JUDGMENT A.S. Gill and Dev Kant Trivedi, JJ.
1. In the present petition Dr. (Smt. Suneeta Tewari has challenged the appointment of Dr. Raj veer Sfngh Rathore on the post of Assistant Director General of the respondent No. 1 U. P. Council of Agricultural Research (hereinafter referred to as the 'Council'). The petitioner has prayed for a writ of certiorarl quashing the order of appointment of the respondent No. 3 and a writ of mandamus to the Council respondent No. 1 and its Director General respondent No. 2 to consider and promote the petitioner to the post of Assistant Director General and in the alternative not to fill in the vacancy of the post of Assistant Director General without observing the due process of selection.
2. The case of the petitioner is briefly narrated below.
3. The petitioner is a Scientific Officer in the discipline of Agronomy with effect from 2nd July, 1991 having been appointed directly on the recommendation of the selection committee constituted by the Council respondent No. 1. On the other hand Dr. Raj veer Singh Rathore. respondent No. 3, was appointed as a Technical Consultant for a period of six months in the year 1995 by the Director General, respondent No. 2 with effect from 1st of July. 1996 and his term was extended inspite of the ban on recruitment. The appointment as Technical Consultant is permissible under the Rules for a period of six months and the same may be extended for another period of six months in case the expertise required for a Technical Consultant is not available. The appointment of the respondent No. 3 on the post of Technical Consultant was against the prescribed norms and it was made secretly on extraneous considerations of favouritism and nepotism.
4. During the extended period of the appointment of the respondent No. 3 as Technical Consultant, without observing any process of selection, the order of the appointment of the respondent No. 3 was modified on 21st May, 1997 making the appointment as if on ad hoc basis instead of on contract basis. The petitioner claims that this appointment was made at the behest of the then Chief Minister without any advertisement and without any selection. The petitioner claims that she is fully qualified to be appointed to the post of the Assistant Director General, being the seniormost Scientific Officer and she is in fact better qualified than the respondent No. 3 and that the service rules prescribed 50 per cent promotions from the lower scale and 50 per cent by direct appointment on the higher posts. The Rules also provide for appointment on deputation or re-employment on contract basis.
5. Respondent Nos. 1 and 2 contested the case by filing counter-affidavit.
6. In their counter-affidavit, the respondent Nos. I and 2 have averred that the respondent No. 3 was working as Junior Scientific Officer/Assistant Professor in Agriculture University. Jabalpur from 1983 to 1988 in the pay scale of Rs. 2,200-4,000 and as Agronomist in the Development System Corporation Limited in the pay scale of Rs. 3,100-4,500 from 1988 to 1992. and as Agronomist in M.D.P. Consultant, Lucknow from 1993 to 1995. It was conceded that the respondent No. 3 Dr. Rathore was initially appointed in the Council as Consultant on a consolidated salary of Rs. 5,000 per month which was subsequently raised to Rs. 6,500 per month on contract basis for a period of one year to help and supervise U. P. Sodlc Land Project sponsored by U. P. Bhoomi Sudhar NIgam and for evaluation of various other research projects. Dr. Rathore was subsequently, appointed on the post of Assistant Director General against an existing vacancy on purely ad hoc basis for a period of six months or till the regular appointment was made, whichever was earlier, on contract basis by an order dated 8/13.5.1997 in the pay scale of Rs, 3,700-5,000. Subsequently, the said appointment letter was modified to provide for the continuance of ad hoc appointment till regular appointment was made on the said post. According to the respondent Nos. I and 2, Dr. Rathore was enjoying a better status even when he worked as a Consultant in comparison to the Scientific Officer. Dr. Rathore was given ad hoc appointment in preference to Scientific Officer because his experience and expertise were definitely far superior to that of the petitioner. However, the respondent Nos. 1 and 2 pleaded that whenever the selection is held by the Council, all the persons qualified and eligible for the post of Additional Director General, will be given an opportunity to compete therefor.
7. It is pleaded by the respondents that there is no promotion quota and that the posts of Scientific and Technical Cadre are required to be filled through direct recruitment. It is admitted that some posts of Additional Director General are lying vacant in the Council and the same will be filled up in due course in accordance with the procedure by advertising the post and holding selection and in that selection the cases of all the Scientific Officer working in the Council who fulfil the qualification and experience required for the post and whosoever applies for the same will be considered.
8. Respondent No. 3 also contested the petition claiming that he has been appointed on the post of Assistant Director General against an existing vacancy on purely ad hoc basis for a period of six months or till the regular arrangement was made. whichever was earlier, on contract basis by an order dated 8/13.5.1997 in the pay scale of Rs. 3.700-5,700 and subsequently. the said appointment letter was modified on 21st May. 1997 by providing that the ad hoc appointment would continue till regular appointment was made. The appointment was made, according to the respondent No. 3, as an interim arrangement in view of specific powers conferred on the Director General of the Council under clause 16 of the U. P. Krishi Anushandhan Parishad General Service Regulations and that under Rule 25 of the Regulations the Director General, the respondent No. 2 is empowered to seek the consultancy services of any technical expert and since there was no expertise available in the field, the respondent No. 3 was appointed on the post of Consultant for a fixed period on ad hoc basis and that no advertisement was required for making such appointment. According to the petitioner, the post of the Assistant Director General is a post of direct recruitment while the petitioner is entitled to the scale next to the post of Scientific Officer, in the pay scale of Rs. 3,000-5,000 only which has already been granted to the petitioner.
