Uttar Pradesh Rajkiya Nirman Nigam ... vs Sanjay Anand And Another on 21 March, 2018

[Cites 7, Cited by 0]

Allahabad High Court

Uttar Pradesh Rajkiya Nirman Nigam ... vs Sanjay Anand And Another on 21 March, 2018

1. Heard Sri Shishir Jain, learned Counsel for the petitioners as well as Sri Sharsh, Advocate holding brief of Sri S.W.Zaman, learned Counsel for the opposite party no.1 and learned Standing Counsel.

2. Petitioners have approached this Court challenging the judgment and order dated 13.05.2013 passed by State Public Services Tribunal (hereinafter referred to as "Tribunal") in Claim Petition No. 2031 of 2010: Sanjay Anand Vs. State of U.P. and others, whereby a direction has been issued to the petitioners to consider the matter of private respondent in accordance with the Rules and issue an order of regularization in his favour against the backlog vacancies of the post of Assistant Resident Engineer (Electrical) along with the consequential benefits of service.

3. The submission of learned Counsel for the petitioners is that opposite party no.1 filed a claim petition No. 2031 of 2010 before the Tribunal and the main relief sought for by the private respondent reads as under:

"1. To issue order or direction to opposite parties to consider and regularized the services of petitioner on the post of Assistant Resident Engineer (electrical) against existing vacancy of SC/ST backlog quota with all consequential service benefits."

4. In the claim petition, the claimant has averred that he has completed B.Tech in Electrical Engineering in the year 2004 and on issuance of advertisement dated 01.07.2007 by the U.P. Rajkiya Nirman Nigam Limited (hereinafter referred to as "Corporation") for appointment on the post of Assistant Resident Engineer (Electrical), he made an application for appointment on the said post on 14.08.2007. It has also been stated that on 05.10.2007 the State Government has issued an order directing to calculate backlog quota against the total backlog vacancy of Scheduled Caste and Scheduled Tribe and in view of the said Government Order three posts of Assistant Resident Engineer (Electrical) were found to be vacant.

5. It has also been alleged in the Claim Petition that interview was held on 17.10.2007, but instead of appointing three candidates of Scheduled Caste and Scheduled Tribe category, the Corporation appointed only two candidates due to which his candidature was ignored for appointment against one existing regular vacancy under Scheduled Caste and Scheduled Tribe category. Consequently, he moved a detailed application to the department on 28.10.2007 raising his grievance and also made a complaint before the U.P. Commission of Scheduled Caste and Scheduled Tribe. It has also been mentioned in the Claim Petition that on 03.04.2008, the Board of Apprenticeship Training of Northern Region sent the opposite party no.1 for one year training, and after successful completion of training, the Corporation issued a certificate on 10.08.2009.

6. The opposite party no.1 has also stated in para 14 of the Claim Petition that instead of giving regular appointment, the Corporation is allowing him to work as a casual/work charge employee and is being paid Rs. 6000/- per month. In these circumstances, he made a request for regularization/regular appointment under the existing backlog vacancy vide letter dated 10.06.2009 and 26.09.2010, but his case was not considered for regular appointment.

7. The Claim Petition was contested by the petitioners by filing written statement stating therein that backlog vacancies of reserved category, which were advertised in the year 2007, were calculated on the basis of the directions issued by the State Government and on the basis of the occupied posts of Assistant Resident Engineer (Electrical) at the relevant time only two backlog vacancies of Scheduled Caste candidates were available for direct recruitment and there was no backlog vacancy under Scheduled Caste category. In response to the advertisement dated 14.07.2007, opposite party no.1 applied for appointment and he was called for interview on 17.07.2007 but was not found fit by the Selection Committee for appointment on the post of Assistant Resident Engineer (Electrical). Therefore, the claim petition filed by the opposite party no.1 is misconceived and the same is liable to be dismissed with costs.

8. It has also been mentioned in the written statement that the opposite party no.1 has undergone a year training from 03.04.2008 to 02.06.2009, for which he was paid stipend amounting Rs. 1970/- per month. The averments made in para 14 of the Claim Petition wherein it is alleged that instead of giving regular appointment, opposite party no.1 is being allowed to work on casual/work charge basis and is being paid salary of Rs. 6000/- per month has categorically been denied. It has been specifically stated that opposite party no. 1 has never been in the service of Corporation.

