Vinod Kumar Gupta vs D.M. Ghazipur & Others
2018 Latest Caselaw 1684 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR
 
Court No. - 6
 
Case :- WRIT - A No. - 32491 of 1999
 
Petitioner :- Vinod Kumar Gupta
 
Respondent :- D.M. Ghazipur & Others
 
Counsel for Petitioner :- R.K.Srivastava,A.K. Srivastava
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Ashok Kumar,J.

Heard Sri Satendra Nath Srivastava, learned counsel for the petitioner and Sri A. C. Tripathi, learned Standing Counsel.

Supplementary rejoinder affidavit filed be taken on record.

Learned counsel for the petitioner submitted that the petitioner has applied for the vacancy in ???? "?" (Class-III) for the post of Junior Clerk which was advertised by the respondents. The petitioner appeared in the written examination and he has qualified in typing/shorthand test which was held for the post in question. The respondent has called the petitioner to appear in an interview after the petitioner was found suitable and eligible for the aforesaid post of Junior Clerk in the Collectorate, Gazipur. On 12.4.1999 the appointment letter was issued in favour of the petitioner by the respondent no. 1, District Magistrate, Gazipur. The appointment letter clearly indicates that the petitioner was selected on the post of Junior Clerk on a salary of Rs.3050-4590/-. This appointment letter further indicates that it was a temporary selection and it also indicates that it will be the subject of a decision by the High Court, taken in future in pending matter.

Learned counsel for the petitioner has submitted that though joining letter was issued, but, the respondent no.1 has not allowed him to join on the post of Junior Clerk. Having no way the petitioner submitted a representation on 29.4.1999 requesting thereby that since the petitioner is selected on the post of Junior Clerk and an appointment letter was issued, hence he may be permitted to join on the post of Junior Clerk. Several reminder letters were submitted by the petitioner addressed to the District Magistrate reiterating therein the request for permitting the petitioner to join.

Since the respondent authorities not acted on the request/representation, the petitioner filed the instant writ petition in August, 1999 with a prayer to issue an interim mandamus directing the respondent to allow the petitioner to work as Class-III employee in pursuance of the appointment letter dated 12.4.1999 and further to direct the respondent authorities to pay the salary with effect from the date of joining which the petitioner claim i.e. 19.4.1999.

This Court has entertained the writ petition and passed the following orders on 4.8.1999 :-

"Heard learned counsel for the petitioner.

The petitioner was appointed in office of District Magistrate by appointment letter dated 12.4.1999. Therefore the appointment letter has been issued to him, the District Magistrate is not permitting the petitioner to give his duties, or to discharge his work.

The District Magistrate, Ghazipur, is directed to permit the petitioner to discharge his duties in pursuance of the appointment letter dated 12.4.1999 and pay him month to month salary, within a period of two months from the date of production of a certified copy of this order before him or show cause by fixing counter affidavit within the same period".

Learned counsel for the petitioner has submitted that even though the interim directions were issued but the petitioner was neither allowed to join on the post of Junior Clerk nor his salary was paid.

Therefore, the petitioner has filed an amendment application by which he has brought to the notice of this Court that the petitioner's representation dated 19.4.1999 and reminders are turned down by the respondent by referring the Government Order dated 23.2.1999. It is submitted that the said Government Order, referred by the respondent, while not permitting the petitioner to join on the post of Junior Clerk, even in pursuance of interim order dated 4.8.1999, clearly indicates that it relates to appointment/adjustment of Urdu Translator-Cum-Assistant Junior Clerk. Petitioner's amendment application was allowed by this Court and necessary amendments are carried out.

Sri A. C. Tripathi, learned standing counsel contended that the respondent has filed the counter affidavit to the amended petition, however, the copy of the same is not available in the record available with the Court. Sri A. C. Tripathi has placed the same for perusal of the Court. It is submitted by the learned counsel for the respondent that the emphasis was given by the respondent on the Government Order dated 23.2.1999, copy of which is enclosed as Annexure-4 to the counter affidavit. However, in the amended counter affidavit in Para-6, the following averment has been made :-

"?? ??????? ????????? ???? ?? ??????? 10 ? ??? ???? ?? ??? ???????? ???????? ?? ????????? ?0???0 ????? ???????, ???0 - 2 ??0 20-1-91 ???? -97 ?????? 09 ??? 1998 ?? ???????? ???????? ?? ?????? ?? ??? ?? ??????? ?? ?????? ???? ???????? ?? ????????? ?? ??????? ??0 ???? ???????? ?? ??? ??0 ??0 28937/98 ?0???0 ????? ??????? ???????? ??? ??? ?0???0 ????? ??? ? ???? ??? ??0 ???? ???????? ?? ?????? ?????? ??0 30.11.1998 ?? ???????? ?0???0 ???? ?? ???? ??0 25/36/98-??-1999 ??0 23 ?????, 1999 ??? ??????? ??????? ?? ?????? ???????? ???????? ?? ???????? ?????? ??? ???? ???????? ?? ?? ???? ???? ???????? ?? ????????? ?????? ?? ?? ??? ???"

In the amended counter affidavit the respondent has referred the Government Order dated 23.2.1999 and learned standing counsel also pointed out that while issuing the appointment letter the District Magistrate indicated that the appointment of the petitioner is temporarily and will be subject matter of the decision by the High Court in the pending petitions related to Government Order dated 23.2.1999.

Per contra, learned counsel for the petitioner has stated in supplementary rejoinder affidavit to the amended petition that in fact, respondent authorities were fully aware when they had issued the appointment letter on 12.4.1999 about the Government Order dated 23.2.1999. However, the said Government Order is not subject matter of the present proceedings as such is related to the appointment/adjustment on Urdu Translator -Cum-Junior Clerk. After selection process the appointment letter was issued to the petitioner.

Learned counsel for the petitioner has also brought to the notice of this Court another Government Order dated 26.6.1999 issued by the State Government which categorically provides the terms and the process of appointment to be followed by the District Authorities particularly with respect of the candidates who appeared in the written test held on 13.12.1998 after completion of the selection proceedings under Rule of 1998. It is, therefore, submitted that the petitioner's case is clearly and squarely covered by the said Government Order.

Learned counsel for the petitioner submits that the petitioner is permitted to join on 19.1.2004 on the post of Junior Clerk and subsequently his pay-scale is revised and thereafter the Assured Career Progression (ACP) is allowed to the petitioner. Learned counsel for the petitioner has submitted that in fact, the respondent authorities are permitting the petitioner to discharge his duties and the petitioner is continuing his duties since 19.1.2004.

Having heard learned counsel for the parties and after considering the material available on record and the averment in the amended writ petition, counter affidavit, supplementary counter affidavit, rejoinder affidavit and supplementary rejoinder affidavits, this Court finds that the petitioner is entitled on the post of the Junior Clerk with effect from the date of issuance of the appointment letter i.e. with effect from 12.4.1999 or from joining since w.e.f. 29.4.1999.

The respondent has incorrectly relied upon the Government Order dated 23.2.1999 which has no affect so far as the case of the petitioner is concern.

In view of the aforesaid facts and reasons given hereinabove this Court finds appropriate to direct the respondent No.1 to consider the issue and the claim of the petitioner after providing opportunity of hearing to the petitioner and after due consideration of the subsequent and previous Government Orders. This Court, however, clarify that so far as the Government Order dated 23.2.1999 is concerned, it had no applicability in the matter.

The writ petition is accordingly disposed of. The order passed by the District Magistrate rejecting the representation of the petitioner dated 20.9.1999 is hereby set aside.

Order Date :- 24.7.2018

Ravi Kant