9. In her rejoinder-affidavit to the counter-affidavit of respondent Nos. 1 and 2, the petitioner reiterated that she is more qualified than the respondent No. 3 who has been appointed arbitrarily, illegally, secretly, without any selection, without any advertisement and without any interview at the dictation of the then Chief Minister thereby denying her right to appointment to the post of Assistant Director General. The petitioner claims that she was drawing higher salary than respondent No. 3 in the Council till the respondent No. 3 was appointed as Assistant Director General.
10. In her rejoinder-affidavit to the counter-affidavit of respondent No. 3 again similar facts were reiterated that she has been denied her rightful claim. She alleged that she has since been placed in the higher pay scale of Scientific Officer in the pay scale of Rs. 3,000-5,000 with effect from 19.4.1997 but she has not been given opportunity to establish her merit in an open competition. The petitioner claims that she has better expertise and experience than the respondent No. 3 as she has worked as Research Associate in the Department of Agronomy in G. B. Pant Institute of Agriculture and Technology, Pantnagar and that she has successfully obtained training in Remote Sensing Application in Land Use Planning and Rural Development, and also in Mineral Nutrition in Crops. She claims that she has analysed and developed Micro Nutrient Status of Soils of U. P. and has prepared draft report of Problem of Soils of U. P. She also claims that she has worked on Residue Analysis of various herbicides. She claims that she has conducted bio-assay studies of herbicides and also conducted various field trials in herbicides to assess their efficacy and prepare project reports. She claims that she has prepared various project reports and has 18 publications Including research papers to her credit and that she acted as Principal Investigator in the project relating to bio-fertilizer testing and production at farmers' field funded by Council of Science and Technology. She claims to have experience of planning, implementing. monitoring and evaluating the adaptive research programme at farmers' field under the World Bank funded Sodic Land Reclamation Project.
11. A supplementary counter-affidavit was subsequently filed on behalf of the respondent No. 3 wherein a preliminary objection was raised claiming that the respondent No. 1 is not a State within the meaning of Article 12 of the Constitution which objection has been resisted in the rejoinder-affidavit to the said supplementary counter-affidavit by the petitioner. According to the petitioner, the respondent No. 1 Council was created and established by the Governor of U. P. and that the Council is managed by the Government Officers and funds are provided by the State Government. The consultation of State Government of U. P. is mandatory and no rule or object of the Council can be amended or altered without the prior approval of the State Government and that for the creation of the post the approval of the State Government is required and that the State Government has full control in financial and administrative matters of the Council.
12. We have heard the learned counsel of parties at some length.
13. Before proceeding with the matter on merits, we think it expedient to first deal with the preliminary objection raised by the respondent No. 3 regarding the maintainability of the writ petition.
14. It is urged on behalf of the respondents that respondent No. 1. U. P. Council of Agricultural Research Is not a State within the meaning of Article 12 of the Constitution.
15. The respondent No. 1 U. P. Council of Agricultural Research has been constituted by means of a Government Order No. 1695/12.8.89-400(60)/89 dated 14.6.1989, issued by Agricultural Department of U.P. State Government. The said Government order provided that it will be autonomous body. The Council was ultimately registered under the provisions of Societies Registration Act, 1986. The governing body of the Council was constituted of the Agriculture Production Commissioner, Principal Secretary Hill Development, Secretary Agriculture, Principal Secretary Finance, Secretary Planning, Director Agriculture. Director of Animal Husbandry and Director General of the Council. The rules were framed for the management of the Council.
16. Rule 4 of the rules provides that Agriculture Production Commissioner will always be the Chairman of the Council. Rule 21 provides that the Director General has to be appointed by the Chairman of the Council namely, the Agriculture Production Commissioner with prior approval of the State Government. Thus, the Director General who is the chief executive officer of the Council, is to be appointed by the Agriculture Production Commissioner of Uttar Pradesh after obtaining prior approval from the State Government. initially, under the rule which has since been modified by Regulation No. 15 of the General Service Regulations, ot has been provided that the appointing authority of the Director General, shall be the State Government on the recommendation of the Chairman.
17. Rule 31 provides for the constitution of the Governing Body. The Agriculture Production Commissioner of Uttar Pradesh is ex officio Chairman of the Governing Body of the Council. The members of the Managing Committee are as follows :
(1) Principal Secretary Hill Development. U. P. State Government.
(it) Director General of the Council.
(iii) Secretary. Agricultural. U. P. State Government.
(iv) Secretary. Finance Department. U.P. State Government.
(v) Secretary Planning Department. U. P. State Government.
(vi) Director, Agriculture Department. U. P. State Government.
(vii)) Director Animal Husbandry Department. U. P. State Government.
18. The supervision and control of the affairs and all rights relating thereto, are vested in the Governing Body.
19. Rule 34 prescribes that the Managing Committee will exercise financial and administrative powers within the limits prescribed by the State Government. Any amendments in the aims and objects as well as in the rules are subject to consent and approval of the State government as is provided In Rules 43 and 44.
20. Rule 46 provides that the recruitment in the service of the Council will be made In terms of the service rules which were to be framed with the prior approval of the State Government.
21. It is urged on behalf of the respondents that since the Council is not fully funded by the State Government, it cannot be an instrumentality of the State particularly when it has received grants from other organisations Including the World Bank.
