The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.C.(OAC) Nos.373, 374 & 375 of 2019 In the matter of an application under Section 19 of the Administrative Tribunal’s Act, 1985. ……………… Suchitra Kumar Patel …. Petitioner -versus- State of Odisha & Ors. …. Opposite Parties For Petitioner : M/s. Sameer Kumar Das (Advocate) P.K. Behera (Advocate) N. Jena (Advocate) For Opp. Parties : Mr. M.K. Balabantaray Addl. Govt. Advocate PRESENT: THE HON’BLE JUSTICE BIRAJA PRASANNA SATAPATHY --------------------------------------------------------------------------------------- Date of Hearing: 31.01.2023 and Date of Judgment: 17.02.2023 --------------------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. Since the issue involved in the all the three (3) writ petitions is similar and the claim made by the Petitioners is also similar, all the three (3) writ petitions were heard analogously and disposed of vide the present common order. // 2 // The Petitioners have filed the present writ petitions inter alia with the prayer to direct the Opp. Parties to regularize their services as Junior Engineer against the newly created post of Junior Engineer under Annexure-5 & 6 from the date the first batch of Gram Panchayat Technical Assistants were so regularized w.e.f.22.09.2018 with grant of all consequential service and financial benefits. 2. The factual matrix giving rise to filing of the present writ petition is that the Petitioners passed their Diploma in Civil Engineering in the year 2000, 2003 and 2000 respectively. All the three (3) Petitioners were also empanelled for their appointment under the Govt. maintained by the Engineer-in-Chief (Civil), Odisha. But prior to being sponsored from out of the Panel, when the Petitioners came across the advertisement issued by the Opp. Party No. 3 on 27.05.2004 under Annexure-2 inviting applications from eligible candidates for their engagement as Technical Consultant in each block of Sundargarh district on contractual basis, the Petitioners made their applications. Prior to issuance of the said advertisement under Annexure-2, O.P. No. 3 vide his letter No. 1881 dtd.12.05.2004 under Annexure-1 intimated all the Block Development Officers of the district requesting therein to pass a resolution for central selection of Technical Consultant by O.P. No. 3. Page 2 of 18 // 3 // 2.1. The Petitioners having made their applications pursuant to the advertisement and on being duly selected, they were provided with the appointment as Technical Consultant on temporary contractual basis vide Office order dtd.21.07.2004 under Annexure-4. Pursuant to the order issued under Annexure-4 not only the present three (3) Petitioners, but also in total 16 nos. of Diploma Engineers were engaged as Technical Consultants in all the 16 blocks of Sundargarh district and subsequently two (2) other candidates were also appointed in two (2) other blocks. On such engagement as Technical Consultant the Petitioners were allowed to draw remuneration of Rs. 3,000/- per month. 2.2. Even though the Petitioners were appointed vide order under Annexure-4 dtd.21.07.2004 and they were allowed to continue on contractual basis with enhancement of their remuneration, but when no step was taken to regularize their services, on the face of such orders of regularization issued in favour of Gram Panchayat Technical Assistants (in short GPTAs) appointed on contractual basis on being sponsored by the Panel maintained by the Committee of Chief Engineers, the present writ petitions were filed with the prayer as indicated hereinabove.
Legal Reasoning
36. The other factor which the State is required to keep in mind while creating or abolishing posts is the financial implications involved in such a decision. The creation of posts necessarily means additional financial burden on the exchequer of the State. Depending upon the priorities of the State, the allocation of the finance is no doubt exclusively within the domain of the legislature. However in the instant case creation of new posts would not create any additional financial burden to the State as the various banks at whose disposal the services of each of the appellants is made available have agreed to bear the burden. If absorbing the appellants into the services of the State and providing benefits on a par with the police officers of similar rank employed by the State results in further financial commitment it is always open for the State to demand the banks to meet such additional burden. Apparently no such demand has ever been made by the State. The result is the various banks which avail the services of these appellants enjoy the supply of cheap labour over a period of decades. It is also pertinent to notice that these banks are public sector banks. 