Allahabad High Court
Suresh Chand Pandey & Others vs State Of U.P. & Others on 11 August, 2010
Bench: Sunil Ambwani, Kashi Nath Pandey
Court No. - 32 Case :- SPECIAL APPEAL DEFECTIVE No. - 268 of 2007 Petitioner :- Suresh Chand Pandey & Others Respondent :- State Of U.P. & Others Petitioner Counsel :- Vinod Kumar Agarwal,Vishwa Ratna Dwivedi Respondent Counsel :- C.S.C.,Amit Sthalkar,K.R. Sirohi,Niraj Upadhyay Hon'ble Sunil Ambwani,J.
Hon'ble Kashi Nath Pandey,J.
The delay in filing the Special Appeal has been sufficiently explained in the affidavit accompanying the delay condonation application. The application is allowed.
Heard Shri Vinod Kumar Agarwal, learned counsel for the appellants.
The petitioners-appellants filed a Writ Petition No.22947 of 2003, by which they challenged the order of the District Judge, Mirzapur dated 26.3.2003, terminating their temporary services. An interim order was passed in the writ petition on 22.5.2003 as follows:-
"Shri Sudhir Agrawal has put in appearance on behalf of respondent no. 2 and
3. Learned Standing Counsel has accepted notice on behalf of respondent no. 1, they pray for and are granted 4 months time to file counter affidavit. Rejoinder affidavit may be filed within one week. List on 7.7.2003.
The contention of the petitioners is that they are working as Class IV employees from various dates starting from August, 1999 and ending in January, 2003. Their services have been dispensed with w.e.f. 20.5.2003. The contention is that the work is available and they are not being replaced by any other regularly selected persons. The apprehension is that their services has been dispensed with, with the intention to replace them with another set of adhoc employees which is not permissible.
As an interim measure the petitioner shall be permitted to continue till 7th July, 2003 unless replaced by regularly selected persons."
The regular selections were advertised and that after accepting the report of the Selection Committee, the then District Judge, Mirzapur, by his order dated 26.7.2005, dispensed with the services of the petitioners appellant serving on adhoc basis. Learned District Judge observed that since the interim order dated 22.5.2003 was operative only till regular selection, petitioners have no right to continue.
Learned Single Judge has found that all the petitioners were appointed under Rule 4 (3) of the U.P. Subordinate Civil Courts Inferior Establishment Rules, 1955, which gives discretion to District Judge to appoint chawkidars, malis, watermen and sweepers. The petitioners were not appointed after advertisement or following any process of selection. They were appointed and were continued under the discretion of the District Judge. They were gradually transferred to the selection posts of process server, peon, and driver and started claiming their right on these posts. It was found that the transfer to the selection posts of process server, peon and driver does not change the nature of temporary appointment, made at the discretion of the District Judge under Rule 4 (3).
Relying upon Shiv Murti Chandra and others vs. State of UP and others, Writ Petition No. 57323 of 2005, in which a similar question was involved and it was held that the public employment must be given in accordance with law and in conformity with Article 14 of the Constitution of India, following the constitutional scheme of public employment, learned Single Judge did not find any good ground to interfere with the order terminating the petitioners' services. Learned Single Judge observed as follows:-
"The petitioner has not contended anywhere in the petition that he had got his appointment through a valid process of selection and, therefore, had acquired a legal right to continue on the post given to him under Rule 4 (3)."
The regular selections have been held and that the persons appointed after advertisement and recommendation of the selection committee have joined in the year 2005.
Shri Vinod Kumar Agarwal submits that the District Judge himself informed the Registrar General of the High Court that there were no vacancies in the District and thereafter surreptitiously issued advertisement inviting applications for regular appointment on the posts of process server, peon and driver. He had already filled up the posts on which his predecessor had appointed the petitioners at his discretion. He submits that a fraud was played on the petitioners inasmuch as after their appointment the District Judge transferred them and filled up their posts again by discretionary appointments. He thereafter made advertisement on the selection posts and dispensed with the services of the petitioners.
The petitioners were not appointed by adopting any selection process. It has been held by this Court that the discretion of the District Judge in appointments under Rule 4 (3) is not absolute. He has to advertise the post and has to follow a procedure for selection, which is fair and reasonable and must thereafter strictly follow such procedure. He is also required to follow the rules of reservation, the prescribed age and to employ only those persons, who are medically fit and after police verification. The discretion given to the District Judge is only with regard to selection and appointment and not to exempt other essential conditions of public employment.
The petitioners were not appointed after advertisement and by adopting any selection process whatsoever. They received the benefit of appointment, which is treated to be a 'back door entry,' in public employment. Their transfer to the selection posts could not give them a right to continue on such posts. When their appointment is per se illegal, they have no right to hold it and claim any right to continue.
The petitioners are also not entitled for consideration of regularization under the U.P. Regularization of Daily Waged Appointments on Group D Post Rules, 2001 as on the cut of date prescribed under the Rules namely 31.12.2001, none of the petitioners had completed three years' continuous service.
The Special Appeal is dismissed.
Order Date :- 11.8.2010 RKP