22. There is no dispute that the Council is a Society registered under the Societies Registrations Act but there is no denial of the fact that the Council has been initially constituted under a Government Notification secondly, it is being run and managed by a Managing Committee which consists of only the officers of the State Government. It can also not be lost sight of the fact that the Director General of the Council has to be appointed by the Agriculture Production Commissioner with the prior approval of the State Government. Thus, the management of the Council is vested exclusively in the State Government irrespective of the fact that it was registered under the Societies Registration Act as an autonomous body and that it can receive grants from sources other than the State Government as well. No money received from the sources other than the State Government can be utilised by the Council as an autonomous body as in fact. It is wholly controlled by its Governing Body, the members of which are only the Government officers.
23. Reliance has been placed on behalf of the petitioner In this regard on the case of Tekral Vasandi alias K. L Basandhi v. Union of India and others. (1998) 1 SCC 236, wherein the Institute of Constitutional and Parliamentary Studies was not held to be the 'State' within the meaning of Article 12.
24. In the present case, all the members of the Managing Committee of the Council are the officers of the State Government and thus, it is evident that the State Government exercises the complete control over the management of the Council. Similarly, except for certain specified projects, the entire funds come from the State Government and the mere fact that some amount has been received by the Council from the World Bank for some specified project, it cannot be said that the Council is not an instrumentality of the State. In view of full governmental control over the management of the Council, it is evident that the benefit of the authority referred to above, is not available to the respondent Nos. 1 and 2.
25. It has been urged on behalf of the respondents that in the year 1987-88 and 1998-99, they received some money from some other bodies as well. It may, however, be seen that the bodies from which the grants have been received, are mainly the Government bodies. U. P. Bhoomi Sudhar Nlgam is a body wholly owned by the State Government. U. P. Taral Seed Corporation is again a wholly owned State Body. Krlshi Utpadan Mandi Partshad is again wholly owned State Body. Except for a private seed company which has given a sum of Rs. 4,05 lakhs in the year 1997-98 to the Council, all other amounts for research work have come from the body owned by the State Government and its Planning Development. Thus, it cannot be said that the Council is not substantially funded by the State Government. Merely because some amount is received by the Council from the scares other than the State Government the Council cannot go out of the all pervasive control of the State Government nor the constitution of the General Body of the Council can take it out of the control pf the State when the entire Governing Body consists only of the officers of the State Government.
26. It may be seen that the Indian Council of Agricultural Research which is also registered under the Indian Societies Registration Act, and the aims and objects of which are substantially the same as that of the U. P. Council and so also the funds of the society named as Indian Council of Agricultural Research, are from the Income from several sources over and above the lumpsum and recurring grants from the Government has been held to be an instrumentality of the State, in Dr. S. M. Rliyas and others v. Indian Council of Agricultural Research, (1993; 1 SCC 182 and so also in R. P. Ram Chandran Aiyyar v. Union of India. 1984 (1) Indian Service Law Journal 475.
27. In view of what has been stated above, we are of the opinion that the Council is under the control of the State Government irrespective of the fact that it undertakes jobs from private companies for payment or that it gets grants from the World Bank or other Bodies. The fact still remains that it is under overall control of the State Government and is wholly managed for the State Government irrespective of its registration under the Indian Societies Registration Act.
28. In fact, in paragraph 7 of their counter-affidavit, respondent Nos. 1 and 2 have virtually admitted this position when they made the following averments :
"Therefore, there was nothing wrong if the Government considering his past services, the nature of job that he was performing in the Council and his expertise etc. asked the Council to consider his case for giving him the status of Assistant Director General in the Council. There was nothing wrong if the Government asked the Council to do justice with him (respondent No. 3)."
29. The Council is, therefore, amenable to writ jurisdiction. The preliminary objection of the respondents, therefore, fails and we are of the view that the respondent No. 1 Council is, amenable to writ Jurisdiction being an instrumentality of the State.
30. Coming to the main controversy between the parties, it is an admitted fact that services under the Council are governed by General Service Regulations framed by the respondent No. 1 on 17.7.1971.
31. Regulation 17 prescribed for procedure of recruitment.
Regulation 17B prescribes that all the posts of Scientific and Technical cadre shall be filled through direct recruitment.
Regulation 17C prescribes for the procedure for direct recruitment to be followed unless otherwise decided by the Governing Body, which shall be by competition, written examination or Interview or both or in a manner specified by the Governing Body, and the prospective candidates for the purpose may be either taken through employment exchange/exchanges of the State and/or the vacancies shall be widely advertised. In both the cases, the persons working in any capacity of the Council shall have an opportunity to be a candidate if they opt so.
32. The petitioner in the present case, has challenged the appointment of the respondent No. 3 inter alia on the ground that the procedure prescribed by the General Service Regulations was not followed while giving appointment to the respondent No. 3 on the post of Additional Director General.
33. It is an admitted fact that firstly, the petitioner was appointed as Scientific Officer (Agronomy on 2.7.1991 by direct recruitment after being recommended by a Selection Committee and that she was confirmed and subsequently, was given the senior scale of pay of Rs. 3.000-5.000, being the time scale of pay.
34. It is also admitted to the respondent Nos. 1 and 2 that initially, the respondent No. 3 was appointed on contract basis for a period of one year on a consolidated salary of Rs. 5,000 which was subsequently raised to Rs. 6,500. Thus, admittedly, the appointment of the respondent No. 3 as Consultant was initially on contract basis on a consolidated salary of Rs. 5,000 which was subsequently raised to Rs. 6,500.
