JUDGMENT Hon’ble Sabhajeet Yadav, J.—Although the country had become free from British imperialism on 15 August, 1947 about 63 years ago, but millions of people are still suffering from poverty and economic disability. Constitutional guarantee of equality of status and of opportunity and promises to establish welfare state and egalitarian society enshrined under the preamble of the constitution, directive principles of State policy and other provisions of the constitution have become merely empty promise and could not become reality for them. 2. It is third inning of litigation before this Court. The first inning was ended by usual direction to decide representation of the petitioner, whereupon finding no favour with the respondents for a quite long time the petitioner was compelled to file contempt petition, which appears to have prompted the rejection of his representation, ultimately giving rise cause of action of instant petition. It is classic case and example of gross-discrimination and extreme arbitrariness by the instrumentality of the state, where a person is continuously working on daily wage basis since July 1972, (for about four decades) and is at verge of attaining his age of superannuation without any treatment of regular employee after serving whole life in our democratic polity. The petitioner has been continuously denied of his constitutional rights by the respondents on one pretext and another by legal jugglery of the state, and is being continuously exploited on account of his wants and economic disability. 3. The petitioner has come forward with the case that he was appointed in the office of respondent No. 3 as daily wage muster roll employee in July 1972, and since then till 1983 the he was discharging his duties as daily wage muster roll employee on the post of Mali. His initial appointment was made by U.P. State Electricity Board but subsequently the Board was abolished and in its place U.P. Power Corporation Ltd. and some other corporations were created and employees of the said Corporation (Board) were permitted to be continued into new Corporations created in place of erstwhile U.P. State Power Corporation i.e. U.P. State Electricity Board. His initial appointment was made by U.P. State Electricity Board but subsequently the Board was abolished and in its place U.P. Power Corporation Ltd. and some other corporations were created and employees of the said Corporation (Board) were permitted to be continued into new Corporations created in place of erstwhile U.P. State Power Corporation i.e. U.P. State Electricity Board. Thereafter the petitioner was appointed on the post of water man on temporary basis w.e.f. 1.4.1988 to 30.9.1991 for a period of six months in each year by four consecutive letters of appointment issued on 1st April, 1988, 1st April, 1989, 1st April, 1990 and 1st April, 1991, by the respondent No. 3 in the concerned establishment at Gorakhpur. The aforesaid letters of appointment are on record as Annexure-1, 1A, 1B and 1C to the writ petition. It is stated that having regard to the hard working and laborious nature of the petitioner on 13.11.1990 Superintending Engineer, Vidyut Janpad Construction Circle, U.P. State Electricity Board, Allahabad wrote a letter to the Chief Engineer U.P. State Electricity Board, Lucknow for seeking permission for appointment of petitioner on permanent vacant post of Mali in Gorakhpur Division. The aforesaid letter is on record as Annexure-2 of the writ petition. 4. It is stated that after the aforesaid correspondence the respondent No. 3 had directed the petitioner to give his medical fitness certificate so that he may be appointed on regular basis on the post of Mali in the establishment in question. In pursuance of oral direction of the respondent No. 3 the petitioner had obtained his medical certificate on 5.3.1991 from the Chief Medical Officer, Gorakhpur. A photostat copy of the medical certificate of the petitioner dated 5.3.1991 issued by the Cheif Medical Officer, Gorakhpur is on record as Annexure-3 of the writ petition. It is stated that thereupon vide letter No. 376/ECCD(G)/E-3 dated 6.3.1991 the petitioner was appointed on the post of mali in Class IV service by the respondent No. 3, but the aforesaid letter of appointment dated 6.3.1991 was not communicated to the petitioner till 20.11.1992 and when the said letter was communicating to him he immediately joined his duties in the office of respondents on 20.11.1992. Since then the petitioner is discharging his duties on the permanent post of mali in the office of respondent No. 3 but he is not being paid his salary in regular pay scale on the said post of Mali. The Photostat copies of the letter of appointment dated 6.3.1991 and application dated 20.11.1992 moved by the petitioner before respondent No. 3 for joining his duties on the said post are on record as Annexure-4 and 5 of the writ petition. 5. It is further stated that in the establishment in question several daily wage muster roll employees who were junior to the petitioner have been regularized and are being paid salary of regular employee since 1977 and before it, such as Sri Satya Narayan, Sri Raj Nath Singh, Sri Jagdamba Prasad, Sri Samar Bahadur, Sri Suresh Yadav and Sri Ramesh Srivastava. It is stated that the petitioner is entitled to be paid salary of regular employee alongwith arrears of salary on the post of mali since 1977 as well as current salary of regular post. At any rate he is entitled for salary of regular employee on the post of mali in pursuance of appointment letter dated 6.3.1991 w.e.f. 20.11.1992, as he is continuously discharging his duties on the post of mali in pursuance of said letter of appointment w.e.f. 20.11.1992. 