JUDGMENT Tarun Agarwala, J.
1. Ram Kishore and fourteen others have filed a writ petition for the quashing of the order dated 7.3.2000 passed by the District Magistrate, Fatehpur, cancelling their appointments as Safai Karmcharis in Nagar Palika Parishad, Fatehpur.
2. The facts leading to the filing of the petition is, that the petitioners alleged that they were appointed as daily wagers in the year 1994 to perform the 'safai work' in the territory of Nagar Palika Parishad, Fatehpur and that, since then, they had been working as daily wagers. It was contended that the State Government issued a Government Order dated 26.6.1992 directing the Nagar Palika Parishad, Fatehpur to regularise the services of the Safai Karmcharis, who were working as daily wagers continuously for three years and who had worked for 240 days in a calendar year. It was alleged that there existed thirteen substantive vacancies on the post of Safai Karamchari and, accordingly, the Executive Officer, respondent No. 2 wrote a letter dated 5.4.99 to the Employment Exchange to provide a list of eligible candidates for filling up 13 posts of Safai Karmchari. It was also alleged that 11.4.1999 was fixed for the interview but the same was postponed. Subsequently, an advertisement dated 20.9.99 was published in the local newspaper dated 21.9.99 inviting applications for 15 posts of Safai Karmchari. The advertisement indicated that the interview would be held on 3.11.1999. It was alleged that the petitioners applied for the said post and were called for the interview. The petitioners appeared and were duly selected by a selection committee. An appointment letter dated 16.11.1999 was issued appointing them on a temporary basis for a period of one year. Based on the aforesaid appointment letters, the petitioner joined on 17.11.1999 and are working since then.
3. The petitioners alleged that a Corporator made a complaint dated 2.12.1999 and, on that basis, the District Magistrate, by an order dated 24.12.99, appointed the Chief Development Officer to conduct an inquiry. The Chief Development Officer conducted an exparte enquiry dated 27.2.2000 and, on that basis, the District Magistrate issued an order dated 7.3.2000 cancelling their appointments. Consequently, the writ petition.
4. On the other hand, Sri Virendra Kumar and 17 others filed a writ petition praying that they were working as Safai Karmcharis on daily rated basis since the year 1989 and had been performing their duties as safai karmcharis continuously for more than ten years and that their names are found in the muster roll registers. These petitioners contended that the Executive Officer clandestinely appointed 15 persons illegally without following the procedure and illegally dispensed their services. These petitioners have therefore, prayed for the quashing of the appointments of the said persons and for the stoppage of their payments and further prayed for a writ of mandamus commanding the respondents to regularise their services on the post of safai karmcharis in Nagar Palika Parishad, Fatehpur.
5. Heard Sri S.F.A. Naqvi and Sri A.K. Sand, the learned Counsels appearing for the petitioners in Civil Misc. Writ Petition No. 15413 of 2000, Sri Akhilesh Mishra, the learned Counsel appearing for petitioners, Virendra Kumar and others in Writ Petition No. 2864 of 2000, Sri I.S. Singh, the learned standing counsel for the State Government and for the District Magistrate and Sri P.K. Singh, the learned Counsel appearing for the Nagar Palilka Parishad, Fathepur and the Executive Officer.
6. Sri S.F.A. Naqvi, the learned Counsel for the petitioners Sri Ram Kishore and others submitted that the petitioners were appointed in accordance with the procedure provided under the U.P. Municipalities Act 1916 and that the appointing authority as well as the disciplinary authority is the Executive Officer and that the District Magistrate had no authority in law to cancel their appointments Consequently, the order of the termination of their services was wholly illegal and without jurisdiction. Further, no opportunity of hearing was provided to the petitioners nor a copy of the enquiry report was supplied to them. The learned Counsel further submitted that the findings given in the impugned order that no advertisement was issued was wholly incorrect and was against the material evidence on record and that the appointments were made pursuant to the Government Order dated 26.6.1992. It was further contended that even the procedure provided under the U.P. Municipal Board Servants [ Inquiry Punishment and Termination of Services ] Rules 1960 was not followed.
7. On the other hand, Sri Akhilesh Mishra, the learned Counsel for the other set of daily wagers in the connected writ petitions submitted that they had been working as daily wagers since 1989 and that they had completed more than ten years of continuous service and therefore they were entitled for the regularisation of their services, as per the Government Order dated 26.6.1992 and 28.10.1995 The learned Counsel further submitted that these persons had worked till 16.11.1999 when their services were illegally dispensed with, by an oral order, upon the appointment of the petitioners of Writ Petition No. 15413 of 2000. The learned Counsel further submitted that the appointments of these persons was wholly illegal and against the provisions of law. The said appointments were made in connivance with the Executive Officer and was liable to be quashed by the Court.
