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2006 (7) TMI 719
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....Commission and joining the post or till such time his services were required by the department. The appellant was confirmed in his post on 13.5.1978, whereas the 3rd respondent purported to have been appointed on a regular basis without undergoing the requisite selection process as provided for in the 1992 Rules and without being recommended therefor by the Public Service Commission. The State of U.P., by an order dated 15.11.1995 appointed the 3rd respondent as Assistant Director Factories on regular basis with effect from the date of issuance of the order providing that he would be on probation for a period of two years. Indisputably, there were six posts of Deputy Director of Factories in the State of U.P., out of which four posts were designated as Deputy Director of Factories (Administration), one as Deputy Director of Factories (Chemical) and one as Deputy Director of Factories (Engineering). The post of Assistant Director of Factories was the feeder post. As noticed hereinbefore, both the posts of Assistant Director of Factories, formerly known as Inspector of Factories, and Deputy Director of Factories (Admn.) were to be filled up through the Public Service Commission. It i....
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....asan." The said note-sheet was placed before the then Chief Minister, State of U.P. on 20.4.1997 and was approved on 21.4.1997. The Principal Secretary issued a letter to the Labour Commissioner, U.P. that the Governor, after due consideration, directed conversion of one temporary post of Deputy Director of Factories (Chemical) into the post of Deputy Director of Factories (Admn.). It was stated: "In pursuance of the above order the necessary amendment in the UP Factories in Boilers Service Rules 1980 shall be issued later on." The 3rd respondent, pursuant to the purported conversion of the said post, was promoted as Deputy Director of Factories (Administration). The appellant herein filed a writ petition questioning the same before the Lucknow Bench of the High Court of Judicature at Allahabad praying for the following reliefs: "(i) to issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 25th April, 1997 promoting the Respondent No.3 on the post of Deputy Director of Factories (Administration) as contained in Annexure No.1 to this writ petition; (ii) to issue a writ, order or direction in the nature of certiorari quashing the order....
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....nt, the same could not have been challenged collaterally after 10 years' of initial appointment and 2 years after the regularization of the services of the said respondent; (ii) The appellant should have impleaded the Chief Minister and Principal Secretary in their personal capacities as allegation of favoritism was made against them. In any event, the appointment having been made by the State of U.P. in terms of 1992 Rules of business upon selection by the Departmental Promotion Committee; the order of promotion was valid in law; (iii) Appointment of the 3rd respondent was made bona fide; (iv) No relief having been sought for questioning conversion of the post in the writ petition, no grievance in that behalf can be permitted to be raised herein. Furthermore, the appellant himself having claimed for promotion to the said post, he cannot be permitted to approbate and reprobate; (v) Rule 5(iii) should be construed in a reasonable manner and read fairly. If a broad meaning thereto is given, the same would imply experience of 5 years in the post and not 5 years' experience after having substantively appointed on the post of Assistant Director and so construed, the High....
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....s in the service shall be made in accordance with the general rules made by the Governor laying down the procedure for promotion in consultation with the Commission. The criteria for promotion shall be as indicated against each in rule 5 to these rules. Note The rules laying down the procedure in force at the commencement of these rules are "Uttar Pradesh Promotees by Selection in Consultation with Public Service Commission (Procedure) Rules, 1970" as amended from time to time." In terms of Rule 22, separate seniority lists are to be maintained for each category of posts in the service. Rule 28 speaks of relaxation, which is in the following terms: "28. Relaxation from other conditions of service.- Where the Governor is satisfied that the operation of any rule regulating the conditions of service of the members of the service causes undue hardship in any particular case, he may, in consultation with the commission where necessary, notwithstanding anything contained in the rules applicable to the case, by order, dispense with or relax the requirements of that rule to such extent and subject to such conditions as he may consider necessary for dealing with the case i....
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....ourt in Secretary, State of Karnataka & Ors. vs. Umadevi & Ors. [2006 (4) SCALE 197], has emphasized on compliance of requirements of the constitutional scheme in making the appointments as adumbrated in Articles 14 and 16 of the Constitution of India. The Court emphasized that even in the matter of regularization of service the provisions of Articles 14 and 16 of the Constitution cannot be given a complete go-by. The extent of the power of the State to make relaxation of the rules also came up for consideration of the Constitution Bench. The Constitution Bench referred to a recent decision of this Court in Union Public Service Commission Vs. Girish Jayanti Lal Vaghela & Ors. [2006 (2) SCLAE 115], wherein it was observed: "The main object of Article 16 is to create a constitutional right to equality of opportunity and employment in public offices. The words "employment" or "appointment" cover not merely the initial appointment but also other attributes of service like promotion and age of superannuation etc. The appointment to any post under the State can only be made after a proper advertisement has been made inviting applications from eligible candidates and holding of selectio....
