1. This appeal arises out of the judgment of the learned Single Judge dated 22nd August, 2007 whereby the claim of the respondent-petitioner, inspite of positive findings against the petitioner, has been allowed by giving sweeping directions to retain him in service in the Ghaziabad Development Authority on the post of a care taker in the Estate section of the authority with a further direction that since the respondent had worked as a Public Relation Officer on account of the appellant-authority itself having allowed him to do so, the State Government shall consider the proposal of the appellant-authority for creation of a post of a Public Relation Officer, and in the event the post is sanctioned the respondent-petitioner would be given the first preferential right of appointment. In all seven directions were issued and the writ petition was allowed subject to the said directions.
2. At the very outset, it may be put on record that the respondent-petitioner had claimed continuance on the post of Public Relation Officer in the appellant-Ghaziabad Development Authority and payment of salary, but the State Government vide order dated 20th December, 1991 intimated the appellant-authority that it had no jurisdiction to either create the post or to appoint the respondent-petitioner against it and, therefore, the appellant-authority was obliged to terminate the service of the respondent-petitioner forthwith. It is, this order of the State Government dated 20th December, 1991 that was made the basis for the challenge raised in the writ petition praying for its quashing and for directions for continuance in service and payment of salary.
3. As observed above, the writ petition was allowed with the directions contained in the impugned judgment. During the pendency of the writ petition, the respondent-petitioner had been granted an interim order of status-quo and based thereon the respondent-petitioner had continued to work as a Public Relation Officer and was paid salary by the appellant-authority.
4. When the present appeal was filed by the authority assailing the judgment of the learned Single Judge, an interim order was passed on 6th November, 2007 directing the parties to maintain status-quo as on that date with regard to working of the respondent-petitioner. The interim order, therefore, was in favour of the respondent no.1-petitioner, even though the appeal has been filed by the Ghaziabad Development Authority.
5. The appeal came up for admission after a stay vacation and a counter affidavit had been filed in 2008 and was dismissed in default for non-prosecution on 24.11.2010. It was restored on 1st February, 2012. The appeal again came up for admission on 24.08.2012 when it was admitted and notices were issued. The matter was thereafter taken up on several dates, and was adjourned either on account of the prayer for filing of affidavits or on account of adjournments on personal grounds by the learned counsel. The matter was taken up on 11th October, 2017 by us and after hearing the learned counsel for the parties, the appeal was directed to come up on 12th October, 2017 for disposal whereupon the learned counsel have addressed the Court on the issues raised.
6. We have heard Sri Saksham Srivastava holding brief of Sri Anoop Trivedi for the appellant-Development Authority and Sri Shailendra holding brief of Sri Chandan Sharma learned counsel for the respondent no. 1 and the learned Standing Counsel for the respondent no. 2-State.
7. Learned counsel for the appellant has invited the attention of the Court to the findings recorded by the learned Single Judge to urge, that having noticed the relevant provisions of the Uttar Pradesh Development Authorities Centralized Services Rules, 1985, and having come to the conclusion that the appellant-authority had no power to create the post of a Public Relation Officer or appoint the appellant on the said post, yet proceeded to issue directions to the State Government to consider his claim against the said post of Public Relation Officer and at the same time erroneously issued directions for retaining the respondent-petitioner on the post of care taker inspite of the fact that the said post was neither created nor available as on the date when the appellant-authority had proceeded to resolve to appoint the respondent no. 1. The issue raised by the learned counsel for the appellant is that the learned Single Judge after having recorded findings on factual and legal issues against the respondent no.1-petitioner, has proceeded to allow the writ petition imposing a liability on the appellant-authority to retain the respondent no. 1 as a care taker, and on the State Government to provide him employment as a Public Relation Officer which cannot be sustained as per the findings recorded in the judgment itself. The contention, therefore, is that the impugned judgment deserves to be set aside and the writ petition deserves to be dismissed.
