1. The petitioner were initially appointed as Junior Engineers in the Mandi Parishad. One Dhirendra Singh was also appointed as Junior Engineer in the Mandi Parishad. He was promoted on 15-6-1991 on the post of Assistant Engineer in stop gap arrangement and thereafter on 11-9-1997 he was promoted on the post of Deputy Director (Electrical Mechanical). The remaining petitioners who were Junior Engineers were promoted on stop gap arrangement as Assistant Engineers on different dates in the years 1995 and 1996. Being aggrieved against their ‘reversion’ to the post of Junior Engineer all the petitioners have preferred writ petitions before this Court. The factual Matrix as set out in these writ petitions is that in the meetings dated 2-8-1995 and 19-9-1995 the Mandi Parishad increased the strength of Assistant Engineers from 72 posts to 100 posts and increased the posts of Assistant Engineers (Electrical Mechanical) from 11 to 30 posts. In pursuance of the said increased strength the Director of Mandi Parishad passed orders of promoting the petitioners, except Dhirendra Singh on the post of Assistant Engineer in the stopgap arrangement. Mr. Dhirendra Singh was promoted on the post of Deputy Director (Electrical Mechanical). Thereafter the Director of Mandi Parishad reverted all the petitioners on the post of Junior Engineer mainly on two grounds, firstly; that the posts upon which the promotions were made, vacancies were not available and secondly; that the promotions were made ignoring the seniority list.
2. The thrust of the learned counsel for the petitioners in these writ petitions are twofold, firstly; that the strength was increased by the Mandi Parishad itself, and hence the strength cannot be reduced by the Director by reverting the petitioners, and secondly; that the principle of audi alteram partem was not followed, inasmuch as, in pursuance of ad hoc promotions on the stopgap basis the petitioners joined the posts and were working on the promoted posts. The order of reversion has adversely affected their rights and hence without giving them an opportunity to show cause such an order could not have been passed.
3. From the side of the respondents it has been averred in the counter-affidavit that the resolutions passed by the Mandi Parishad on 2-8-1995 and 19-9-1995 were not approved by the State Government. By means of its order dated 3-11-1995 the Mandi Parishad was directed to stop the follow up action with regard to the resolutions passed in the aforesaid meetings, till further orders, and Parishad was directed to forward those resolutions to the State Government for approval.
4. Mr. S.F.A Naqvi, learned counsel for the petitioners, has drawn the attention of this Court to the contents of the said direction issued by the State Government, wherein, it was indicated that the Mandi Parishad had taken such a decision pertaining to the service conditions of its employees which was beyond the jurisdiction of the Mandi Parishad and the provisions contained in the Regulations. Such a resolution could not be implemented without relaxing the provisions contained in the service regulations. The said direction also indicated that in accordance with the provisions contained in Section 26-F(2) of the U.P Krishi Utpadan Mandi Adhiniyam, 1964 (hereinafter referred to as the Act) the approval of the State Government was not taken and the Parishad in its resolutions has relaxed the eligibility clause of the regulation unauthorisedly. The contention of Mr. Naqvi appears to be that, that direction was confined to the provisions contained in Sec. 26-F(2) only. Set on 26-F of the Act reads as under:
“26-F. Appointment of officers and servants.— (1) The Board may appoint such officers and servants as it considers necessary for efficient performance of its functions on such terms and conditions as may be provided for in regulations made by the Board.
(2) The Board may, with the previous approval of the State Government, appoint a servant of the Central Government or the State Government as an officer or servant of the Board or of a Committee on such terms and conditions as it thinks fit.”
5. In the light of the provisions contained in Sec. 26-F of the Act and the direction of the State Government dated 23-11-1995. this Court has to examine as to whether the direction of the State Government was confined only to sub-section (2) of Section 26-F of the Act or not. From a perusal of the entire direction issued by the State Government it appears that the State Government had raised objections about the resolutions passed by the Mandi Parishad in its meetings dated 2-8-1995 and 19-9-1995 which were beyond the powers of the Mandi Parishad and the same could not be done without relaxing the provisions of the Act and the regulations and the same could not be implemented. After issuing this direction, reference to Section 26-F(2) was mentioned, and thereafter an illustration was given that in the meeting dated 2-11-1995 at item No. 6 which pertains to eligibility conditions of the employees, the same was relaxed without the approval of the State Government, as that power was vested to the State Government only. At the end of that direction the State Government directed that till further orders of the State Government implementation of that part of the resolution pertaining to the increase of the strength of Junior Engineers should be stopped and the resolution be sent to the State Government for approval.