37. We are of the opinion that neither the Governmnet of Punjab nor these public sector banks can continue such a practice consistent with their obligations to function in accordance with the Constitution. Umadevi (3) judgement cannot became a licence for exploitation by the State and its instrumentalities. Page 12 of 18 // 13 // 38. For all the abovementioned reasons, we are of the opinion that the appellants are entitled to be absorbed in the services of the State. The appeal are accordingly allowed. The judgements under appeal are set aside.” 6.5. In the case of Amarkanta Rai (supra) Hon’ble Apex Court in Para 8, 9, 11 to 14 has held as follows:- “8. Insofar as contention of the respondent that the appointment of the appellant was made by the Principal who is not a competent authority to make such appointment and is in violation of the Bihar State Universities Act and hence the appointment is illegal appointment, it is pertinent to note that the appointment of the appellant as night guard was done out of necessity and concern for the College. As noticed earlier, the Principal of the College vide letters dated 11-3- 1988, 7-1-1993, 8-1-2002 and 12-7-2004 recommended the case of the appellant for regularisation on the post of night guard and the University was thus well acquainted with the appointment of the appellant by the then Principal even though the Principal was not a competent authority to make such appointments and thus the appointment of the appellant and other employees was brought to the notice of the University in 1988. In spite of that, the process for termination was initiated only in the year 2001 and the appellant was reinstated w.ef. 3-1-2002 and was removed from services finally in the year 2007. As rightly contended by the learned counsel for the appellant, for a considerable time, the University never raised the issue that the appointment of the appellant by the Principal is ultra vires the rules of the BSU Act. Having regard to the various communications between the Principal and the University and also the educational authorities and the facts of the case, in our view, the appointment of the appellant cannot be termed to be illegal, but it can only be termed as irregular. 9. The Human Resources Development, Department of Bihar Government, vide its Letter dated 11-7-1989 intimated to the Registrar of all the Colleges that as per the settlement dated 26-4- 1989 held between Bihar State University and College Employees' Page 13 of 18 // 14 // Federation and the Government it was agreed that the services of the employees working in the educational institutions on the basis of prescribed staffing pattern are to be regularised. As per sanctioned staffing partien, in Ramashray Baleshwar College, there were two vacant posts of Class IV employees and the appellant was appointed against the same. Further, Resolution No. 989 dated 10-5-1991 issued by the Human Resources Development Department provides that employee working up to 10-5-1986 shall be adjusted against the vacancies arising in future. Although, the appellant was appointed in 1983 temporarily on the post that was not sanctioned by the State Government, as per the above communication of the Human Resources Development Department, it is evident that the State Government issued orders to regularise the services of the employees who worked up to 10-5-1986. In our considered view, the High Court ought to have examined the case of the appellant in the light of the various communications issued by the State Government and in the light of the circular, the appellant is eligible for consideration for regularisation. XXX XXX XXX 11. Elaboration upon the principles laid down in Umadevi (3) Case and explaining the difference between irregular and illegal appointments in State of Karnataka Vs. M.L Kesari, this Court held as under (ML Kesari case SSC p 250, para 7) 7. It is evident from the above that there is an exception to the general principles against 'regularisation enunciated in Umadevi (3). if the following conditions are fulfilled: (i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years. (ii) The appointment of such employee should not be illegal, even if irregular Where the appointments are not made or continued against Page 14 of 18 // 15 // sanctioned posts or where the persons appointed do not possesses the prescribed minimum qualifications, the appointments will be considered to be illegal., But where the persons employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular.” 12. Applying the ratio of Umadevi (3) case, this Court in Nihal Singh v. State of Punjab directed the absorption of the Special Police Officers in the services of the State of holding as under: (Nihal Singh Case, SCC pp. 79-80, paras- 35-36) "35. Therefore, it is clear that the existence of the need for creation of the posts is a relevant factor with reference to which the executive government is required to take rational decision based on relevant consideration. In our opinion, when the facts such as the ones obtaining in the instant case demonstrate that there is need for the creation of posts, the failure extracting work from persons such as the appellants herein for decades together itself would he arbitrary action (inaction) on the part of the State. 