed as routine grade clerk in the High Court along with 13 other persons vide orders of the Registrar General dated 01.09.2004 on the same terms and conditions. The appointment was on ad hoc basis with the condition that he was permitted to appear in the examination/ test to be held for direct recruitment of routine grade clerks and his appointment would be regularised and confirmed only if he was selected in that examination/ test. This condition existed in the appointment orders of all the 14 persons. Six other persons were appointed on various dates, whose appointment order did not mention the word 'Ad Hoc'.
Prior to such appointment, an advertisement was issued for selection on the same post in March, 2004.
One Devendra Kumar Pandey, who claimed to be eligible for consideration as per the aforesaid advertisement filed a writ petition before this court being Civil Misc. Writ Petition No.45922 of 2004 praying for a writ of certiorari for quashing the appointments of respondents No.3 to 14 therein, vide orders dated 26.07.2004, 01.09.2004 and 02.09.2004 (Annexures No.2, 3, 4, 5 & 6 to the writ petition) and other similarly situated employees, if any. His claim was that the respondents should hold the recruitment as per the advertisement issued in March, 2004.
The memo of the said writ petition is annexed with the writ petition, which shows that the respondents No.3 to 14 were those who were appointed along with the petitioner on 01.09.2004 and four others, whose order of appointment did not mention the word ad hoc.
The petitioner was not impleaded as respondent, but the fact is that in the relief clause, relief had been sought for quashing the appointment of 'other similarly situated employees, if any'.
Ultimately, the advertisement referred above was cancelled.
The aforesaid writ petition came up for hearing and the same was decided vide judgment dated 27.07.2007. This court observed that once the advertisement had been cancelled and the writ petition had not been amended, the cause of action in favour of the petitioner therein did not survive any further. The court also took note of the fact that a fresh advertisement had been issued on 31.07.2006, but the petitioner therein had not applied pursuant thereto. The service Rules had also undergone a change, according to which, the requisite qualifications had also undergone a change. In fact, the cadre of routine grade clerk was declared as a dead cadre and its employees were merged in the new cadre of Assistant Review Officer, for which new Rules prescribing new qualifications had been prescribed. For the aforesaid reasons, this court held that the petitioner therein was not entitled to any relief, however, referring to the Constitution Bench judgment of the Supreme Court reported in Secretary, State of Karnatka and others Vs. Uma Devi (3) and others, 2006 (4) SCC 1 held that appointments made by Hon'ble Chief Justice in exercise of his powers under Rules 41 & 45 of the Allahabad High Court Officers and Staff (Condition of Service and Conduct) Rules, 1976, i.e. the respondents before the court, will be subject to regular selection by direct recruitment in accordance with Rule 8 of the Service Rules and these appointees will not be confirmed and regularised.
Being aggrieved the respondents therein, who were similarly situated to the petitioner herein filed special appeal before a Division Bench of this court challenging the aforesaid judgment dated 27.07.2007. The High Court on the administrative side also felt aggrieved and also filed a special appeal against the said judgment. Both the aforesaid appeals were clubbed together and allowed vide judgment dated 20.09.2011.
A Division Bench of this court held that the appointments in question were validly made, therefore, the observations in Uma Devi's case were not attracted. It also held that once the cadre of routine grade clerks had been declared a dead cadre and a new cadre had been created, for which new Rules had been framed, the conditions mentioned in the appointment order of the appointees dated 01.09.2004 etc. became redundant. The Division Bench was of the view that once the learned Single Judge had held that the petitioner therein was not entitled to any relief in view of the change in circumstances and his failure to amend the writ petition, the same should have been dismissed, and that, it erred in proceeding to make the observations in the operative portion of the judgment based upon the Constitution Bench Judgment in Uma Devi's case.
