IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No. 210 of 2008 Kirat Pal Singh. .……… Appellant Versus Nilesh Kumar & others. .………. Respondents Mr. Lok Pal Singh, Advocate for the appellant. Mr. Deepak Sharma, Advocate holding brief of Mr. Ramji Srivastava, Advocate for respondent Nos. 1 & 2. Mr. H.M. Raturi, Standing Counsel for respondent Nos. 3 & 4. JUDGMENT Coram: Hon’ble J.S. Khehar, C.J. Hon’ble Sudhanshu Dhulia, J. J.S. KHEHAR, C. J. (Oral) The instant controversy has presented before us a shocking narration of facts, resulting in the appointment of respondent Nos. 1 & 2 Nilesh Kumar & Shiv Kumar as class IV employees in an inter college, private institute which receives grant-in-aid from the State Government. The process of selection, we are informed, was initiated with the issuance of an advertisement in the Dainik Hak on 29.07.2005. The averment made by the appellant, who appeared before the learned Single Judge as an intervener, to the effect that Dainik Hak has no circulation in the area where the institution to which appointment was to be made was located, has not been repudiated at the hands of the respondents. Applications were not invited by any other means, either from the employment exchange or by placing a notice in a public place. In all, 8 applicants are stated to have responded against the two posts advertised. 2. In private Government aided institutions, selection to all posts is made after the approval of the District Basic Education Officer. In the process of selection, any such selection is also made by a committee, wherein a representative of the District Basic Education Officer participates. The factual position brought to our notice reveals, that the advertisement dated 29.07.2005 was issued by the institution unilaterally, without any approval from the District Basic Education Officer. Likewise, the selection committee was constituted unilaterally by the institution, without any representative of the District Basic Education Officer. On the 2 culmination of the process of selection, Nilesh Kumar (respondent No. 1) was appointed as a class IV employee, along with respondent No. 2 Shiv Kumar. Consequent upon their selection, they were issued offers of appointment on 17.08.2005. Their appointments were made in the pay- scale of Rs. 2550-3200/-. The aforesaid appointments were for a period of one year and subject to the approval of the District Basic Education Officer, Haridwar. It is not a matter of dispute, that no such approval was granted by the District Basic Education Officer, Haridwar. In fact, an inquiry was got conducted in the manner of selection conducted by the institute. The inquiry report dated 16.12.2006 is available on the record of the instant Appeal as Annexure No. 3 (at page 84 of the instant paper-book). The inquiry report also reveals, that the process of selection was a sham. 3. Having examined the issue, the District Basic Education Officer, Haridwar, by his order dated 14.02.2006, disapproved the appointment of respondent Nos. 1 & 2, namely Nilesh Kumar & Shiv Kumar, on the ground, that their appointments could not be given effect to as there was a ban on making such appointments. The aforesaid communication dated 14.02.2006 came to be assailed by respondent Nos. 1 & 2 Nilesh Kumar and Shiv Kumar, through Writ Petition (S/S) No. 267 of 2006. The aforesaid writ petition was allowed by a learned Single Judge of this Court on 15.09.2008. The order passed by the learned Single Judge is being extracted hereunder: “Sri Ram Ji Srivastava, learned counsel for the petitioner. Sri Lok Pal Singh, learned counsel and Sri H.M. Raturi, learned Standing counsel for the respondents. This writ petition has been filed by the petitioner challenging the non-approval of the recommendation of Committee of Management to appoint the petitioner on Class IV post. The reasons stated in the impugned orders are that there is a ban and there cannot be approval. The perusal of annexure 15 to the writ petition shows that the ban imposed by the State Government was only on the appointment against the Government post not on the aided institutions. Therefore, the order passed by BSA the writ petition suffers from non-application of mind and hereby set aside. District Education Officer is directed to consider the matter afresh within one month of production of certified copy of this order. The petition is disposed of.” 3 4. The aforesaid order dated 15.09.2008 has been assailed by the appellant Kirat Pal Singh, who was allowed to appear as an intervener before the learned Single Judge, and who had brought to the notice of this Court, the entire factual position, as has been noticed herein above. While assailing the impugned order dated 15.09.2008 (allowing Writ Petition (S/S) No. 267 of 2006), it is the vehement contention of the learned counsel for the appellant, that the sequence of facts, narrated by the appellant in his application, which had resulted in the vacation of the interim order passed by the learned Single Judge, were not taken into consideration while disposing of the main case finally vide impugned order dated 15.09.2008. It is, therefore, the vehement contention of the learned counsel for the appellant, that the impugned order dated 15.09.2008 cannot be sustained, as it would give effect to a sham selection process, resulting in the appointment of individuals as a matter of favour. In order to demonstrate that favour had been extended to respondent No. 1 Nilesh Kumar in the selection process, it is pointed out by the learned counsel for the appellant, that two different advertisements were issued in the Dainik Hak for selection and appointment to class IV posts, in two different institutions. In the process of selection, two real brothers of Kishan Singh Chauhan S/o Baljeet Singh, eventually came to be selected and appointed. It is pointed out, that respondent No. 1 Nilesh Kumar is the real brother of the aforesaid Kishan Singh Chauhan S/o Baljeet Singh. Likewise, it is submitted, that in a connected special appeal, i.e. Special Appeal bearing No. 216 of 2008 (Kirat Pal Singh Vs. Harbeer Singh & others), Harbeer Singh, who is also the brother of Kishan Singh Chauhan S/o Baljeet Singh, had been appointed. So as to demonstrate the nexus which resulted in the aforesaid appointment, it is submitted, that the aforesaid Kishan Singh Chauhan S/o Baljeet Singh is an employee posted in the office of the District Basic Education Officer, Haridwar, and that the institutes for which advertisements were issued, were persuaded by the aforesaid Kishan Singh Chauhan to appoint his two real brothers against class IV posts. 