8. The learned standing counsel justified the order of the District Magistrate, Fatehpur and submitted that the District Magistrate had exercised the power under Section 34(1-A) and (1-B) of the U.P. Municipalities Act 1916. The learned standing counsel submitted that the power under Section 34(1-B) had been delegated to the District Magistrate vide Government Order dated 6.11.1998 and therefore, the District Magistrate, Fatehpur, upon finding that the Executive Officer had illegally issued the appointment orders, in contravention to the provisions of the Act, and which was prejudicial to the public interest and that the appointment orders was made in abuse of the powers and in flagrant breach of the provisions of law, was justified in cancelling the order of appointment. In support of his submission, the learned standing counsel has placed reliance upon a decision of this Court in [2003]52 ALR 535 Mahendra Kumar v. Executive Officer, Pilibhit and Ors.
9. Sri P.K. Singh, the learned Counsel appearing for the Nagar Palika Parishad and the Executive Officer, submitted that the order of the District Magistrate, Fatehpur, was wholly illegal and without jurisdiction and that the findings recorded in the impugned order of termination was wholly illegal and against the material evidence on record. The appointments on 15 posts of Safai Karmcharis was made in accordance with the provisions of the Act after following the procedure. The learned Counsel further submitted that the names of the eligible persons were invited from the Employment Exchange. An advertisement was published in the local newspaper and the interview letters were sent to almost 40 candidates and the best candidates were selected and given the appointments. Further, the petitioners of Writ Petition No. 2864 of 2000 never applied for the posts in question, consequently, they were not considered.
10. This Court had directed the Nagar Palika Parishad, Fatehpur to produce the original records. The records has been produced and has been perused by the Court.
11. The District Magistrate, Fatehpur in the impugned order held that no advertisement was issued for the appointment of the Safai Karmcharis and further found that the record of the Nagar Palika Parishad did not indicate the criteria for calling the candidates for the interview and that no names were called from the Employment Exchange of the eligible candidates and that no selection committee was constituted nor was there anything on the record, to show that the selection committee took the interview of the eligible candidates. Further, the District Magistrate found that the reservation policy was not followed while making the appointments.
12. Upon considering the submissions of the learned Counsel for the parties and upon perusing the material available on the record, the following facts emerges:
a] No proof has been submitted by the petitioners Sri Ram Kishore and others to indicate that they had been working as daily wagers since 1994.
b] On other other hand, proof has been submitted by the petitioners Virendra Kumar and others showing their names in the muster roll register for the period 1994-95 and 1997-98. The fact that they had been working as daily wagers has not been denied by the Nagar Palika Parishad.
c] The original records of the Nagar Palika Parishad, Fatehpur indicates that a letter dated 5.4.1999 was issued by the Executive Officer asking the Employment Exchange to forward a list of eligible candidates, but no list of eligible names was forwarded by the Employment Exchange.
d] The records shows that an advertisement was published in a local newspaper on 21.9.1999.
e] The record does not show the constitution of a selection committee. There are no proceedings of the selection committee nor there is any recommendation of the selection committee. Infact, there is no record of the proceedings of the selection committee. There is nothing to indicate that interview of the candidates was conducted by the selection committee.
[f] There is cutting and overwriting of the page number on every page of the original record placed before the Court. This over cutting clearly shows that the original record has not been placed before this Court and a new file was prepared for the purpose of the Court. The Court draws a presumption that the original record has deliberately not been placed by the Nagar Palika Parishad, Fathepur for vested reasons. This discrepancy was indicated by the court to the learned Counsel appearing for Nagar Palika Parishad, who had no answer to it.
13. In view of the aforesaid, it is clear that no proper procedure was adopted for the appointment of the Safai Karmcharis on the 15 posts in question, even though an advertisement was issued. No names were supplied from the Employment Exchange nor the existing daily wagers were taken into consideration nor any selection committee met for considering the eligible candidates. There is no constitution of he selection committee. There is no record nor any proceedings of the Selection Committee recommending the eligible candidates for the appointments. The original record has been tampered and the Nagar Palika Parishad has concealed material facts from the Court. It is therefore abundantly clear, that the appointments were made clandestinely by the Executive Officer. The attempt on the part of the Parishad to give some legal sanctity on the appointments made by the Executive Officer has failed miserably. In my view, the entire selection was wholly arbitrary and against the procedure. Such appointments are liable to be cancelled.
14. The learned Counsel for the petitioner submitted that even assuming that the appointments were made against the procedure nonetheless the said appointments could only be cancelled after following the procedure provided under U.P. Municipal Board Servants [ Inquiry Punishment and Termination of Services ] Rules 1960 and after providing an opportunity of hearing to the petitioners. In the present case, neither the procedure evolved under aforesaid Rules of 1960 was followed nor any opportunity of hearing was provided. Consequently, the impugned order of termination of their services could not be sustained. The learned Counsel for the petitioners further submitted that the District Magistrate had no jurisdiction or power to pass such an order cancelling their appointments. He was neither the appointing authority nor was the competent authority to pass such an order.
