State Of U.P. vs A.D.J.
2012 Latest Caselaw 6230 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 7
 
Case :- WRIT - A No. - 22858 of 1992
 
Petitioner :- State Of U.P.
 
Respondent :- A.D.J.
 
Petitioner Counsel :- P.M.N. Singh,H.R. Mishra,M.C. Dwivedi,P.K. Dwivedi,S.C.
 
Respondent Counsel :- V.S. Sinha,A.S. Deweker,Ganga Singh,K.N. Tripathi,V.S. Singh
 
Hon'ble Sudhir Agarwal,J.

1. Writ petition having been restored to its original number vide order of date, as requested by learned counsel for the parties, this petition is taken up for hearing at this stage.

2. Heard learned counsel for the parties.

3. It appears that this writ petition has come up against the order of the U.P. Public Services Tribunal, I, Jawahar Bhawan, Lucknow (hereinafter referred to as "the Tribunal") dated 02.03.1987 passed in Claim Petition No. 195(1) of 1983 filed by respondent no. 2 Sri Hausila Singh, claiming seniority from the date of initial appointment. The Tribunal allowed his claim petition, directing his seniority over Sri Vinod Chand Sharma and Sri Chhotey Lal Katiyar who were appointed on 18.03.1980 and 23 September, 1980 respectively. The writ petition challenging the aforesaid judgment of Tribunal was dismissed by this Court on 23rd September, 1997. The petitioner State filed a review application but the same was also dismissed on 01.02.2000. Thereafter the petitioner State took up the matter in Special Leave Petition No. 4980-81 of 2000. The Apex Court vide judgment and order dated 11.09.2000 allowed the appeal, set aside order passed by this Court, and remanded the matter with the following directions:-

"In our view, the High Court ought to have allowed the review application and reopened the writ petition and gone into the question in detail as to whether on the basis of the letters of the Service Commission the first respondent was entitled to seniority against the aforesaid two persons. It is not clear what the High Court meant by stating that the regularisation must be according to rules.

We, therefore, set aside the orders passed by the High Court in the review application as well as in the writ petition and restore the writ petition. The High Court will now proceed to refer to the points raised in the review application alongwith the documents filed as annexures to the said application and deal with the matter in accordance with law.

The appeals are allowed accordingly. The High Court will dispose of the matters within two months from the date of receipt of this order.

There shall be no order as to costs."

4. Thereafter again the matter came up before this Court. It appears that Hon'ble R.B. Misra, J., in absence of any one on behalf of the petitioner, dismissed the writ petition as infructuous. It is this order which has been recalled on the application filed by the petitioner today.

5. Learned Standing counsel appearing for petitioner, submitted that respondent no. 2 was a promotee and was given an ad-hoc promotion on 07.07.1976, while other two i.e. Sri Vinod Chand Sharma and Sri Chhotey Lal Katiyar were appointed as direct recruits in 1980 and, therefore, they were liable to be treated senior to respondent no. 2 and learned Tribunal has completely erred in law in not appreciating this fact.

6. Sri Hausila Singh pleaded before the Tribunal that he was appointed on the post of demonstrator Electrical Engineering on 05.03.1968. Subsequently, he was appointed as Lecturer on ad-hoc basis on 07.07.1976. He claimed regularisation on the post of Lecturer under U.P. Ad-hoc Appointments (on Posts within the Purview of the Public Service Commission) Rules, 1979 (hereinafter referred to "Rules 1979") on the ground that the vacancies are available but instead of considering him for regularisation, persons junior to him have been regularised. His claim for regularisation was on the post of Lecturer where he claimed his ad-hoc but direct appointment and not by way of promotion. It is in this context, the Tribunal allowed claim petition vide judgment dated 2nd March, 1987 and directed the petitioner State to consider Sri Hausila Singh, the claimant for regular appointment from the date junior to him have been regularised in accordance with Rules 1979.

7. In purported compliance thereof the claimant Sri Hausila Singh was regularised by the State vide order dated 15th October, 1988 w.e.f. 05.01.1981 by referring to the amendment made in Rules 1979 by U.P. Regularisation of Ad-Hoc Appointments (On posts within the purview of U.P. Public Service Commission) (Amendment) Rules, 1984 which came into force w.e.f. March 22, 1984.

