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2005 Supreme(All) 16
ALLAHABAD HIGH COURT
B.S.Chauhan and Dilip Gupta, JJ.
Krishna Mohan Singh
Versus
State of U.P.
Special Appeal 467 of 1997
Decided On : 05 January 2005
Special Appeal 467 Of 1997
The main legal point established in the judgment is the requirement to adhere to fair procedures in appointments, including advertising vacancies, compliance with recruitment rules, and adherence to constitutional provisions of Articles 14 and 16.
Headnote:
APPOINTMENT - Teacher Appointment - [State of Haryana and Ors. v. Piara Singh and Ors., AIR 1992 SC 2130; Prabhat Kumar Sharma v. State of U. P., AIR 1996 SC 2638; J. A. S. Inter college, Khurja v. State of U. P., (1996) 1o SCC 71; Delhi Development Horticulture employees- Union v. Delhi Administration, Delhi and Ors., AIR 1992 SC 789; Excise Superintendent v. K. B. N. Visweshwara Rao, (1996) 6 SCC 216; Union of India and Ors. v. N. Hargopal and Ors., (1987) 3 SCC 308; Arun Tewari v. Zila Mansavi Shikshak Sangh, AIR 1998 SC 331; Smt. Ravindra Sharma v. State of Punjab, (1995) 1 SCC 138; Smt. Harpal Kaur Chahal v. Director, punjab Instructions, 1995 (Suppl) 4 SCC 706; State of Madhya Pradesh v. Shyama Pardhi, (1996) 7 SCC 118; State of Rajasthan v. Hitendra Kumar Bhatt, (1997) 6 SCC 574; Patna university v. Dr. Amita Tiwari, AIR 1997 SC 3456; Madhya Pradesh Electricity Board v. S. S. Modh, AIR 1997 SC 3464; Bhagwan Singh v. State of Punjab, (1999) 9 SCC 573; chancellor v. Shankar Rao, (1999) 6 SCC 255; Union Territory, Chandigarh, Admn. v. Managing Society, Goswami GDSDC, AIR 1996 SC 1759; V. Karnal Durai v. District collector, (1999) 1 SCC 475; A. Mahudeswaran v. Government of T. N., (1996) 8 SCC 617; Delhi Transport Corporation. v. D. T. C. Mazdoor Congress, AIR 1991 SC 101; Sita Ram Mali v. State of Rajasthan, 1994 (2) WLC 177; Dr. M. A. Hague v. Union of India, (1993) 2 SCC 213; State of U. P. and Ors. v. U. P. State Law Officers Association and Ors., AIR 1994 SC 1654; Nagpur Improvement Trust v. Yadaorao Jagannath Kumbhare, AIR 1999 SC 3084; Ramesh Kumar Sharma and Anr. v. Rajasthan Civil Services Appellate Tribunal and Ors., 2000 AIR SCW 4206; Meghalaya State Electricity Board v. Jagadindra Arjun, AIR 2001 SC 2440; Suresh Kumar and Ors. v. State of Haryana and Ors., 2001 AIR SCW 2545; B. R. Kapur v. State of Tamil Nadu, (2001) 7 SCC 231; M. Pantiah and Ors. v. Muddala veeramallappa and Ors., AIR 1961 SC 1107; University of Mysore v. C. D. Govinda Rao and anr., AIR 1965 SC 491; P. L. Lakhanpal v. Ajit Nath Ray, AIR 1975 Del. 66; State of Mysore and Anr. v. S. V. Narayanappa, AIR 1967 SC 1701; R. N. Nanjundappa v. T. Thimmaiah and anr., AIR 1972 SC 1767; B. N. Nagarajan and Ors. v. State of Karnataka and Ors., AIR 1979 SC 1676; State of Himachal Pradesh v. Suresh Kumar Verma and Anr., AIR 1996 SC 1565; State of m. P. and Anr. v. Dharam Bir, (1998) 6 SCC 165; Dr. Chanchal Goyal (Mrs.) v. State of rajasthan, AIR 2003 SC 1713; State of Haryana and Anr. v. Tilak Raj and Ors., AIR 2003 SC 2658; Haryana Tourism Corporation Ltd. v. Fakir Chand and Ors., AIR 2003 SC 4465; Sultan Sadik v. Sanjay Raj Subba and Ors., AIR 2004 SC 1377] - The court discussed various legal provisions related to appointment, including the requirement to advertise vacancies, adherence to recruitment rules, and the need for fair procedures in appointments. The court emphasized the importance of following the constitutional provisions of Articles 14 and 16 and highlighted the invalidity of appointments made without following the required procedures.
