Mateen-Uz-Zafar & Ors. vs State Of U.P.Thru Secy.Labour ...
2021 Latest Caselaw 9585 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 1
 

 
Case :- SPECIAL APPEAL No. - 94 of 2021
 
Appellant :- Mateen-Uz-Zafar & Ors.
 
Respondent :- State Of U.P.Thru Secy.Labour Deptt. Lucknow & Ors.
 
Counsel for Appellant :- Mohd. Mansoor,Mohd. Ateeq Khan
 
Counsel for Respondent :- C.S.C.,Ashok Shukla,R K Upadhyay,Shireesh Kumar,Shivam Sharma
 

 
Hon'ble Ritu Raj Awasthi,J.

Hon'ble Dinesh Kumar Singh,J.

1. Heard Mr. Mohd. Mansoor, learned counsel for appellants as well as Mr. Kuldeep Pati Tripthi, learned Additional Advocate General for respondents no. 1 to 3, Mr. Shivam Sharma, learned counsel for respondent no. 5 and Mr. Shireesh Kumar, learned counsel for respondents no. 8 to 11.

2. This intra Court appeal has been filed against the judgment and order dated 18.1.2021 passed by the learned Single Judge in Review Application No. 125816 of 2019 in Re: Writ Petition No. 545 (SB) of 2006 (Mateen-Uz-Zafar & Ors vs. State of U.P. and Ors.).

3. The appellants-petitioners filed Writ Petition No. 545 (SB) of 2006 for a writ of mandamus to treat them to have been substantively appointed on the post of State Training Officers/Principals/Vice Principals in the Directorate of Training and Employment, Government of Uttar Pradesh on the dates of their initial appointment which were made in the year 1988 for a period of one year by the State Government. It was further prayed that the authorities be directed to finalize the seniority list treating them to have been substantively appointed from the date of their initial appointment. Subsequently, by way of amendment, the appellants-petitioners had also challenged the seniority list dated 13.4.2006 as well as the promotion order dated 16.10.2007 issued by the State Government.

4. The post in question is within the purview of the Uttar Pradesh Public Service Commission. The recruitment and service conditions are governed under U.P. State Training (Labour Department) Service Rules, 1981. Rule 20 (4) of the said Rules provides that if the candidates selected by the Public Service Commission are not available, then the Appointing Authority can make ad-hoc or stop-gap appointments.

5. Since the selection on the said post by the Public Service Commission could not be held for a considerable time, the State Government decided to appoint the candidates for a period of one year or till regularly selected candidates from U.P. Public Service Commission were made available whichever was earlier. The appointment letter would clearly show that the aforesaid appointments of the appellants-petitioners were totally ad-hoc and temporary. The appellants-petitioners continued on the said post completely on temporary and ad-hoc basis till regularly selected candidates from Public Service Commission joined in the year 1994. The selection process for selecting candidates on regular basis began in the year 1991 by issuing an advertisement. Six candidates from the petitioners' batch who were initially appointed in the year 1988 on the post of ad-hoc and temporary basis were also selected. Out of 27 candidates recommended by the Public Service Commission, only 18 had joined including six from the petitioners' batch. Remaining persons from the petitioners' batch continued to work on ad-hoc and temporary basis till 14.2.2002 when their services were regularized. On 6.12.2005, a tentative seniority list was published and the appellants-petitioners were placed at the bottom of the list. The appellants-petitioners were put on probation for a period of two years and, thereafter, they were confirmed on their respective posts vide order dated 9.11.2005. In the Departmental Promotion Committee, the appellants-petitioners were not considered for promotion.

6. The learned Single Judge initially by relying on the judgment in the case of Secretary, Minor Irrigation Department RES vs. Narendra Kumar Tripathi; (2015) 11 SCC 80 allowed the writ petition and held that the appellants-petitioners were entitled for seniority from the date of their initial appointment.

7. The respondents thereafter filed a review petition. The learned Single Judge vide impugned judgment and order dated 18.1.2021 disposed of the review petition on the basis of the statement given by the counsel for the appellants-petitioners and modified the judgment and order dated 30.9.2019 in following manner:

"Accordingly, the third last para "In view of the aforesaid observations, the seniority list dated 13.04.2006, contained at Annexure-12 to the petition as well as order dated 16.10.2007 passed by the State Government is hereby set aside" shall be treated as deleted.

The petitioner is directed to approach the competent authority within 15 days from today by way of a representation ventilating all his grievances and on receipt of the same, the Competent Authority shall decide the grievance of the petitioner by passing a speaking and reasoned order, after providing opportunity of hearing to all the concern parties within a period of two months from the date of receipt of the said representation along with a copy of this order. "

8. Mr. Kuldeep Pati Tripathi, learned Additional Advocate General appearing for the respondent-State has submitted that this special appeal is not maintainable as the review petition was disposed of on the basis of the statement given by the learned counsel for appellants-petitioners and, therefore, the same is liable to be dismissed. He has further submitted that even otherwise the learned Single Judge had decided the writ petition vide judgment and order dated 30.9.2019 on the basis of the judgment rendered in the case of Narendra Kumar Tripathi (supra) and the said judgment has been held to be per incurium by the Supreme Court vide judgment and order dated 28.7.2021 passed in Civil Appeal No. 10788 of 2016; Rashi Mani Mishra and others vs. State of Uttar Pradesh and others. He, therefore, submits that even otherwise there is no merit in the special appeal which is liable to be dismissed.

9. On the other hand, learned counsel for appellants submits that the appellants-petitioners were appointed under the statutory Rule which empowers the State Government to make ad-hoc/stop-gap arrangement appointment which was not the case in the case of Narendra Kumar Tripathi (supra). Here the State Government constituted a selection committee, applications were invited and, thereafter, appointments were made in the year 1988. He, therefore, submits that the judgment rendered by the Supreme Court in the case of Rashi Mani Mishra and others (supra) is not applicable to the facts of the case.

10. We have considered the submissions advanced on behalf of the parties.

11. The appellants-petitioners initial stop-gap/ad-hoc appointment cannot be said to be regular appointment, even if the statutory Rule empowers the State Government appointing authority to make stop-gap/ad-hoc appointment.

12. From the appointment letter of appointment of the appellants-petitioners, it is evident that they were appointed on ad-hoc/stop gap basis. Their continuance on the said post despite the fact that they could not be selected in the regular selection made by the Public Service Commission would not cloth them as regular appointee.

13. The Supreme Court in the case of Rashi Mani Mishra and others (supra) in almost identical facts has held that the claim for substantive appointment when the appointments were initially made on ad-hoc basis even on the recommendation of the Selection Committee will be only from the date of their regularization and not from the date of their initial appointment and, service rendered before the confirmation/regularization cannot be counted for the purpose of seniority for such persons.

14. In view of the aforesaid, we dismiss the special appeal on the ground of maintainability inasmuch as the judgment under review was rendered by the learned Single Judge on the basis of the statement/concession given by the learned counsel for appellants-petitioners and even on merit they have no claim for counting their seniority from the date of their initial appointment on ad-hoc stop-gap basis.

15. The special appeal is hereby dismissed.

[Dinesh Kumar Singh, J.] [Ritu Raj Awasthi, J.]

Order Date :- 5.8.2021

Santosh/-