6. In view of the aforesaid situation it cannot be said that the direction of the State Government was confined only to the extent, what is provided under sub-section (2) of Section 26-F of the Act.
7. Now it has to be seen as to whether the State Government has been vested with any power to issue such directions to the Mandi Parishad or not. Before dealing with the relevant clause it is relevant to mention here that the Mandi Parishad is a creation of the State as mentioned in Sec. 26-A of the Act which provides that the State Government shall, by notification in the Gazette, and with effect from a date to be specified therein, constitute a Board (which herein before or after mentioned as Parishad) by the name of the State Agricultural Produce Markets Board with its head office at Lucknow. Section 26-M of the Act which provides for the power of the State Government to issue directions is reproduced below:
“26-M. Directions on questions of policy.— (1) In the discharge of its functions, the Board shall be guided by such directions on question of policy as may be given to it by the State Government.
(2) If any question arises whether any matter is or is not a matter in respect of which the State Government may issue a direction under subsection (1), the decision of the State Government shall be final.”
8. Mr. Naqvi contended that the State Government is undoubtedly vested with power to issue directions, but that direction should pertain only to the policy and not to the powers of the Board to make appointments. Hence any such direction by the State Government would be of no value.
9. Section 26-L of the Act deals with the powers and functions of the Parishad which is exhaustive in nature by vesting several powers to the Parishad but Section 26 is silent on the question as to whether the Board has been vested with a power to increase, the strength of the staff, or not. Does it mean that the Parishad has an unfettered right to appoint as much people as it desires, without any consideration of resources available to it, for payment of the salaries to its employees.
10. We are of the view that as the Act does not vest to the Parishad any power to increase the strength of the staff, while increasing the strength of the staff the income and the resouces of the Parishad must have to be taken into account, but unfortunately that was not done. Increase of the staff is related to requirement of the posts, resources and income of the Parishad. It is matter of policy and the State Government has been vested with a power under Section 26-M of the Act to issue such a direction. Probably for that reason the State Government exercised its power under Section 26-M of the Act, and issued a direction to the Parishad, not to implement the resolutions which it had passed and send it to the State Government for approval. The Parishad has no option except to implement the directions, as the Parishad is to be guided by such directions, issued by the State Government.
11. The question as to whether this direction pertains to the policy matter or not can be looked into, by the State itself. Sub-section (2) of Section 26-M provide that in such a situation, the State will decide as to whether any matter is or is not a matter in respect of which the State Government may issue a direction under sub-section (1) and in that regard the direction of the State Government shall be final. Hence the arguments of Mr. Naqvi, that the matter did not pertain to a policy and hence that direction was illegal has no substance. There is another aspect of the matter that in these writ petitions that direction of the State Government has not been assailed. Hence this plea is not sustainable.
12. The other limb of the arguments of Mr. Naqvi is based on certain observations of the Hon'ble Supreme Court in Shridhar v. Nagar Palika, Kaunpur as well as Shrawan Kumar Jha v. State of Bihar, 1991 Supp (1) SCC 330 : AIR 1991 SC 309 wherein it has been indicated that if the appointment has been cancelled, then it is incumbent upon the authority, passing such an order, to give opportunity to the person, against whom such an order was passed, and to give a finding whether the appointments were validly made. Similar observations were made in Sada Nand Tripathi v. State of U.P, (1995) 2 UPLBEC 827, wherein a Division Bench of this Court, has observed that whether it was ad hoc (appointment) or it was permanent would not go to create any defect in the selection procedure. Once the petitioners had been selected their cases for subsequent consideration must be, by the same selection committee, which had been constituted, under the rules then in force, to throttle the rights of the petitioners, by changing the selection committee and also the criterion for promotion is taken away the vested right of each of the petitioners.
13. In the last the Division Bench quashed the impugned orders and directed the respondents to reconsider the matter of the petitioners' regularisation/confirmation by a validly constituted committee in accordance with applicable rules.
14. Before dealing with the question as to whether the principls of audi alteram partem can be attracted in the instant case or not, it would be worthwhile to consider the service regulations of the Uttar Pradesh Agricultural Produce Markets Board (Officers and Staff Establishment) Regulations, 1984 (hereinafter referred to as the Regulations) which have been framed by the Mandi Parishad with the previous approval of the State Government in exercise of the powers under Section 26-X of the Act (U.P Act No. XXV of 1964).
15. Regulation 10(2)(b) of the Regulations provides:
“50 Per cent posts in Class R shall be filled by promotion and 50 per cent by direct recruitment.”
16. Regulation 10(4) of ihe Regulations provides:
“Promotion shall be confined to the posts within the same group as detailed in Appendix C and shall be subject to the conditions (f) eligibility for promotion to different posts as mentioned therein.”