The Division Bench considered the scope of the powers of Hon'ble the Chief Justice under Rules 41 & 45 of the Rules of 1976 in the light of various decisions and held that the Chief Justice was empowered to make such appointments and as the same had been made as per the relevant Rules, therefore, they were not illegal nor irregular. Accordingly, the directions given by the learned Single Judge in para-21 of the impugned judgment dated 27.07.2007 following the observations of the Supreme Court in Uma Devi's case were set aside. The writ petition was treated to be dismissed on the basis of the observations of the learned Single Judge himself in the earlier paragraphs of the impugned judgment. Registrar General of this court was directed to take appropriate steps with regard to confirmation/ regularisation and consequential relief to the employees.
A review petition was filed by the High Court, which was dismissed on 08.11.2012, inter alia, with the observation that the judgment in question had already been given effect to and all the concerned employees had been confirmed/ regularised and given consequential reliefs by way of promotion etc. vide various orders.
Pursuant to the judgment of the Division Bench dated 20.09.2011, a meeting of the concerned Committee of the High Court on the administrative side was held on 31.05.2012, wherein, out of the 14 persons referred hereinabove, seven who were respondents before the writ court and appellants in appeal were given benefit of regularisation/ confirmation etc., whereas, the remaining seven persons were treated differently. In respect to them, it was stated that as no rule had been framed by the High Court for regularisation of ad hoc employees, therefore, as per sub-clause (2) of Rule 40 of the High Court Rules, the Regularisation Rules applicable to the State Government employees were applicable and, as, the High Court had not issued any order of modification, variation and exception, therefore, the same were applicable without any modification and since the said seven persons including the petitioner did not fall within the date mentioned therein, i.e. 30.06.1998, therefore, they cannot be given benefit of regularisation. The four respondents before the writ court who were not even appellants in the appeal as referred hereinabove were also treated similarly to the seven appellants referred to hereinabove.
The petitioner herein submitted a representation to the High Court on the administrative side dated 19.09.2012 seeking confirmation on the post of routine grade clerk with all consequential benefits including promotion from the date of promotion of his juniors as has been done in the case of similarly situated persons. In the representation, the petitioner referred to the benefit given to the seven other persons, who were similarly appointed vide order dated 01.09.2004 and were respondents in the writ petition filed by Devendra Kumar Pandey and were appellants before the Division Bench, as already referred hereinabove. The representation also referred to the similar treatment having been given to six other persons, who were appointed without there being any stipulation in their appointment about their appointment being ad hoc. He referred to the judgments of the learned Single Judge dated 27.07.2007 and the judgment of the Division Bench dated 20.09.2011 and sought similar reliefs.
On receipt of the decision of the Committee dated 31.05.2012, the Hon'ble Chief Justice passed an order on 01.06.2012 referring the matter of all such employees, who could not get benefit of the said judgment dated 20.09.2013, including that of the petitioner to the Rules Revision Committee which, on 27.05.2013, took a decision as quoted in paragraph-12 of the counter affidavit of the respondents and pursuant thereto, the impugned order was passed indicating the last three lines thereof, which stated that 'Committee recommends that those have become over-age be given relaxation in age in the next examination provided they possess minimum qualification for appointment'. The relevant extract of the decision of the Committee dated 27.05.2013 as quoted in paragraph-12 shows that the Committee had taken into consideration the conditions mentioned in the appointment order regarding appearance in examination and also the fact that the Regularisation Rules for class-III employees provided for a cut off date, i.e. 20.12.2001, but the petitioner and others, who had represented likewise did not fall within the said cut off date.
Being aggrieved, the petitioner has filed this writ petition.
The court was informed during the course of argument that six other persons, who had also represented and whose representations had been rejected likewise had approached this High Court sitting at Lucknow and their writ petitions are still pending. Learned counsel for the petitioner also informed the court that, as, fresh advertisement was issued by the respondents on 19.07.2014 for filling up the vacant posts in question, therefore, a writ petition being W.P. No.5288 (S/S) of 2013 was filed at Lucknow, wherein, an interim order had been passed on 25.08.2014 to the effect that though the selection for the post of routine grade clerk, pursuant to the advertisement dated 19.07.2014, may go on, but, the result of the same shall not be declared. A copy of the said order was placed before the court.
