Regional Dy. Director of Women and Child Welfare, Kurnool and Another Vs. K. Baby Sarojini and Others - Court Judgment

Excerpt:
service - re-appointment - respondent 1 (r1) terminated from service - representation against termination made by her - she was re-appointed on recommendation of district collector - petition filed against re-appointment - district collector not empowered by law to appoint petitioner - held, re-appointment unlawful. - all india services act, 1951.sections 8 & 11 & a.p. buildings (lease, rent and eviction) control rules, 1961, rule 5: [v.v.s. rao, g. yethirajulu & g. bhavani prasad, jj] refusal by landlord to receive rent - deposit of rent in court - held, a tenant has the option to take recourse to section 8 in case of refusal or evasion by landlord to receive rent and if landlord were to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with sub-rules (1) to (3) of rule 5. the notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. the payment or deposit of rent under section 11 read with sub-rule (6) of rule 5 arises only in respect of a tenant who did not take recourse to section 8 or section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. any violation of section 11(1) to (3) and sub-rule (6) of rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of section 11. thus, the provisions of section 11 and sub-rule (6) of rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. the forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under rule 5(6) read with sub-section (1) of section 11. the object and effect of section 11 and sub-rules (1) to (5) to rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. consequently, while taking recourse to section 8 by tenant is optional, once that option is exercised, compliance with sub-rules (1) to (5) of rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. while deposit of rent in terms of provisions of act and the rules amounts to valid tender of rent to landlord, the failure to comply with rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of controller or appellate authority, as the case may be, so as to enable controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of controller within a reasonable time so that rent controller can take necessary action for service of notice of deposit under sub-rule (4) of rule 5 of the rules within seven days of such delivery. in the absence of compliance in so depositing rent and delivering challan in the office of controller, tenant shall be deemed to have committed wilful default.orders.b. sinha, cj1. the 1st respondent herein was appointed as sewing and tailoring instructor in panchayat raj department on payment of a consolidated sum of rs.300/- pm. she was retrenched. she thereafter made a representation to the district collector, cuddapah and although the district collector was not an appointing authority he directed the regional deputy director of women and child welfare, kurnool to allot her in any one of the vacant posts of organizers in cuddapah district inthe district women and child welfare office as instructor in sewing and tailoring. despite the same she had not been absorbed as organiser. thereafter the 1st respondent filed the original application before the learned tribunal being numbered as 1292 of 1994. the said application was disposed of directing the respondents therein to absorb her in one of the existing vacancies under the control of the regional deputy director of women and child welfare, kurnool. she was appointed as matron by proceedings dated 30-11-1995. the grievance of the 1st respondent in the original application which led to the passing of the impugned order dated 17-9-1998 is that the order of the learned tribunal in oa no.1292 of 1994 had not been complied with. having regard to the fact that the tribunal had passed its earlier order on 18-3-1994 in oa no.1292 of 1994 directing the 1st respondent to be absorbed, the learned tribunal allowed the said oa directing:'in view of the above facts and circumstances of the case, the respondents are directed to treat the applicant as having been appointed as organiser w.e.f. 18-3-1994 (the date of the judgment rendered by this tribunal in oa no.1292 of 1994) retrospectively and grant all consequential service benefits including seniority. the oa is accordingly allowed with the above directions'. 2. the learned government pleader appearing on behalf of the petitioners inter alia submitted that apart from the fact that the collector was not the appointing authority, in terms of the aforementioned order passed by the tribunal in oa no.1292 of 1994 having regard to the fact that no post of organiser was vacant, and only postsof matrons were vacant and the 1st respondent herself expressed her willingness to join that post and she had also given undertaking that she will not have any legal objection, she has been appointed as matron. the learned counsel would submit that this aspect of the matter has not been considered by the tribunal. sri d. linga rao, the learned counsel appearing on behalf of the 1st respondent on the other hand submitted that such an undertaking was illegal.3. in the original application the 1st respondent herein stated thus:'(b) such being the position, strangely the 1st respondent has adopted hostile attitude and obtained willingness from the applicant for her absorption as matron and issued the impugned pro.no.585/a/ 94, dated 30-11-1995, appointing the applicant as matron, regional children cuddapah on the untenable ground that if the orders of the 1st respondent and the orders of the hon'ble tribunal implemented as the applicant is appointed in the posts of organiser it would face many troubles, local people for filling up of remaining posts which are still vacant which is illegal, discriminatory, unjust and subversive of articles 14, 16 and 21 of the constitution of india and also opposed to all equity, justice and fair play. ......' 4. it is, therefore, not a case where an allegation was made to the effect that the undertaking given by the 1st respondent herein was not a voluntary one. even the aforementioned statement is not verified.5. it is not in dispute that the collector, cuddapah had no jurisdiction to direct absorption of the 1st respondent. it has also not been disputed that the appointing authority is the regional deputy director of women and child welfare, kurnool. it is also not in dispute that for absorption of surplus employees the procedure laid downin government memo no.2058/ser.a/88-10, dated 25-1-1990 were required to be complied with. the collector, cuddapah in his order dated 3-5-1993 directed:'in the reference 1st and 2nd read above, smt. k. baby sarojni who is a retrenched employee in sewing, tailoring center, chalamkur, cuddapah requested for absorption in the district women and child welfare office, cuddapah. in the circumstances reported by the district women and child welfare officer, cuddapah in his letter second read above suit. k. baby sarojni who is a retrenched employee in sewing and tailoring instructor is hereby appointed and allotted. the regional dy. director, kurnool is requested to appoint and allot her in one of the vacant posts as organizer in cuddapah district for absorption in district women and child welfare office, cuddapah as instructor in sewing and tailoring (or) equal to that category of the post for absorption as per government memo 3rd read. the above allotment is made on administrative grounds'. 6. in oa no. 1292 of 1994 it was directed:'2. since the applicant is a retrenched employee, she should have been absorbed in some vacancy that arose subsequent to her retrenchment. this aspect was examined by the 3rd respondent and order dated 3-5-1993 was issued. the 1st respondent is therefore directed to absorb the applicant in one of the existing vacancies under his control, as already ordered by the 3rd respondent by proceedings dated 3-5-1993, if not already absorbed. the oa is accordingly disposed of at the admission stage. no costs'. 7. it is, therefore, not correct to contend that the learned tribunal directed to absorb the 1st respondent in the post of organiser.8. the recommendation by the collector was wholly illegal. a recruitment to a post whether by way of absorption or otherwise must be done in accordance with the rules. any appointment made contrary to rules would be nullity. in dr. mccra massey v. dr. s.r. mehrotra, : [1998]1scr470 , it was held that no appointment should be made contrary to statutory provisions.9. furthermore, as indicated hereinbefore it is not the case of the respondent herein that the undertaking was obtained from her upon exercising threat or coercion. the learned tribunal has not arrived at such a finding.10. in secretary-cum-chief engineer v. hari om sharma, : air1998sc2909 , on which the learned counsel for the 1st respondent relied upon has no application to the facts of the present case. in that decision the apex court was considering a matter with regard to promotion. in the said decision it is observed thus:'8. learned counsel for the appellant attempted to contend that when the respondent was promoted in stop-gap arrangement as junior engineer-i, he had given an undertaking to the appellant that on the basis of stop-gap arrangement, he would not claim promotion as of right nor would he claim any benefit pertaining to that post. the argument, to say the least, is preposterous. apart from the fact that the government in its capacity as a model employer cannot be permitted to raise such an argument, the undertaking which is said to constitute an agreement between the parties cannot be enforced at law. the respondent being an employee of the appellant had to breakhis period of stagnation although, as we have found earlier, he was the only person amongst the non-diploma holders available for promotion to the post-'of junior engineer-i and was, therefore, likely to be considered for promotion in his own right. an agreement that if a person is promoted to the higher post or put to officiate on that post or, as in the instant case, a stop-gap arrangement is made to place him on the higher post, he would not claim higher salary or other attendant benefits would be contrary to law and also against public policy. it would, therefore, be unforceable in view of section 23 of the contract act'. 11. in the facts of that case it was held the respondent therein had a right to be considered for regular promotion having regard to the extant rules. such is not the position in the present case.12. for the reasons aforementioned the impugned order cannot be sustained which is set aside accordingly. the writ petition is allowed. there shall be no order as to costs.