8. The fact that the State Government regularised Sri Hausila Singh under Rules 1979 fortifies his contention that he was a direct recruit, though on ad-hoc basis on the post of Lecturer, for the reason that Rules 1979 could have been resorted for regularisation of only those persons who were appointed directly. Rules 1979 are not applicable for regularisation of ad-hoc promotions. State Government's order regularising Sri Hausila Singh on the post of Lecturer by exercising its power under Rules 1979 unequivocally proves this fact that he was a direct recruit appointed on ad-hoc basis on the post of Lecturer and it was not a promotion from the post of Demonstrator to Lecturer, which is a case being set up before this Court now. One Sri Anand Mohan Sahai who was also given on ad-hoc appointment on 07.12.1976 is said to have been regularised by the said order and so the claimant Sri Hausila Singh was regularised w.e.f. 05.01.1981.

9. The claimant proceeded for execution of Tribunal's order on the ground that the persons junior to him were regularised in 1980 i.e. on 18th March, 1980 and 23th September, 1980 and, therefore, the claimant is also entitled for regularisation from a date much earlier than 05.01.1981 and Tribunal's order has not been complied by the petitioners-State. It is this contention of claimant Sri Hausila Singh which has found favour with the Executing Court and vide order dated 16th April, 1981 it has directed petitioners-State to comply with the Tribunal's order correctly.

10. Petitioner-State came to this Court in writ petition No. Nil of 1991 assailing Executing Court's order dated 16th April, 1991 which was disposed of giving liberty to the petitioner-State to seek review before the Executing Court. It appears that a review application No. 57 of 1991 was preferred by petitioner before the Executing Court i.e. Vth Additional District Judge, Azamgarh who has dismissed the same vide order dated 21st April, 1992 and hence, this writ petition, whereby both these orders have been challenged by the State.

11. In the present case, it is stated that respondent no. 2 was appointed Lecturer on ad-hoc basis on 07.07.1976 and one Anand Mohan Sahai was appointed on 07.12.1976 since Anand Mohan Sahai was regularised w.e.f. 05.01.1981 and, therefore, Sri Hausila Singh, the claimant was also regularised from the same date. So far as the contention of Sri Hausila Singh that Sri Vinod Chand Sharma and Sri Chhotey Lal Katiyar were regularised in March and September, 1980, it is contended they were neither ad-hoc appointees and nor regularised under Rules 1979. These two persons were appointed directly pursuant to a regular selection made in 1979 by U.P. Public Service Commission. The Commission's letter dated 06th August, 1979 has been placed on record as annexure 5 to the writ petition recommending Sri Vinod Chand Sharma and Sri Chhotey Lal Katiyar having been selected for the post of Lecturer (Electrical Engineering). Pursuant thereto they were appointed vide Government Order dated 18th March, 1980 and 23th September, 1980. Since, they were substantively appointed Lecturers, hence, claimant's contention that he should have been regularised from the same date in 1980, when they (Sri Vinod Chandra Sharma and Sri Chhotey Lal Katiyar) were appointed, is not correct.

12. It appears that before Executing Court, the documents placed showed that these two persons were appointed on ad-hoc basis and not that they were recommended by commission. Hence, the defence taken by the State was not correct. Copy of the said letter has been placed on record as annexure CA-1 which is dated 29th January, 1980 which shows that the State Government pursuant to Public Service Commission's letter dated 10th October, 1979 appointed on temporary basis, five persons, namely, Sri Om Prakash, Sri Kant Malaviya, Sri Himat Sahai, Sri Anand Kumar Singh and Sri Ram Surat Mishra as Lecturer (Electrical Engineering). Vide para 3 of the said order, Sri Vinod Chand Sharma and Sri Chhotey Lal Katiyar along with one more, namely, Sri Radhey Shyam Chaudhary were appointed on ad-hoc and temporary basis and subsequently they were regularised. These orders have been considered by Executing Court in passing the impugned orders. This aspect when required to be clarified, the learned Standing Counsel could not.

13. Be that as it may, it cannot be disputed that even otherwise respondent no. 2 having been appointed on ad-hoc basis on 7th July, 1976 completed three years in July 1979. In view of Rule 4 of Rules 1979, he was entitled to be considered for regularisation before any existing vacancy is filled in by direct recruitment. Hence, also in view of Rule 4 of Rules 1979 he was entitled to be considered for regularisation before any appointment by direct recruitment is made.

