Allahabad High Court
Arjun Singh Kushwaha vs State Of U.P.Through The Secy. Govt. Of ... on 22 July, 2010
Author: Devendra Kumar Arora
Bench: Devendra Kumar Arora
Court No. - 2 Case :- SERVICE SINGLE No. - 3381 of 2010 Petitioner :- Arjun Singh Kushwaha Respondent :- State Of U.P.Through The Secy. Govt. Of U.P.Lko.And Ors. Petitioner Counsel :- Alok Mishra Respondent Counsel :- C.S.C. Hon'ble Devendra Kumar Arora,J.
Reserved Heard learned counsel for parties and perused record. By means of this writ petition, petitioner has prayed for a writ in the nature of certiorari for quashing of the impugned order dated 07.05.2010, contained in Annexure No. 1 to the writ petition. The petitioner has further prayed for a writ in the nature of mandamus commanding the opposite parties not to give effect the impugned order dated 07.5.2010 and to reinstate him with full consequential benefits as well as to allow him to work on the post of Driver as usual and to pay his salary as and when the same falls due.
Submission of learned counsel for the petitioner is that the opposite parties issued an advertisement dated 29.6.2007 for inviting applications for appointment against 43 vacancies of driver. The clause 6 of the advertisement provides that a candidate should have driving license to his credit for at least preceding three years from the date of notification of the vacancies and he should have also passed Class VIII from the recognized institution. The petitioner in pursuance of the advertisement applied against the post of driver annexing all the relevant documents including the driving license. The petitioner was called for driving test and at the time of driving test his driving license was also examined by the authority concerned who conducted the driving test and after passing the driving test petitioner was declared successful. The petitioner was called for interview vide letter dated 28.11.2007 along with the educational certificate and the driving license with one extra copy of the same. The petitioner was issued appointment order on 9.1.2008 under the signature of opposite party no. 2 (Vishesh Sachiv Evam Rajya Sampati Adhikari). In para 3 of the Appointment Order it has been mentioned that if any difference is found in documents or certificates annexed along with the application form regarding education, age, caste then the appointment will be cancelled without giving any opportunity of hearing. The petitioner in pursuance of the appointment order joined on 16.1.2008 and till date he is working to the entire satisfaction of the higher authorities. The petitioner was shocked to the receive show cause notice on 17.4.2010 requiring him to submit his reply as to why his services may not be terminated on the ground of false declaration regarding his fulfilling of his requisite qualification. The petitioner submitted his reply on 26.4.2010 and in para 27 of the same it has been specifically mentioned by the petitioner that he has not committed any fraud or misappropriation. It was also submitted by the petitioner that all the original records including the driving license were checked at the time of driving test and again at the time of interview. But, without appreciating reply of the petitioner in correct prospective, the impugned order has been passed terminating the services of the petitioner on the basic ground that at the time of advertisement dated 29.6.2007 the driving license of the petitioner was not of three years' standing. It was essential that the driving license of the candidate should have three years old. The petitioner did not fulfil the essential eligibility and as such appointment of the petitioner was void ab initio and accordingly services of the petitioner were terminated with immediate effect.
Submission of learned counsel for the petitioner is that the advertisement did not prescribe any fix period of experience of driving.
The candidate was only required to have driving license to his credit for at least three years standing from the date of advertisement. In other words, it can be said that the candidate ought to have possessed three years' old driving license. The petitioner was issued the driving license on 4th March, 2005 and admittedly Driving License of the petitioner was not of three years preceding from the date of advertisement of the vacancies but in due course of time, the driving license of the petitioner has become about five years' standing.
Learned counsel for the petitioner has placed reliance upon a decision of Hon'ble Supreme Court reported in (1979) 1 SCC 168, Ram Sarup V. State of Haryana and Ors.
