1. Heard learned counsel for the parties and perused the record.
2. The petitioner Shamim Ulla Salmani, who was appointed as Assistant Toll Clerk on 07.4.1965 in Nagar Palika Parishad, Khairabad, District Sitapur by an order passed by Dr.Ishrat Ali, the then Chairman, Nagar Palika Parishad who admittedly was the brother of petitioner's mother and held the office of Chairman, Nagar Palika Parishad. In other words, he (Dr. Ishrat Ali) was maternal uncle of petitioner. Apparently, the aforesaid appointment was in violation of rule framed by State Government in exercise of powers under Section 296(2)(a) of Municipalities Act, 1916. The Commissioner, Lucknow, when came to know about the above fact, and, finding that aforesaid appointment of petitioner was in violation of rules, vide order dated 27.11.1978, cancelled the same. A consequential order of termination of petitioner was passed by respondent no.2 on 6.12.1978. The aforesaid two orders dated 27.11.1978 and 6.12.1978 were challenged by petitioner in Writ Petition No.3510 (S/S) of 1979, which was decided vide judgement dated 30.12.1998. This Court held that before cancelling appointment and terminating petitioner by the Commissioner, Lucknow Division, as also opposite party no.2, no opportunity or show cause notice was afforded to the petitioner, therefore, termination orders were in utter violation of principles of natural justice. The court, therefore, allowed the writ petition. The operative part of the judgement reads as under:
"In the aforesaid situation, I am of the view that the order passed by the Administrator of the Board dated 6.12.78 pursuant to the orders passed b the Commissioner dated 27.11.78 was not just and proper and deserves to be quashed and the case be remanded back to the Commissioner to pass appropriate orders after giving the petitioner as well as to the appointing authority an opportunity to show cause as to why the appointment be not cancelled.
In the result the writ petition succeeds and the orders dated 27.11.78 and 6.12.78 passed by the Commissioner and the Administrator are hereby quashed and the case is remanded back to the Commissioner to pass appropriate orders afresh after giving an opportunity to the petitioner as well as to the appointing authority to show cause as to why the appointment may not be cancelled." (emphasis added)
3. In view thereof and pursuant thereto, Commissioner, Lucknow Division i.e. respondent no.1 issued a show cause notice dated 23.8.1999 to the petitioner, which was received by him on 28.8.1999. He submitted reply dated 31.8.1999 disputing the factum of illegality of his appointment. In the meantime, it appears that after setting aside termination of petitioner vide judgment dated 30.4.1998, the petitioner was not paid salary, therefore, he filed writ petition no.3899 of 1999 (hereinafter referred to as "first petition") seeking following relief:
"(i) to issue a writ of mandamus, order, direction or writ in the nature of mandamus commanding the opposite parties to pay the petitioner's salary due with effect from 6.12.1978 for the post of Head Clerk along with other allowances as admissible to him along with 18% interest per annum incurred thereon till the date of its actual payment for which the petitioner is fully entitled as per judgment dated 30.4.1998 (annexure No.1) and,
(ii) to award exemplary cost to the petitioner."
4. While entertaining writ petition on 5.8.1999, this Court passed the following order in the first petition :
"Notice on behalf of opposite party No.1 has been accepted by the learned Chief Standing Counsel. Notice on behalf of O.P. No.2 has been accepted by Sri Sanjai Kumar; who prays for and is granted three weeks time to file counter affidavit.
List thereafter.
In the meantime the opposite party No.1, Commissioner, Lucknow Division, Lucknow is directed to pass orders as directed by this Court vide order dated 30.4.98 within a period of 15 days from the date of production of a certified copy of this order."
5. The respondent no.1, pursuant to the show cause notice dated 23.8.1999 and reply of petitioner dated 31.8.1999, considered the matter again and passed order dated 2.9.1999 holding appointment of petitioner patently illegal and void ab initio, and, thus terminated him from service. Consequently, respondent no.2 passed consequential order dated 10.9.1999. These two orders are impugned in writ petition no.6197 (S/S) of 1999 (hereinafter referred to as "second petition").
6. There are three questions raised by learned counsel for the petitioner:
I. Whether appointment of petitioner can be said to be illegal since its inception?
II. Even if the appointment was illegal, since petitioner has continued to serve Nagar Palika Parishad, Khairabad since 1965, whether with the passage of time the appointment stands validated and is not to be interfered by this Court?
