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2005(8) Supreme 617
Supreme Court of India
(From Allahabad High Court)
S.B. Sinha & P.P. Naolekar, JJ.
State of U.P. —Appellant
versus
Neeraj Awasthi & Ors. —Respondents
Civil Appeal No. 4092 of 2001
With
Civil Appeal Nos. 3872, 3873, 4038, 4093-4102, 7545-7646, 7647-7748 of 2001,
Civil Appeal No. 6810 of 2005 and
Civil Appeal No. 6814 of 2005
Decided on 16-12-2005
Counsel for the Parties :
For the Appearing Parties : M.L. Verma, Uday Umesh Lalit, G.L. Sanghi, Anoop George Choudhary, Mrs. Shobha Dixit, Sr. Advocates, N.C. Mehrotra, Aarohi Bhalla, Satya Mitra, Ms. Sujata Kurdukar, Shakil Ahmed Syed, Mohd. Taiyab Khan, Firasat Ali Siddiqui, Shashindra Tripathi, M.P. Shorawala, M.C. Dhingra, Kumar Parimal, Aniruddha P. Mayee, Ms. Hema Sahu, C.L. Sahu, Ms. Rachana Srivastava, Irshan Ahmad, D. Mahesh Babu, Raj Singh Rana and Shail Kumar Dwivedi, Advocates.
Held : The upshot of our aforementioned discussions is:
(i) The Board and the Market Committees were bound by the Act, the Rules and Regulations framed thereunder in making appointments. Statutory provisions as also the constitutional requirements were required to be complied with.
(ii) The Board had no jurisdiction to frame any scheme for regularization in the face of the statutory regulations operating in the field. Any legislation involving appointment or laying down the conditions of service of the employees would require prior sanction of the State.
(iii) The State of Uttar Pradesh in exercise of its purported power under Section 26-M of the Act could not have issued the directions as it has been done but such a direction cannot be said to be wholly unreasonable.
(iv) The State although could not exercise a statutory power beyond the provisions of the statute but the same although might have been done under a misconception of law but was not otherwise arbitrary or mala fide.
(v) Availability of vacancies and/or the fund by themselves would not allow the Market Committees or the Board to make appointments in flagrant violation of the statutory provisions. Although the direction of the State of U.P. which had been acted upon by the Board did not have a statutory backing, the High Court could not have issued a writ of or in the nature of mandamus as the writ petitioners. Respondents did not have any legal right.
(vi) We are not oblivious of the fact that there may be some employees whose services have been terminated without any rhyme or reason. Mr. Verma appearing on behalf of the Board has assured us that the Board shall look into cases of such employees whose termination has been effected beyond the policy decision taken by the State although we do not intend to express any opinion as regards such employees.
We, however, direct the Board and the Market Committees to fill up all existing vacancies strictly in accordance with law as expeditiously as possible and preferably without six months from date. While doing so, amongst other eligible candidates, the candidature of the employees whose services have been terminated should also be taken into consideration and in the event, the appropriate authority of the Market Committees or the Board can relax the age-bar, the same would be done. The respective Market Committees, however, in the meanwhile, if for exigencies of the work, intend to appoint any person, it may do so. However, post facto approval therefor should be obtained from the Board. In the offers of appointment which may be issued to such temporary or ad hoc employees it shall be made clear that their appointments would be ad hoc in nature and the same shall be co-terminus with the appointment of regular employees. (Paras 77 and 78)
Judgment
S.B. Sinha, J.—The jurisdiction of the High Court to issue a direction for framing a scheme for regularisation of the employees of the U.P. State Agricultural Produce Market Board (for short “the Board”) is in question in this batch of appeals which arise out of judgments and orders passed by the High Court of Judicature at Allahabad in the writ petitions filed by the private respondents either dismissing or allowing the same.
ACT
2. The legislature of the State of Uttar Pradesh enacted The Uttar Pradesh Krishi Utpadan Mandi Adhiniyam, 1964 (for short “the Act”). The Board has been established under Section 26-A of the Act. Section 26-B provides for the constitution of the Board. In exercise of its power conferred upon it by Section 25-A and 26-X of the Act, regulations have also been framed by the Board laying down the terms and conditions of the service of the employees of the Market Committees known as the Uttar Pradesh Agricultural Produce Market Committees (Centralised) Services Regulations, 1984 (for short “Services Regulations”). Similar regulations have also been framed by the Board in respect of its own employees being the Uttar Pradesh Agricultural Produce Markets Board (Officers and Staff Establishment) Regulations, 1984 (for short “Establishment Regulations”).
Background Fact
3. In the State of Uttar Pradesh, there are 244 Market Committees 3395 posts were sanctioned but indisputably 5600 appointments have been made. We are herein concerned with the orders of appointments and orders of terminations issued in respect of about 1021 employees who were appointed between the period 1.4.1996 and 30.10.1997. A resolution was passed by the Board on or about 30th September, 1996 proposing regularisation of the services of those employees who have completed one thousand days of service. The Board had also its construction divisions. The said proposal was, however, confined to the employees working in the construction divisions against contingency funds. Approval having been sought for from the State Government in relation to framing of appropriate rules, in this behalf, informations were sought for from various departments including Mandi Parishad in regard to the appointments made in past six months by a letter dated 20th November, 1997. Relevant informations were furnished by the Director of the Mandi Parishad whereafter the State sought for further informations and details regarding the appointments made in the Mandi Parishad and Mandi Samities by a letter dated 17.3.1998. Such informations were sought for by the State again by a letter dated 18.5.1998. On or about 12.2.1999, an order was issued by the State directing that services of all such employees who had been irregularly appointed during the period 1.4.1996 to 30.10.1997 be cancelled on last-come-first-go-basis stating:
“1. The irregular appointment made in the Mandi Parishad and Mandi Samities during the period w.e.f. 1.4.96 to 30.10.97 should be cancelled immediately. The following course should be adopted to terminate such appointments:
(a) There is no legal impediment in terminating the service of the employee concerned after cancelling the appointments which have been made without any created/sanctioned post but the reason therefor shall have to be recorded in the order.
(b) There is no legal impediment in terminating the service after cancelling the appointments of such persons as did not have educational qualifications prescribed for the post concerned but the reason therefor should be recorded in the order.
(c) The termination of service of such persons, as have been appointed in relation to some post and also have educational qualification prescribed for that post, should be made in accordance with the procedure mentioned in their appointment order. In case, no procedure is mentioned in the appointments order, their service should be terminated after giving either notice or pay in lieu thereof.
(2) In this regard I have to inform this thing also that after
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