8. Responding to the said arguments of the appellant, Sri Shailendra, learned counsel for the respondent no. 1-petitioner submits that the learned Single Judge was justified in issuing the directions as there was no fault on the part of the respondent-petitioner who had been retained and appointed by the appellant-authority, itself, through its resolution and appointment orders which, in fact, is clearly evident from the appointment order dated 09.10.1984 as a care taker and the resolution dated 21st January, 1985 of the appellant-authority to create a post of Public Relation Officer. The respondent-petitioner had been nominated vide order dated 3rd April, 1986 to work as an Assistant Public Relation Officer in addition to his work of care taker. It is also urged that by subsequent orders also the respondent-petitioner was appointed as a Public Relation Officer on 25.08.1989 in anticipation of sanction of the post by the State Government for which reminders were sent by the appellant-authority, itself on 09.03.1991 and 14.11.1991. The State Government passed the impugned order dated 20.12.1991 declining to create the post and directed the appellant-authority to terminate the service of the respondent-petitioner but even thereafter, the appellant-authority on 2nd September, 1998 issued directions to the respondent-petitioner to work as a Public Relation Officer.
9. Not only this, after the writ petition giving rise to this appeal was filed in 1992, an interim order of status-quo was also passed in favour of the respondent-petitioner whereupon he continued to function as such and thereafter under the interim order dated 06.11.2007 passed in this appeal. In the said background, the respondent-petitioner''s services should now be continued and should not be dispensed with, keeping in view, the fact that the appellant-authority itself has been found by the learned Single Judge to have brought about this situation.
10. A counter affidavit has been filed in this appeal, as well, bringing on record the appointment order. The State Government had filed a counter affidavit before the learned Single Judge and had contested the writ petition clearly stating therein that the Ghaziabad Development Authority had neither the power to create any such post or appoint the respondent no.1-petitioner upon the promulgation of the Uttar Pradesh Development Authority Centralized Services Rules, 1985. Even otherwise, prior to the commencement of the said Rules, there was no such permission by the State Government for the creation or appointment on the post of care taker as claimed by the respondent no.1-petitioner or as Public Relation Officer. The learned Standing Counsel has urged that the learned Single Judge has recorded findings but has issued directions contrary to law. Strangely enough, we do not find any appeal having been preferred by the state assailing the impugned judgment, nonetheless, the learned Standing Counsel for the respondent no. 2 has not supported the impugned judgment.
11. Having considered the respective stands taken by the parties it has to be straight away put on record that the learned Single Judge himself has noticed the existence of the 1985 Centralized Services Rules and has himself arrived at the correct conclusion that the appellant-authority had no power to make any appointment as the post was neither sanctioned nor created by the State Government as per the said Rules. The appointment of the respondent no.1-petitioner as care taker is dated 9th October, 1984 and a copy of the said letter of appointment is annexed as Annexure No. 1 to the counter affidavit in this appeal.
12. It may be put on record that the 1985 Rules were framed and published in the gazette on 15.06.1985 in terms of Section 5-A of the Urban Planning and Development Act, 1973 that was promulgated with effect from 22nd October, 1984.
13. The appointment order as a care taker is stated to have been issued under the orders of the Vice Chairman on a purely temporary basis terminable without notice at any point of time. The said letter of appointment does not refer to any power available with the Vice Chairman to make such appointment, keeping in view, the provisions of the then existing U.P. Urban Planning and Development Act, 1973. Section 5 of the 1973 Act is extracted hereinunder:-
"5.Staff of the Authority:(1) The State Government may appoint two suitable persons respectively as the Secretary and the Chief Accounts Officer of the Authority who shall exercise such powers and perform such duties as may be prescribed by regulations or delegated to them by the Authority or its Vice-Chairman.(2) Subject to such control and restrictions as may be determined by general or special order of the State Government, the Authority may appoint such number of other officers and employees as may be necessary for the efficient performance of its functions and may determine their designations and grades.(3) The Secretary, the Chief Accounts Officer and other Officers and employees of the Authority shall be entitled to receive from the funds of the Authority such salaries and allowances and shall be governed by such salaries and allowances and shall be governed by such other conditions of service as may be determined by regulations made in that behalf."