The contention of Sri Tiwari, learned counsel for the petitioner is that the petitioners were similarly situated to the seven persons who have been given the benefit of confirmation and further promotion in pursuance to the judgment of the Division Bench dated 20.09.2011, therefore, there is no reason as to why the petitioner should be treated differently. Learned counsel invited the attention of the court to one of the appointment orders of the other persons, which is annexed as part of Annexure-3 and the appointment order of the petitioner, which is also annexed with the writ petition, to show that except for the difference in the name, all the orders were verbatim similar, with the same terms and conditions.
He invited the attention of the court to the decision of the Committee pursuant to the judgment of the Division dated 20.09.2011 to impress upon that the committee decided to treat the seven 'representationists', who were respondents in the writ petition and appellants in the special appeal, referred above, as, on probation for one year from the date of their initial appointment and as confirmed on the expiry of the said period, the six persons, whose appointment orders did not contain words 'ad hoc' and who did not prefer any appeal against the judgment of the learned Single Judge dated 27.07.2007 were given similar benefits. However, the remaining seven persons including the petitioner were dealt with differently.
The contention is that the High Court completely failed to appreciate that the seven persons including the petitioner, who were not parties in the writ petition and were not appellants in the special appeal were similarly situated to those who were parties therein and once the Division Bench upheld the appointment of others as being legal entitling them to confirmation/ regularisation, then the same benefit was required to be extended to these persons also, and there was no rational distinction for treating them differently as has been done by the Committee, vide decision dated 31.05.2012.
Learned counsel further submitted that out of the six persons, who were not similarly situated to the 14 persons, referred to hereinabove, only four were respondents in the writ petition and none of them filed special appeal against the judgment dated 27.07.2007, yet, all the six of them were extended the same benefits by treating them as on probation for a period of one year from the date of their initial appointment and as confirmed on completion of the aforesaid probation, under Rule 33. The contention is that the petitioner was entitled to similar treatment under Rule 33.
On the other hand, Sri Samir Sharma, learned counsel for the High Court submits that a perusal of the Division Bench judgment dated 20.09.2011 will show that the same was applicable only to the employees who were parties thereto, as is evident from the use of the word 'employees hereunder' in the last line of the said judgment. In this context, he also invited the attention of the court to the judgment dated 08.11.2012 passed in the review petition filed by the High Court, wherein, this court had taken notice of the fact that the judgment had been given effect to and all the concerned employees had been confirmed/ regularised. Based thereon it was contended that this court clearly meant that the said judgment dated 20.09.2011 was only confined to the parties therein and not others.
The learned counsel invited the attention of the court to paragraphs-8, 9, 10, 11 & 12 of the counter affidavit filed by the respondents in support of his contentions. The contention of the learned counsel is that as the petitioner did not file any special appeal against the judgment of the Single Judge dated 27.07.2007, therefore, the benefits under the judgment passed in special appeal were not liable to be extended to him and the decisions of the respective committees in this regard did not suffer from any error. Consequently, the impugned order passed pursuant to the same does not warrant any interference.
In rejoinder, Sri Tiwari submitted that the reliance being placed by the learned counsel for the respondent upon the words 'employees hereunder' mentioned in the judgment of the appellate court, as also mentioned in the counter affidavit, does not find any mention in the earlier decision of the Committee dated 31.05.2012 nor in the subsequent decision dated 27.05.2013, therefore, the same is by way of an afterthought, as such impermissible. He further submitted that even out of the six persons, whose appointment order did not mention the words 'ad hoc', only four were respondents in the writ petition and none filed special appeal against the judgment dated 27.07.2007, yet, the respondents have extended the benefit of the said judgment to all the six persons. The petitioner herein was similarly situated to the seven representationists referred in the decision of the Committee of the High Court dated 31.05.2012 and there was no reason for treating him differently.
He further submitted that as the High Court had also filed a special appeal against the judgment dated 27.07.2007, therefore, there was no need for the petitioner to file such an appeal as his interest was being looked after and protected by the High Court itself, therefore, the contention to the contrary on behalf of the respondents is not acceptable. He contended that the seven 'representationists' have not only been confirmed but have been promoted to the next higher post of Review Officer and the petitioner is also entitled to the same benefit.
