Devendra Kumar Singh & Others vs State Of U.P. & Others
2019 Latest Caselaw 5483 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 6/ Reserved
 

 
Case :- SERVICE SINGLE No. - 5210 of 1996
 

 
Petitioner :- Devendra Kumar Singh & Others
 
Respondent :- State Of U.P. & Others
 
Counsel for Petitioner :- Y.S. Lohit,Ajay Pratap Singh,S.S.L. Srivastava
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Rajnish Kumar,J.

1. Heard, Shri Y.S. Lohit, learned counsel for the petitioners and Shri Ishan Verma, learned Standing Counsel.

2. The petitioners, eight in number have approached this court by means of the present writ petition for issuing a writ of mandamus commanding the respondents to consider the petitioners against regular post of Seenchpal and to allow the petitioners to work on those posts against which untrained daily wage employees are allowed to work.

3. The case of the petitioners, as set out in the writ petition, is that pursuant to the order dated 24.11.1995 issued by Executive Engineer, Raibareli Division (South Sharda Canal) Raibareli, the Deputy Revenue Officer, Raibareli, the petitioners have successfully completed the training for the post of Seenchpal but the examination of the petitioners had not been taken. Therefore the petitioners had approached to the Executive Engineer. Thereafter in pursuance to the instructions issued by the Executive Engineer on 16.02.1996, the Deputy Revenue Officer had taken the examination of the petitioner and declared them as passed by means of the letter dated 17.02.1996. Therefore the petitioners are trained Seenchpal but they are not being allowed to work as Seenchpal while untrained daily wage employees are being allowed to work against 22 posts of Seenchpal. The genuine claim of the petitioners are being ignored therefore the petitioner are constrained to approach this court by means of the present writ petition.

4. The respondents have filed a counter affidavit stating therein that as per records no orders were issued on 04.11.1995 from the Divisional Office or the Camp Office of the Executive Engineer to the Deputy Revenue Officer for any training. The respondents have come to know about the letters dated 14.11.1995 and 15.11.1995 contained in annexures no.1 and 2 to the writ petition through the present writ petition. Letter No.C-35/Ra/D/95/96 dated 14.11.1995 contained in annexure no.1 to the writ petition is not available in the record and on the said number and the date a letter has been issued to the Assistant Engineer 1st, Raibareli regarding timely submission of salary bills. Similarly, the letter no.Nil dated 15.11.1995, contained in annexure no.2 to the writ petition, has also not been issued from the office as it is not available in the record. The letter no.Nil dated 16.02.1996 contained in annexure no.3 is also not available in the record by which allegedly a direction was issued to the Deputy Revenue Officer for taking examination of the petitioners.

5. It has further been stated that the alleged examination of the petitioners on 17.02.1996 was not held and the letter dated 17.02.1996 has also come to the knowledge of the respondents only through the present writ petition. The Deputy Revenue Officer had not taken any examination because there were State holidays from 16.02.1996 to 18.02.1996. The travelling bill of the then Deputy Revenue Officer also indicates that he had proceeded for Parsadepur from the head office on 16.02.1996 at 09:00 AM and remained there up to 18.02.1996 and returned back from there at 09:00 AM on 18.02.1996 therefore he could not have taken the examination on 17.02.1996. The alleged result of the petitioners contained in Annexure No.4 to the writ petition is not admissible as no training or examination of the petitioners was held. Proof of dispatch of the aforesaid letters is also not available in the diary and dispatch register of the concerned division.

6. It has also been stated that as per the directions issued by the Government, till the work charge employees are available in the department no outsider should be appointed on the post of Seenchpal. Besides it there is specific provision in the Irrigation Department Patrols, Service Rules 1953 [ here-in-after referred as the Rules 1953 (Patrol known as Seenchpal)] that candidates selected by the Committee constituted by the Superintending Engineer only should be given training so the training given otherwise would not be admissible. The petitioners were not the departmental employees and no Committee was constituted by the Superintending Engineer so the question of selection of the petitioners does not arise. The whole action seems to have been done with the collusion of the Executive Engineer- Shri Devendra Kumar Sharma and the Deputy Revenue Officer- Shri Krishna Veer Singh and the petitioners. Therefore the petitioners are not entitled for appointment on the post of Seenchpal.

7. The petitioners have filed a rejoinder affidavit reiterating the averments made in the writ petition and alleging that the case of the petitioners have been considered in compliance of the order passed by this Court and it has only been rejected on the ground that the Seenchpal cadre has been declared a dying cadre and relying a letter of the Executive Engineer stated that the petitioners are entitled for appointment on the post of Bahuudeshi Karmi due to declaration of the post of Seenchpal as dying cadre. But no specific reply to the averments made in the counter affidavit, regarding the letters annexed by the petitioners alongwith the writ petition on the basis of which the claim has been set up by the petitioners, has been made in the rejoinder affidavit. Thereafter several affidavits have been filed by the parties.