17. Regulation 9 of the Regulations provides that the appointing authority of all posts in Class B shall be the Director.
18. Regulation 11 of the Regulations which provides for the procedure for recruitment to Class ‘A’ and ‘B’ posts is reproduced below:
“11(1) For the purposes of recruitment to Class ‘A’ and ‘B’ posts, whether by direct recruitment of by promotion there shall be constituted a Selection Committee comprising the following:
(i) Two officers not below the rank of Deputy Secretary to be nominated by the Secretary to the State Government in the Agriculture Department.
(ii) Three officers not below the rank of Deputy Director to be nominated by the Director.
(iii) The Chairman of the Selection Committee shall be nominated, by the Secretary of the State Government in Agriculture Department, the out of the members represented in class (i) and (ii).”
19. Regulation 12 of the Regulations provides that:
“12. (1) The appointing authority shall determine the number of vacancies, in all the clauses A, B, C and D, to be filled during the course of the year as also the number of vacancies to be reserved for candidates belonging to scheduled caste, scheduled tribes and other categories under Regulation 8.
(2) The vacancies in Class ‘B’ posts shall be advertised in at least two leading newspapers of the State, for the posts in class ‘C’ and ‘D’ vacancies shall be notified to the employment exchange in accordance with the rules and orders for the time being in force.
(3) When the applications of the candidates have been received in response to the advertisement made under sub-regulation (2) or the names are received through the employment exchanges, the appointing authority shall fix a date for selection and forward the applications and names to the selection committee.
(4) The selection Committee shall scrutinise the applications and prepare a list of eligible candidates. The Committee shall, having regard to the need for securing due representation of the candidates belonging to scheduled castes, scheduled tribes, and other categories in accordance with Regulation 8, call the eligible candidates for test and/or interview as it may decide. In the case of selection to Class ‘C’ and ‘D’ posts procedure prescribed for appointment to these classes of posts under the State Government shall be followed. The committee shall prepare list of candidates in order of merit as disclosed by the marks obtained in the test and/or interview. If two or more candidates obtained equal marks, the committee shall arrange their names on the basis of their age the older in age being placed higher.
(5) The names of the candidates belonging to such categories for whom vacancies are required to be recovered under Regulation 8 shall be arranged in a separate list according to their inter se-merit disclosed by the marks obtained by them.
(6) The number of candidates to be selected will be larger (but not larger by more than 25 per cent) than the number of vacancies for which the selection has been made.
(7) The list prepared under sub-regulations (4) and (5) above shall be forwarded by the selection committee to the appointing authority mentioning the aggregate marks obtained at the selection and reserved candidates shall be arranged by the appointing authority in a common list according to the merit of the candidates having due regard to the posts reserved under Regulation 8.”
20. Regulation 13 of the Regulations provides:
“13. (1) Selection for promotion shall be made by selection committee to be constituted under Regulation 11. The criteria for selection shall be seniority subject to rejection of the unfit.
(2) The appointing authority shall prepare an eligibility list of the candidates arranged in order of seniority and place it before selection committee along with their character and other necessary records pertaining to them.
(3) The selection committee shall consider the cases of the candidates on the basis of records referred to in sub-regulation (2) and if it considers necessary may interview the candidates also.
(4) The Selection Committee shall prepare list of selected candidates arranged in order of seniority and toward the same to the appointing authority.”
21. Regulation 14 of the Regulations provides:
“14. If appointment is to be made both by direct recruitment and by promotion, combined select list shall be prepared by taking the names of the candidates from the lists prepared under Regulations 12 and 13 in such manner that the prescribed percentage of direct recruitment and promotion is maintained, the first name being from the list prepared under Regulation 13.”
22. Regulation 15(1) provides that the list prepared under Regulations 12, 13 and 14 will remain in force for a period of one year from the date of their ‘finalisation’. On the occurrence of substantive vacancies, the appointing authority shall make appointments by taking candidates in the order in which they stand on these lists.
23. Regulation 15(2) provides that the appointing authority may make appointments in temporary and officiating vacancies also from lists referred to in sub-regulation (1).
24. Regulation 16 deals with placing of such appointees on probation for a period of one year.
25. Regulation 17 provides for confirmation and Regulation 18 provides for seniority.
26. From the perusal of the aforesaid Regulations, it is evident that the appointment on the post of Junior Engineer or promotion to the post of Assistant Engineer shall be made on the occurrence of substantive vacancies which shall be advertised in the newspaper and thereafter appointment/promotion shall be made through a Selection Committee.