5. We have examined the controversy keeping in view the factual position brought to our notice by the learned counsel for the appellant. When confronted, learned counsel for the respondents could not dispute the fact, that the advertisements for inviting applications were issued in Dainik 4 Hak on 29.07.2005. As already noticed herein above, it is also not disputed at the hands of the respondents, that the aforesaid Newspaper has no circulation in the area where the institutions are located. It is also not disputed, that the advertisements, the selection committee, as also the selection process, was issued / conducted in the absence of any approval of the District Basic Education Officer. Likewise, it is acknowledged, that in the selection committee, the representative of the District Basic Education Officer was not present. Even the appointment orders dated 17.08.2005 were issued by the institution without approval of the District Basic Education Officer, Haridwar, although it was noticed therein, that the appointment orders issued would be subject to the approval by the aforesaid District Basic Education Officer, Haridwar. 6. In order to repudiate the submissions advanced by the learned counsel for the appellant, learned counsel for respondent Nos. 1 & 2 has advanced three contentions. Firstly, it is submitted that the appellant Kirat Pal Singh had no locus to approach this Court to prefer the instant Special Appeal. Secondly, respondent Nos. 1 & 2 have been serving as class IV employees since their original appointment on 17.08.2005, and almost five years having gone by since then, it would be extremely harsh to remove respondent Nos. 1 & 2 from their employment at this juncture. Thirdly, it is pointed out, that a fresh order of appointment was issued in favour of respondent Nos. 1 & 2 after the learned Single Judge allowed Writ Petition (S/S) No. 267 of 2006 vide order dated 15.09.2008. It is submitted, that unless the fresh order of appointment is assailed, the selection and appointment of respondent Nos. 1 & 2 cannot be set aside. 7. We have considered all the three submissions advanced by the learned counsel for respondent Nos. 1 & 2. On the issue of locus, it may only be stated, that appellant Kirat Pal Singh moved an Intervention Application before the learned Single Judge, which came to be allowed. The order passed by the learned Single Judge, allowing Kirat Pal Singh to intervene, was not assailed by the respondents. Additionally, an interim order passed in favour of respondent Nos. 1 & 2 by the learned Single Judge, came to be vacated as a consequence of an application filed by Kirat Pal Singh before the learned Single Judge. This determination by the 5 learned Single Judge was also not assailed by the respondents. In the aforesaid view of the matter, there is hardly any justification at the hands of respondent Nos. 1 & 2 to assert that the appellant does not have any locus to prefer the instant Special Appeal. 8. Insofar as the second submission is concerned, it is the contention of the learned counsel for respondent Nos. 1 & 2, that many years have passed by, and that respondent Nos. 1 & 2 have rendered service as class IV employees since 2005, and that it would be extremely harsh on respondent Nos. 1 & 2, if they are allowed to vacate the posts held by them. Insofar as the instant contention is concerned, it is not possible for us to ignore the factual position brought to our notice, depicting the sham selection process resulting in the appointment of respondent Nos. 1 & 2. Acceding to the instant prayer made on grounds of equity, would result in perpetuating injustice and illegality in the appointment of respondent Nos. 1 & 2. We are, therefore, satisfied, that merely on account of the number of years of service rendered by respondent Nos. 1 & 2, it would not be possible for us to approve their selection and appointment, which factually was made as a result of fraud and favour. 9. Insofar as the third contention is concerned, the fresh appointment order issued to respondent Nos. 1 & 2 is based on the impugned order dated 15.09.2008 passed by a learned Single Judge of this Court, allowing Writ Petition (S/S) No. 267 of 2006. If we agree with the appellant and set aside the impugned order dated 15.09.2008, the consequential appointment order, by itself, would automatically be set aside. 10. Having given our thoughtful consideration to the entire sequence of events leading to the selection and appointment of respondent Nos. 1 & 2, we are satisfied, that the selection process, through which respondent Nos. 1 & 2 were appointed, does not stand the scrutiny of law, equity and justice. The same is liable to be set aside. In arriving at the said conclusion, we have relied on the admitted factual position noticed in paragraphs 4 & 5 above which reveals that the selection and appointment of respondent Nos. 1 & 2 was as a result of fraud and favour based on a sham selection process. Accordingly, the same is hereby set aside. 6 11. In view of the above, the order passed by the learned Single Judge dated 15.09.2008, disposing of Writ Petition (S/S) No. 267 of 2006, is also set aside. The instant Special Appeal stands allowed in the aforesaid terms. (Sudhanshu Dhulia, J.) (J.S. Khehar, C. J.) 11.03.2010 11.03.2010 G