There is no doubt about the fact that the petitioner herein and the seven representationists, as referred in the decision dated 31.05.2012, who were respondents in the writ petition filed by Devendra Kumar Pandey, were similarly appointed by verbatim similar orders of the same date, on the same terms and conditions. Except for the difference in the name, the appointment orders did not differ in any manner. It is also not in dispute that when Devendra Kumar Pandey filed the Writ Petition No.45922 of 2004, he sought the quashing of appointment orders of respondents No.3 to 14 dated 01.09.2004, 02.09.2004 and 26.07.2004 and 'other similarly situated employees, if any'. For the reasons best known to him, he impleaded only some of the appointees excluding the petitioner herein but claimed relief against all of them.
In any case, the subject matter in issue in the writ petition was the validity of the appointments made by the respondents and if the court had held that they were illegal, then obviously the petitioner's (herein) appointment would also have been rendered illegal as it was also on the same terms. After the passing of the judgment dated 27.07.2007, the aggrieved respondents (therein) filed special appeal. The High Court on the administrative side also filed special appeal. In special appeal, the Division Bench categorically held such appointments to be legal and valid having been made as per Rules and also that the Chief Justice was empowered to do so. The relevant observations of the Division Bench are as under:
"In the instant case, High Court, which is the employer, and the employees, who have been appointed by the then Hon'ble the Chief Justice and whose appointments were challenged in the writ petition, both are aggrieved by the same order of the learned Single Judge and have preferred these appeals independently from the same order, therefore, it can be safely construed that there is no conflict of interest between the High Court as an employer and its employees. Against this background, we have to see whether passing of such order at the instance of the respondent/writ petitioner, who had no locus, was justified or not. At least the ratio propounded in 2001 (10) SCC 447 (Mohd. Shafi Pandow Vs. State of J&K and others), 2003 (8) SCC 567 (Chairman & MD, BPL Ltd. Vs. S.P. Gururaja and others), 2006 (3) SCC 758 (Gurpreet Singh Bhullar and another Vs. Union of India and others), 2008 (3) SCC 512 (K. Manjusree Vs. State of Andhra Pradesh and another) and 2009 (1) SCC 386 (Mukul Saikia and others Vs. State of Assam and others) does not say so.
Admittedly, appointment of the appointees, who are either appellants or respondents in these appeals, were made on adhoc basis by the then Hon'ble the Chief Justice in the year 2004 under Rules 41 and 45 of the Rules, 1976. Rules 41 and 45 of the Rules, 1976, which are relevant for the purpose, are as follows:
"41. Residuary powers.-- Nothing in these rules shall be deemed to affect the power of the Chief Justice to make such orders, from time to time, as he may deem fit in regard to all matters, incidental or ancillary to these rules, not specifically provided for herein or in regard to matters as have not been sufficiently provided for:
Provided that if any such order relates to salaries, allowances, leave or pension, the same shall be made with the approval of the Governor of U.P."
"45. Notwithstanding anything contained in these rules, the Chief Justice shall have the power to make such orders, as he may consider fit, in respect of recruitment, promotion, confirmation or any other matter."
The preamble of the Rules, 1976 speaks that in exercise of the powers conferred by Clause (2) of Article 229 of the Constitution of India, the Chief Justice of the High Court of Judicature at Allahabad makes the following rules with respect to the conditions of service of persons serving on the staff attached to the High Court of Judicature at Allahabad. The appointments under challenge made on adhoc basis appear to be on the post of Routine Grade Clerk. Source of recruitment on Class-III posts as per Rule 8(a)(i), substituted by notification dated 27th October, 1989, is that direct recruitment will be made through competitive examination conducted by the Appointing Authority or in any manner so directed by the Chief Justice. Therefore, the appointments of such employees are as per the respective rules.
So far as Constitution Bench judgement of the Supreme Court in Uma Devi (supra) is concerned, it criticised passing of orders by the Courts regularising the services through back door process making burden on the Union of India or the State only out of sympathy for the continuance of service ignoring the process of appointment. In this case employer and employees are not in dispute. Even the Supreme Court in Uma Devi (supra) has eliminated irregular appointments under certain circumstances from illegal appointments with the intervention of orders of the Courts or of tribunals.