III. Whether petitioner is entitled for entire arrears of salary in view of judgement dated 30.4.1998?
7. In support of second submission, petitioner has placed reliance on H.C.Puttaswamy & Ors Vs. The Hon'ble Chief Justice of Karnataka High Court, Bangolore & Ors., 1991 Supp (2) SCC 421, Roshni Devi & Ors. Vs. State of Haryana & Ors., 1999 SCC (L & S) 103; Uma Shanker Misra Vs. Board of High School and Intermediate Education U.P., Allahabad & Ors., AIR 1874 Allahabad 290 and Anil Kumar Srivastava Vs. University of Allahabad & Anr., AIR 1973 Allahabad 442. In support of third question, reliance has been placed on Gurdev Singh Vs. The State of Punjab & Ors., 1981 (2) SLR 464; Union of India & Anr. Vs. Babu Ram Lalla, 1987 (Supp.) SCC 71; Hari Dass Vs. Medical Superintendent, Swaroop Rani Nehru Hospital, Allahabad, 1989(1) UPLBEC 471; State of U.P. & Anr. Vs. Madan Mohan Khanna & Anr., 1990 SCD 546; Union of India, etc. etc. Vs. K.V. Jankiraman, etc. etc., AIR 1991 SC 2010; Manorama Verma (Smt.) Vs. State of Bihar & Ors, 1994 Supp (3) SCC 671; Jagvir Singh Jatav Vs. Deputy Director of Education Meerut & Ors., 1993 SCD 167; Ajab Singh Vs. U.P. State Public Services Tribunal No.5, Lucknow & Ors.. 1996 (14) LCD 360; State of Punjab & Anr. Vs. Amarjit Kaur, 1997 (10) SCC 418; Dipti Prakash Banerjee Vs. Satvendra Nath Bose National Centre for Basic Sciences, Calcutta & Ors., 1999 (2) UPLBEC 1048; Ram Dev Dixit Vs. State of U.P. & Ors., 1999 (17) LCD 1030; Sudarsh Awasthi Vs. Bank of India & Ors., 2001 (19) LCD 1200; Union of India Vs. Madhusudan Prasad, 2004(1) SCC 43; Writ Petition No.7732 (S/S) of 1996 (Ram Kanth Vs. State of U.P. & Ors.) decided on 23.8.2003; Surendra Kumar Verma etc. Vs. The Central Government Industrial Tribunal-cum-Labour Court, New Delhi & Anr., AIR 1981 SC 422; Chandraveer Singh Vs. M.B.Mathur, 1990 Crl. L.J. 124; and Ranchhor Tikam Dutt Singh Vs. U.P. Public Services Tribunal & Ors., 2004(22) LCD 977.
8. With regard to appointment of staff of municipalities, in exercise of powers under Section 296(2)(a) of Municipalities Act, 1916 vide notification no.2924/IX-158-40 dated 11.12.1941, State Government framed following Rules:
"1 (1) No president or a member of a board shall be eligible for appointment to any post as servant of that board, and except with the previous sanction of the State Government no person who is a relative of such President or member shall be appointed to any such post." (emphasis added)
11. Vide notification no.2506/XI-158-40, dated June 17, 1942, following note, explaining "relation" was inserted in the aforesaid rule:
"Note- For the purpose of this rule 'relation' includes the following :
Father, grand-father, father-in-law, paternal or maternal uncle son, grandson, son-in-law, brother, nephew, first cousin-paternal or maternal, wife's brother, sister's husband, husband, husband's brother, husband's sister, wife's sister, wife daughter, daughter-in-law, sister, sister-in-law being the wife of a brother or first cousin, mother, mother-in-law, aunt-maternal or paternal."
12. Sub Rule (2) came to be instituted in rule 1 vide notification no. 987/XI-A-244-50, dated March 5,1951 and it reads as under:
"(2) Where an appointment has been made in contravention of sub-rule (1), the prescribed authority may, on his own motion or on application made to him by any person and after giving reasonable opportunity to the appointing authority to explain the action, declare the appointment as invalid. Thereupon the appointing authority shall remove the person so appointed immediately."
13. Learned counsel for the petitioner, after some argument however, could not dispute that petitioner's appointment was under the prohibited category in the aforesaid rules and he could not have been appointed unless a previous sanction of State government is obtained.
14. It is then sought to be argued that sanction could have been obtained subsequently, which would have related back to the date of appointment and mere fact that before appointment, no sanction was obtained, would make no difference.
15. The submission in its entirety is virtually nothing but an argument in desperation and deserve to be rejected by just mention thereof. In fact no sanction at any point of time either before appointment or subsequent thereto has ever been sought from the State Government. Therefore, question of relating back of sanction does not arise. Even otherwise, submission that sanction could have been obtained subsequently, which would have related back when the requirement under the statute is of "prior sanction" before the appointment is a misconceived argument. In Competent Authority Vs. Barangore Jute Factory and others, 2005 (13) SCC 477, it was held that where the statute requires a particular act to be done in a particular manner, the act should be done in that manner alone. Ever word of the statute has to be given its due meaning. Similar dictum has been laid down in Nazir Ahmad Vs. King Emperor, AIR 1936 Privy Council 253 and reiterated in catena of cases.