36. The other factor which the State is required to keep in mind while creating or abolishing posts is the financial implications involved in such a decision. The creation of posts necessarily means additional financial burden on the exchequer of the State. Depending upon the priorities of the State, the allocation of the finances is no doubt exclusively within the domain of the legislature. However in the instant case creation of new posts would not create any additional financial burden to the State as the Various banks at whose disposal the services of each of the appellants is made available have agreed to bear the burden. If absorbing the appellants into the services of the State and providing benefits on a par with the police officers of similar rank employed by the State results in the banks to meet such additional burden Apparently no such demand has ever been made by the State. The result is the various banks which avail the services of these appellants enjoy the supply of cheap labour Page 15 of 18 // 16 // over a period of decades. It is also pertinent to notice that these banks are public sector banks 13. In our view, the exception carved out in para 53 of Umadevi (3)3 is applicable to the facts of the present case. There is no material placed on record by the respondents that the appellant has been lacking any qualification or bore any blemish record during his employment for over two decades. It is pertinent to note that services of similarly situated persons on daily wages for regularisation viz. one Yatindra Kumar Mishra who was appointed on daily wages on the post of Clerk was regularised w.e.f. 1987. The appellant although initially working against unsanctioned post, the appellant was working continuously since 3-1-2002 against sanctioned post. Since there is no material placed on record regarding the details whether any other night guard was appointed against the sanctioned post, in the facts and circumstances of the case, we are inclined to award monetary benefits to be paid from 1.-1-2010. 14. Considering the facts and circumstances of the case that the appellant has served the University for more than 29. years of the post of night guard and that he has served the College on daily wages, in the interest of justice, the authorities are directed to regularise the services of the appellant retrospectively w.ef. 3-1-2002 (the date on which he rejoined the post as per the direction of the Registrar).” 6.6. In the case of Subrat Narayan Das (supra) this Court in Para 27 has held as follows:- “27. Consequentially, this Court is of the considered view that the Opposite Parties should absorb the Petitioners on regular basis against sanctioned vacant posts taking into account the length of service rendered by them in their respective posts, in which they are continuing, without insisting upon them to undergo the rigors of the selection procedure, since they were engaged by following due process of selection in a transparent manner conducted by the Authority through the selection committee on contractual basis and are continuing for more than 16 years. The Petitioners being not backdoor entrants to the service and admittedly their performance having been found to be satisfactory for more than a decade and half, Page 16 of 18 // 17 // Opposite Party No.4 should extend all consequential benefits, as due and admissible in accordance with law, as expeditiously as possible, preferably within a period of four months. Ordered accordingly.” 6.7. In the case of Dr. Prasanna Kumar Mishra (supra) this Court in Para 22 has held as follows:- “22. In that view of the matter, this Court is of the considered view that the opposite parties should absorb the petitioner on regular basis against sanctioned vacant post taking into account the length of service rendered by him as a Lecturer in Mathematics in which he is continuing without insisting him to undergo the rigors of the selection procedure laid down under the BPUT Act and Rules framed thereunder reason being in the meantime the petitioner has become over aged and he has also been exploited for 20 years for no reasons though he has qualified in all the interviews conducted by the authority for his engagement on contractual basis. The petitioner being not a backdoor entrant to the service, the opposite party- University should extend all consequential benefits as due and admissible in accordance with law as expeditiously as possible preferably within a period of four months. The writ petition is allowed. No order to cost.” 6.8. Therefore, placing reliance on the decisions of the Hon’ble Apex Curt as well as of this Court as cited (supra) and taking into account the fact that the Petitioners