6. It is stated that after aforesaid appointment of the petitioner on the post of mali on regular basis, it appears that copies of appointment letter were also sent to the Chief Engineer (Civil), Indira Nagar, Lucknow and Superintending Engineer Electricity Civil Construction Circle Allahabad (as transpires from the Annexure-4 of the writ petition) on receipt of which the Superintending Engineer, Head Office vide his letter dated 11.3.1991 had asked from the Executive Engineer, Vidyut Janpad Construction Division, Gorakhpur that when the power of appointment of Class-IV employees according to the rules of Board was lying with the Executive Engineer, why the approval was sought for from the office of Chief Engineer. A copy of said letter is on record as Annexure-6 of the writ petition. A copy of said letter is on record as Annexure-6 of the writ petition. On receipt of the said letter Executive Engineer, Construction Division, U.P. State Electricity Board, Gorakhpur wrote a letter on 14.3.1991 stating therein that the petitioner was continuously working as daily wage muster roll employee since July 1972 and in seniority list sent by the office of Construction Division on 28.11.1986 to the Heard Office, he was found as senior most daily wage muster roll employee and since 1987 he was continuously engaged on the post of seasonal water man, and one post of mali was also lying vacant and there was immidiate need of mali but due office orders of the Board, the appointment was required to be approved by the Head Office, accordingly, he sought approval from the office of Chief Engineer. The aforesaid letter is on record as Annexure-7 of the writ petition. 7. It is stated that on 28.9.1992 the Chief Engineer (Civil) U.P. State Electricity Board wrote a letter to the Director, Karmik, U.P. State Electricity Board, Lucknow in respect of permanent appointment of the petitioner as retrenched daily wage muster roll employees stating therein that the petitioner was working as daily wage muster roll employee in the establishment since 1972 continuously and was senior most daily wage muster roll employee in the establishment. Having regard to laborious and hard working nature of the petitioner he was recommended to be appointed on the vacant post of mali. A copy of the aforesaid letter dated 28.9.1992 is on record as Annexure-8 of the writ petition. 8. Having regard to laborious and hard working nature of the petitioner he was recommended to be appointed on the vacant post of mali. A copy of the aforesaid letter dated 28.9.1992 is on record as Annexure-8 of the writ petition. 8. Not only this but on 30.10.2000 General Manager, Janpad Pareshar, U.P. Power Corporation Ltd., Lucknow also wrote a letter to the Secretary, Electricity Service Commission, U. P. Power Corporation Lucknow in respect of absorption of retrenched muster roll daily wage employees on regular basis, whereby a list of daily wage muster roll employees was sent to the Electricity Service Commission after verification of their working alongwith other particulars on prescribed format, wherein the name of the petitioner was at serial No. 1 on the top of the said list but nothing was communicated to the petitioner about the fate of said selection, as such the petitioner preferred a Writ Petition No. 39802 of 2001 which was finally disposed of by this Court vide order dated 3.12.2001 whereby the respondent No. 3 was directed to decide the representation of the petitioner within two months. A copy of the order dated 3.12.2001 passed by this Court is on record as Annexure-11 of the writ petition. It is stated that after disposal of said writ petition the respondent No. 1 had informed the petitioner through his letter dated 13.2.2002 that his regular appointment was under consideration of the Commission. A photostat copy of the letter dated 13.2.2002 is on record as Annexure-12 of the writ petition. Thereafter the petitioner was asked by the Electricity Service Commission to appear in physical efficiency test and in interview vide letter dated 19.2.2002 issued by Deputy Secretary of Electricity Service Commission U.P. Power Corporation Ltd. The aforesaid letter dated 19.2.2002 is on record as Annexure-13 of the writ petition. 