8. Submission of learned counsel for the petitioners is that the petitioners have duly completed the training of the post of Seenchpal under the orders of the then Executive Engineer dated 14.11.1995 but they were not being allowed to appear in the examination therefore the petitioners had made representations and under the orders of the Executive Engineer dated 16.02.1996, the petitioners' examination was held on 17.02.1996 and they were declared successful by the Deputy Revenue Officer but till date the petitioners have not been appointed whereas all other persons have been appointed. The petitioners had completed the training without any interruption while the others, who were restrained from training, completed the training under the orders of the court and thereafter they have been appointed.

9. An Inquiry Committee of three Executive Engineer was also constituted by means of the letter dated 13.06.1996 to enquire into the matter of giving training of the post of Seenchpal to the outsiders against the directions and policy of the department issued by the Government. The Committee has submitted its report dated 11.12.1996 referring to the letter dated 17.02.1996 by which the petitioners were selected but no decision has been taken thereon.

10. He further submitted that a recommendation was made in favour of the petitioners on 15.09.1999 but they have not been appointed till date despite the vacancies are available. After a period of three years a recommendation was also made by means of the letter dated 19.09.1999 by the Executive Engineer to the District Magistrate for appointment of the petitioners on the post of Bahuudeshi Karmi as cadre of Seenchpal was declared as dying cadre. But the Superintending Engineer by means of the letter dated 12.09.2001 directed to the Executive Engineer to take decision at his level as the Seenchpal cadre has been declared dying cadre. But the directions issued by the Government and Head of the Department had not been followed in the selection of the outsider. A direction was also issued by the Senior Staff Officer of the Chief Engineer for taking decision in the matter informing that the Government Order dated 08.10.2001 declaring the Seenchpal cadre as dying cadre has been cancelled.

11. The Executive Engineer had written a letter to the Government on 08.01.2007 in regard to filing of the special appeal in the case of Dharam Raj Singh. The said letter was endorsed to the Engineer-in-Chief (Legal Cell) with a request for giving the legal opinion / directions. The case of the petitioners was also referred in the said letter and submitted that all the eight i.e the petitioners are referred in all letters.

12. Lastly, Shri Dharam Veer Singh etc. have been appointed after the dismissal of Special Appeal No.415 of 2007 on 24.07.2014. Initially Shri Dharam Veer Singh and others had filed Writ Petition No.3410 (S/S) of 1999 in which a direction was issued to expedite the process of appointment on the basis of selection already held but the same was not concluded. Therefore they had filed Writ Petition No.5210 (S/S) of 1996 in which, by the interim order dated 03.07.1999, it was provided that since the process of selection of regular appointment is in process and if the petitioners are otherwise eligible they may also be considered. Thereafter the selection was held and result was declared but the same was not implemented therefore they had filed Writ Petition No.4488 (S/S) of 1996 in which the interim order was passed on 10.08.2006 which alongwith the order of clarification dated 20.10.2006 was challenged in Special Appeal No.415 of 2007 which was dismissed on 24.07.2014 with a direction to comply the orders within a month and in pursuance thereof they have been appointed by means of the order dated 25.08.2014. But the petitioners have not been appointed despite a request was also made by the Executive Engineer by means of the letter dated 27.06.2014 for making postings on the vacant posts of Seenchpal.

13. Learned counsel for the petitioners submitted that since all other persons selected and appointed during the said period have been appointed, therefore the petitioners are also entitled for appointment as they had duly completed the training and were selected and accordingly the writ petition is liable to be allowed.

14. Per contra, learned State Counsel submitted that the petitioners were not duly selected and undergone any training as the letters annexed by the petitioners are not available in the records and in place of letter No.C-35 dated 14.11.1995 another letter on the said number is there which was written to the Assistant Engineer in regard to submission of salary bills timely. In this regard letter dated 08.01.2017 was written by the Executive Engineer, Raibareli Devision (South Sharda Canal) Raibareli mentioning therein that Shri Devendra Kumar Sharma was posted between January 1995 to 18.03.1996 as Executive Engineer and was holding the dual charges who had issued different orders for providing training of Seenchpal for outsider against the relevant Government Orders and the provisions of the Rules 1953. Accordingly it appears that the letter dated 14.11.1995 has been prepared in connivance with the petitioners for giving undue benefits however all these orders were cancelled by means of the order dated 09.04.1996 passed by the Executive Engineer, a copy of which has been annexed as Annexure No.2 to the supplementary counter affidavit dated 18.09.2017 filed on 19.09.2017.

15. He further submitted that it is mentioned in the letter dated 16.02.1996 that the Seenchpal candidates, who have completed training, have informed that even after receiving training the examination has not been taken. Thus, it is clear that the officers who had allegedly provided the training, did not inform about the completion of training of Seenchpal candidates. The said letter has no dispatch number. Likewise letter dated 17.02.1996. It is almost practically not possible to inform the candidates regarding date of examination, preparation for taking exam, holding of examination and declaring the result on the same very date while on the said date i.e 17.02.1996, the said Deputy Revenue Officer was staying alongwith the staff at Parsadepur Nahar Kothi. There is no evidence also regarding conduct of any such examination. It is also clear from letter dated 27.11.1998 written by the Executive Engineer, in pursuance of the direction issued by the Superintending Engineer that from perusal of the records no evidence is available regarding providing training to the persons included in the letters No.C-35 dated 14.11.1995 and order No.87 dated 05.02.1996. Similarly, in the letter dated 12.09.2001 written by Superintending Engineer, 16 Circle Irrigation, Pratapgarh, it is mentioned that the directions issued by the Government and the Head of the Department have not been followed in selection of the aforesaid outsiders. Therefore, the selection and appointment of the petitioners is fraudulent as no training was provided to the petitioners and they have not been selected as no record is available rather it is apparent that the fraudulent documents have been prepared in place of the letters issued for other purposes and no person has been appointed on the basis of the aforesaid letters.