Moreover, by an order of the then Chief Justice dated 19th October, 2005 the cadre of Routine Grade Clerk was declared as dead cadre as per Rule 40 (3) of the Rules, 1976 and merged with the cadre of Assistant Review Officer (Lower Division Assistant in the pattern of civil secretariat). As a result whereof, the condition stipulated in the appointment letters of all the incumbents working as Routine Grade Clerk looses force. A deponent on the part of the Registry of the High Court has stated that by virtue of merger of the posts of Routine Grade Clerk with the Assistant Review Officer and the advertisement as made on 17th April, 2004 for 79 posts of Routine Grade Clerks having been cancelled, no recruitment can be made to such posts and accordingly, holding of any regular selection by direct recruitment to the post of Routine Grade Clerk does not arise. It has been contended by the appellants that the adhoc appointments as made in the case herein are neither temporary nor contractual nor casual, as was in the case of Uma Devi (supra). Moreover, such appointments are neither illegal nor irregular but in accordance with the relevant Rules and powers of the Chief Justice of a High Court. Such power is sovereign and plenary in nature, which can not be questioned with the reference of Uma Devi (supra). Learned Counsel appearing for the respondent-writ petitioner has only contended that he has nothing to say with regard to availability of power of the Chief Justice but with regard to use of such power of the Chief Justice.
Upon hearing the parties, it can be construed that when the Chief Justice is empowered to appoint a person under the Rules framed in exercise of powers conferred under Article 229 (2) of the Constitution of India, the appointment of the person can not be said to be illegal or irregular. .................................
Thus, in totality, both the appeals succeed and are allowed. The direction given by the learned Single Judge in Paragraph-21 of the impugned judgement dated 27th July, 2007 following the observations of the Supreme Court judgement in Uma Devi (supra) stands set aside. The writ petition is treated to be dismissed on the basis of the observations of the learned Single Judge himself in the earlier paragraphs of the impugned judgement. Registrar General of this Court is hereby directed to take appropriate steps with regard to confirmation/ regularisation and consequential relief of the employees hereunder.
However, no order is passed as to costs."
This court is not in any doubt that the observations of the Division Bench, referred hereinabove, regarding the validity of the appointments and the entitlement of such appointees to confirmation/ regularisation is applicable to all such appointees, and there is no rational basis for making any distinction in this regard.
So far as the use of the words 'employees hereunder' in the last line of the said judgment is concerned, I have perused the decision of the Committee dated 31.05.2012 taken pursuant to the aforesaid judgment dated 20.09.2011 and I do not find any distinction having been drawn by the Committee based on the aforesaid ground. Thus, it is clearly an afterthought, a post facto attempt to justify a prior action, which is impermissible. The validity of an action impugned is to be judged on the basis of the reasons mentioned in the impugned order/ decision, which cannot be allowed to be supplemented by means of a counter affidavit, therefore, this plea is not open to the respondents. Reference may be made in this regard to the judgment of the Supreme Court in the case of Mohinder Singh Gill Vs. The Chief Election Commissioner, 1978 (1) SCC 405, para-8 of which is quoted hereinbelow:
"The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji (1) "Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."
Orders are not like old wine becoming better as they grow older: "
Mere use of the words 'employees hereunder' does not mean others similarly situated are to be deprived of similar benefits.