35. The respondent Nos. 1 and 2 In their counter-affidavit did not disclose the details of the period during which the respondent No. 3 worked on consolidated honorarium of Rs. 5,000 and the date from which the consolidated honorarium was raised to Rs. 6,500. They also did not think it fit to give the date of appointment of the respondent No. 3 on consolidated honorarium on contract basis in their counter-affidavit. Rather, they stated in paragraph 3 of their counter-affidavit that the appointment as Consultant was made in the year 1995. They did not disclose as to what prompted them to appoint the respondent No. 3 on contract basis in a running scale of Rs. 3,700-5,700 on the post of Assistant Director General by means of the order dated 8/13.5.1997. They have also not given the details regarding the appointment or extension of the term of appointment of the respondent No. 3 initially as a Consultant though vaguely made a reference in this regard in paragraph 4 of their counter-affidavit.
36. In paragraph 8 of the counter-affidavit, the respondent Nos. 1 and 2 have come up with the case that if a post is to be filled in as stop gap arrangement or on ad hoc basis, the person working on a post of next below status, would be given ad hoc appointment and the petitioner was not entitled to be given ad hoc appointment over the head of the respondent No. 3.
37. In paragraph 10 of their counter-affidavit, the respondent Nos. 1 and 2 have stated that the post of Assistant Director General will be filled up on regular basis after holding selection quite in accordance with law but have not shown any time frame in which they proposed for holding selection for the post of Assistant Director General in question on regular basis.
38. In paragraph 11 of the counter-affidavit, the respondent Nos. 1 and 2 averred that the respondent No. 3 was enjoying the better status than the petitioner and, therefore, it was quite justifiable to appoint the respondent No. 3 on the post of Assistant Director General on ad hoc basis pending a regular selection.
39. According to the paragraph 16 of the counter-affidavit it is claimed that the Director General has every authority to make ad hoc appointments and the petitioner was also to get the opportunity to compete with other candidates as and when the regular selection is held for the post in question.
40. As per paragraph 17 of the counter-affidavit, some posts of Additional Director General are lying vacant in the Council but the number thereof, has not been specified.
41. Respondent No. 3 has also filed a separate counter-affidavit.
42. According to the respondent No. 3, he was appointed on the post of Assistant Director General against an existing vacancy on purely ad hoc basis for a period of six months or till the regular arrangement was made, whichever was earlier on contract basis by the order dated 8/13.5.1997, in the pay scale of Rs. 3,700-5,700 and subsequently, the said appointment letter was modified on 21.7.1997 to provide that the said ad hoc appointment would continue till regular appointment was made on the said post.
43. In paragraph 3 of the counter-affidavit, the respondent No. 3 averred that he was earlier working as Consultant and in view of vacant post and pressing need of appointment on the said post, he was engaged under the approval of the Chairman. He did not disclose the fact that the nature of this engagement as Consultant was for a fixed period on contract basis and on a consolidated salary.
44. In paragraph 7 of his counter-affidavit, the respondent No. 3 stated that since he was working as Consultant for sufficient time, the Establishment has given opportunity by appointing him on ad hoc basis so that continuity in the Establishment may be maintained.
45. In paragraph 18 of his counter-affidavit (second paragraph on page 15), the respondent No. 3 has averred that on 17.7.1997, four more posts of Assistant Director General have been created increasing the total number of posts of the Additional Director General to six.
46. Before proceeding further. It would be worthwhile to note that the post of the Assistant Director General in the Council is shown at serial No. 4 of the hierarchy of the officers of the Council, in the pay scale of Rs. 3,700-5,700 (Annexure-10). The qualification for the satd post is Master's Degree in the related branch of Agricultural Sciences with excellent academic record followed by Ph. D. in related subjects and 5 years research/teaching or extension experience on a post equivalent to that of Assistant Profess or/Scientific Officer or equivalent. The post of Scientific Officer is Just below the post of Assistant Director General and is shown in the hierarchy at serial No. 5 (Annexure-10) in the pay scale of Rs. 2,200-4,000 and the qualifications therefor, are Master's Degree in any branch of Agricultural Science with excellent academic record followed by Ph. D. with excellent academic record while the Ph. D. or research, experience in the related field is desirable qualification.
47. It is also worth noting that even according to the respondents, the petitioner is a Scientific Officer in the discipline of Agronomy possessing Master's Degree with excellent academic record followed by Ph. D. and she had put in more than 5 years on the post of Scientific Officer in the Council Itself and has since been placed in the pay scale of Rs. 3,000-5.000 with effect from 19.4.1997.
48. It would, thus, be evident that any person holding the post of Scientific Officer, is entitled to apply for the post of Additional Director General whenever the selection is made and the petitioner could have nurtured the reasonable expectation of being considered whenever the selection to the post of Assistant Director General was made.
49. In the present case, admittedly, the respondent No. 3 was an outsider who according to the respondent Nos. 1 and 2, was appointed on a consolidated salary of Rs. 5,000 per month on contract basis, in the year 1995 though the date of appointment has not been disclosed and only the year '1995' has been disclosed in the counter-
affidavit. It, however, appears from the Annexure-1 the genuineness of which has not been disputed by either of the respondents that the respondent No. 3 started working as a Consultant in the Council on an honorarium of Rs. 6.500 from 1.7.1996 and his term was to expire on 30.6.1997 in terms of his contract. Before the said term could come to an end on 30.6.1997 Sri Suresh Chandra Mudgal. Director General, appointed the respondent No. 3 as Assistant Director General In the pay scale of Rs. 3.700-5,700 for a period of 6 months from the date of taking over the charge or till the regular arrangement is made whichever was to happen earlier, on contract basis.