14. Rule 4 reads as under:-

"Regulation of ad hoc appointments- (1) Any person who-

(i) was directly appointed on ad hoc basis before January 1, 1977 and is continuing in service, as such, on the date of commencement on these rules;

(ii) possessed requisite qualifications prescribed for regular appointment at the time of such ad hoc appointment; and

(iii) has completed or, as the case may be, after he has completed three years continuous service; and

shall be considered for regular appointment in permanent or temporary vacancy as may be available on the basis of his record and suitability before any regular appointment is made in such vacancy in accordance with the relevant service rules or orders.

(2) In making regular appointment under these rules, reservation for the candidates belonging to the Scheduled Castes, Scheduled Tribes, Backward Classes and other categories, shall be made in accordance with the orders of the Government in force at the time of recruitment.

(3) For the purpose of sub-rule (1), the appointing authority shall constitute a Selection Committee and consultation with the Commission shall not be necessary.

(4) the appointing authority shall prepare an eligibility list of the candidates, arranged in order of seniority as determined, from the date of order of appointment and, if two or more persons are appointed together, from the order in which their names are arranged in the said appointment order. The list shall be placed before the Selection Committee along with their character rolls and such other records, pertaining to them, as may be considered necessary to judge their suitability.

(5) The Selection Committee shall consider the cases of the candidates on the basis of their records referred to in sub-rule (4).

(6) The Selection Committee shall prepare a list of selected candidates, the names in the list being arranged in order of seniority, and forward it to the appointing authority."

15. Rule 4(1) of Rules 1979 makes it very clear that any person who satisfies the triple conditions stated in clauses (i), (ii) and (iii), shall have a right to be considered for regular appointment in a temporary or permanent vacancy as may be available before any regular appointment is made in such vacancy in accordance with relevant service Rules. Rule 4(1), therefore, creates an embargo upon the Appointing Authority to make a regular appointment under relevant service Rules in any vacancy available whether permanent or temporary without first considering the claim of person who fulfils the requirement of clauses (i), (ii) and (iii) of Rule 4(1) unless and until his claim for regular appointment is considered. Sri Hausila Singh, therefore, was entitled first to be considered for regularisation before regular appointment of Sri Vinod Chand Sharma and Sri Chhotey Lal Katiyar but that having not been done, the State could not take advantage of consequence of its act contrary to Rule 4(1). On one hand, the State Government flouted the mandate of Rule 4(1) in the context of petitioner and simultaneously to deny him seniority, relying on its illegal act of making regular appointment of the aforesaid two persons without first considering Sri Hausila Singh for regular appointment, was clearly illegal and arbitrary and it is in these circumstances, I find that the impugned orders in the ultimate, has resulted in substantial justice to claim Hausila Singh, hence, ought not be interfered by this Court.

16. It is not that he was found unfit for regularisation but as a matter of fact, his case was not considered for regularization for the reasons not explained by the petitioners either before the Tribunal or before this Court. Hence, this Court is of the view that the impugned orders having resulted in substantial justice to respondent no. 2, warrants no interference in exercise of extra-ordinary exercise of equitable discretionary jurisdiction of this Court under Article 226 of the Constitution of India.

17. I find no reason to interfere with the impugned orders. In the peculiar facts and circumstances, as discussed above, the writ petition stands dismissed. No order as to costs.

Order Date :- 21.12.2012

Anand

Civil Misc. Restoration Application No. 216327 of 2005.

In

Case :- WRIT - A No. - 22858 of 1992

Petitioner :- State Of U.P.

Respondent :- A.D.J.

Petitioner Counsel :- P.M.N. Singh,H.R. Mishra,M.C. Dwivedi,P.K. Dwivedi,S.C.

Respondent Counsel :- V.S. Sinha,A.S. Deweker,Ganga Singh,K.N. Tripathi,V.S. Singh

Hon'ble Sudhir Agarwal,J.

Heard learned counsel for the applicant.

This is an application for recall of order dated 01.09.2004 on the ground that the same was passed ex-parte in absence of counsel for petitioner.

The reason shown for non-appearance on 01.09.2004 has been explained satisfactorily in the application. The order dated 01.09.2004 is hereby recalled. The application is allowed.

Order Date :- 21.12.2012

Anand