Allahabad High Court
Arvind Kumar Maurya vs State Of U.P. And Anr. on 17 February, 2003
Equivalent citations: 2003(3)AWC1984
Author: R.B. Misra
Bench: R.B. Misra
JUDGMENT R.B. Misra, J.
1. Heard Sri Sudhakar Pandey, learned counsel for the petitioner as well as Sri S. S. Sharma, learned standing counsel for the State.
2. In this writ petition the petitioner has sought the direction, directing the respondents to allow the petitioner to continue in service till regular appointment takes place and to make the payment of entire salary and a further prayer has been made directing the respondent/Settlement Officer Consolidation, Mau to decide the representation. It appears that the petitioner was appointed as a daily wager in the consolidation department in the year 1994 and his services were disengaged on 12.9.1995 and the petitioner filed the Writ Petition No. 2658 of 1996, Arvind Kumar Maurya v. State of U. P. and Ors. This Court, while disposing of the above writ petition on 23.1.1996 has been pleased to dispose of the writ petition by directing that in case the Settlement Officer, Consolidation shall look into the grievance of the petitioner and shall dispose of his representation keeping in view of the past performance of the petitioner. It is thereafter the present writ petition was filed and this Court by ex parte interim order dated 11.9.1996 has been pleased to pass an order which reads as below :
"Learned counsel for the petitioner submitted that the petitioner was appointed on ad hoc basis in a substantive vacancy until the regular employee Joins and the petitioner is working continuously from 1st January, 1994. He has moved representation contained in Annexures-4A and 4B to the writ petition, before the appropriate authority for his regularisation in the service. He also submitted that the petitioner apprehends that his services may be broken at any time only on the basis of oral order.
Learned standing counsel prays, for and is granted four weeks time to file counter-affidavit and the rejoinder-affidavit may be filed within two weeks thereafter.
In case the conduct and working of the petitioner is satisfactory, he will be allowed to continue his service till the date regular appointee joins and he will be paid salaries permissible under rules.
Sd. Kundan Singh, J."
11.9.1996
3. It appears thereafter the Assistant Settlement Officer, Consolidation by its order dated 14.10.1996 has considered the representation of the petitioner whereby the petitioner had sought salary from September, 1995 to January, 1996 and had prayed to treat him as a regular employee. By a reasoned order, the Assistant Settlement Officer, department of Consolidation by its order dated 14.10.1996 has rejected the representation by observing that the services of the petitioner was dispensed with as the petitioner has not worked as a draftsman. According to the respondent, the appointment of the petitioner was made on daily wager basis as a draftsman without any advertisement or following the procedure of selection and the. petitioner has no vested right or had any claim of draftsman in question.
4. According to the respondent, the petitioner had not brought to the kind notice of the High Court, the order dated 23.1.1996 and had obtained the interim order dated 11.9.1996. According to the respondent the said alleged appointment of the petitioner on daily wagers post of draftsman was initially not a regular and contrary to law as it has been pointed out in the audit report, therefore, the petitioner's disengagement was justifiable.
5. I have heard learned counsel for the petitioner as well as the learned counsel for the respondents and have perused the documents on record. According to Rule 19 Group 'D' Employees Service Rules. 1985. provides as follows :
19. Procedure for Selection.--(1) The appointing authority shall determine the number of vacancies to be filled during the course of the year as also the number of vacancies to be reserved for the candidates belonging to the Scheduled Castes, Scheduled Tribes and Other Categories. The vacancies shall be notified to the Employment Exchange. The appointing authority may also invite application directly from the persons who have their names registered in the Employment Exchange. For this purpose, the appointing authority shall issue an advertisement in a local newspaper besides posting the notice for the same on the notice board. All such applications shall be placed before the Selection Committee.
(2) When the names both of the general candidates and reserve candidates for whom vacancies are required to be reserved under the orders of the Government have been received by the Selection Committee it shall interview and select the candidates for various posts.
(3) In making selection the Selection Committee shall give weightage to the retrenched employees awarding marks in the following manner :
(i) For the first complete year 5 marks
(ii) For the next and every completed year of service 5 marks Provided that the maximum marks awarded to a retrenched employee under this sub-rule shall not exceed 15 marks.
(4) The number of the candidates to be selected will be larger (but not larger by more than 25 per cent) than the number of vacancies for which the selection has been made. The names in the select list shall be arranged according to the marks awarded at the interview.
According to the procedure for promotion and appointment Rules 22 and 23 of Group 'D' Employees Service Rules, 1985, provides as follows :
22. Procedure of promotion.--(1) Criterion of promotion in respect of all the posts shall be seniority subject to the rejection of the unfit.
(2) Promotions shall be made within the same establishment from amongst the eligible candidates through selection by the Departmental Selection Committee. The constitution of the Departmental Selection Committee which shall consist of three members shall be in accordance with the orders of Head of the Department.
23. Appointment.--(1) On the occurrence of substantive vacancies the appointing authority shall make appointments from the list of candidates prepared under Rule 21 or Rule 22, as the case may be, in the order in which their names appear in the list.
(2) The appointing authority shall also make appointment in officiating and temporary vacancies from the said list and in the manner referred to in Sub-rule (1).
(3) When the list of selected candidates is exhausted or no candidate is available for appointment from out of the selected candidates ad hoc appointments may be made by the appointing authority from amongst the eligible candidates :
Provided that such appointment shall not last for a period exceeding one year or beyond the next selection under these rules, whichever be earlier.
6. According to the procedure for appointment to the draftsman the names were to be brought from the employment exchange, the advertisement was to be made and proper selection was to be made comprising of post numbers as indicated by 'Rule 1985' and according to the procedure prescribed therein, the selection of the petitioner was to be made initially when the petitioner had initially come to this Court and filed Writ Petition No. 2658 of 1996 an order dated 23.1.1996 was passed by this Court keeping in view that of principle of natural justice was not observed and the petitioner's service was terminated without affording him the proper opportunity of hearing, in those circumstances, a direction was made to the respondents to decide the representation. In such way the compliance of principle of natural justice not made earlier before terminating the service of the petitioner on 12.9.1995, has subsequently been observed while passing an order dated 14.10.1996, on the representation. The order dated 14.10.1996, has been challenged by the petitioner by way of amendment application. Though no reply by the standing counsel has been filed to this amendment application, but while going through the amendment application it appears that draftsman post is a promotional post and there is U. P. Consolidation Draftsman Service Rules, 1980, available which provides also promotion as well as direct recruitment to the post of draftsman if the reply to the main counter-affidavit of the respondents is taken into consideration, it becomes clear that the proper procedure for recruitment to the draftsman either by the direct recruitment or by promotion. The order dated 14.10.1996 has been passed on the representation in compliance to the order dated 23.1.1996 of this Court in consonance to the principle of natural justice and 1 find no Illegality in the same. From this point of view, there is no occasion to interfere with the order dated 14.10.1996, being challenged in amendment application therefore, the Writ Petition No. 26411 of 1996 is dismissed and the Amendment Application No. 80282 of 1997 cannot be allowed therefore, it Is dismissed. According to the respondents he has not worked on the post of draftsman and was not being appointed legally. He is not entitled for the salary for which he is claiming for the period.