50. There can be no dispute that the Director General had the power to appoint a Consultant In exercise of his powers under Regulation 25 of the General Service Regulations which provides as under ;
"25. The Director General may seek the consultancy services on any technical aspect, the expertise on which is not available within the Council, for a period of upto six months, extendable by another period of six months. The consultancy charges payable to the consultant thus appointed would be decided on merits by the Director."
51. Thus, the engagement of the respondent No. 3 as a Consultant, for a period of 6 months on a consolidated honorarium of Rs. 5,000 which was subsequently raised to Rs. 6,500, was according to the respondents, in accordance with Rules and Regulations which fact has not been challenged seriously by the petitioner. Similarly, the subsequent extension of the period of six months on the consolidated honorarium of Rs. 6,500 was also In accordance with Regulation 25 of the Regulations. It cannot, however, be said that such a Consultant irrespective of his engagement as Technical Consultant as payment of consultancy charges decided by the Director General termed as honorarium, will make him an employee of the Council within the meaning of General Service Regulations, 1991. Such a Consultant is not automatically entitled to appointment in the service of the Council as seems to have been done in the present case, when the provisions of the Regulations 16 and 17 are looked into. Regulation 16 is as under :
"16. (1) Appointment may be made either-
(a) by direct recruitment,
(b) The current appointment to Deputy Director General positions will be primarily by deputation from the State Agricultural Universities or Directorates or other organisations and Institutes.
(c) by deputation or re-employment or on contract basis,
(d) by promotion from amongst the employees of the Council through a test or an interview or selection or by any other manner prescribed by the Director General from time to time,
(e) from any other source as approved by the Chairman.
The Director General subject to the approval of the Chairman, shall decide as to which of the post be filled in by deputation or by direct recruitment.
52. It may be seen that the respondent Nos. 1 and 2, have not come up with the plea that appointment of the respondent No. 3 was made in exercise of powers of the Director General under Rule 16 (e) from a source as approved by the Chairman. There is not even a whisper In the counter-affidavit of the respondent Nos. 1 and 2 in this regard. Paragraph 2 of the counter-affidavit on page 2 is specific in this regard wherein, it is mentioned that the respondent No. 3 was appointed as a Consultant In the year 1995, mainly to help and supervise the U. P. Sodic Land Project sponsored by U. P. Bhooml Sudhar Nigam and also for evaluation of various research projects going on in the Council.
Subsequently, It was considered necessary that the aforesaid U. P. Sodic Land Project should be headed and supervised by a Scientist of the rank of Assistant Director General. Accordingly. In the exigencies of work. Dr. Rathore was appointed on the post of Assistant Director General against an existing vacancy on purely ad hoc basis for a period of six months or till the regular arrangement was made, whichever was earlier on contract basis by an order dated 8/13.5.1997 in the pay scale of Rs. 3,700-5,700. It appears that by means of order dated 8/13.5.1997, the appointment of Dr. Rathore was sought to be made on 'contract basis' under Regulation 16 (1) (c) but for reasons not made known to the Court by the respondents, this order was modified and was taken out of the province of Regulation 16 (1) (c) making it ad hoc which was to continue till regular appointment was made on the said post.
53. The appointment of the respondent No. 3 on the post of the Assistant Director General on ad hoc basis in a running pay scale is neither by way of deputation or re-employment or on contract basis as is envisaged under Regulation 16 (1) (c), particularly when the order was modified thereby deleting the appointment being as 'contract basis' for a fixed term of six months.
54. It is also not by way of promotion from amongst the employee of the Council as he was a mere Consultant being paid an honorarium and not in the cadre of the employees of the Council and thus, it is not under Regulation 16 (d) of General Service Regulations.
55. There is nothing on record to show that the appointment of the respondent No. 3 on the post of Assistant Director General, has been made from a source approved by the Chairman, namely, the Agriculture Production Commissioner. Thus, the Regulation 16 (e) of the General Service Regulations also is not relevant in the present case.
56. It would thus, be evident that the recruitment/appointment of the respondent No. 3 on the post of Assistant Director General, is only under Regulation 16 (1) (a) i.e.. by direct recruitment.
57. Regulation 17 provides procedure for recruitment which is as follows :
"17. (a) The Board may decide from time to time the mode of selection for filling up various posts in merger of person on deputation/ and/or by promotion from within the cadres. Any person serving on deputation and the senior of whom are merged with the Council shall have status of directly recruited person on the said post. The selection committee consisting of not less than three persons, duly constituted by the Appointing Authority any draw up a panel of names of the candidates for selection arranged in order of merit and furnish it to the Appointing Authority together with Its recommendations. Any panel prepared in this manner will remain alive for one year from the date of its finallsatlon and in the case of vacancy during the said period of one year, the Appointing Authority may. without calling for fresh applications, appoint the candidate (s) in the order in which their names are listed on the panel.
(b) All the posts on scientific and Technical cadre shall be filled through direct recruitment.
(c) For the purpose of direct recruitment the procedure to be followed, unless otherwise decided by the Governing Body shall be by open competition ; written examination or Interview or both or in a manner specified by the Governing Body.
The names of prospective candidates for the purpose may be either taken through employment exchange/exchange of the State and/or the vacancies shall be widely advertised. In both the cases the persons working in any capacity in the Council shall have opportunity to be a candidate if they opt.
(d).....'
58. In the present case, there is nothing on record or the counter-affidavit of the respondents to show that there has been a decision of the Governing Body that a fixed term Consultant working on contract basis being paid honorarium, be appointed as Assistant Director General.