who possess similar qualification as like Gram Panchayat Technical Assistants and the only difference being that the Petitioners were engaged as Technical Consultants and the other Diploma Engineers as Gram Panchayat Technical Assistants on being sponsored from out of the Panel, this Court is inclined to hold that the Petitioners are eligible and entitled for their absorption in the regular establishment. While holding so, this Court directs the Opp. Parties to absorb the Petitioners in the regular establishment within a period of three (3) months from the date of receipt of this order. Page 17 of 18 // 18 // 7. The writ petitions are accordingly disposed of. There shall be no order as to cost. 8. Photo copy of the order be placed in the connected caser records. Orissa High Court, Cuttack Dated the 17th of February, 2023/Sneha (Biraja Prasanna Satapathy) Judge Page 18 of 18
Arguments
3. Learned counsel for the Petitioners contended that after completing their Diploma in Civil Engineering and after being empanelled by the Page 3 of 18 // 4 // Engineer-in-Chief (Civil), Odisha for their appointment under any Department of the Govt. or Public Sector Undertakings, the Petitioners came across the advertisement issued by the O.P. No. 3 on 27.05.2004 under Annexure-2. Pursuant to the said advertisement the Petitioners not only made their applications, but also got selected after passing due selection process and interview held on 15.07.2004. The Petitioners subsequently were appointed as Technical Consultants on temporary contractual basis vide office order dtd.21.07.2004 of O.P. No. 3 under Annexure-4. Pursuant to the order issued under Annexure-4 the Petitioners were allowed to join as Technical Consultants in their respective blocks with monthly remuneration of Rs.3,000/- (Rupees Three thousand). 3.1. It is contended that prior to issuance of the advertisement under Annexure-2 O.P. No. 3 vide his letter dtd.12.05.2004 under Annexure-1 requested all the Block Development Officers of the different blocks coming under Sundergarh district to pass resolution in the Gram Panchayat & Panchayat Samiti meeting for central selection of Technical Consultant by O.P. No. 3. The Petitioners thereafter were not only allowed to continue as Technical Consultants on contractual basis without any break, but also their monthly remuneration was enhanced from time to time and the same lastly was enhanced to Rs.9,300/- (Rupees Nine Thousand Three Hundred), Page 4 of 18 // 5 // which is the Basic Pay of a Junior Engineer in the regular establishment. But in spite of their long continuance when the Petitioners were not regularized in their services and in the alternate GPTAs appointed in different blocks of Sundergarh district on being sponsored from the Panel maintained by the Committee of Chief Engineers (Civil), Odisha were regularized vide order dtd.22.09.2018 under Annexure-8, the Petitioners feeling aggrieved by such action of the Opp. Parties have filed the present writ petition with the prayer to direct the Opp. Parties to regularize their services also. 3.2. Mr. S.K. Das, learned counsel for the Petitioner contended that subsequent to their appointment as Technical Consultants in the district of Sundergarh, Govt. in the Panchayatiraj Department vide its letter dtd.31.12.2013 under Annexure-5 created posts of Assistant Engineer and Junior Engineer in various districts of the State, which also includes Sundergarh. In respect of Sundergarh district and as against 262 blocks, 37 posts of Junior Engineer and 17 posts of Assistant Engineer were created. Thereafter, vide communication dtd.28.12.2018 issued by the Govt. in the Panchayatiraj & Drinking Water Department, sanction was made by the Govt. for creation of additional 908 nos. of posts for Junior Engineer of Odisha Diploma Engineering Services. Vide the said communication the no. of posts created for Junior Engineer was enhanced to 89. After such creation Page 5 of 18 // 6 // of the posts vide Annexure-5 & 6, Govt. in the Department of Panchayatiraj & Drinking Water issued a scheme for absorption of Gram Panchayat Technical Assistants vide resolution dtd.19.03.2018 under Annexure-7. Basing on the said scheme issued under Annexure-7 GPTAs appointed on being sponsored from out of the Panel by the Committee of Chief Engineers were absorbed as Junior Engineers and posted to different blocks in the State, which includes the 16 blocks coming under Sundergarh district. 3.3. It is contended that while the Petitioners were engaged as Technical Consultants, similarly situated Diploma Engineers who were empanelled before the Committee of Chief Engineers when were sponsored, they were engaged as GPTAs on contractual basis. On completion of the required years of service on contractual basis and basing on the scheme formulated under Annexure-7, such GPTAs were absorbed in the regular establishment against the post of Junior Engineer vide order dtd.22.09.2018 under Annexure-8. Only because the Petitioners were engaged directly vide order under Annexure-4, the case of the Petitioners were never taken up by the Opp. Parties and accordingly they were deprived from the purview of such absorption as Junior Engineer. 