Fact of the Case:
The petitioner-appellant claimed to have been appointed as an Assistant Teacher in the L. T. grade in the year 1991 and filed a petition for payment of salary. The appointment was made by the Committee of management without approval from the District Inspector of Schools.
Finding of the Court:
The court dismissed the special appeal, stating that the appointment had not been advertised while filling up the vacancy, and therefore, the question of granting any relief to the appellant did not arise.
Issues: Validity of the appointment without advertising the vacancy, compliance with recruitment rules, and adherence to constitutional provisions of Articles 14 and 16.
Ratio Decidendi: The court emphasized the importance of following the constitutional provisions of Articles 14 and 16, the need for fair procedures in appointments, and the invalidity of appointments made without following the required procedures.
Final Decision: The Special Appeal was dismissed with no costs.
( 2 ) THE petitioner-appellant claims to have been appointed as an Assistant Teacher in the L. T. grade in the year 1991. The petition had been filed for payment of salary. It is an admitted fact that the appointment of the petitioner-appellant had been made by the Committee of management. The District Inspector of Schools did not grant approval to the appointment of the petitioner-appellant.
( 3 ) LEARNED Counsel for the appellant has submitted that the judgment of Radha Raizada v. Committee of Management, 1994 (2) ESC 345 (All), does not apply with retrospective effect and as the appointments were being made without advertising the vacancy, prior to the said judgment the case of the petitioner-appellant ought to have been considered without entering into the issue as to whether the appointment was permissible without advertising the vacancy. In order to fortify his case a very heavy reliance has been placed upon the Division Bench judgment of this court in Ashika Prasad Shukla v. District Inspector of Schools, Allahabad and Anr. , 1998 (3)ESC 2006 (All), wherein it had been held that as the directions had been issued in Radha raizada (supra) by this Court not to fill up the vacancies without advertisement, the said judgment does not operate retrospectively.
( 4 ) ON the contrary, Sri S. N. Singh, learned Standing Counsel has vehemently opposed the appeal contending that making the appointment without advertising the vacancy has always been considered being violative of the rights conferred by Articles 14 and 16 of the Constitution of India upon all eligible candidates who ought to have applied for the said post. The judgments of Radha Raizada or Ashika Prasad Shukla (supra) do not have any bearing whatsoever and the special Appeal is liable to be dismissed.
( 5 ) WE have considered the rival submissions made by the learned Counsel for the parties and perused the record.
( 6 ) IN State of Haryana and Ors. v. Piara Singh and Ors. , AIR 1992 SC 2130, the apex Court held that even for a short-term vacancy, ad hoc appointment should be made by adopting a procedure consonance with the provisions of Articles 14 and 16 of the Constitution of India. Similar view has been reiterated in Prabhat Kumar Sharma v. State of U. P. , AIR 1996 SC 2638 J. A. S. Inter college, Khurja v. State of U. P. , (1996) 1o SCC 71 and Delhi Development Horticulture employees- Union v. Delhi Administration, Delhi and Ors. , AIR 1992 SC 789.
( 7 ) IN Excise Superintendent v. K. B. N. Visweshwara Rao, (1996) 6 SCC 216, the Supreme Court impliedly over-ruled its earlier judgment in Union of India and Ors. v. N. Hargopal and Ors. , (1987) 3 SCC 308, wherein it had been held that appointment by calling the names from employment Exchange was valid. The Court took the view that in addition to calling the names from the Employment Exchange, vacancy has to be advertised in the local newspapers and the appointment only by calling the names from the Employment Exchange will be hit by the provisions of Articles 14 and 16 of the Constitution of India for the reason that those persons who could not get their names registered with, the Employment Exchange cannot be discriminated merely on that ground. An exception to the same had been carved out subsequently in A run Tewari v. Zila Mansavi Shikshak Sangh, AIR 1998 SC 331, to the extent that advertising the vacancy in local newspapers can be dispensed with only in exceptional circumstances where for grave urgency there is no time to advertise the vacancy and only in such an event appointments can be made by calling the names from the Employment Exchange only.
( 8 ) THE question of appointment de hors the Rules has been considered by the Supreme Court from ti