59. Thus, it was the duty of the Director General respondent No. 2 to follow the procedure laid down in the Regulations meant for direct recruitment. The said procedure is a transparent procedure which requires open competition and, the names have to be called for primarily from the Employment Exchanges and the vacancies have to be widely advertised. If the Director General respondent No. 2 thought it fit not to call the names from the Employment Exchanges, he was duty bound under Regulation 17 (c) to widely advertise the vacancies of Assistant Director General which has admittedly not been done in the present case. The vacancies on the post of Assistant Director General in question, have not at all, been advertised nor the names therefor, have been called for from any Employment Exchange. Rather, a person working on a contract basis as a Consultant on a fixed honorarium for a fixed period, was appointed without calling for the names from the Employment Exchanges and without advertising the post at all what to say of advertising the post widely.
60. No competition worth the name, not even an Interview was held for appointing the respondent No. 3 as Assistant Director General, Not only that, the Director General did not think it fit to afford an opportunity to the persons working in the Council even in the hierarchy, just below to be a candidate for the post of Assistant Director General when the vacancy In the said post was filled in by appointing the respondent No. 3. The Director General was duty bound to follow the provisions of General Service Regulations promulgated by the Council and in not complying with the provisions contained in General Service Regulations, to say the least, he has acted according to his whims or on the asking of the State Government as admitted in paragraph 7 of the counter-affidavit. Instead of acting In accordance with the settled rules.
61. It was the duty of the Director General who is the appointing authority to appoint selection committee consisting of not less than 3 persons which was to draw up a panel of names of the candidates for selection, arranged in order of merit and only on the basis of those recommendations, the appointment to the post of the Assistant Director General could have been made by the Director General.
62. The respondent Nos. 1 and 2 have come up with the plea that the Director General had the power to meet the emergent needs on ad hoc basis for a period of 6 months. No doubt such a power is vested in Regulation 14 of the General Service Regulations but the pre-requisite exercise of power is that "the emergent need on ad hoc basis." While making the appointment of Assistant Director General, the respondent No. 2, did not record in the order that there was any emergent need requiring appointment on ad hoc basis. In fact, there was an existing vacancy in the post of Assistant Director General even according to the respondents themselves. The need thus, was neither emergent nor of ad hoc nature. Thus, the appointment on ad hoc basis was made without there being an emergent need of ad hoc nature.
63. At any rate, the Regulations do not provide for any ad hoc appointment as the appointments are to be made only on probation as is provided in Regulation 20 (i) of the Regulations which provides that an employee appointed directly for the first time against a regular post. "shall be placed on probation for a period of one year "provided that in the exceptional cases, such an appointment of experts and the like, may be waived by the Board. There is no power, thus, vested in the Director General under the General Service Regulations for making appointment on a regular post of Assistant Director General on ad Hoc basis. In a case of emergent need of ad hoc nature, an appointment can be made for 6 months and also can be extended with approval of the Chairman but the appointment on a regular post cannot be made on ad hoc basis as the rules do not provide for any such power and do not vest any such power in the Director General. Director General was bound to make appointment on probation only which has not been the case here.
64. In the present case, the appointment of the respondent No. 3 was firstly made in the year 1995 according to the respondent Nos. 1 and 2 on a consolidated honorarium of Rs. 5,000 as a Technical Consultant under the Regulation 25. Thus, it was not a regular appointment as has earlier been observed by us. The respondent No. 3 was only a Technical Consultant on agreement basis whose agreement was to come to an end as is evident from the Annexure-1, dated 8/13.5.1997 which speaks to the effect that the respondent No. 3 by means of the order No. 188-Prasashan/96 dated 1.7.1996. was engaged on contract basis as a Consultant on a fixed honorarium of Rs. 6,500 per month for a period from 1.7.1996 to 30.6.1997. The period of contract was still unexpired as It was to come to an end on 30.6.1997. There was, thus, no emergent need for converting the contractual engagement of a Consultant on a fixed honorarium to the post of Assistant Director General In a running pay scale of Rs. 3,700-5,700 for a period of 6 months or for the period till the regular arrangement was made whichever happened earlier without following the procedure prescribed under the Regulations.
65. It will not be out of place to mention here that neither the need of the Council was emergent nor was of ad hoc nature. As the respondent No. 3 was working as a Consultant for the last about more than ten and half months there was still one and a half month more available to avail the service of the respondent No. 3. In fact, the submissions made on behalf of the petitioner seem to have considerable strength that the Consultant's term could not have been extended for a period beyond one year in view of the embargo placed by Regulation 25 of the Regulation and. therefore, a novel way was adopted by the respondent No. 2 and a Consultant was converted overnight into Assistant Director General in the services of the Council without following the procedure prescribed under the General Service Regulations.
66. It appears to us that the order of appointment contained in Annexure-1 thus, has been passed in flagrant breach of provisions of the General Service Regulations, 1991 and is a gross misuse of authority. The appointment was Initially made on contractual basis by means of the order contained in Annexure-1 dated 8/13.5.1997 but looking into the fact that the contract has to be bilateral the wisdom prevailed on the respondent No. 2 and he modified the order to be as an order of appointment on ad hoc basis. The two conditions mentioned in the order dated 8/13.5.1997. that tt was a contractual appointment and secondly that it was for a period of six months or till regular arrangement is made whichever is earlier, were deleted. Thus, it no more remained an order of appointment on contract basis or for a limited period of six months or for an earlier period if the regular arrangement was made. Thus, In fact, the appointment order dated 21.5.1997 is the real appointment order which goes to show that the respondent No. 3 has been appointed on ad hoc basis as Assistant Director General till the regular arrangement is made and this arrangement is continuing till date.