16. So far as the appointment of Shri Dharam Veer Singh and others is concerned he submitted that their examination was conducted in compliance of the order passed by this court by a Selection Committee duly constituted vide order dated 05.06.1999 and they were declared successful in which the petitioners had not participated. In regard to others he submitted that they completed their training under the interim orders passed by this court and after due selection and being eligible and successful they have been appointed which does not give any right to the petitioners to be appointed who have even not done training.

17. On the basis of above, he submitted that the petitioners are not entitled for appointment on the post of Seenchpal and they are also not entitled for any parity with others who have completed the training and duly selected and appointed on the post and the writ petition is liable to be dismissed.

18. I have considered the submissions of the learned counsel for the parties and perused the material available on record.

19. The petitioners have set up their claim on the basis of the letters no.C-35/Ra-Kha/95-96 dated 14.11.1995 and 15.11.1995 contained in annexures no.1 and 2 to the writ petition alleging that in pursuance thereof they had completed the training for the post of Seenchpal. Since their examination was not being held they had approached to the Executive Engineer who had directed to the Deputy Revenue Officer, Raibareli for holding the examination and informing about the result by means of the letter dated 16.02.1996. In pursuance thereof the alleged selection was made on 17.02.1996 and the result was communicated by means of the letter dated 17.02.1996. The said letters have not been found in the record as disclosed by the respondents in their counter affidavit and the supplementary counter affidavits. The respondents have brought on record letter No.C-35/Ra-Kha(DA)/95/96 dated 14.11.1995 by which a direction was issued by the Executive Engineer to the Assistant Engineer 1st, Raibareli, Khand (Da) Sharda Nahar Raibareli for submitting their salary bills timely. In response thereof nothing has been said so it is uncontroverted. Therefore this court is of the view that the petitioners are not entitled for any benefit arising out of the said letters.

20. In regard to the alleged examination of the petitioners on 17.02.1996, the respondents have disclosed that 16.02.1996 to 18.02.1996 was Government holidays and during that period the then Deputy Revenue Officer was out of station at Parsadepur. In this regard they have submitted that the then Deputy Revenue Officer and his assistants were on inspection at Parsadepur. The Deputy Revenue Officer had left the head office on 16.02.1996 at 09:00 AM and he was in Parsadepur on 17.02.1996 and inspected the Udaipur Rajbaha and returned on 18.02.1996 at 09:00 AM from Parsadepur to Raibareli and nothing has been brought on record to controvert this in any manner. Therefore the alleged examination of the petitioners and its result also creates doubts because it is not possible that in pursuance of a letter issued on 16.02.1996 the examination could have been held on 17.02.1996 that too when the person who had to take the examination was out of station and the day on which the examination is alleged to have taken place he was on inspection at some other place. Therefore this court is of the view that firstly the petitioners were not duly selected by the Selection Committee under the Rules 1953 as the Selection Committee was not constituted by the Superintending Engineer under the Rules. There is also no material to show that the petitioners have undergone any training in accordance with law as discussed above. The examination of the petitioners also seems to be not possible in such a situation when the person who had to take the examination was on inspection out of the head office. That too on the very next day of the issuance of direction on 16.02.1996 for holding the examination because it is not possible within a day to inform all the candidates and hold the examination at a place where the person who had to take the examination himself is not available and nothing is not record to show that it was held. However all the said orders were cancelled by means of the order dated 09.04.1996.

21. In view of above, this court is of the opinion that the petitioners are not the duly selected and approved candidates under Rule 14 of the Rules 1953 therefore they are not entitled for appointment under Rule 15. Since this court is of the view that the petitioners have not completed the training after due selection in accordance with the rules and their examination and selection is also not possible under the circumstances mentioned here-in-above, any recommendation in favour of the petitioners for appointment is illegal and that does not give any right to the petitioners to be appointed on the post of Seenchpal particularly when all the orders have already been cancelled.

22. So far as the appointment of Shri Dharam Veer Singh and others are concerned, it appears that they had completed the training in accordance with law and they were selected by a duly constituted Selection Committee under the orders of this court. Therefore the petitioners are not entitled for any parity with the said candidates.

23. In view of above, this court is of the considered opinion that the petitioners are not entitled for appointment and the writ petition has been filed on misconceived and baseless grounds which lacks merit.

24. The writ petition is, accordingly, dismissed. No order as to costs.

.................................                             (Rajnish Kumar,J.)
 
Order Date :- 08.07.2019
 
Haseen U.