9. Learned Tribunal after examining the statement of learned Counsel for the parties and taking the submission of opposite party no.1 regarding his engagement as casual/work charge employee and being paid Rs. 6000/- per month as correct, directed for appointment of opposite party no.1 as Assistant Resident Engineer against backlog vacancies along with all consequential service benefits.

10. The judgment and order of the learned Tribunal has been challenged by the petitioners on various grounds and one of the grounds is that the opposite party no.1 was not a public servant, as defined in Section 2 (b) of the U.P.Public Services (Tribunal) Act, 1976 (hereinafter referred to as "Act, 1976). Controversy, raised by him does not fall within the ambit of service matter as defined in Section 2 (bb) of the Act, 1976 and consequently by virtue of Section 4 (1) of Act, 1976, the Claim Petition itself was not maintainable and was liable to be dismissed outrightly by the Tribunal.

11. Moreover, opposite party no.1. was never engaged/appointed in service of the Corporation in any capacity whatsoever and had never worked as an emloyee in the Corporation and consequently the judgment and order dated 13.05.2013 directing the petitioners for regularization on the post of Assistant Resident Engineer (Electrical) is illlegal, unsustainable and is liable to be quashed by this Court.

12. It is further argued by learned Counsel for the petitioners that in the selection held in the year 2007 for appointment against backlog vacancies on the post of Assistant Resident Engineer (Electrical), 14 persons got higher marks than opposite party no.1 and opposite party no.1 was not selected and recommended by the Selection Committee for appointment on the post in question and, therefore, no legal right has accrued to the opposite party no.1 for appointment/regularization on the said post in preference to the candidates, who got more marks in the selection than him.

13. After hearing the submission of learned Counsel for the petitioners, a specific query was made from opposite party no.1 regarding his averments made in para 14 of the Claim Petition, wherein it has been averred that in place of giving regular appointment, Corporation is treating the opposite party no.1 as a casual/work charge employee basis and being paid salary of Rs. 6000/- per month.

14. A Supplementary Affidavit has been filed today in Court on behalf of opposite party no.1, which was taken on record, wherein opposite party no.1 stated that he was receiving the money from the Contractor and till date he is working temporarily and receiving payment through cheque from the Contractor. An unconditional apology has also been tendered and submitted that he never intended to mislead the Court or conceal any fact and as petitioners have already appointed and regularized several similarly situated persons and his candidature was not considered, therefore, he requested before Hon'ble Court only for considering his candidature, if any post is available. A bank statement has also been annexed as SA-1 to the Supplementary Affidavit, which indicates that the opposite party no. 1 is receiving payment through cheque from SS Technobuild.

15. We have examined the submissions of learned Counsel for the parties and gone through the record.

16. Admittedly, two posts of Assistant Resident Engineer (Electrical) in the backlog vacancies of Scheduled Caste were advertised on 01.07.2007 and the opposite party no.1 in pursuance to the same, applied and his candidature was considered by the Selection Committee on 17.10.2007. As per averments made in the writ petition, 14 persons got more marks than the opposite party no.1 and therefore, his candidature was not recommended by the Selection Committee.

17. We have gone through the record as also the claim petition, which has been annexed along with the writ petition and perusal of the same reveals that the petitioner vide letter dated 10.06.2009 requested the Managing Director of the Corporation that he is an un-employed person and has gone under Apprenticeship training with the Corporation w.e.f. 03.06.2008 to 02.06.2009 and since there is one post lying vacant in the department, therefore, appreciating his financial difficulties, his case be considered sympathetically for regularization.

18. It appears that the opposite party no.1 is working through some Agency/Contractor of the Corporation and these facts have not been clearly mentioned in the para 14 of the Claim Petition, rather it has been stated that he has been working with the Corporation as casual/work charge basis and being paid Rs. 6000/- as salary.

19. The opposite party no.1 has accepted his mistake and clarified the position by means of Supplementary Affidavit filed today, wherein he has mentioned his working and recieving wages through the Contractor. The fact regarding non-working of opposite party no.1 in the Corporation has specifically been denied but the learned Tribunal only relying on the averments of the claim petition regarding his working and getting Rs. 6000/- per month and the post being vacant in the backlog category for Scheduled Caste candidates, directed for consideration of candidature of the opposite party no.1 for regularization on the post of Assistant Resident Engineer (Electrical) against the backlog vacancies and to provide him all service benefits.

20. In our considered opinion, the direction of the learned Tribunal is not only erroneous but also without jurisdiction as the learned Tribunal was required to first examine the nature of the appointment, if any with the Corporation and admittedly, the opposite party no.1 was never engaged in any capacity, except he having gone under apprenticeship training from 03.06.2008 to 02.06.2009 and was paid stipend of Rs. 1970/- per month.