9. It is further stated that on 8.3.2002 the Executive Engineer, U.P. Power Corporation Ltd. also wrote a letter to the Secretary, Electricity Service Commission, U.P. Power Corporation Ltd., Lucknow that the petitioner was discharging his duties in the department since 1972 as daily wage muster roll employee. His work and conduct was quite satisfactory and he was senior most muster roll employee, hence he should be regularized on the post of mali. A copy of the aforesaid letter dated 8.3.2002 is on record as Annexure-14 of the writ petition. His work and conduct was quite satisfactory and he was senior most muster roll employee, hence he should be regularized on the post of mali. A copy of the aforesaid letter dated 8.3.2002 is on record as Annexure-14 of the writ petition. In pursuance of letter of respondent No. 1 dated 19.2.2002 the petitioner appeared before the Commission on 13.3.2002 and participated in the test but neither the result of the aforesaid selection was communicated to the petitioner nor he was paid his salary in regular pay scale on the post of Mali. 10. It is further stated that a copy of the order dated 3.12.2001 passed by this Court was served by the petitioner personally in the office of respondent No. 3 on 20.12.2001 alongwith representation dated 19.12.2001. A copy of the judgment and representation was also sent by the petitioner to the General Manager, U.P. Power Corporation Ltd., Lucknow on 22.12.2001 through registered post. But no order on the said representation was passed by the respondents for quite long time, as such the petitioner was compelled to file Contempt Petition No. 2104 of 2001 In the said contempt petition on issue of notices to the respondents-opposite parties, the respondent No. 3 has passed the impugned order dated 10.9.2002, whereby the representation of the petitioner was rejected absolutely in very arbitrary manner by ignoring the entire facts and circumstances of the case indicated herein before. A copy of the impugned order is on record as Annexure-15 of the writ petition, hence this writ petition. 11. The petitioner has challenged the order dated 10.9.2002 passed by the respondent No. 3 Executive Engineer, U.P. Power Corporation Ltd. Mohadipur, Gorakhpur contained in Annexure-15 of the writ petition, and sought further relief for payment of salary admissible to the regular employee on the post of Mali w.e.f. 20.11.1992 in pursuance of the appointment letter No. 376 dated 6.3.1991 issued by the respondent No. 3 and arrears of salary from the aforesaid date with 18% annual interest thereon and any other writ, order or direction in the facts and circumstances of the case this Hon’ble Court may deem fit and proper. 12. 12. In response to the notices served upon the respondents a detail counter affidavit sworn by Sri Ajay Kumar Garg the then posted as Executive Engineer, Construction Division, Mohadipur Gorakhpur has been filed in the writ petition, wherein the facts of initial appointment of the petitioner on muster roll daily wage basis since July 1972 to 1983 is not disputed and his further continuance in different capacities is also not disputed, but the facts stated in writ petition cannot be said to be admitted as they stand. 13. However the pertinent replies made on behalf of respondents in paragraphs 14, 16, 18, 19 and 23 of the said counter affidavit are as under : “14. That the contents of paragraph Nos. 13 and 14 to the writ petition are not admitted and it is stated that the employees names were mentioned in the present paragraph are properly appointed employees and have no bearing of this case. 16. That the contents of paragraph No. 16 to the writ petition are not admitted and it is stated that the then Chief Engineer (Civil) has sent a proposal to the competent Authority for approval of the proposal since the appointment to any position or category are totally banned vide B.O. No. 4840 N.G. (1) UPSEB dated 19.9.1978. It is made clear here that sending of proposal and approval of does not amount to appointment. 18. That the contents of paragraph Nos. 21, 22, 23 to the writ petition are matter of records and it is further stated that under the compliance of Hon’ble High Court’s order dated 3.12.2001 by in the writ petition No. 39802 of 2001 the representation of the petitioner has decided by the respondents vide office letter No. 1522-ECCD/G/C-10 dated 10.9.2002. It is further submitted with respect that letter No. 119-V.S.A./Muster Roll (33) dated 13.2.2003 of Vidyut Seva Ayog, Lucknow which has been annexed as Annexure-12 to the writ petition is clearly show that the application for appointment is under consideration of electricity service commission and therefore, contentions of the petitioner that he was appointed in the year 1991 is totally baseless and the petitioner’s own statement are contradictory in the present writ petition. Hence the writ petition is liable to be dismissed on the ground of misconceived of merely facts and circumstances of the present case. Hence the writ petition is liable to be dismissed on the ground of misconceived of merely facts and circumstances of the present case. The aforesaid commission is consider the candidature of the petitioner for appointment as labour from amongst the previous muster role employees SC/ST candidate employee. 19. That the contents of paragraph Nos. 24 and 25 to the writ petition are admitted and it is further submits with respect that Annexure No. 14 of the writ petition is an internal departmental correspondences and it does not amount to any appointment or promise, therefore, it is further submits with respect that the petitioner has appeared before service commission through interview on 13.3.2003 and therefore, prior to this contentions of petitioner for claiming appointment since April, 1991 wages since 20.11.1992 is total contradictory and false. 