16. The requirement of statute is "prior sanction". It has to be obtained before authority concerned takes consequential action, which require 'prior sanction'. A subsequent and even an attempt of subsequent approval will not validate legal flaw, if approval before taking action is not taken. Here the word used is "prior sanction" and not mere 'sanction'. The distinction between the expression "prior approval" and 'approval" and its effect, if prior approval if not obtained, if the statute require the same has been considered in certain other cases, which is pari materia since in the present case, word is "prior sanction" instead of "prior approval".
17. Rule 11 of U.P. Recognized Basic Schools (Recruitment and Conditions of Service of Teachers and other Conditions) Rules, 1975 provides that no service can be terminated without "prior permission" from the District Basic Education Officer. A Division Bench of this Court in Ms. Shailja Shah Vs. Executive Committee, Bharat Varshiya National Association and another, 1995 (25) ALR, 88 held that expression "prior approval" and "approval" connotes different situation. Where a statute uses the term "prior approval" anything done without prior approval is nullity. Where a statute employs expression "approval", however, in such cases subsequent ratification can make the act valid.
18. Section 59(1)(a) of U.P. Urban Planning and Development Act, 1973 provides for "prior approval". The Apex Court in U.P. Avas Evam Vikas Parishad and another Vs. Friends Coop. Housing Society Ltd. and another, 1995 (Supple.) (3) SCC 456 held that "prior approval" and "approval" are two different connotations and if the statute does not mention "prior approval" what is material would be only "approval". The earlier judgment in Life Insurance Corporation of India Vs. Escorts Ltd., 1986 (1) SCC 264 was also referred where it was held that the word ''prior' and ''previous' may be implied if the contextual situation or circumstances justify such reading and the Act which requires only approval, the action holds good until it is disapproved.
19. Section 9 of the U.P High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971 provides for "prior approval". In Director of Education and others Vs. Gajadhar Prasad Verma, AIR 1995 SC 1121, it was held that the absence of "prior approval" would not have an effect of creation of post and therefore the State is not obliged to reimburse salary to the management without "prior approval" of the Director or the competent authority under the Act. In Shiv Gorakh Nath Charitable Society, Kanpur and others Vs. Cantonment Board, Kanpur and others, 1997 (3) ALR 616, a Division Bench while considering the effect of "prior permission" held where construction is made without "prior permission" a "post permission" cannot be granted and the construction, so made, has to be dismantled. Same view has been taken by another Division Bench in Vivek Srivastava Vs. Union of India and others- 2005 (3) ESC (Alld.) 1790 (Para 51).
20. In reference to "prior approval" required under Regulation 101, Chapter-III of the Regulations framed under the U.P. Intermediate Education Act, 1921, in Jagdish Singh etc. Vs. State of U.P. & others, 2006 (3) ESC 2055 (All)(DB) it has held "without prior approval of the Inspector, the Principal or the committee of management cannot issue an appointment letter or permit joining of any candidate. Requirement of prior approval in Regulation 101 is a condition precedent before issuing an appointment letter and is mandatory."
21. A Division Bench of this Court in Joint Director of Education, Azamgarh Region, Azamgarh & Anr. Vs. Udai Raj Vishwakarma & Anr., 2007(3) ADJ 121 has followed the aforesaid authorities and has expressed a similar view. However, in the present case, since there was no sanction at all, therefore, by no stretch of imagination, it can be said that appointment of petitioner has even a flavour of legality.
22. Therefore, the first question is answered against the petitioner and it is held that his appointment was void ab initio and illegal since its inception.
23. Now coming to the second question, I find that if the appointment is void ab initio, mere fact that incumbent has continued to work for some time or any length of time, would not confer any validity upon such appointment. A patently illegal appointment cannot be validated or ratified subsequently.
24. The mere fact that incumbent has continued to serve for a long period does not validate his appointment if it is illegal and void ab initio for any reason whatsoever. There is no concept of holding over, recognized in service jurisprudence. The Apex Court in State of Orissa and another Vs. Mamata Mohanty, 2011(3) SCC 436 said:
"The concept of adverse possession of lien on post or holding over are not applicable in service jurisprudence. Therefore, continuation of a person wrongly appointed on post does not create any right in his favour." (emphasis added)
25. In an earlier decision also in Dr. M.S. Patil Vs. Gulbarga University & Ors., AIR 2010 SC 3783, which has been followed in State of Orissa Vs. Mamata Mohanty (supra) the Apex Court considered a similar argument in paras 11 and 12 of the judgement and rejecting the same said:
"11. But at this stage once again a strong appeal is made to let the appellant continue on the post where he has already worked for over 17 years. Mr. Patil, learned senior counsel, appearing for the appellant, submitted that throwing him out after more than 17 years would be very hard and unfair to him since now he cannot even go back to the college where he worked as lecturer and from where he had resigned to join to this post.