21. At this juncture, it will be relevant to mention here that Section 22 of the Apprentices Act, 1961, which specifically provides that it shall not be obligatory on the part of the employer to offer any employment to any Apprentice, who has completed the period of his apprenticeship training in his establishment, nor shall it be obligatory on the part of the Apprentice to accept an employment under the employer, except where there is a condition in a contract of apprenticeship that the Apprentice shall, after the successful completion of the apprenticeship training, serve the employer, the employer shall, on such completion, be bound to offer suitable employment to the apprentice, and the apprentice shall be bound to serve the employer in that capacity for such period and on such remuneration as may be specified in the contract.

22. There is nothing on record, which indicates that there is any contract between the Corporation and the Apprentice for assuring any appointment after his completion of internship training.

23. We have also examined the submission of learned Counsel for the petitioners regarding maintainability of the claim petition before the Tribunal. Section 2 (b) defines "Public servant",which reads as under:

"Section 2 (b) "Public servant" means every person in the service or pay of-

(A) the State Government; or (B) a local authority not being a Cantonment Board; or (C) any other Corporation owned or controlled by the State Government (including any company as defined in Section 3 of the Companies Act, 1956 in which not less than fifty per cent of paid up share capital is held by the State Government) but does not include-

i. a person in the pay or service of any other company; or ii. a member of the All India Services or other Central Services;"

24. Section 2 (bb) defines "Service matter" as under:

" Section 2 (bb) "Service matter" means a matter relating to the conditions of service of a public servant."

25. Section 4 provides for reference of a Claim Petition before the Tribunal, which reads as under:

"4. Reference of claim to Tribunal. - (1) subject to the other provisions of this Act, a person who is or has been a public servant and is aggrieved by an order pertaining to a service mater within the jurisdiction of the Tribunal may make a reference of claim to the Tribunal for the redressal of his grievance.

Explanation: For the purpose of this sub-section "order" means an order or omission or in-action of the State Government or a local authority or any other Corporation or company referred to in clause (b) of section 2 or of an officer, committee or other body or agency of this State Government of such local authority or Corporation or company:

Provided that no reference shall, subject to the terms of any contract, be made in respect of a claim arising out of the transfer of a public servant;

Provided further that in the case of the death of a public servant, his legal representative, and where there are two or more such representatives, all of them jointly, may make a reference to the Tribunal for payment of salary, allowances, gratuity, provident fund, pension and other pecuniary benefits relating to service due to such public servant."

26. From the perusal of the aforesaid provision of Act, 1976, it is evident that a claim petition can be filed by a person, who has or has been a public servant and is aggrieved by any order pertaining to the service matter within the jurisdiction of the Tribunal may make a reference for redressal of his grievance and as per provision of Section 2 (b), a "public servant" is a person who is in the service or pay of State Government, or a local authority not being a Cantonment Board; or any other Corporation owned or controlled by the State Government (including any company as defined in Section 3 of the Companies Act, 1956 in which not less than fifty per cent of paid up share capital is held by the State Government) but does not include a person in the pay or service of any other company; or a member of the All India Services or other Central Services.

27. The opposite party no.1, in view of the aforesaid legal position, does not fall in the definition of "public servant" as he is not in the employment of the Corporation which is further established from the averments made in the supplementary affidavit, wherein it has been stated that opposite party no.1 was working and receiving money from the Contractor and has also annexed copy of Bank Statement, which indicates that opposite party no.1 is working with some SS Technobuild, a private construction company and is getting wages from the said company.

28. For the reasons aforesaid, we are of the considered view that the learned Tribunal has failed to examine the very pertinent question regarding maintainability of the claim petition.

29. In the background of the aforesaid facts and circumstances and after examining the provisions of Act, 1976, we are of the considered view that opposite party no.1 does not fall in the definition of "public servant" as defined in Section 2 (b) and therefore, his claim petition was not maintainable before the Tribunal in view of the provisions of Section 4 of the Act.

30. Accordingly, judgment and order dated 13.05.2013 passed by Tribunal in Claim Petition No. 2031 of 2010: Sanjay Anand Vs. State of U.P. and others is hereby set aside.

31. The writ petition is allowed. No order as to costs.

Order Date :- 21.3.2018 Arvind

Unlock Advanced Research with PRISMAI

Allahabad High Court