23. That the contents of paragraph No. 31 to the writ petition are not admitted and it is stated that the then executive Engineer might have drafted proposal for appointment but the letter was never issued or served by the then Executive Engineer as he was bound by the B.O. No. 4121-PAS/SEB-I R-II/79 dated 24.11.79 and as well as one another B.O. No. 4840-N.G. (1) SEB dated Sept. 19, 1971. The drafting of proposal does not amount to appointment. The petitioner has unlawfully obtained the copy of the letter No. 376/ECCD/G/E-3 dated 6.3.1991 from the office of the respondents. It may be pointed out that Shobha Ram Yadav was engaged seasonal water men w.e.f. 1.4.1991 to 30.9.1991, therefore, any appointment during the period by the then Executive Engineer is not possible the petitioner has fabricated the facts for his personal gains.” 14. It may be pointed out that Shobha Ram Yadav was engaged seasonal water men w.e.f. 1.4.1991 to 30.9.1991, therefore, any appointment during the period by the then Executive Engineer is not possible the petitioner has fabricated the facts for his personal gains.” 14. Having regard to the peculiar facts and circumstances of the case and classic example of exploitation of petitioner as daily wage muster roll employee for such a long time and arbitrary action of respondents vide order dated 29.3.2008 this Court directed the officers of corporation to appear before the Court and show-cause why their personal accountability be not fixed for their lapses and has also summoned the Chairman of Electricity Service Commission Sri R.N. Verma, member Electricity Service Commission Sri Rakesh Pushkar, Sri B.P. Ram Chief Engineer Purvanchal Vidyut Vitaran Nigam, Gorakhpur, Managing Director of U.P. Power Corporation, Sri G.K. Dixit Deputy General Manager U.P. Power Corporation, Sri K.K. Maurya, Executive Engineer and other responsible officers like Superintending Engineer of concerned circle vide different orders passed in the month of March and April, 2008. 15. In response to the aforesaid directions, the aforesaid officers have appeared before this Court and have also filed various affidavits in shape of supplementary counter affidavits or compliance affidavits. One of such supplementary counter affidavits sworn by Sri S. K. Misra on 15.4.2008 posted as Secretary Electricity Service Commission Uttar Pradesh Power Corporation Ltd. has also been filed before this Court. While justifying the action of respondents in paragraph 6 to 14 of this affidavit, he has deposed as under : 6.That is respectfully submitted that the U.P. Power Corporation Ltd., launched a Special Drive to absorb by way of direct recruitment as Class 4th employee of Schedule Caste/ Schedule Tribes who have worked as Muster Roll employees in the erstwhile U.P. State Electricity Board. 7.That the petitioner filed an application for recruitment, the application of the petitioner was forwarded to the Commission by General Manager, District Transmission, Lucknow. 8.That on 19.2.2002 a letter was issued to the petitioner requiring him to appear before the Commission for physical test. The copy of the letter sent by the Commission to the petitioner dated 19.2.2002 has already been filed as Annexure-13 to the writ petition. 9. 8.That on 19.2.2002 a letter was issued to the petitioner requiring him to appear before the Commission for physical test. The copy of the letter sent by the Commission to the petitioner dated 19.2.2002 has already been filed as Annexure-13 to the writ petition. 9. That on 9.3.2002 the letter was forwarded by the then Executive Engineer, Vidyut Janpad Nirman Khand, Gorakhpur with a recommendation to appoint the petitioner as a regular employee on the ground that he is at Serial No. 1 in the seniority list of muster roll employees. The copy of the letter of the Executive Engineer dated 9.3.2002 has already been filed by the petitioner as Annexure-14 to the writ petition. 10. That the petitioner appeared before the Commission his candidature was examined but was found unfit. The Photostat copy of the result dated 12.12.2002 is being filed herewith and is marked as Annexure No. 1 to this affidavit. 11. That the other candidates whose candidature was also rejected have filed a writ petition in this Hon’ble Court assailing the order dated 12.12.2002, Om Prakash and others v. U.P. Power Corporation Ltd. and others, the matter came up before the Hon’ble Sunil Ambwani J, and the writ petition of those petitioners who had assailed the order of the Commission was allowed with a direction. The Photostat copy of the order of this Hon’ble Court dated 8.1.2004 is being filed herewith and is marked as Annexure No. 2 to this affidavit. 12. That against the aforesaid order a Special Appeal No. 175 of 2004 was filed as U.P. Power Corporation Ltd. and others v. Om Prakash and others, the said appeal was disposed of on 20.11.2004 by a division bench of this Court and the order of the learned Single Judge was modified to the extent that at the time of consideration of absorption of the employees it should be seen whether they were over age in terms of the statutory provisions applicable in the Corporation at the time of their initial recruitment. The Photostat copy of the judgment of Division Bench dated 20.11.2004 is being filed herewith and is marked as Annexure No. 3 to this affidavit. 13. The Photostat copy of the judgment of Division Bench dated 20.11.2004 is being filed herewith and is marked as Annexure No. 3 to this affidavit. 