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....in at least five years of continuous service including temporary and officiating service. By promotion on the basis of seniority subject to the rejection of the unfit, through the Commission from amongst substantively appointed Assistant Director of Factories, who have put in at least five year service as such on the first day of the year of recruitment. The aforesaid Rule 5(iii), thus, requires that on the date of selection, the candidate should have been substantively appointed as Assistant Director of Factories. It does not speak of experience in the service alone. The submission of Mr. Dinesh Dwivedi that the words "as such" referred to 5 years' experience of working in the post and not 5 years' experience in the substantive capacity cannot be accepted. An ad hoc employee who has been appointed in violation of the service rules did not hold any post. His experience in the post would mean experience gathered by him after his appointment in the substantive capacity. It is trite law that for the purpose of reckoning seniority the ad hoc services would be taken into consideration only if prior to the appointment of the employee the authorities had complied with the statut....
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.... be appointed substantively and when so appointed, he has to put in at least five years service as such. The expression "first day of the year of recruitment" is also of significance. By reason of ad hoc appointment de'hors the rules, nobody is recruited in the service in the eyes of law. The expression "recruitment" would mean recruitment in accordance with the rules and not de'hors the same. Absence of experience in substantive capacity is not a mere irregularity in this case. It would not be a mere irregularity, when a person not eligible therefor would be considered for promotion. It may be that for the purpose of direct appointment, experience and academic qualifications are treated to be at par, but when an eligibility criteria has been provided in the Rules for the purpose of promoting to a higher post, the same must strictly be complied with. Any deviation or departure therefrom would render the action void. In Ram Sarup vs. State of Haryana & Ors. [AIR 1978 SC 1536], whereupon Mr. Dwivedi placed strong reliance, the appointment of the appellant therein as Labour-cum-Conciliation Officer was found to be irregular. In that view of the matter, the same was not void. ....
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...., he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. High Courts acting under Article 226 of the Constitution of India, should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme." However, in the case of irregular appointment, the Constitution Bench in Umadevi (supra) stated as follows: "One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. NARAYANAPPA (supra), R.N. NANJUNDAPPA (supra), and B.N. NAGARAJAN (supra), and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continu....
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.... 567 and see also Punjab SEB Ltd. vs. Zora Singh [(2005) 6 SCC 776].} Malice in its legal sense means malice such as may be assumed for a wrongful act intentionally but without just cause or excuse or for one of reasonable or probable cause. The term malice on fact would come within the purview of aforementioned definition. Even, however, in the absence of any malicious intention, the principle of malice in law can be invoked as has been described by Viscount Haldane in Shearer and Another v. Shields (1914) AC 808 at p. 813 in the following terms: "A person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with an innocent mind; he is taken to know the law, and he must act within the law. He may, therefore, be guilty of malice in law, although, so far the state of his mind is concerned, he acts ignorantly, and in that sense innocently." The said principle has been narrated briefly in Smt. S.R. Venkataraman vs. Union of India & Anr. [AIR 1979 SC 49 : (1979) 2 SCC 491], in the following terms: "Thus malice in its legal sense means malice such as may be assumed from the doing of a wrongful act intentionally but without jus....
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.... The entire approach of the authorities of the State of U.P, thus, was only for achieving a private interest and not the public interest. It was in that sense, the action suffered from the vice of malice in law. It has not been disputed that there were other employees also who belonged to scheduled caste and were senior to the 3rd respondent. It has also not been disputed that no relaxation could be granted for promotion in terms of 1994 Act. Five years' experience from the date of substantive requirement, thus, being an essential qualification, no relaxation could have been given in that regard to the 3rd respondent. The 1994 Act was not enacted for meeting such a contingency. In that view of the matter both the Chief Minister as well as the Principal Secretary themselves did not possess any authority to make any relaxation and in that view of the matter they must be held to have misdirected themselves in law necessitating interference by the superior courts by way of judicial review. When such an illegality is committed, the superior court cannot shut its eyes. Contention of such glaring illegality would create a dangerous trend in future. It is one thing to say that convers....
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....34] and Minerva Mills Ltd. & Ors. vs. Union of India & Ors [(1980) 3 SCC 625].} A statute professing division amongst citizens, subject to Articles 15 and 16 of the Constitution of India must pass the test of strict scrutiny. Article 15(4) and Article 16(4) profess to bring the socially and educationally backward people to the forefront. Only for the purpose of invoking equality clause, the makers of the Constitution thought of protective discrimination and affirmative action. Such recourse to protective discrimination and affirmative action had been thought of to do away with social disparities. So long as social disparities among groups of people are patent and one class of citizens in spite of best efforts cannot effectively avail equality of opportunity due to social and economic handicaps, the policy of affirmative action must receive the approval of the constitutional courts. For the said purpose, however, the qualifications laid down in the Constitution for the aforementioned purpose must be held to be the sine qua non. Thus, affirmative action in essence and spirit involves classification of people as backward class of citizens and those who are not backward class of citize....