15. On the other hand, the learned Standing Counsel submitted that the District Magistrate had exercised the powers in exercise of the powers delegated by the State Government under Section 34 (1-B). In order to appreciate the submission of the learned Counsel for the respondents, it is necessary to quote the relevant provisions of Sections 34 of the U.P. Municipalities Act, 1916 which deals with the powers of the State Government or the Prescribed Authority or the District Magistrate to prohibit execution of or further execution of resolution or order of the Municipality. Section 34 (1-A) and (1-B) provides as under:
34. Power of State Government or the Prescribed Authority or the District Magistrate to prohibit execution of or further execution of resolution or order of [Municipality]:
[(1-A) The District Magistrate may, within the limits of his district, by order in writing, prohibit the execution or further execution of a resolution or order passed or made under this or any other enactment by a[Municipality] or a committee of a [Municipality] or a Joint Committee or any officer or servant of a [Municipality] or of a Joint Committee if in his opinion such resolution or order is of a nature to cause or tend to cause danger to human life, health or safety, or a riot or affray, and may prohibit the doing or continuance by any person of any act, in pursuance of or under cover of such resolution or order.] [(1-B The State Government may, on its own motion or on report or complaint received by order prohibit the execution or further execution of a resolution or order passed or made under this or any other enactment by a [Municipality] or a committee of a [Municipality] or a Joint committee or any officer or servant of a [Municipality] or of a Joint Committee, if in its opinion such resolution or order is prejudicial to the public interest, [or has been passed or made in abuse of powers or in flagrant breach of any provision of any law for the time being in force], and may prohibit the doing or continuance by any person of any act in pursuance of or under cover of such resolution or order.]
16. In Municipal Board, Kannauj v. The State of U.P. and Ors. , the Supreme Court held that once a resolution of the Board became operative, nothing remained further to be done under the said resolution which could be prohibited by an authority exercising its power under Section 34[1] of the Act. It was held that the authority was created for a limited purpose and where a power was given under a Statute to do a certain thing in a certain manner and if the same was not done in that manner, the authority had that power to prohibit the execution or further execution of the resolution or order, but it had no power to cancel or set aside the resolution or order of the Board.
17. The Supreme Court, in Municipal Board Kannauj [supra] interpreted the provisions of Section 34[1-B] as it stood before its amendment by U.P. Act No. 26 of 1964. The words "or has been provision of any law for the time being in force" was added by the amendment. The view expressed by the Supreme Court in the aforesaid case was followed in Har Pal Singh v. State of U.P. and Anr. AIR 1977, Alld. 302 in which the Division Bench was concerned with a compromise entered into by the Board with a third party and in pursuance of a resolution passed by the Board. The Division Bench held that Section 34[1-B] after the amendment empowered the State Government to cancel a resolution.
18. In the present case, illegal appointments were made by the Executive Officer in abuse of its powers and such abuse of the powers can be restricted by the State Government. In my opinion, the State Government can restrain such authority not only to act further but can cancel the appointment while exercising its powers under Sub-section [1-B], Such an exercise of power by the State government falls within the purview of the words "may prohibit the doing or continuance by any person of any act in pursuance of or under cover of such resolution or order."
19. Admittedly, the power of the State government under Section 34[1-B] was delegated to the District Magistrate by a Government Order dated 6.11.1998. As I have already held earlier, that the entire selection was wholly illegal and was against the procedure, consequently, the District Magistrate while exercising the powers of the State Government under Section 34[1-B] was justified in cancelling the appointment orders.
20. In Smt Suman Verm a and Ors. v. Special Secretary , Nagar Vikash Anubhag-6, Government of U.P, Lucknow and Ors. (2004)1 SAC-591 a similar view was taken that the State Government had the power to cancel an illegal appointment under Section 34 [1-B] of the U.P. Municipalities Act, 1916.
21. In view of the aforesaid, The District Magistrate was justified in cancelling the appointment letters issued in favour of the petitioners Ram Kishore and others. Since the appointments were ex-facie, illegal and was made in violation of the prescribed procedure, such appointments had no legal sanctity in the eyes of law. Consequently, the question of following the procedure evolved under the Rules of 1966 or following the rules of natural justice does not arise. Since the appointments were wholly illegal, the District Magistrate, after conducting an enquiry, had complete powers to pass such an order. In view of the aforesaid, the writ petition No. 15413 of 2000 fails and is dismissed and Writ Petition No. 2864 of 2000, Virendra Kumar and Ors. v. State of U.P. and Ors. is partly allowed.
22. The writ petitioners Virendra Kumar and others of Writ Petition No. 2864 of 2000 has also prayed for the regularisation of their services. Admittedly, the State Government has issued Government Orders dated 26.6.1992 and 28.10.19095 for the regularisation of the daily wagers on fulfilment of certain terms and conditions contained in the said Government Orders. Since, necessary details are lacking in this regard, consequently, I direct the respondent Nagar Palika Parishad, Fatehpur to take immediate steps for considering the daily wagers for the regularisation of their services including the petitioners Virendra Kumar and others of Writ Petition No. 2864 of 2000. The said exercise shall be concluded within a period of three months from the date of the production of a certified copy of this order. It is made clear, that if the Executive Officer, who was responsible for making the illegal appointments, is still functioning as the Executive Officer in Nagar Palika Parishad, Fatehpur, he will have no further hand in the matter and the State Government will ensure his transfer to some other place.