Judgment:
Tarun Agarwal, J.
1. The petitioner was appointed as a Caretaker in Ghaziabad Development Authority on 9.8.1984. The Ghaziabad Development Authority in its meeting dated 21.1.1985 unanimously resolved to create a post of Public Relation Officer. This resolution was sent to the State Government for its approval, inasmuch as the power to create and sanction a post lies with the State Government. Pending consideration for the creation of the post before the State Government, the Ghaziabad Development Authority, by its order dated 3.4.1986 nominated the petitioner to work as an Assistant Public Relation Officer, in addition to the work of a Caretaker. Subsequently, by another order dated 2.9.1998, the petitioner was directed to work as a Public, Relation Officer till further orders, but was not entitled to be given the perks and benefits attached to the post of a Public Relation Officer. Eventually, by an order dated 25.8.1989, the Ghaziabad Development Authority appointed the petitioner as a Public Relation Officer in the pay scale of Rs. 770-1600 in anticipation of the sanctioning of the post by the State Government. The appointment order further stipulated that the petitioner would be required to give an undertaking to the effect that, in the event, the State Government refused to sanction the post, the excess money learned by the petitioner would be refunded.
2. From the record, it further transpires that the Ghaziabad Development Authority issued a letter of reminder dated 9.3.1990 and 14.11.1991 requesting the State Government to pass orders on the creation of the post and also intimated the State Government that in anticipation of the creation of such post, the Ghaziabad Development Authority has already appointed the petitioner on the post of Public Relation Officer, whose performance was upto the mark and also recommended the State Government to appoint the petitioner on the said post after sanctioning of the post. The State Government, by the impugned order dated 20.12.1991 intimated the Ghaziabad Development Authority that they had no jurisdiction to create the post of a Public Relation Officer nor had any business to appoint the petitioner on that post, and therefore, directed the Ghaziabad Development Authority to terminate the services of the petitioner forthwith. Against this order, the petitioner filed the present writ petition before this Court and by an interim order, the court directed the parties to maintain status quo. Based on the said interim order, the petitioner continued to work as a Public Relation Officer and is being paid his salary.
3. The State Government, as well as, the Ghaziabad Development Authority has filed a counter affidavit. The State Government contended that the authority to create and sanction a post lies with the State Government under the Uttar Pradesh Development Authorities Centralised Services Rules, 1985 and that, the appointing authority of a Public Relation Officer is the State Government. Further, the post of Public Relation Officer is required to be filled up through the Public Service Commission, as is clear from the Rule 14 of the aforesaid Rules read with Schedule VIII annexed to the Rules. The State Government in its counter affidavit, submitted that the Ghaziabad Development Authority had no jurisdiction to create a post of a Public Relation Officer or appoint the petitioner on that post. The Ghaziabad Development Authority in its counter affidavit also reiterated the same stand and further submitted that the petitioner was given the appointment on the post of Public Relation Officer on a pay scale payable to a Public Relation Officer on an undertaking given by him and that, in the event, the post was not sanctioned, he has required to refund the benefits. The authority contended that a back door entry was made by the petitioner on a post which was neither sanctioned nor created by the State Government. Consequently, the said appointment was illegal without jurisdiction and the petitioner was liable to be reverted to the post of Caretaker/and was also liable to refund the excess amount.
4. In support of his submissions, the learned Counsel for the respondent, Ghaziabad Development Authority placed reliance upon a large number of decisions, namely, Indian Drugs & Pharmaceuticals Ltd. v. Workmen : (2007)1SCC408 , Secretary, State of Karnataka and Ors. v. Uma Devi (3) and Ors. : (2006)IILLJ722SC , State of U.P. v. Neeraj Awasthi and Ors. : (2006)ILLJ721SC , State of M.P. And Ors. v. Yogesh Chandra Dubey and Ors. : (2006)IIILLJ1060SC and Punjab Water Supply and Sewerage Board v. Ranjodh Singh and Ors. : (2007)2LLJ1052SC on the question that an appointment could not be made where the post was neither sanctioned or created and such an appointment made on a post which was non existent could not entitle an incumbent for the regularisation of the services on the ground that he had worked for a long period of time. These decisions primarily are on the question of the regularisation of the services. These decisions, in my opinion, are distinguishable and are not directly applicable to the facts and circumstances of the present case.
5. In the present case, the position is different. There is no question of a back door entry made by the petitioner. In this regard, there is nothing on record to indicate that the petitioner made a back door entry for an appointment on the post of Public Relation Officer. In fact, the record clearly indicates that the petitioner was appointed, as a Caretaker on 9.8.1984. The records further suggests that the Ghaziabad Development Authority nominated the petitioner to also work, as an Assistant Public Relation Officer in 1986 without any emoluments of the post of the Public Relation Officer and, since then, the petitioner was made to do the work of a Public Relation Officer. In 1989, the Ghaziabad Development Authority granted him the post and pay scale of a Public Relation Officer with the undertaking given by the petitioner that he would refund the benefits, in the event, the Stale Government refused to sanction the post. These orders of the Ghaziabad Development Authority indicate clearly beyond a reasonable doubt that the Ghaziabad Development Authority itself created the post and appointed the petitioner on the post of Public Relation Officer. The petitioner did not ask for that post. The mere fact that an undertaking was provided by the petitioner did not mean that he was keen for the job of the Public Relation Officer. It did not mean that he was given the post and pay scale of a Public Relation Officer at his instance. In fact, the order and the sequence of event indicates that the petitioner was required to furnish an undertaking because, the authority had asked him to do so. Consequently, it does not lie in the mouth to the Ghaziabad Development Authority to turn back and contend that the petitioner had made a back door entry and that his appointment was void ah initio and his services was required to be terminated. The stand taken by the Ghakiabad Development Authority in its counter affidavit is clearly an after thought and has been made in order to protect themselves of their illegal activities.