Judgment:
ORDER

S.B. Sinha, CJ

1. The 1st respondent herein was appointed as sewing and tailoring instructor in Panchayat Raj Department on payment of a consolidated sum of Rs.300/- pm. She was retrenched. She thereafter made a representation to the District Collector, Cuddapah and although the District Collector was not an appointing authority he directed the Regional Deputy Director of Women and Child Welfare, Kurnool to allot her in any one of the vacant posts of organizers in Cuddapah district inthe District Women and Child Welfare Office as instructor in sewing and tailoring. Despite the same she had not been absorbed as organiser. Thereafter the 1st respondent filed the original application before the learned Tribunal being numbered as 1292 of 1994. The said application was disposed of directing the respondents therein to absorb her in one of the existing vacancies under the control of the Regional Deputy Director of Women and Child Welfare, Kurnool. She was appointed as matron by proceedings dated 30-11-1995. The grievance of the 1st respondent in the original application which led to the passing of the impugned order dated 17-9-1998 is that the order of the learned Tribunal in OA No.1292 of 1994 had not been complied with. Having regard to the fact that the Tribunal had passed its earlier order on 18-3-1994 in OA No.1292 of 1994 directing the 1st respondent to be absorbed, the learned Tribunal allowed the said OA directing:

'In view of the above facts and circumstances of the case, the respondents are directed to treat the applicant as having been appointed as organiser w.e.f. 18-3-1994 (the date of the judgment rendered by this Tribunal in OA No.1292 of 1994) retrospectively and grant all consequential service benefits including seniority. The OA is accordingly allowed with the above directions'.

