2004 (2) TMI 739 - HC - Indian Laws

Court remits matter for fresh enquiry on past orders & appointment claim. Enquiry against illegal employees directed.

The Court remitted the matter to the Secretary for a fresh enquiry to determine the legality of past orders and the petitioner's claim for appointment ... Regularization of service - retrospective promotion and monetary benefits - applicability of service circulars and recruitment procedure - remand for fresh enquiry and speaking order - investigation of alleged illegal appointments and departmental actionRemand for fresh enquiry and speaking order - Matter remitted to the Secretary of the concerned Department for fresh enquiry and passing of a speaking order after hearing the petitioner. - HELD THAT: - The High Court found that the legality and validity of the orders dated 8.7.1986, 21.7.1995 and 3.9.1997 were not sufficiently established on the record and that the departmental Circulars and procedure may not have been followed. In view of these deficiencies, the Court did not adjudicate the merits but directed the Secretary, personally or through a competent officer, to enquire into the entire matter afresh, to examine correctness of the said orders and to pass a reasoned order after affording the petitioner an opportunity of hearing. The authority was instructed to complete the exercise and communicate its decision within two months from receipt/production of a copy of the order. [Paras 5]Proceedings remitted to the Secretary for fresh enquiry and a speaking decision within two months.Regularization of service - retrospective promotion and monetary benefits - Claim for appointment/regularization from 1.8.1986 and entitlement to monetary benefits remitted for determination by the competent authority. - HELD THAT: - Although the petitioner contended entitlement to appointment/regularization with effect from 1.8.1986 and to consequential monetary benefits, the Court declined to decide these contentions on merits in the absence of relevant materials. The Court directed the Secretary to examine whether the petitioner's claim for regularization from 1.8.1986 with monetary benefits is tenable under law and to grant whatever relief the petitioner is found entitled to as per applicable rules and procedure. [Paras 3, 5, 6]Petitioner's claim for retrospective regularization and monetary benefits remitted to the competent authority for decision on merits.Applicability of service circulars and recruitment procedure - Applicability of Government circulars (including the circular dated 31.3.1992) and the correct recruitment procedure not determined by the Court and left to the competent authority to decide in accordance with law. - HELD THAT: - The Court observed that Circulars from the Department of Personnel & Administrative Reforms, including the 31.3.1992 circular concerning recruitment through the Selection Board, appeared not to have been followed, but expressly refrained from deciding which circular(s) apply. The authority remitted to is free to determine which rules or circulars are applicable at the relevant time and to act accordingly when adjudicating the petitioner's claims. [Paras 4, 6]Question of which service circulars and recruitment procedure apply is left to the competent authority to decide.Investigation of alleged illegal appointments and departmental action - Directed departmental enquiry to ascertain whether any employee had been illegally appointed/promoted/regularized and to take appropriate action against erring officers. - HELD THAT: - The Court noted apparent irregularities in earlier promotions/appointments and held that such alleged illegalities should not be perpetuated. It directed the Secretary to initiate enquiry into whether illegal appointments or promotions occurred and to take appropriate departmental action against those responsible, as part of the remand exercise. [Paras 3, 5]Department to conduct enquiry into alleged illegal appointments/promotions and take appropriate action against erring officers.Final Conclusion: Writ petition disposed of by remitting the matter to the Secretary of the concerned Department to conduct a fresh enquiry, decide the legality of the orders dated 8.7.1986, 21.7.1995 and 3.9.1997, determine the petitioner's claim for regularization from 1.8.1986 and any monetary benefits, and to enquire into alleged illegal appointments-with a direction to pass a speaking order within two months; the High Court did not adjudicate the merits or decide applicability of the cited circulars. Issues:Challenge to appointment order dated 21.7.1995 for a Peon provisionally appointed as a dispatch clerk from 1.8.1995; Claim for appointment from 8.7.1986; Legality of orders dated 8.7.1986, 21.7.1995, and 3.9.1997; Compliance with Circulars for appointments on class IIIrd post; Remittance of matter to Secretary for fresh enquiry; Examination of petitioner's claim for appointment from 1.8.1986 with monitory benefits; Initiation of enquiry against illegally appointed/promoted employees.Detailed Analysis:1. The writ petition challenged the order dated 21.7.1995, appointing a Peon provisionally as a dispatch clerk from 1.8.1995. The petitioner claimed appointment from 8.7.1986. The legality of orders dated 8.7.1986, 21.7.1995, and 3.9.1997 was questioned, as the legal basis for these orders was not demonstrated by the parties.2. The petitioner had officiated as a dispatch clerk from 8.1.1986 to 7.7.1986 due to the clerk's leave. However, the appointment on 8.7.1986 was provisional and lacked approval by the headquarters. The subsequent history of appointments and recommendations was detailed, including a writ petition disposed of on 6.4.1995 with directions to the Superintending Engineer.3. The Court noted that the Superintending Engineer's actions were driven by the difficulty in rectifying past illegalities in promotions. The petitioner's representation led to an order on 3.9.1997 appointing him from 1.8.1986 without monitory benefits. The Circulars for appointments on class IIIrd post were found to have not been followed.4. The Court emphasized the need for compliance with Circulars operative at the time of passing orders. The matter was remitted to the Secretary for a fresh enquiry to determine the correctness of the past orders and the petitioner's claim for appointment from 1.8.1986 with monitory benefits. An enquiry against illegally appointed/promoted employees was also directed.5. The Secretary was tasked with completing the enquiry within two months and providing the petitioner with entitled relief as per the law. The Court clarified that it had not delved into the merits of the claims and left the decision on applicable Circulars to the competent authority.6. The Court disposed of the writ petition with these directions, highlighting the irrelevance of judgments cited regarding retrospective promotions and monitory benefits. The focus remained on the need for lawful actions and compliance with Circulars governing appointments.