12. We are unimpressed. In service law there is no place for the concepts of adverse possession or holding over. Helped by some University authorities and the gratuitous circumstances of the interim orders passed by the Court and the delay in final disposal of the mater, the appellant has been occupying the post, for all these years that lawfully belonged to someone else. The equitable considerations are, thus, actually against him rather than in his favour. The matter can also be looked at from a slightly different angle. It is noted above how the appellant was able to secure the appointment and how he managed to continue on the post. By notification dated August 13, 2004, the appellant was discharged from the service of the University on the post of Reader in Kannada but was asked to continue on ad-hoc basis until the appointment of the new incumbent to the post. His position is, thus, only ad- hoc till the appointment of the new incumbent and in that position he is continuing on the basis of the direction of this court to maintain status quo. We see no reason to continue this ad-hoc arrangement any further and we do not wish to stand any longer in the way of the post being filled up on a regular basis."
26. If an appointment is void ab initio, it does not confer any right upon incumbent concerned in respect to the post in question. In other words, it can be said that incumbent would not acquire any right whatsoever on the post.
27. A Division Bench of Patna High Court in Ishwar Dayal Sah Vs. State of Bihar, 1987 Lab.I.C. 390, considered a question when an appointment was obtained by a person by producing false caste certificate and when cancelled, he raised a question that unless procedure for inquiry prescribed under Article 311(2) of Constitution is followed, his appointment cannot be cancelled. The Division Bench holding that Article 311 in such case would not be applicable, said as under :
"If the very appointment to civil post is vitiated by fraud, forgery or crime or illegality, it would necessarily follow that no constitutional rights under Article 311 can possible flow from such a tainted force. In such a situation, the question is whether the person concerned is at all a civil servant of the Union or the State and if he is not validly so, then the issue remains outside the purview of Article 311. If the very entry or the crossing of the threshold into the arena of the civil service of the State or the Union is put in issue and door is barred against him, the cloak of protection under Article 311 is not attracted."
28. If an appointment is wholly illegal and nonest, the incumbent would also not been entitled for salary etc.. A Full bench of Patna High Court in Rita Mishra Vs. Director, Primary Education, Bihar, AIR 1988 Patna 26, in para 13 of the judgment, held as under :
"13. It is manifest from the above that the rights to salary, pension and other service benefits are entirely statutory in nature in pubic service. therefore, these rights including the right to salary, spring from a valid and legal appointment to the post. Once it is found that the very appointment is illegal and is non est in the eye of law, no statutory entitlement for salary or consequential rights of pension and other monetary benefits can arise. In particular, if the very appointment is rested on forgery, no statutory right can flow it." (emphasis added)
29. The above quotation from judgment of Full bench of Patna High Court in Rita Mishra (supra) has specifically been affirmed after quoting the same by a three Judge Bench of Apex Court in R.Vishwanatha Pillai Vs. State of Kerala & Ors., 2004 (2) SCC 105. In para 18 thereof, after quoting the above passage, the Court has said :
"We agree with the view taken by the Patna High Court in the aforesaid cases."
30. In R.Vishwanatha Pillai (supra), the Court has also said that an appointment obtained by producing a false caste certificate and by playing fraud is void and nonest in the eyes of law. The right to salary or pension would flow from a valid and legal appointment. The consequential right of pension and monetary benefits can be given only if appointment was valid and legal. It cannot be done where appointment was void ab initio. In such case, even sympathtic or equal consideration would not be attracted as that cannot be invoked to bend the arms of law.
31. The question no.2, therefore, also stands answered in negative and against petitioner.
32. Now coming to the third question, I find that this court in its earlier judgement dated 30.12.1998 has set aside termination order on the ground that no show cause notice/opportunity was given to the petitioner and permitted authority concerned to pass a fresh order giving such opportunity. No further relief has been granted. In a fresh writ petition, such relief of arrears of salary cannot be asked for when in the earlier writ petition, it has not been granted. In my view, it would be barred by Order II, Rule 2 C.P.C. as held in Union of India Vs. Punnilal and others, JT 1996 (9) SC 740 which has been followed by this Court in Civil Misc. Writ Petition No.4511 of 2006, Triloki Nath Gupta Vs. State of U.P. and others decided on 12.10.2009.
33. In view of the above discussion all the three questions are answered against petitioner.
34. Both the writ petitions lack merit.
35. Dismissed.
36. Interim order, if any, stands vacated.
Order Date :- 19.8.2014 IrfanUddin/KA