It is trite that judgments of the court are not to be read as statutes. Before the Division Bench, it was not an issue as to whether the benefit of regularisation/ confirmation etc. is to be confined to only those who were parties in the writ petition and the appeal or it was to be extended to others also, therefore, the said judgment can not be read or understood to mean that the benefits therein were to be confined to the parties therein. It is the ratio of the judgment, which is to be read and understood. The issue before the Division Bench was the validity of the appointments, which was upheld. It is also trite that once the legal position has been settled by the High Court in a writ petition at the behest of some persons, then other similarly situated should be extended the same benefit instead of being compelled to approach the court for the same relief. Reference may be made in this regard to a Divison Bench judgment of this court reported in R.N. Dixit Vs. State of U.P., 1983 (1) LCD 201, in para-3 of which it has been held as under:
"3. A qualifying examination for promotion of Junior Engineers, to the post of Assistant Engineers was held in 1970. The Government took a decision to allow grace marks upto 9 in respect of candidates of irrigation department and not to P.W.D., whereupon five persons filed two writ petitions nos.690 of '78 and 1523 of '78 complaining of discrimination. These writ petitions were allowed on 08.04.1982 by this court and the government was directed to consider the case of the petitioners who belonged to the P.W.D., by allowing grace marks, such as was done in respect of officers of the irrigation department. The state government has, accordingly, declared those petitioners passed after allowing their 9 grace marks. This order dated 3.2.83 is Annexure 4 to this writ petition. Petitioner is one of the remaining officers of the P.W.D. who could have succeeded if 9 grace marks were allowed. The state government has, however, given the benefit only to the persons who had earlier approached this court and not to persons who were similarly situated and had failed to approach this court. We find no justification for the government decision to deny the benefit of the decision in 'Madan Gopal Popli Vs. State' (Writ Petition No.1523 of 1978) to persons who were similarly situated with the petitioners of that case. Once the legal position is declared by this court and the same is not challenged before the Hon'ble Supreme Court, it is obligatory on the State Government to given effect to the law so declared. We, therefore, allow the Writ Petition and direct that the case of the petitioner and also of other persons similarly situated be dealt with after allowing them the benefit of 9 grace marks in respect of 1970 qualifying examination and to declare the result accordingly, at an early date, being, within a month from today."
The petitioner was not made a party in the writ petition filed by Sri Devendra Kumar Pandey, though he claimed relief against similarly situated persons. Whether petitioner herein can be faulted or made to suffer on account of the above. The answer is in the negative. The High Court having already challenged the order of the Single Judge dated 27.07.2007, obviously the rights and interests of the petitioner herein were being looked after and were protected in its special appeal.
It is also important to note that out of the six persons whose appointment order did not mention the words 'ad hoc', only four were respondents in the writ petition and none of them filed special appeal against the judgment dated 27.07.2007, yet, the Committee extended the benefit of the Division Bench judgment dated 20.09.2011 to all the six persons.
On a perusal of the decision dated 31.05.2012 taken by the High Court on the administrative side pursuant to the judgment dated 20.09.2011 reveals that the High Court did not at all consider and failed to appreciate that the remaining seven persons including the petitioner were similarly situated to the seven 'representationists', referred therein, nor did it draw any distinction on the ground that the remaining seven were not entitled to the benefit of the judgment as they were not parties to the said proceedings. The Committee simply treated these seven persons differently without considering as to whether they were similarly situated and entitled to same benefit. I am of the view that it erred in doing so.
The decision of the High Court on the administrative side dated 27.05.2013 also does not consider the issue of these persons being similarly situated to the seven 'representationists', instead, it refers to the conditions of appointment mentioned in their appointment order, ignoring that the Division Bench, vide its judgment dated 20.09.2011, had already held that those conditions have lost force and these observations of the Division Bench are applicable as much to the appointment letter of the petitioner as to that of others who were before it. The said observations have become final. The review petition had been dismissed. This court has been informed that no special leave petition was preferred.
In my view, what has been held by the Division Bench in respect of the seven 'representationists', is applicable to the petitioner herein also and there is no rational basis for treating him differently. The respondents have erred in treating him so.
In view of the above discussion, the impugned order cannot be sustained. The same is accordingly quashed. The respondents are directed to extend the same benefits as has been extended to the seven 'representationists' as referred by the High Court in its decision dated 31.05.2012 pursuant to the judgment dated 27.07.2007 and the judgment dated 20.09.2011. The petitioner shall also be entitled to consequential benefits as has been granted to the said persons. This exercise shall be done within a period of two months from the date a certified copy of this order is produced before the competent authority. The writ petition is allowed in the aforesaid terms.
Order Date :- 31.10.2014 NLY