Heard Sri R.P.Ojha, learned counsel for the petitioner and Sri Vishal Verma for opposite party No.s 2 and 3.
Case of the petitioner is that he had applied under Dying in Harness Rules to be appointed on any suitable post as the petitioner had lost his bread earner and the responsibility of the family had fallen upon his shoulder. The case of the petitioner was not considered and he preferred writ petition bearing No.5120 (S/S) of 2010. The Court directed the representation of the petitioner to be decided by the opposite parties. The Basic Shiksha Adhikari, Gonda has considered the case of the petitioner and passed the impugned order which is contained in Annexure No.1 to the writ petition. Although the petitioner was appointed on 5.9.1982 but on that date there was a ban on the appointment of Class-IV posts, hence the appointment of the petitioner was bad. He says that no question arises of appointment of the petitioner. Further, in the second paragraph the BSA says that the appointment of the petitioner was not regular.
The petitioner has drawn the attention of this Court towards Annexure-12 page 41 of the writ petition. This contains appointment order of the petitioner which was made by A.B.S.A., Gonda who was appointing authority of Class-IV employees at that particular time. The appointment order says that the petitioner is being appointed w.e.f. 15.9.1982 on the post of full time Peon in the pay scale of Rs.350/- per month along with allowance. The order does not mention anything about this appointment being temporary or adhoc. It further dies not disclose that the appointment was being made in place of any person who had proceeded on leave vacancy. It also does not say that the appointment was terminable without notice or with notice.
Under the circumstances, it is difficult to understand as to how this appointment can be termed temporary and where is the occasion of regularization of such an appointment. Case of the petitioner is that he was appointed on regular basis from the day one. There is nothing contrary in the order itself, a different view is difficult to be taken by the Court. Petitioner says that in view of Mohinder Singh Gill and another Versus The Chief Election Commissioner, New Delhi and others, AIR, 1978 SC 851, any order has to stand on its own legs, any subsequent condition can not be supplemented into the order. The reasoning given by the BSA may technically be true but it leads to a piquant situation. The BSA says that there was a ban on appointment of Class IV employees, hence there is no question of appointment of the petitioner. The BSA while looking back in the year 1982 has been able to locate a ban and opined in his decision, but has failed to give any finding on the issue that how the petitioner continued in service despite ban. The existence of the petitioner as a working employees is a glaring fact which can not be denied. The petitioner has been paid salary from the State exchequer. Nobody from the department has ever raised a finger in 28 long years that the appointment of the petitioner was irregular. No action was taken against any officer who has made the appointment. It is not the case of the BSA that any inquiry was conducted and the appointment of the petitioenr was found illegal. The appointment is allowed to be continued for 28 long years then to say that the question does not arise of the appointment of the petitioner appears to be a little strange. The order of the BSA is therefore not justified. The petitioner has worked for 28 years on an appointment order which is available on record. There is nothing to show that the appointment was temporary. Therefore, no order of regulation was ever required. The fact is not denied that the salary was paid to him without any hindrance. It is also not the case of the BSA that the petitioner was ever charged or even given show cause notice.
Under the circumstances, the Court comes to a definite conclusion that the order dated 20.8.2010 passed by the BSA, Gonda is totally unreasonable and passed without application of mind and appreciation of correct facts. It is hereby quashed.
The opposite parties are directed to consider the case of the petitioner for appointment under Dying in Harness Rules in view of the observations made herein above. This exercise shall be completed within a period of six weeks from the date a certified copy of this order is placed before them.
Order Date :- 29.9.2010 RKM.