1. Both the writ petitions are between the same parties, involving common questions of fact and law, therefore, as requested and agreed between learned counsel for parties, have been heard together and are being decided by this common judgment.
2. By means of Writ Petition No.1443 (S/S) of 2005 (hereinafter referred to as "first petition"), petitioner Kedar Nath has sought a writ of mandamus, commanding respondents to treat him as having been appointed Routine Grade Clerk, in the applicable scale of pay, against vacancy occurred due to death of Sri Ram Pheran Misra, since the date of his appointment with all consequential benefits; give him revised pay scale from time to time along with arrears with interest, and, also due promotion on higher post, as and when fell due.
3. The petitioner claimed to have been appointed on 27.07.1989 as Routine Grade Clerk vide letter of appointment dated 27.7.1989, issued by the Principal, Feroze Gandhi College, affiliated to University of Kanpur (hereinafter referred to as "The University") against substantive vacancy, occurred due to death of Ram Pheran Misra. Since then he was working and has also been issued experience certificates on 15.05.1990, 20.11.1990, 11.02.1995, 11.06.1996, 22.01.1997, 27.08.1998, 04.08.1999, 20.10.2000, 19.07.2004 and 17.01.2005. The aforesaid certificates show that he is working as a Routine Clerk/Typist on temporary basis. As per certificate dated 22.01.1997, he was getting a fixed salary of Rs.1000/- per month, which was increased to Rs.2000/- as is evident from certificate dated 20.10.2000, to Rs. 2750/- vide certificate dated 19.07.2004 and further to Rs.3000/- vide certificate dated 17.01.2005. He has also stated that as per letter dated 16.12.1995, sent by Principal of the college Feroze Gandhi College, Rae Bareli (hereinafter referred to as "College") to Director of Education (Higher Education), U.P. Allahabad (hereinafter referred to as "DE (HE)"), sanctioned posts of Clerk in the college were 9 while Principal of the college requested for further creation of 15 posts of Routine Clerks. Since petitioner has worked for more than 15 years continuously, he is entitled to be treated as regularly appointed Class-III employee in the college, and, for payment of salary in the pay scale of Rs.430-950, in which Sri Ram Pheran Misra was working at the time of his death in 1989. The State Government had followed the policy of regularization even for Daily Wage 'Group C' employees by framing Rules under proviso to Article 309 of the Constitution, i.e. U. P. Regularization of Daily Wages Appointments on Group-C Posts (Outside the Purview of U.P. Public Service Commission) Rules, 1998 (hereinafter referred to as "Rules 1998"). Following the aforesaid principle, the petitioner is also entitled to regular appointment. Complaining that petitioner has not been paid salary in the regular pay scale, though is entitled for the same, looking to continuous service rendered on Class-III post. The same has been denied illegally. He has also said that Principal of College proceeded to make regular appointment of Routine Clerk in the scale of Rs. 950-1500 and sought District Employment Officer, RaeBareli to forward names of eligible candidates, vide letter dated 21.05.1992. Therein the name of petitioner was also recommended but the selection was postponed and has not been carried out at all.
4. Writ petition came up before the Court on 24.02.2005 when Hon'ble Rakesh Sharma, J. passed the following order:
"List after two weeks to enable the Ld. Standing Counsel for opposite parties no. 2 to 5 and Sri Altaf Mansoor for opposite party no. 1 to seek instructions."
5. While the first writ petition was pending, alleging that petitioner's working in the college has been obstructed by respondents, another writ petition no. 6456 (S/S) of 2005 (hereinafter referred to as "second petition") was filed, seeking a writ of mandamus that respondent-authorities should forthwith allow petitioner to discharge his normal duty on the post of Routine Clerk without any hindrance, in the same manner he was discharging since 27.07.1989, i.e. from the date of first appointment and pay salary and allowances, applicable to the cadre, with arrears w.e.f. April 2005.
6. Entertaining this writ petition, it was connected with first petition and the respondents were granted time to file counter affidavit.