2. The learned Government Pleader appearing on behalf of the petitioners inter alia submitted that apart from the fact that the Collector was not the appointing authority, in terms of the aforementioned order passed by the Tribunal in OA No.1292 of 1994 having regard to the fact that no post of organiser was vacant, and only postsof matrons were vacant and the 1st respondent herself expressed her willingness to join that post and she had also given undertaking that she will not have any legal objection, she has been appointed as matron. The learned Counsel would submit that this aspect of the matter has not been considered by the Tribunal. Sri D. Linga Rao, the learned Counsel appearing on behalf of the 1st respondent on the other hand submitted that such an undertaking was illegal.

3. In the original application the 1st respondent herein stated thus:

'(b) Such being the position, strangely the 1st respondent has adopted hostile attitude and obtained willingness from the applicant for her absorption as Matron and issued the impugned Pro.No.585/A/ 94, dated 30-11-1995, appointing the applicant as Matron, Regional Children Cuddapah on the untenable ground that if the orders of the 1st respondent and the orders of the Hon'ble Tribunal implemented as the applicant is appointed in the posts of organiser it would face many troubles, local people for filling up of remaining posts which are still vacant which is illegal, discriminatory, unjust and subversive of Articles 14, 16 and 21 of the Constitution of India and also opposed to all equity, justice and fair play. ......'

4. It is, therefore, not a case where an allegation was made to the effect that the undertaking given by the 1st respondent herein was not a voluntary one. Even the aforementioned statement is not verified.

5. It is not in dispute that the Collector, Cuddapah had no jurisdiction to direct absorption of the 1st respondent. It has also not been disputed that the appointing authority is the Regional Deputy Director of Women and Child Welfare, Kurnool. It is also not in dispute that for absorption of surplus employees the procedure laid downin Government Memo No.2058/Ser.A/88-10, dated 25-1-1990 were required to be complied with. The Collector, Cuddapah in his order dated 3-5-1993 directed:

'In the reference 1st and 2nd read above, Smt. K. Baby Sarojni who is a retrenched employee in sewing, tailoring center, Chalamkur, Cuddapah requested for absorption in the District Women and Child Welfare Office, Cuddapah.

In the circumstances reported by the District Women and Child Welfare Officer, Cuddapah in his letter second read above Suit. K. Baby Sarojni who is a retrenched employee in sewing and tailoring instructor is hereby appointed and allotted.

The Regional Dy. Director, Kurnool is requested to appoint and allot her in one of the vacant posts as organizer in Cuddapah district for absorption in District Women and Child Welfare Office, Cuddapah as instructor in sewing and tailoring (or) equal to that category of the post for absorption as per Government memo 3rd read.

The above allotment is made on administrative grounds'.

6. In OA No. 1292 of 1994 it was directed:

'2. Since the applicant is a retrenched employee, she should have been absorbed in some vacancy that arose subsequent to her retrenchment. This aspect was examined by the 3rd respondent and order dated 3-5-1993 was issued. The 1st respondent is therefore directed to absorb the applicant in one of the existing vacancies under his control, as already ordered by the 3rd respondent by proceedings dated 3-5-1993, if not already absorbed. The OA is accordingly disposed of at the admission stage. No costs'.

7. It is, therefore, not correct to contend that the learned Tribunal directed to absorb the 1st respondent in the post of organiser.

8. The recommendation by the Collector was wholly illegal. A recruitment to a post whether by way of absorption or otherwise must be done in accordance with the rules. Any appointment made contrary to rules would be nullity. In Dr. Mccra Massey v. Dr. S.R. Mehrotra, : [1998]1SCR470 , it was held that no appointment should be made contrary to statutory provisions.

9. Furthermore, as indicated hereinbefore it is not the case of the respondent herein that the undertaking was obtained from her upon exercising threat or coercion. The learned Tribunal has not arrived at such a finding.

10. In Secretary-cum-Chief Engineer v. Hari Om Sharma, : AIR1998SC2909 , on which the learned Counsel for the 1st respondent relied upon has no application to the facts of the present case. In that decision the Apex Court was considering a matter with regard to promotion. In the said decision it is observed thus:

'8. Learned Counsel for the appellant attempted to contend that when the respondent was promoted in stop-gap arrangement as Junior Engineer-I, he had given an undertaking to the appellant that on the basis of stop-gap arrangement, he would not claim promotion as of right nor would he claim any benefit pertaining to that post. The argument, to say the least, is preposterous. Apart from the fact that the Government in its capacity as a model employer cannot be permitted to raise such an argument, the undertaking which is said to constitute an agreement between the parties cannot be enforced at law. The respondent being an employee of the appellant had to breakhis period of stagnation although, as we have found earlier, he was the only person amongst the non-diploma holders available for promotion to the post-'of Junior Engineer-I and was, therefore, likely to be considered for promotion in his own right. An agreement that if a person is promoted to the higher post or put to officiate on that post or, as in the instant case, a stop-gap arrangement is made to place him on the higher post, he would not claim higher salary or other attendant benefits would be contrary to law and also against public policy. It would, therefore, be unforceable in view of Section 23 of the Contract Act'.

11. In the facts of that case it was held the respondent therein had a right to be considered for regular promotion having regard to the extant rules. Such is not the position in the present case.

12. For the reasons aforementioned the impugned order cannot be sustained which is set aside accordingly. The writ petition is allowed. There shall be no order as to costs.