27. It has been more or less conceded by the petitioners themselves, that their appointments on the posts of Junior Engineers and promotion on the posts of Assistant Engineer were made as stopgap arrangement and were not made in accordance with service regulations, meaning thereby, that their appointments on stopgap promotions dehors the service regulations. Most of the petitioners are not even confirmed as Junior Engineers. By means of the impugned orders they were reverted to the posts of Junior Engineers. Their appointments/promotions were not in accordance with regulations by the same were a product of a spoiled system. They were asked to work as Assistant Engineers as a stopgap arrangement through the back door. They were rightly asked to return to their original post, from the same door.
28. In Ram Chandra Tripathi v. U.P Public Services Tribunal IV, (1994) 5 SCC 180, the appellant was made permanent as Junior Engineer, in violation of the interim order of injunction, passed by the High Court, in the writ proceedings which debarred the respondents from confirming any Junior Engineer. In the light of these facts the Hon'ble Supreme Court observed:
“Since the order of confirmation of the appellant was made in violation of the injunction order, the mistake committed in passing the order of confirmation was correct. In our view, in such circumstances, the appellant was not required to be given any opportunity of being heard for correcting such mistake because there was no occasion to take one view or the other in the matter of correction of the said mistake on the basis of the representation to be made by the appellant. The order of confirmation was per se illegal and in violaiton of the order of injunction passed by the High Court and the same being invalid was got to be corrected, in any event. The finding of the Tribunal that the impugned order of termination was passed without any stigma and not as a punitive measure has been upheld by the High Court and we find no justification in taking a contrary view simply because the appellant was a President of local union at Kanpur, and according to him, he had raised demands on behalf of the employees.”
29. In State Bank of Patiala v. S.K Sharma, (1996) 3 SCC 364 : (AIR 1996 SC 1669) it was held at page 1683; of AIR:
“Justice means justice between both the parties. The interests of justice equally demand that the guilty should be punished and that technicalities and irregularities which do not occasion failure of justice are not allowed to defeat the ends of justice. Principles of natural justice are but the means to achieve the ends of justice. They cannot be perverted to achieve the very opposite end. That would be a counter productive exercise. These principles cannot be put in a strait-jacket. Their applicability depends upon the context and the facts and circumstances of each case.”
30. In Commissioner, Corporation of Madras v. Madras Corporation Teacher's Mandram, (1997) 1 SCC 253 : (AIR 1997 SC 2131) the Hon'ble Supreme Court observed at page 2132; of AIR:
“It is a well settled legal position that it is the legal or executive policy of the Government to create a post or to prescribe the qualifications for the post. The Court or tribunal is devoid of power to give such direction.”
31. In the present cases before us, the petitioners have no lien on the post of Assistant Engineers. They were asked to work as Assistant Engineers as a stopgap arrangement which dehors the rules. Their return from the back door from which they entered, cannot be subjected to judicial scrutiny. Since the order of their promotion as a stopgap arrangement to the posts of Assistant Engineers was made in violation of the service regulations, the illegality committed in passing the order of promotion has only been corrected by means of the impugned orders. In such a situation the petitioners were not required to be given an opportunity of being heard for correcting such a mistake or illegality.
32. The action of the Director of Mandi Parishad who has passed the impugned orders cannot be faulted, because he was bound to follow the direction of the State Government as contained in Section 26-M of the Act. The State Government has the power to issue such directions under the Uttar Pradesh State Control over Public Corporation Act, 1975, Section 2 of which is reproduced below:
“2. Power to issue directions to statutory bodies.— (1) Every statutory body by whatever name called, established or constituted under any Uttar Pradesh Act, Excepting Universities governed by the Uttar Pradesh State Universities Act. 1973 as re-enacted and amended by the Uttar Pradesh Universities (Re-enactment and Amendment) Act, 1974, shall in the discharge of its functions, be guided by such directions on questions of policies, as may be given to it by the State Government, notwithstanding that no such power has expressly been conferred on the State Government under the law establishing of constituting such statutory body.
(2) If any question arises whether any matters is or is not a matter as respective which the State Government may issue a direction under subsection (1), the decision of the State Government shall be final.”
33. In view of the aforesaid position the Director of the Mandi Parishad had no option except to revert the petitioners to the post on which they were appointed. Therefore, it cannot be said that the impugned orders suffer from any infirmity or illegality. Consequenlty, the writ petitions deserve to be dismissed. In view of what we have stated herinabove the writ petitions are dismissed. However, it is provided that in case the posts of Assistant-Engineers are still vacant from promotional quota, the Mandi Parishad may fill up the same in accordance with the service regulations. The interim order dated 4-12-1997 is vacated.
34. Petitions dismissed.