3.4. However, it is contended that in view of such continuance without any break for the last 18 years, the Petitioners have accrued Page 6 of 18 // 7 // the right of regularization and necessary direction be issued to the Opp. Parties to absorb them in the regular establishment. In support of such submissions, learned counsel for the Petitioners relied on the decision of the Hon’ble Apex Court in the case of State of Karnataka & Ors. Vs. Umadevi & Ors. (AIR 2006 SC 1806), State of Karnataka & Ors. Vs. M.L. Keshari & Ors. (2010 (9) SCC 247), Nihal Singh & Ors. Vs. State of Punjab & Ors. (2013 (14) SCC 65), Amarkanta Rai Vs. STate of Bihar (2015 (8) SCC 265). Learned counsel for the Petitioner also relies on the decision of this Court passed in the Case of Subrat Narayan Das & Ors. Vs. State of Odish & Ors. (W.P.(C) No. 18659 of 2016) as well as Dr. Prasanna Kumar Mishra Vs. State of Odisha & Ors. (2016 (I) ILR CUT 373). 4. Mr. M.K. Balabantaray, learned AGA on the other hand made his submission basing on the stand taken in the counter affidavit. It is contended that the Petitioners in all these three (3) writ petitions were engaged as Technical Consultants directly by the Opp. Party No. 3 vide order under Annexure-4. But Gram Panchayat Technical Assistants were engaged after being sponsored by the Engineer-in- Chief (Civil) from the empanelled list maintained by it and they were engaged in different districts of the State as per the orders issued by the Govt. It is also contended that the remuneration of the present Petitioners have been paid by concerned Gram Panchayat and office Page 7 of 18 // 8 // of Panchayat Samiti as per their own source and not from any Govt. allotment or schematic fund. 4.1. It is also contended that on creation of 853 posts of Junior Engineer vide letter dtd.31.05.2013 including the existing 745 nos. of posts sanctioned earlier and 908 nos. of posts of Junior Engineer vide letter dtd.28.12.2018, Gram Panchayat Technical Assistants appointed on being sponsored from the Panel and basing on their seniority and reservation were absorbed as Junior Engineers. In the instant case no posts were created for engagement of Petitioners and they were all continuing as against non-sanctioned posts. It is also contended that though initially 16 persons were engaged as Technical Consultants in different blocks in the district of Sundergarh, but at present only the present three (3) Petitioners were working in three (3) blocks and they are helping the Junior Engineer in supervisions and measurement of work as well as preparation of bills. Accordingly, it is contended that even though the present Petitioners have completed more than 15 years of engagement in the post of Technical Consultants, but since they have been selected & engaged on temporary basis and not sponsored by the Engineer-in-Chief or appointed by the Govt. on contractual basis, their claim for absorption in the regular establishment merits no consideration. Page 8 of 18 // 9 // 5. I have heard Mr. S.K. Das, learned counsel for the Petitioners and Mr. M.K. Balabantaray, learned AGA appearing for the Opp. Parties. On the consent of both the Parties these matters were finally heard at the stage of admission and disposed of vide the present common order. 6. Having heard learned counsel appearing for the Parties and after going through the materials available on record, it is not disputed by either of the Parties that the Petitioners were engaged as Technical Consultants pursuant to the advertisement issued by the O.P. No. 3 on 27.05.2004. The Petitioners were appointed as Technical Consultants on contractual basis vide order dtd.21.07.2004 under Annexure-4 and they were allowed to continue with monthly remuneration of Rs. 3,000/- (Rupees Three Thousand) initially. It is also found from the record that the minimum remuneration of the Petitioners was enhanced from time to time and at present they are in receipt of remuneration of Rs. 9,300/- (Rupees Nine thousand three hundred) per month, which is the Basic Pay of a Junior Engineer. 6.1. From the materials available on record and the stand taken by the Opp. Party Nos. 2 to 4 in their counter affidavit it is found that the Petitioners were not being absorbed in the regular establishment only on the ground that they have not been sponsored from out of the Panel and they were never appointed by the Govt. at any point of time. Page 9 of 18 // 10 // Since the Petitioners were appointed basing on the advertisement issued by the O.P. No. 3 and that too as Technical Consultants on contractual basis after undergoing due selection process and in the meantime they have completed more than 18 years of continuous engagement, as per the considered opinion of this Court, the Petitioners are otherwise eligible and entitled for their absorption in the regular establishment. 