67. The appointment which was Initially made for a period of six months or less, is still in force though, more than two years have elapsed and no efforts seem to have been' made to hold any selection for making appointment in terms of the General Service Regulations to the regular vacant post of Assistant Director General. The reasons for omission to hold a regular selection are not far to seek.
68. It has been submitted on behalf of the petitioner and rightly so that firstly, the appointment of the respondent No. 3 was made in the capacity of a Technical Consultant and he was made to continue on that post by giving extension from time to time conferring on him status of Technical Consultant which is now being used as the experience preferable to that of the petitioner who is working as a Scientific Officer and thus, prejudicing the petitioner to the extent that she will not be selected to the post of Assistant Director General, the same not being a promotional post and the respondent No. 3 has already been made to hold the post for more than two years who will automatically be selected in the regular selection.
69. There can be no dispute that an employer is free to appoint Its personnel according to its needs but no juridical person wholly controlled by the State Government can permit such unhealthy and shady state of affairs in appointments to a considerably high office.
70. When it is urged on behalf of the petitioner that it is a very glaring instance of favouritism, the petitioner does not seem to be very far from truth. The respondent No. 3 claims that he was holding very high offices in Madhya Pradesh State and in certain organisations in U. P. but nothing is forthcoming to show as to how he got the appointment of Consultant in the first place and as to how could he get the appointment as Assistant Director General without any selection permitting the Scientific Officers to compete with the respondent No. 3 in an open competition.
71. According to paragraph 2 of the counter-affidavit of respondent Nos. 1 and 2, Sri Rathore was holding the post of Assistant Professor/Junior Scientific Officer of Jawaharlal Nehru Agricultural University, Jabalpur in the pay scale of Rs. 2,200-4,000 for the period 1983 to 1988 and that he was working as Agronomist in Development Systems Corporation Limited. U. P.. Lucknow from 1988 to 1992 in the scale of Rs. 3,100-4.500 and thereafter, as Agronomist from the year 1993 to 1995 in M.D.P. Consultant. Lucknow. However, these facts are not so stated by the respondent No. 3 and so far as his experience is concerned. It may be seen that from January. 1993 to January, 1995. the respondent No. 3 was working on a consolidated salary of Rs. 11,000 per month in Monitoring and Appraisal Cell, indo-Dutch Uttar Pradesh Tubewell Project, Lucknow as it appears from the Annexure-CA 4. Prior to that he was working in the same Cell since October 12, 1988 as Agronomist as it appears from the Annexure-CA 5. We do not know the circumstances under which the respondent No. 3 had left the Monitoring and Appraisal Cell indo-Dutch Uttar Pradesh Tubewell Project and came to Join as Consultant at the rate of Rs. 5.000 per month as consolidated honorarium even though he was offered an appointment in U. P. Bhuml Sudhar Nigam Limited on a consolidated salary of Rs. 6,000 for a period of 3 years by means of an offer dated 18.6.1996 and still on 1.7.1996, as It appears from the Annexure-CA 6 he agreed to work on an honorarium of Rs. 5.000 per month wtth effect from 1.7.1996.
72. No material has been placed by the respondents which may establish that the respondent No. 3 was ever working as Assistant Professor/Junior Scientific Officer in Jawahartal Nehru Agricultural University Jabalpur from 1983 to 1988 or that he worked as Agronomist in U. P. Development System Corporation Limited, Lucknow from 1988 to 1992 as is alleged in the counter-affidavit of respondent Nos. 1 and 2 nor is there any material to show that he holds a Diploma in international Course on Rural Extension (ICRE) organized by the international Agricultural Centre Wageningan. Netherlands. None of these facts have been detailed by the respondent No. 3 in his counter-affidavit nor any paper to support these assertions were brought on record.
73. It is really strange that on the one hand the respondent Nos. 1 and 2 claimed that from the year 1988 to 1992 Dr. Rajveer Singh respondent No. 3 was working as Agronomist in the pay scale of Rs. 3100-4500 and in U. P. Development Systems Corporation Limited, Lucknow while according to the Annexure-CA 5 filed by the respondent No. 3 himself, he was working as Agronomist from October 12. 1988 to 1992 in Monitoring and Appraisal Cell. indo-Dutch Uttar Pradesh Tubewell Project. Lucknow.
74. No doubt, it is not for us to assess any experience or academic record of the respondent No. 3 but the fact remains that while appointing the respondent No. 3, the respondent No. 2 has acted in a very casual manner to the detriment of his own Scientific and Technical personnel and that the appointment was made in a manner so that other persons holding the qualification for the post of the Assistant Director General, may not be able to compete with the respondent No. 3.
75. Much emphasis was laid on behalf of the petitioner that she possesses the qualification better than the respondent No. 3 but we are of the opinion that it is not necessary for us to go through and appraise the respective qualifications and experience of the petitioner vis-a-vis the respondent No. 3 as this seems to be a job of expert bodies who select the personnel for the Council.
76. in view of the above discussions, we are of the view that the appointment of the respondent No. 3 is apparently Illegal and wholly unsustainable.
