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2008 DIGILAW 2247 (ALL)

Nikhilesh Kumar Gupta v. State of U. P.

2008-11-10

U.K.DHAON, V.D.CHATURVEDI

body2008
ORDER : U.K. Dhaon, V.D. Chaturvedi, JJ. Heard Sri P.K. Srivastava, learned Counsel for the petitioner and the learned standing counsel for the opposite parties. 2. The petitioner is aggrieved by the orders dated 3.3.2003 and 26.6.2003 passed by the opposite parties contained in Annexures-1 and 7 to the writ petition. The petitioner has alleged that he joined as Junior Engineer (Mechanical) in the Public Works Department of the State of U.P., on 14.3.1969. The petitioner has further alleged that for promotion on the post of Assistant Engineer (Electrical and Mechanical) the requirement was 10 years service in substantive capacity as Junior Engineer. The petitioner has further alleged that he completed 10 years of service as Junior Engineer on 14.3.1979 and was confirmed w.e.f. 1.3.1980 and thereafter the name of the petitioner alongwith others were sent to the Public Service Commission for promotion to the post of Assistant Engineer (Electrical and Mechanical). 3. The learned Counsel for the petitioner submits that the Public Service Commission selected the petitioner for the post of Assistant Engineer through office memorandum dated 5.11.1983 and thereafter the petitioner could not be treated as ad hoc Assistant Engineer. He further submits that the impugned recovery proceedings against the petitioner in pursuance of the order dated 3.3.2003 is arbitrary and illegal. 4. The learned standing counsel appearing on behalf of the opposite parties submits that by the order dated 31.8.1985 the petitioner was promoted on ad hoc basis as the matter was pending before Hon'ble the Supreme Court. He further submits that there is no illegality in the impugned order dated 3.3.2003. 5. We have considered the submissions made by the learned Counsel for the parties and gone through the record. 6. It is admitted case of the parties that the petitioner initially joined as Junior Engineer (Mechanical) in the Public Works Department of State of U.P. on 14.3.1969. After completion of 10 years service on the said post of Junior Engineer the petitioner was confirmed on the post w.e.f. 1.3.1980. The name of the petitioner alongwith others were sent to the Public Service Commission for promotion to the post of Assistant Engineer (Electrical and Mechanical) against the quota of Junior Engineers. 7. After completion of 10 years service on the said post of Junior Engineer the petitioner was confirmed on the post w.e.f. 1.3.1980. The name of the petitioner alongwith others were sent to the Public Service Commission for promotion to the post of Assistant Engineer (Electrical and Mechanical) against the quota of Junior Engineers. 7. The Hon'ble Supreme Court has decided the Civil Appeal No. 1602 of 1985 preferred by the petitioner alongwith other connected matters by the judgment and order dated 2.11.1993 which is in Govind Prasad v. R.G. Prasad and Ors. 1994 SCC 579 . The Hon'ble Supreme Court has held that all the selected candidates listed by the Office Memorandum dated 5.11.1983 shall be deemed to have been appointed if not already appointed to the post of Assistant Engineer w.e.f. respective date when they were appointed in the ordinary course on the basis of the said selection. 8. The record reveals that the petitioner was selected by the Public Service Commission on the post of Assistant Engineer on 5.11.1983. The impugned order was issued treating the petitioner as an ad hoc Assistant Engineer which is legally not sustainable in view of the law declared by Hon'ble the Supreme Court. 9. In the result, the writ petition succeeds and is hereby allowed. The impugned orders dated 3.3.2003 and 26.6.2003 the copies which have been annexed as Annexures-1 and 7 to the writ petition are hereby quashed. Under the circumstances there shall be no order as to costs.