7. In the counter affidavit filed on behalf of College, i.e. respondent no.1 in the first petition, it is stated that College is governed by the provisions of U.P. State Universities Act 1973 (hereinafter referred to as "Act 1973") and "First Statutes" of the University (hereinafter referred to as "the First Statutes"). Appointment and conditions of service of non-teaching staff of College is governed by Chapter 21 of the First Statutes. Procedure for appointment of Class III employee is specified in Statute 21.03 which contemplates advertisement of vacancy in newspapers and due selection by Selection Committee. Further, appointing authority of Class III employee in the College is Management and not the Principal who is appointing authority of Class IV employees only. The appointment is also subject to approval by D.E.(H.E.) since the College is in grant in aid from State Government. The College is run by Rae Bareli Degree College Education Trust, a private entity, registered under Indian Trust Act and is managed by a duly elected member of Management. Neither Trust receives any fund nor the State Government has any control over the affairs of said Trust in its own functioning. Only the College receives grant in aid and not the Trust. The petitioner was asked to work as a Clerk in the Trust by Managing Secretary of Trust, on fixed salary, on 27.07.1989. He was working in that capacity at a fixed salary of Rs. 3000/- at the time of filing of counter affidavit. He was never appointed in the College in any capacity. His salary is being paid from Trust Fund and not from the College fund. He is employee of the Trust and not the College. Photostat copies of certificates, payment vouchers of the employees of Trust have been filed collectively as Annexure-1 to the counter affidavit. 12 posts of Class III employees are sanctioned in the College which included one Office Accountant, one Office Superintendent and one Stenographer, leaving 9 posts for Routine Clerk. There is no vacancy against the sanctioned posts of Routine Clerk in the College. The petitioner is not an employee of the College. His salary is not paid through salary bill passed by District Inspector of Schools for payment of salary to teaching and non-teaching staff of the College from State Exchequer.
8. It is further said that Sri Ram Pheran Misra, Routine Clerk died on 18.04.1989, whereafter her daughter Chitra Mishra sought compassionate appointment under Statute 21.17 on 18.03.1997 and was appointed vide letter dated 18.03.1997, after approval granted by DE(HE). The entire claim set up by petitioner, therefore, has been seriously disputed by respondents.
9. In the rejoinder affidavit, petitioner has stated in para 5, that his appointment letter issued was duly signed by Office Superintendent and Principal of the College. He was paid salary by means of cheques drawn on College funds, under joint signature of Principal as well as deponent of counter affidavit, i.e., Managing Secretary. He has not disputed that College is aided by State Government and governed by 1973 Act as well as First Statutes framed thereunder. It is also not disputed that the College is being managed by the Trust. Heavy reliance was placed on letter of appointment dated 27.07.1989 and various experience certificates issued by Principal of College, from time to time, which have collectively been filed as Annexure-2 to the first petition. It is denied that the petitioner has worked in the Trust or for the Trust, at any point of time, or appointed in the Trust. Appointment of daughter of (late) Ram Pher Mishra, on compassionate basis, on 18.03.1997, is not disputed but it is said that she was not appointed in the vacancy caused due to death of Sri Ram Pher Mishra, which might be against a supernumerary post, otherwise she could not have been appointed without terminating petitioner. Since the petitioner was never terminated, therefore, it shows that Ms. Chitra Misra, daughter of (late) Ram Pher Mishra was not appointed in the vacancy in which petitioner was working. It is said that respondents are actually exploiting the petitioner in various ways.
10. I have heard Sri K.K. Gautam, learned counsel for the petitioner, Sri Mohit Chandra, Advocate, holding brief of Sri Altaf Mansoor, learned counsel for respondent no.1 and learned Standing Counsel for respondents no.2 to 5.
11. Three questions have directly cropped up in this matter which require adjudication by this Court:
I. Whether petitioner has any right to a Class III post in the College ?
II.Whether petitioner was ever validly appointed on Class III post in the College ?
III.Whether petitioner is entitled to be treated as regularly appointed Class III employee with all consequential benefits since the date of his alleged appointment ?