14. There is nothing on record to establish that the Development Authority had exercise its power by way of any resolution to appoint the respondent-petitioner as a care taker.
15. It is the admitted case of the respondent no.1-petitioner that the Development appellant-authority resolved on 21st January, 1985 to create a post of Public Relation Officer. There is no mention about the creation of the post of care taker or its existence whereunder the respondent no. 1 had been appointed by the Development Authority. The appointment was by the Vice Chairman in his individual capacity and not by the authority as defined under Section 2(g) read with Section of the 1973, Act. Thus, the very initial appointment of the respondent no.1-petitioner on the post of care taker has no legal foundation.
16. Coming to the claim of the respondent no.1-petitioner to have been appointed as a Public Relation Officer, it is evident that the Ghaziabad Development Authority is stated to have resolved on 21st January, 1985 to create a post of Public Relation Officer. In view of the provisions of Section 5-A of the 1973 Act that had come into force on 22.10.1984 such an exercise was impermissible as the power to create a post lay with the State Government. Section 5-A that had already been introduced by way of an amendment in October, 1984 and was in force on 21st January, 1985 is extracted hereinunder:-
"5-A. Creation of Centralised Services:(1) Notwithstanding anything to the contrary contained in Section 5 or in any other law for the time being in force, the State Government may at any time, by notification, create one or more ''Development Authorities Centralised Services'' for such posts, other than the posts mentioned in Sub-Section (4) of Section 59, as the State Government may deem fit, common to all the Development Authorities, and may prescribe the manner and conditions of recruitment to, and the terms and conditions of service of persons appointed to such service.(2) Upon creation of a Development Authorities Centralised Service, a person serving on the posts included in such service immediately before such creation, not being a person governed by the U.P. Palika (Centralized) Services Rules, 1966. or serving on deputation, shall, unless he opts otherwise, be absorbed in such service,-(a) finally, if he was already confirmed in his post; and(b) provisionally, if he was holding temporary or officiating appointment.(3)A person referred to in Sub-section (2) may, within three months from the creation of such Development Authorities Centralised Service communicate to the Government in the Housing Department, his option not to be absorbed in such Centralised Service, failing which he shall be deemed to have opted for final or provisional, as the case may be, absorption in such Centralised Service.(4) Suitability of a person absorbed provisionally, for final absorption in Development Authorities Centralised Service, shall be examined in the manner prescribed and if found suitable he shall be absorbed finally.(5) The services of an employee who opts against absorption or who is not found suitable for final absorption, shall stand determined and he shall, without prejudice to his claim to any leave, pension, provident fund or gratuity which he would have been entitled to, be entitled to receive as compensation from the Development Authority concerned, an amount equal to-(a) three months'' salary, if he was a permanent employee;(b) one month''s salary, if he was a temporary employee.Explanation.-For the purposes of this sub-section the term ''salary'' includes dearness allowance, personal pay and special pay, if any.(6) It shall be lawful for the State Government or any officer authorised by it in this behalf, to transfer any person holding any post in a Development Authorities Centralised Service from one Development Authority to another.]"
17. The language of the aforesaid section, therefore, is abundantly clear that takes away the power of creation or sanction from the Development Authority and entrusts it to the State Government. The learned Single Judge, therefore, rightly found that the appellant-authority did not have any power to create the post of Public Relation Officer but erroneously proceeded to make appointment of the respondent no.1-petitioner in anticipation of any such sanction.
18. Coming to the 1985 Rules, the cadre of the service is defined in Rule 3 thereof. While indicating the equivalent post carrying identical scale of pay in the note appended to Rule 3(1) the post of Jan Sampark Adhikari (Public Relation Officer) has been included as against the post of Anu Sachiv (Jan Sampark). Similarly, a caretaker''s post has been stated as equivalent to that of Sahayak Sampatti Adhikshak. Rule 3(2), however, puts in a caveat to the following effect:-
"(2) The post or posts specified above but not existing in any Development Authority on the date of enforcement of these rules, shall not mean to have been created or come into existence by virtue of the provisions of this rule."