13. That against the aforesaid order a Special Leave Petition was preferred before the Hon’ble Apex Court and the Hon’ble Apex Court has set aside the order passed by the division bench referred supra and has remitted the matter to decide the appeal as fresh. The Photostat copy of the order of the Hon’ble Apex Court dated 1.9.2006 is being filed herewith and is marked as Annexure No. 4 to this affidavit. 14.That in pursuance of the order of Hon’ble Apex Court the Special Appeal has been restored to its original number and the matter is subjudice before this Hon’ble Court. 16. Heard Sri Jitendra Kumar Yadav learned counsel for the petitioner and Sri M. A. Qadeer, learned senior counsel assisted by Sri Rajendra Kumar Misra on behalf of the respondents and perused the records. 17. Having heard the learned counsel for the parties, and on perusal of the pleadings and materials brought on record, the first question which arises for consideration of this Court is that whether the petitioner has been discriminated in the matter of employment and/or his regularization in service from his juniors named in the para 13 of the writ petition since 1977 without any justification under law, if so what would be its legal effect? 18. In this connection it is to be noted that in para-14 of the main counter affidavit sworn on 20.4.2003 by Sri Ajai Kumar Garg the then Executive Engineer, C.T.D. Mohidipur, Gorakhpur filed in the writ petition, only this much is stated that the persons named in paras-13 and 14 of the writ petition are properly appointed employees, but the respondents did not make specific reply of said paragraphs of the writ petition, wherein the petitioner has specifically stated that he has been discriminated from his juniors who were subsequently appointed in the establishment after the appointment of the petitioner on daily wage basis but have been regularized much earlier to the year 1977 and before that and are getting salary of regular employees from the date of their respective regularizations. accordingly, the petitioner has also claimed his arrears of salary as regular employee on the post of Mali since 1977 in paragraph 14 of the writ petition. 19. accordingly, the petitioner has also claimed his arrears of salary as regular employee on the post of Mali since 1977 in paragraph 14 of the writ petition. 19. In view of the aforesaid facts and circumstances of the case vide order dated 1.5.2008 passed by this Court, the learned counsel appearing for respondents was directed to produce the record of selection in respect of persons junior to the petitioner whose names have been given in paragraph 13 of the writ petition and also their service books. In pursuance thereof Sri J.P. Pandey, learned counsel appearing for respondents at that time has ultimately through an affidavit filed by Sri K.K. Maurya posted as Executive Engineer, Electricity Civil Transmission Division, U.P. Transmission Corporation Ltd. Mohadipur, Gorakhpur, brought relevant part of service book of the persons named in para 13 of the writ petition on record, though the records pertaining to their regular selection and/or regularization could neither be brought on record nor the manner and rule under which the selections and appointments were done or regularizations were made, disclosed in the said affidavit. Therefore an adverse inference in this regard has to be drawn by this Court, despite thereof, I think it necessary to examine the stand taken by the respondents through the aforesaid affidavit filed by Sri K.K. Maurya, Ex. Engineer herein after. 20. The stand taken by the respondents through the affidavit of Sri K.K. Maurya sworn on 27.7.2008 is clear from paragraphs 2 to 14 and16 as under : “2. That in compliance of the order of this Hon’ble Court dated 21.7.2008 the deponent is filing the Photostat copy of the relevant part of the service books of the persons whose name has been mentioned in paragraph No. 13 of the writ petition filed by the petitioner. 3. That on the earlier occasion the original copy of the service book/appointment letters has already been shown to the Hon’ble Court. 4. That Shri Satya Narain S/0 Shri Ram Khelawan was appointed as Store Jamadar on 8.9.1971 by the then Executive Engineer, Electricity Civil Construction Division, Gorakhpur. The Photostat copy of the relevant part of service book of Shri Satya Narain is being filed herewith and is marked as Annexure No. 1 to this affidavit. 5. That as Shri Satya Narain was appointed on 8.9.1971, therefore, he is senior to the petitioner Shri Shobha Ram. 6. The Photostat copy of the relevant part of service book of Shri Satya Narain is being filed herewith and is marked as Annexure No. 1 to this affidavit. 5. That as Shri Satya Narain was appointed on 8.9.1971, therefore, he is senior to the petitioner Shri Shobha Ram. 6. That Shri Raj Nath Giri S/o Shri Diwakar Giri was appointed as Runner on 1.12.1977 by the then Executive Engineer, Electricity Civil Construction Division, Gorakhpur. The Photostat copy of the relevant part of service book of Shri Raj Nath Giri is being filed herewith and is marked as Annexure No. 2 to this affidavit. 