12. For the purpose of answering aforesaid three issues, for the time being, this Court is proceeding on the claim of petitioner that he was appointed in the College by Principal vide letter of appointment dated 27.07.1989 and working since then. It is only when the above questions are answered in favour of petitioner, necessity may arise to consider more basic questions raised by respondents that the petitioner was never appointed in the College and was actually employed in Trust and therefore, writ petition is not maintainable.
13. Questions no. 1 to 3 can be looked into together. It is not in dispute that appointment on a Class III post in the College is governed by statutory provisions contained in Chapter 21 of First Statutes of the University. Relevant statutes for the purposes of this case, read as under:
"21-02 (1) Subject to the provisions of these Statutes the appointment to the posts referred to in Statute 21.03 shall be made by the management of the college and appointment to the posts of class four employee shall be made by the Principal. [Section 69 (0)]"
"21.03 [(1) Appointment to the post of Librarian, Deputy Librarian, Physical Education Instructor, Pharmacist, Routine Clerk or any other post either in the pay scale of, or in a pay scale higher than that of, routine Clerk other than the posts mentioned in clause (2) or clause (3) shall be made by direct recruitment on the recommendation of selection Committee in the manner provided in clause (6) after advertisement of the vacancy in the newspapers."
"(4) Appointment of employees shall be subject to the approval of the Director of Education (Higher Education), or an officer authorized by him in this behalf. If the approving authority does not within two months from receiving the proposal for approval intimate its disapproval or does not send in respect of such proposal, any intimation to the appointing authority the approving authority shall be deemed to have approved the appointment."
"[(6) (a) The Selection committee for appointment to the post of Librarian, Deputy Librarian or Physical Training Instructor shall consist of :-
(i)the Head of the management or a member of the management nominated by him, who shall be the Chairman;
(ii)the Principal of the College;
(iii)one officer to be nominated by the Director of Education (Higher Education).
(b) The Selection Committee for the appointment to the remaining posts referred to in clause (1) or clause (3) either by direct recruitment or by promotion shall consist of-
(i) the Head of the management or a member of the management nominated by him who shall be the Chairman;
(ii) the Principal of the college;
(iii) the District Inspector of Schools;
(iv)the District Employment Officer or an Officer authorized by him in this behalf.
(c) For purposes of direct recruitment to the posts referred to in clauses (1) and (3), the vacancy shall be advertised in at least two newspapers having adequate circulation in Uttar Pradesh and names of suitable candidates, shall also be obtained from the concerned District Employment Officer.
(d) Names of candidates for appointment to a post in class four shall be obtained from the concerned District Employment Officer. In the event of non-availability of suitable candidate in such manner the post may be advertised.
(e) No employee shall be eligible for payment of salary from the Salary Payment Account unless the permission as contemplated by sub-clause (b) of clause (iii) of Section 60-A of the Act has been accorded.
(f) If the management does not agree with the recommendation of the Selection Committee, it shall refer the matter to the approving authority along with reasons of its disagreement, and the decision of the said authority shall be final." (emphasis added)
14. As per the own admission of petitioner, appointment letter has been issued by Principal, appointing petitioner on Class III post though power of appointment of Class III employee of the College, under First Statute, is vested with the Management of College and not the Principal. The Principal is a competent appointing authority only for Class IV employees. Moreover, appointment can be made with approval of DE (HE) but no such approval at any point of time had been sought or granted. It is also not stated anywhere either in writ petition or in the rejoinder affidavit, though has been specifically stated otherwise by respondent no.1, in the counter affidavit, that the First Statute provides a complete procedure for selection and appointment but it is not the case of petitioner that any such procedure was ever followed. There is neither any pleading nor material on record to show that Class III post on which the petitioner claims to have been appointed, was ever advertised, any selection was made by statutory selection committee and then he was appointed. No such procedure has been followed at all. When financial liability is to be borne by State Exchequer and statute provide for a procedure for appointment, which is consistent with Article 16 of the Constitution, no appointment made in utter disregard of such statutory procedure can be said to be a valid appointment, entitling an incumbent to claim salary or right to hold post.