6. Admittedly, the Ghaziabad Development Authority resolved and passed a unanimous resolution on 21.1.1985 creating a post of a Public Relation Officer. This action itself was illegal and in violation of the Uttar Pradesh Development Authorities Centralised Services Rules, 1985. The Ghaziabad Development Authority could not have created a post of a Public Relation Officer. The authority, to appoint a Public Relation Officer, was the State Government through the Public Service Commission. The Ghaziabad Development Authority had no power to create or appoint any person on the post of Public Relation Officer. The initial action made by the Ghaziabad Development Authority was wholly illegal and without jurisdiction and now, the Ghaziabad Development Authority is trying to cover up their illegal steps by asserting that the petitioner was appointed by a back door entry. This contention is patently erroneous. The judgments cited by the learned Counsel are distinguishable.
7. Admittedly, the petitioner has worked as a Public Relation Officer from 3.4.1986 to 20.12.1991, i.e., for more than 5 years. The Ghaziabad Development Authority is responsible for allowing him to work as a Public Relation Officer. The letters of the recommendations written by the Ghaziabad Development Authority to the State Government, vide letters dated 9.31990 and 14.11.1991, indicates that the Ghaziabad Development Authority had highly recommended the petitioner for being appointed on the post of Public Relation Officer. Further, this petition was entertained and by an, interim order dated 7.1.1992, the parties were directed to maintain status quo. Based on the interim order, it is admitted by the parties that the petitioner was allowed to work as a Public Relation Officer and, till date, he is working on the said post without any complaint from the authorities.
8. In such a scenario, the question is how the equities have to be balanced in the light of the fact that admittedly, there is no post existing as on date in the Ghaziabad Development Authority, namely, the post of Public Relation Officer. Admittedly, the State Government has not sanctioned any post of Public Relation Officer. It is also an admitted case that the Public Relation Officer can only be appointed by the State Government through the Public Service Commission. It is also on the record that the Ghaziabad Development Authority allowed the petitioner to work as a Public Relation Officer and also took an undertaking that, in the event, the post was not sanctioned by the State Government, he would be liable to refund the benefits accrued 10 him while working on the post of the Public Relation Officer. It has come on record that an adhoc appointment on the post of Public Relation Officer was made by the State Government for the Lucknow Development Authority without appointing the said person through the Public Service Commission. The State Government, in the impugned order, has nowhere stated, as to why the post of the Public Relation Officer could not be created in Ghaziabad Development Authority. The State Government has not addressed the matter on this aspect and based the impugned order on the sole ground that the Ghaziabad Development Authority had no right to make an appointment. The State Government has not passed any order for the creation of the post of Public Relation Officer.
9. In view of the aforesaid, this Court is constrained to pass the following directions:
(1) The impugned order is quashed.
(2) The petitioner will be reverted to the post of Caretaker since there exists no post of a Public Relation Officer in the Ghaziabad Development Authority.
(3) Since the petitioner has worked as a Public Relation Officer, the salary and the benefits drawn by him on the post of a Public Relation Officer shall not be refunded and he would be entitled to retain the said amount on the principle of having worked on that post inspite of the undertaking obtained by the Ghaziabad Development Authority.
(4) A mandamus is issued to the State Government to consider the proposal of the Ghaziabad Development Authority for the creation of the post of a Public Relation Officer within three months from today. If the State Government finds that there is a need for the creation of a post of a Public Relation Office, then necessary orders would be passed for its creation and sanctioning of the post of Public Relation Officer within the aforesaid period.
(5) In the event, the post is sanctioned, the petitioner would be given the first preferential right for appointment on the post of the Public Relation Officer. The State Government will also issue an appointment letter on an adhoc basis within two weeks of the sanctioning of the post provided the petitioner is found to be qualified for the said post.
(6) The State Government and the Ghaziabad Development Authority, as the case may be, will forward the necessary papers to the Public Service Commission for post facto approval of the appointment. This appointment would be subject to the conditions that the petitioner possesses the requisite qualifications.
(7) If for some reason, the State Government refuses or declines to sanction the post of a Public Relation Officer in Ghaziabad Development Authority, in that event, the Ghaziabad Development Authority will promote the petitioner or provide him with consequential fitment benefit on such post which is equivalent to the pay scale to which the petitioner is drawing as on date, so that does he does not suffer any further monetary loss.
10. The writ petition is allowed with the aforesaid directions.
11. Shri R.K. Chaubey, the learned Standing Counsel will sent a certified copy of the judgment to the State Government immediately for necessary action and compliance.