7. That Shri Deo Nath Singh S/o Shri Bechchan Singh was appointed as Peon on 10.5.1973 by the then Executive Engineer, Electricity Civil Construction Division, Gorakhpur. The Photostat copy of the relevant part of service book of Shri Deo Nath Singh is being filed herewith and is marked as Annexure No. 3 to this affidavit. 8. That Shri Jagdamba Prasad, S/o Shri Bihari Lal was appointed at the post of Store Jamadar on 24.4.1974 by the then Executive Engineer, Electricity Civil Construction Division, Gorakhpur as he was high-school passed. The Photostat copy of the relevant part of service book of Shri Jagdamba Prasad is being filed herewith and is marked as Annexure No. 4 to this affidavit. 9. That Shri Samar Bahadur, S/0 Shri Ram Nath was appointed at the post of Gardener (Mali) on 10.2.1978 by the then Executive Engineer, Electricity Civil Construction Division, Varanasi. The Photostat copy of the relevant part of service book of Shri Samar Bahadur is being filed herewith and is marked as Annexure No. 5 to this affidavit. 10. That Shri Suresh Prasad Yadav S/o Shri Patiraj Yadav was appointed at the post of Store Watchman on 19.10.1977 by the then Executive Engineer, Electricity Civil Construction Division, Lucknow as he was Intermediate passed. The Photostat copy of the relevant part of service book of Shri Suresh Prasad Yadav is being filed herewith and is marked as Annexure No. 6 to this affidavit. 11. That Shri Ramesh Chandra Srivastava S/o Shri Dhanpat Rai Srivastava was appointed on 24.8.1973 as Store Jamadar by the then Executive Engineer, Electricity Civil Construction Division, Gorakhpur as he was high-school failed. Shri Ramesh Chandra Srivastava is no more in this world. 11. That Shri Ramesh Chandra Srivastava S/o Shri Dhanpat Rai Srivastava was appointed on 24.8.1973 as Store Jamadar by the then Executive Engineer, Electricity Civil Construction Division, Gorakhpur as he was high-school failed. Shri Ramesh Chandra Srivastava is no more in this world. The Photostat copy of the relevant part of service book of Shri Ramesh Chandra Srivastava is being filed herewith and is marked as Annexure No. 7 to this affidavit. 12. That is pertinent to mention here that Samar Bahadur and Suresh Prasad Yadav were appointed by the different divisions, therefore, their case are at par with the case of the petitioner. 13. That Satya Narain is senior to the petitioner, therefore, there is no parity between the petitioner and Shri Satya Narain. 14. That Jagdamba Prasad and Ramesh Chandra Srivastava were more qualified than the petitioner, therefore, there is no parity between the petitioner and Shri Jagdamba Prasad and Ramesh Chandra Srivastava. 16. That it is pertinent to mention here that the petitioner has never been appointed on the post of Mali on the regular basis, he is not working in the Corporation in pursuance of the alleged letter of appointment No. 376 dated 6.3.1991 because of the reason that the same has never been issued to the petitioner, the petitioner has not joined in pursuance of the alleged letter of appointment in the Corporation on 20.11.1992 as claimed by him, he is not in the incumbency of the corporation on any post, therefore, the petitioner is not entitled for the relief claimed for.” 21. From a careful reading of the affidavit filed by Sri K.K. Maurya sworn on 27.7.2008, it appears that Sri Satya Narayan Yadav S/o Sri Ram Khelawan was appointed in the establishment in question on 8.9.1971 in the workcharge establishment as Store-jamadar, which is also fortified by the relevant part of his service book, but it appears that subsequently he has been appointed in regular pay scale on class IV post in the establishment in question w.e.f. 1.4.1973. Since his initial appointment was earlier to the petitioner as such petitioner cannot claim any discrimination from Sri Satya Narayan Yadav about his aforesaid regularisation. 22. Since his initial appointment was earlier to the petitioner as such petitioner cannot claim any discrimination from Sri Satya Narayan Yadav about his aforesaid regularisation. 22. So far as the appointments of other persons are concerned, it is clear from the paragraphs 6, 7, 8, 9, 10 and 11 of the said affidavit by Sri K.K. Maurya, Executive E.C.T. Division, U.P. Power Transmission Corporation Ltd. sworn on 27.7.2008 that they were appointed in the establishment in question much after the appointment of petitioner, as admittedly Sri Raj Nath Giri S/o Sri Diwakar Giri was appointed as Runner on 1.12.1977, Sri Deo Nath Singh S/o Sri Bechan Singh was appointed as Peon on 10.5.1973, Sri Jagdamba Prasad S/o Sri Bihari Lal was appointed as Store Jamadar on 24.4.1974, Sri Samar Bahadur S/o Sri Ram Nath was appointed on the post of Gardner (Mali) on 10.2.1978, Sri Suresh Prasad Yadav S/o Sri Patiraj Yadav was appointed on the post of Store Watchman on 19.10.1977 and Ramesh Chandra Srivastava S/o Sri Dhanpat Rai was appointed as Store Jamadar on 24.8.1973 by the Executive Engineer, Electricity Civil Construction Division Gorakhpur. Since the petitioner was admittedly appointed in July, 1972 and these persons were appointed subsequently thereto, therefore, they are admittedly junior to the petitioner. 