19. The strength of each of the posts has been defined to be such as may be determined by the State Government from time to time under Rule 5. Sub-Rule 3 of Rule 5 prohibits the development authorities from creating any post without prior sanction of the State Government. Rule 5 in its entirety is extracted hereinunder:-
"5. Strength - (1) The strength of each of the posts in the service shall be may be determined by Government from time to time.(2) Until the Government determines the strength of posts as envisaged under Sub-rule (1) the posts in the service as existing on the ninth day of March, 1983 under the Development Authorities shall form the present strength :Provided that-(i) the Government may leave unfilled or may hold in abeyance any vacant post, without thereby entitling any person to compensation; and(ii) the Government may create such additional posts as it may consider necessary.(3) The Development Authorities shall have no power to create any new post or posts without prior sanction of the Government."
20. A combined reading of the aforesaid provisions leaves no room for doubt that the appellant-authority could not have either created or appointed the respondent no.1-petitioner either as a care taker or a Public Relation Officer in the absence of any creation or sanction of the post by the State Government. This was a clear over reach which has been affirmed by the learned Single Judge while recording findings to that effect.
21. The question is that having considered the entire exercise by the Development Authority to be illegal, could the learned Single Judge have, on the principle of equity, placed the fault on the shoulders of the appellant-authority to extend the benefit of continuance to the respondent no.1-petitioner ?
22. We are unable to find any logic or reason to support the impugned judgment inasmuch as, the learned Single Judge, on no principle of equity, could have extended the benefits to the respondent no.1-petitioner as equity follows law and not the other way around. The law was correctly recorded by the learned Single Judge to the effect that the appellant-authority could not have proceeded to make any appointment on a post which was never created. The learned Single Judge, therefore, committed a manifest error by quashing the order dated 20th December, 1991 for compelling the State Government to consider creation of a post and give preferential rights to the respondent no.1-petitioner. This, in our opinion, was a clear judicial over reach against law. It is settled principle that there cannot be any estoppel against statute. It is also trite that a Court cannot issue directions contrary to the Rules applicable and compel the State Government to create a post and to make a appointment even if the State Government has not found it necessary to do so. The Court, therefore, could not have assumed the role of an employer itself on the principle of equity after having held that neither the post was created nor available nor any appointment could have been made by the appellant. The quashing of the order impugned in the writ petition was totally unjustified.
23. The directions given by the learned Single Judge also call for interference inasmuch as, merely because there is no sanctioned post of a Public Relation Officer, there was no occasion to issue a direction to revert the respondent no.1-petitioner on the post of care taker and continue him as such. This exercise itself by the Court, by issuing a mandamus, amounts to assuming the role of an appointing authority that was not even the relief claimed.
24. Apart from this the learned Single Judge has proceeded to issue a direction to consider the proposal of creation of the post of a Public Relation Officer and to give the first preferential right of appointment to the respondent no.1-petitioner. This would again be contrary to the 1985 Rules. The direction to issue an ad hoc letter of appointment after sanctioning the post amounts to performing the role of a creator, an employer and the executor of the entire exercise by the learned Single Judge himself. This cannot be supported by any law under service jurisprudence.
25. There is yet another reason for us to record our conclusion namely, that the post of a Public Relation Officer is to be filled up through the Public Service Commission and which is a selection post. It is not understood as to how a post facto approval to the appointment of the respondent no.1-petitioner, as proposed by the learned Single Judge, can be given for which there is no provision under any law for the time being in force.
26. Lastly, the direction given by the learned Single Judge that, if the State Government declines to create the post, then in that event the appellant-authority will promote the respondent no.1-petitioner or provide him with a befitting employment, is also a mandamus issued which clearly travels beyond the discretionary jurisdiction of this Court under Article 226 of the Constitution of India and is unknown to the principles of service jurisprudence. Thus, all the directions given by the learned Single Judge to the extent as explained above are unwarranted and unsupportable in law. The impugned judgment cannot be sustained on any ground.
27. We, accordingly, allow the appeal and set aside the judgment dated 22nd August, 2007. The writ petition stands dismissed. There shall be no order as to costs.