Para 3 of the same reads as under:-
"The question then arises as to what was the effect of breach of clause (1) of Rule 4 of the Rules. Did it have the effect of rendering the appointment wholly void so as to be completely ineffective or merely irregular, so that it could be regularized as and when the appellant acquired the necessary qualifications to hold the post of Labour-cum-Conciliation Officer. We are of the view that the appointment of the appellant was irregular since he did not possess one of the three requisite qualifications but as soon as he acquired the necessary qualification of five years' experience of the working of Labour Laws in any one of the three capacities mentioned in clause (1) of Rule 4 or in any higher capacity, his appointment must be regarded as having been regularized. The appellant worked as Labour-cum- Conciliation Officer from January 1, 1968 and that being a post higher than that of Labour Inspector, or Deputy Chief Inspector of Shops or Wage Inspector, the experience gained by him in the working of Labour Laws in the post of Labour- cum-Conciliation Officer must be regarded as sufficient to constitute fulfillment of the requirement of five years' experience of Rule 4. The appointment of the appellant to the post of Labour-cum-Conciliation Officer, therefore, became regular from the date when he completed five years after taking into account the period of about ten months during which he worked as Chief Inspector of Shops. Once his appointment became regular on the expiry of this period of five years on his fulfilling the requirements for appointment as Labour-cum-Conciliation Officer and becoming eligible for that purpose, he could not thereafter be reverted to the post of Statistical Officer. The order of reversion passed against the appellant, was, therefore, clearly illegal and it must be set aside."
On the strength of the aforesaid observations of the Hon'ble Supreme Court it has been submitted by learned counsel for the petitioner that petitioner's appointment cannot be said to be void on account of the fact that he was not having driving license of three years prior to the date of advertisement and the same at the most can be said to be irregular and with passage of time that irregularity get cured as now petitioner's driving license has become approximate five years old. It is also submitted that appointment of one Pramod Kumar Tharu who was also appointed as a Driver like petitioner in Rajya Samnpatti Vibhag, was challenged by Jagjivan Ram, Kadir Bux and Ishrat Ali, the class IV employees of the Department by way of filing a writ petition no. 1699 (SS) of 2008 before this Court on the ground that he (Pramod Kumar Tharu) was not having the requisite qualification as per the advertisement. In the said writ petition, an interim order was passed on 31.3.2008, directing the opposite parties to file reply to the averments made in paras 2, 3 and 27 and it was provided that the continuance of the opposite parties no. 4 to 9 (Pramod Kumar Tharu was arrayed as opposite party no. 9 therein) shall abide by the final order passed by the Court. The said writ petition is still pending. It is further submitted by learned counsel for the petitioner that it appears that in the said writ petition personal affidavit of Rajya Sampatti Adhikari was called for and in order to save his skin a show cause notice was issued to the petitioner and other similarly situated persons and after receipt of their respective replies by means of impugned order petitioner's services were terminated on the ground that the driving license of the petitioner was not of three years' standing at the time of advertisement.
Learned Counsel for opposite parties, while opposing the writ petition, submitted that the petitioner was not having the prescribed qualification and, as such, his selection was illegal and therefore before taking any action a show cause notice was issued in order to provide opportunity and after considering the reply of the petitioner the impugned order was passed. As such there is no illegality in the impugned order.
I have considered the submissions of the learned counsel for the respective parties and gone through the recall. It is admitted position that the petitioner possess education qualification and he has also possess the driving license but the same was not three years old on the date of notification of the vacancies. The petitioner is working on the post of driver since January, 2008 and now petitioner's driving license is about 5 years standing. In writ petition no. 1699 (SS) of 2008, Jagjeewan Ram and others V. State of U. P. and others the appointment of Pramod Kumar Tharu has been challenged and this Court by means of order dated 31.3.2008 provided that the appointment of the Pramod Kumar Tharu (respondent no. 9) shall abide the final orders passed by this Court in the said writ petition.
In view of the above, I am of the considered view that since the petitioner was working as Driver with the opposite parties w.e.f. January, 2008 without any complaint and presently his driving license is about five years' standing and at the time of driving test and joining, the opposite parties themselves checked the documents including the driving license and allowed the petitioner to join on the post of Driver, hence, it cannot be said that petitioner has concealed any fact or record from the opposite parties. As such, a case for interim relief is made out.
Let counter affidavit be filed within four weeks. Rejoinder Affidavit, if any, may be filed within a week thereafter. List alongwith Writ Petition No. 1699 (SS) of 2008, Jagjeewan Ram & others vs. State of U. P. & others in the month of September, 2010.
In the meantime, the impugned order dated 07.05.2010, contained in Annexure No. 1 to the writ petition will be kept in abeyance and petitioner will be allowed to perform his duties on the post of Driver.
Order Date :- 22.7.2010 ashok