23. As revealed from para 6 of the said affidavit that Sri Raj Nath Giri was appointed as Runner on 1.12.1977 by the then Executive Engineer, Electricity Civil Construction Division, Gorakhpur. From the perusal of his service book, it appears that on the aforesaid date he was given regular pay scale of Runner on class IV post straightway but nothing has been stated about the manner of his selection and appointed in regular pay scale and the rule under which his selection and appointment was so done. Similarly in para- 7 of the said affidavit of Sri K.K. Maurya, it is stated that Sri Deo Nath Singh was appointed as Peon on 10.5.1973 by the then Executive Engineer, Electricity Civil Construction Division, Gorakhpur and a photostat copy of relevant part of his service book (Annexure-3 to the said affidavit) reveals that he was given regular pay scale of Peon w.e.f. 10.5.1973 straightway but nothing has been indicated in the said affidavit about the manner of his selection and appointment and rules under which it was so done. 24. 24. In para 8 of the affidavit filed by Sri K.K. Maurya, it is stated that Sri Jagdamba Prasad was appointed on the post of Store Jamadar on 24.4.1974 by the then Executive Engineer, Electricity Civil Construction Division, Gorakhpur and from relevant part of his service book (Annexure-4 of the affidavit) it transpires that he was appointed on 24.4.1974 in regular pay scale straightway but neither any rule for recruitment was mentioned in the said affidavit nor manner of his selection and appointment has been disclosed. In para 9 of the said affidavit, it is stated that Samar Bahadur was appointed on the post of Gardner (Mali) on 10.2.1978 by then Executive Engineer, Electricity Civil Construction Division, Varanasi and the relevant part of his service book (Annexure-5 of the affidavit) disclosed that he was appointed on 10.2.1978 in pay scale of Rs. 78/- per month but in the same manner there is nothing to indicate in the affidavit that under which rule he was so selected and appointed and in what manner his appointment was so made. 25. In para 10 of the said affidavit, Sri Suresh Prasad Yadav is stated to be appointed on the post of Store Watchman w.e.f. 19.10.1977 by the then Executive Engineer, Electricity Civil Construction Division, Lucknow and relevant part of his service book (Annexure-6 of the affidavit) revealed that he was appointed as Chaukidar on temporary basis on 19.10.1977 in regular pay scale of Rs. 78/- per month but the rules and mode of selection and appointment have not been disclosed. However, in para 10 of the affidavit he was shown to have passed Intermediate. In para 11 of the said affidavit, it is stated that Sri Ramesh Chandra Srivastava was appointed on 24.8.1977 as Store Jamadar by the then Executive Engineer, Electricity Civil Construction Division, Gorakhpur and he was High School fail and he is now no more in the world. In para 12 of the said affidavit, it is stated that Sri Samar Bahadur and Sri Suresh Prasad Yadav were appointed in different divisions, therefore, their cases are not at par with the case of the petitioner. In para 14 of the said affidavit it is stated that Sri Jagdamba Prasad and Ramesh Chandra Srivastava were more qualified than petitioner, therefore, there is no parity between the petitioner and Sri Jagdamba Prasad and Ramesh Chandra. 26. In para 14 of the said affidavit it is stated that Sri Jagdamba Prasad and Ramesh Chandra Srivastava were more qualified than petitioner, therefore, there is no parity between the petitioner and Sri Jagdamba Prasad and Ramesh Chandra. 26. Thus, from the aforesaid statement of fact, made in the aforesaid affidavit of Sri K. K. Maurya, it is clear that except Sri Satya Narain who was senior to the petitioner, other persons mentioned in para 13 of the writ petition have been straightway appointed in regular pay scale of Class IV employee on the respective posts, without any reference to the rules of recruitment and without any regular process of selection subsequent to the appointment of petitioner on daily wage basis in the said establishment and petitioner’s claim for regular appointment/regularization has been denied. It is not in dispute that when the petitioner was appointed on daily wage basis in the establishment in question he was eligible and qualified for appointment on the said post as it is not the case of respondents that at the time of his initial engagement on muster roll daily wage employee, he was not eligible and qualified for the said post instead thereof the stand of the respondents for denial of his regular appoint and regularization in service vis-a-vis other persons who are juniors to the petitioner is that some of them were more qualified than the petitioner and two persons, namely Sammer Bahadur and Sri Suresh Prasad Yadav were appointed in different divisions. 27. So far as appointments of Sri Sammer Bahadur and Sri Suresh Prasad Yadav in different divisions are concerned, it is to be pointed out that other divisions are also part and parcel of the same establishment and same institution, as such, no exception can be drawn in this regard and petitioner’s discrimination in the matter of regularisation in service or his regular appointment like aforesaid persons, in my considered opinion, on that count cannot be justified. Therefore, I have no hesitation to hold that the petitioner’s regularisation in service/regular appointment like aforesaid persons could not be denied by the respondents on that ground, while appointing or regularising the aforesaid persons in different divisions. 