6.2. In the case of Uma Devi (supra) Hon’ble Apex Court in Para 44 has held as follows:- “44. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa (supra), R.N. Nanjundappa (supra) and B.N. Nagarajan (Supra), and referred to in paragraph-15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one- time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wages are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not subjudice, need not be reopened based on this judgement, but there should be no further by passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.” 6.3. In the case of M.L. Keshari (supra) Hon’ble Apex Court in Para 8 and 13 has held as follows:- Page 10 of 18 // 11 // “8. Umadevi (3) casts a duty upon the Government or instrumentality concerned, to take steps to regularise the services of those irregularly appointed employees who had served for more than ten years without the benefit or protection of any interim orders of courts or tribunals, as a one-time measure. Umadevi (3) directed that such one-time measure must be set in motion within six months from the date of its decision (rendered on 10-4-2006). 13. The Division Bench of the High Court has directed that the cases of the respondents should be considered in accordance with law. The only further direction that needs to be given, in view of Umadevi (3), is that the Zila Panchayat, Gadag should not undertake an exercise within six months, as a general one-time regularisation exercise, to find out whether there are daily-wage/casual/adhoc employees serving the Zila Panchayat and if so whether such employees (including the respondents) fulfil the requirements mentioned in para- 53 of Umadevi (3). If they fulfill them, their services have to be regularised. If such an exercise has already been undertaken by ignoring or omitting the cases of Respondents 1 to 3 because of the pendency of these cases, then their cases shall have to be considered in continuation of the said one-time exercise within three months. It is needless to say that if the respondents do not fulfill the requirements of para 53 of Umadevi (3), their services need not be regularised. If the employees who have completed ten years' service do not possess the educational qualifications prescribed for the post, at the time of their appointment, they may be considered for regularisation in suitable lower posts.” 6.4. In the case of Nihal Singh (supra) Hon’ble Apex Court in Para 35 to 38 has held as follows:- “35. Therefore, it is clear that the existence of the need for creation of the posts is a relevant factor with reference to which the executive government is required to take rational decision based on relevant consideration. In our opinion, when the facts such as the ones obtaining tin the instant case demonstrate that there is need for the creation of posts, the failure of the executive government to apply its mind and take a decision to create posts or stop extracting work from persons such as the appellants herein for decades together itself would be arbitrary action (inaction) on the part of the State. 21. In the first instances, the petitioner and the other Election Commissioners were appointed when the work of the Commission did not warrant their appointment. The reason given by Respondent 1 (Union of India), that on account of the Constitution (61" Amendment) Act reducing the voting age and the Constitution (64th Amendment) Page 11 of 18 // 12 // and (65 Amendment) Bills relating to election to the Panchayats and Nagar Paliks, the work of the Commission was expected to increase and, therefore, there was need for more Election Commissioners, cuts notice. As has been pointed out by Respondent 2, the work relating to revision of electoral roll on account of the reduction of voting age was completed in all the States except Assam by the end of July 1989 itself, and at the Conference of the Chief Electoral Officers at Tirupati. Respondent 2 had declared that the entire preparatory work relating to the conduct of the then ensuing general elections to the Lok Sahba would be completed by August in the whole of the country except Assam. Further the Constitution (64th and 65th Amendment) Bills had already fallen in Parliament before the appointments. In fact, what was needed was more secretarial staff for which the Commission was pressing, and not more Election Commissioners. What instead was done was the other Election Commissioner on 16.01.1989. Admittedly, further the view of the Chief Election Commissioner were not ascertained before making the said appointments. In fact, he was presented with them for the first time in the afternoon of the same day ie, 16-10-1989. the petitioner and to appoint