15. Non publication of vacancy and non compliance of requirement of Article 16 of the Constitution of India makes the appointment illegal as held by Apex Court in Union Public Service Commission Vs. Girish Jayanti Lal Vaghela 2006 (2) SCC 482, wherein the Court observed that regular appointment to a post under the State or Union cannot be made without issuing advertisement in the prescribed manner, which would include inviting of applications from the employment exchange where eligible candidates get their names registered. Any regular appointment made on a post under the State or Union without issuing advertisement inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would violate the guarantee enshrined under Article 16 of the Constitution. The same view has been taken in Secretary, State of Karnataka Vs. Uma Devi 2006(4) SCC 1. In National Fertilizers Ltd. Vs. Somvir Singh 2006 (5) SCC 493 the Court observed that the "State" within the meaning of Article 12 of the Constitution is bound to comply with the constitutional mandate under Article 14 and 16. This Court has also followed the same view in a number of decisions of Division Bench including Special Appeal No. 1317 of 2003 (M.D./Chief Engineer U.P. Jal Nigam and others Vs. Sri Nath Singh and others) decided on 22.12.2006 and Special Appeal No. 867 of 1997 Tejpal Singh Verma Vs. State of U.P. and others, decided on 8.9.2008.
16. Even appointment letter has not been issued by competent appointing authority. The factum that petitioner has been paid salary from funds available to the College through the Principal, does not add to the concept of validity of appointment of petitioner unless the procedure prescribed in the statute is observed therefor.
17. It is well settled principle, if something is required to be done in a particular manner, anything done otherwise, is illegal and would not confer any right or benefit upon the incumbent who is claiming benefit or right on the basis of something which has not been done in the prescribed manner. This principle was recognized in Nazir Ahmad Vs. King-Emperor AIR 1936 PC 253 and, thereafter it has been reiterated and followed consistently by the Apex Court in a catena of judgements, which I do not propose to refer all but would like to refer a few recent one.
18. In Dhananjaya Reddy Vs. State of Karnataka 2001 (4) SCC 9 in para 23 of the judgment the Court held :
"It is a settled principle of law that where a power is given to do a certain thing in a certain manner, the thing must be done in that way or not at all."
19. In Commissioner of Income Tax, Mumbai Vs. Anjum M.H. Ghaswala 2002 (1) SCC 633, it was held :
"It is a normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself."
20. The judgments in Anjum M.H. Ghaswala (supra) and Dhananjaya Reddy (supra) laying down the aforesaid principle have been followed in Captain Sube Singh & others Vs. Lt. Governor of Delhi & others 2004 (6) SCC 440.
21. In Competent Authority Vs. Barangore Jute Factory & others 2005 (13) SCC 477, it was held :
"It is settled law that where a statute requires a particular act to be done in a particular manner, the act has to be done in that manner alone. Every word of the statute has to be given its due meaning."
22. In State of Jharkhand & others Vs. Ambay Cements & another 2005 (1) SCC 368 in para 26 of the judgment, the Court held :
"It is the cardinal rule of interpretation that where a statute provides that a particular thing should be done, it should be done in the manner prescribed and not in any other way."
23. The mere fact that the petitioner has worked for more than one and half decade on consolidated salary which has been increased from time to time, does not give rise to a presumption that he was employed on a post on which one is required to be appointed after following the procedure prescribed and therefore, I have no hesitation in holding that alleged appointment of petitioner on Class III post in the College was not valid and instead illegal and void ab initio, conferring no right or benefit upon him.
24. Counsel for petitioner vehemently contended that in view of Rules 1998 framed by State Government under Proviso to Article 309 of the Constitution, the petitioner is also entitled for regularization. The submission is totally misconceived and deserves to be rejected outright. Neither the College is a Department of State Government nor a Class III post sanctioned in the college is a civil post under the State Government. Provisions made under proviso to Articl 309 of the Constitution, therefore, are not applicable to the employees, teaching or non-teaching, of the College or even the University. Therefore, reliance placed on Rules 1998 is thoroughly misconceived and rejected.
25. Both the writ petitions lack merit and are dismissed with costs of Rs. Ten Thousand which shall be treated to be against one set of writ petition and payable to respondent no.1 by the petitioner.
Order Date :- August 21, 2014 Kushal/Akn.