77. It has been urged on behalf of the respondents that the petitioner has no locus standi to maintain the writ petition. We have no hesitation in observing that this submission has no substance. The petitioner is a Scientific Officer who was working in the pay scale of Rs. 2,200-4.000 for approximately six years in the Council and was confirmed as such. It is not disputed by the respondents that the petitioner possesses the qualifications prescribed for the post of Assistant Director General in the pay scale of Rs. 3,700-5.700 which is the next higher pay scale in the hierarchy of the employees of the Council as is evident from Annexure-CA 1 on pages 45 and 46. Since she has completed five years of service as Scientific Officer, she has been awarded the next pay scale of Rs. 3.000-5.000. Even if that would not have been so, in terms of Regulation 17 (b), she had a right to be a candidate for the next higher post of Assistant Director General and that fact is conceded by the respondents in their counter-affidavit. But for the appointment on ad hoc basis of the respondent. No. 3, the petitioner could get an opportunity of being considered for appointment to the post of Assistant Director General, but the petitioner has been denied that opportunity by the manoeuvrings of the respondent No. 2 who firstly appointed the respondent No. 3 as a Consultant and thereafter, appointed him for a period of 6 months or a regular selection whichever is earlier and thereafter, modified the appointment order by Annexures-1 and 2 to the writ petition which are dated 8/13.5.1997 and 21.5.1997 respectively.
78. The appointment of the respondent No. 3 has thus, caused great injustice not only to the petitioner but also to the persons similarly situated in the Council and to the prospective candidates holding necessary qualifications for the post of Assistant Director General in the Council. The petitioner thus, has a right to challenge the appointment of the respondent No. 3.
79. An attempt has been made on behalf of the petitioner to show that the appointment of the respondent No. 3 was made on the intervention of the then Hon'ble Chief Minister of the State and in support of this contention, reliance has been placed on the Annexure-1 to the writ petition, the order dated 3/13.5.1997 wherein, a copy of this order has been sent to the Under-Secretary of the Agricultural Department for information !n reference to his letter No. 5 CM/12.8.700 (4) 97 dated 22.4.1997 and again in pursuance of the order dated 21.5.1997 (Annexure-2 to the writ petition) to the same Under-Secretary of the Agricultural Department.
80. It has been denied by the respondents that there was any political pressure exerted in the appointment of the respondent No. 3 on the post of Assistant Director General. However, it is admitted to the respondent Nos. 1 and 2 in paragraph 7 of their counter-affidavit that there was nothing wrong If the Government considering his (respondent No. 3) past services, the nature of job that he (respondent No. 3) was performing in the Council and his expertise etc.. asked the Council to consider his case for giving him the status of Assistant Director General in the Council and that there was nothing wrong if the Government asked the Council to do justice with him. These allegations are not supported by any Government letter or any Government order wherein the respondent Nos. 1 and 2 were asked by the Government to consider the case of the respondent No. 3 and giving him the status of Assistant Director General. The petitioner's contention that in paragraph 7, these assertions have been made in the light of the contents of the Annexure-1 to the writ petition wherein a copy of the appointment order has been addressed to Sri Jagannath Thwart, Under-Secretary, U. P. State Government with reference to his letter No. 5 CM/12-8-700 (4)/97 dated 22.4.1997 and also in the light of the Annexure-2 dated 21.5.1997 a copy of which has been addressed to the Under-Secretary, U. P. State Government Agricultural Section 8. Lucknow. The petitioner in thts regard has urged that the appointment of the petitioner when made by the Director General, was never notified to the State Government or any officers as is evident from the Annexure-3 nor the confirmation made by the Annexure-4 was ever notified to the State Government. The respondent Nos. 1 and 2 did not file the letter dated 22.4,1997 referred to in Annexure-1 which gives rise to a strong probability of there being pressure brought on the Director General for appointing the respondent No. 3 as Assistant Director General. There is, however, no evidence sufficient to indicate that it was done at the behest of the then Chief Minister by the Secretary concerned. However, the fact remains that the Director General of the Council himself personally did not think it fit to controvert the allegation of political interference. Rather, the Director General left it to the Secretary of the Council to file the affidavit in support of the averments made in this regard, which did not give correct details.
81. For the reasons best known to the Director General, he failed to controvert the allegation regarding political pressure exerted in the appointment of the respondent No. 3 and also to state as to what weighed with him firstly to appoint the respondent No. 3 as Technical Consultant then to appoint him on ad hoc basis for a fixed period on contract basis and then to make it for unlimited period.
82. However, since the appointment of the respondent No. 3 is per se illegal and against the rules, the blame has to be borne by the respondent No. 2 and It does not augur well for the Council which on the second thoughts raised preliminary objection regarding maintainability of petition. Even. though the whole management of the Council is under the control of the very senior officers of the State, the appointments in such a high handed manner speaks volumes against the working of the Council.
83. We are. therefore, of the considered opinion that the appointment of the respondent No. 3 is Illegal and in fact is against all the norms and the same has to be quashed.
84. It is really strange that no efforts have been made by the Council and Its Director General for a long time to fill in the posts of Assistant Director General which are six in number denying the opportunity to its eligible Scientific Personnel.
85. We are constrained to direct that steps be taken to fill in the posts in accordance with the provisions of General Service Regulations within shortest possible time.
86. The writ petition is, therefore, allowed and the appointment of the respondent No. 3 on the post of the Assistant Director General of the Council, is quashed. The respondent Nos. 1 and 2 are commanded to fill in the vacant posts of the Assistant Director General with utmost expedition and in doing so, they are commanded to consider the case of the petitioner as well as other similarly situated eligible officers of the Council and to act in accordance with the provisions of the General Service Regulations of the Council.
87. A copy of this order will be sent to the Chief Secretary U. P. State Government for appropriate directions of the State Government to the Council and also for fixing the responsibility in making illegal appointment to the post of the Assistant Director General in the Council and for taking such measures which may curb the re-occurrence of such a situation.