28. Therefore, I have no hesitation to hold that the petitioner’s regularisation in service/regular appointment like aforesaid persons could not be denied by the respondents on that ground, while appointing or regularising the aforesaid persons in different divisions. 28. So far as another ground of discrimination based on better educational qualification of other persons is concerned, it is no doubt true that prescription of qualification as to the eligibility or suitability of the candidates for recruitment or to promotion is sole domain of the Rule making authority and Courts have nothing to do with it, as reflected from decisions of Hon’ble Apex Court rendered in J. Ranga Swamy v. Government of A.P. and others, AIR 1990 SC 535 and State of Rajasthan v. Lata Arun, AIR 2002 SC 2642 , but at the same time it is not open for the selection body, first to make selection and appointment without any such rules of recruitments or Government order and on a challenge being made to it, justify such selection and/or appointment on the basis of better educational qualification. In Hemani Malhotra v. High Court of Delhi, AIR 2008 SC 2103 and in Dr. Ravindra Kumar v. State of U.P. and others, 2008(8) ADJ 484 : 2008(4) ESC 2763 (All), it was held that after process of selection commences, the selection body cannot prescribe additional qualification for selection and appointment. In my opinion, a necessary corollary of the said proposition would be that after such selection and appointment, same cannot be justified by the authorities on the grounds which were not provided under the rules of recruitment and if the rules of recruitment do not stipulate any preferential treatment to the persons having better educational qualification, their appointments cannot be justified on that ground. 29. Not only this but such rules of recruitment and/or promotion must be framed in consonance with the provisions of Articles 14 and 16 of the Constitution. In other words such rules must withstand the twin test of Article-14, which means that there must be reasonable classification between the persons based on better educational qualification and persons having minimum educational qualification and further the basis of such classification must have rational nexus (relation) with the object sought to be achieved by it, which implies that such better educational qualification must have material bearing with the duties attached to the post in question. It should not be arbitrary and whimsical as reflected from the various decisions of Hon’ble Apex Court wherein it was held that the educational qualification can be made valid basis for classification while framing rules of recruitment and/or promotion, such as in General Manager Southern Railway and another, AIR 1962 SC 36, Gobind Dattay Ray Kelkar and others v. Chief Controller of Imports and Exports and others, AIR 1967 SC 839 , State of Mysore v. P. Narasinga Rao, AIR 1968 SC 342, State of J & K v. T.N. Khosa and others, AIR 1974 SC 1 , Mohmad Shujat Ali and others v. Union of India and others, AIR 1974 SC 1 631, Roop Chand Adlakha and others v. Delhi Development Authority and others, AIR 1989 SC 307 , P. Murugesan and others v. State of Tamil Nadu and others, (1993) 2. SCC 340, T.R. Kothandaraman and others v. Tamil Nadu Water Supply and Drainage Board and others, (1994) 6 SCC 282 . 30. A Division Bench of this Court in Anjani Kumar Misra and another v. State of U.P. and others, 2006(10) ADJ 26 : 2006(4) ESC 3007 (All)(DB), after analysing the aforesaid decisions in para 60 of the decision has summarised the legal propositions some of which are as under : “(1) Where the persons appointed directly and by promotion were integrated into common class, they can for the purpose of promotion to the next higher post be classified on the basis of educational qualification. The Rule providing the candidates of higher qualification shall be eligible for such promotion to the exclusion of candidates having lesser qualification does not violate Articles 14 and 16 of the Constitution. There can be separate consideration for them in the mater of promotion to the next higher post and such separate consideration cannot be held to be violative of any constitutional mandate. (2) Higher educational qualification is permissible basis of classification, acceptability of which will depend upon the facts and circumstances of each case. Higher educational qualification can be the basis not only for barring promotion but also for restricting the scope of promotion and the classification need not be relatable only to the eligibility criteria, but to restrictions in promotion as well. Restrictions placed cannot however go to the extent of seriously jeopardizing the chances of promotion. Higher educational qualification can be the basis not only for barring promotion but also for restricting the scope of promotion and the classification need not be relatable only to the eligibility criteria, but to restrictions in promotion as well. Restrictions placed cannot however go to the extent of seriously jeopardizing the chances of promotion. To decide this, the extent of restriction shall have also to be looked into to ascertain whether it is reasonable or not. (3) Even if in a case the classification would not be acceptable to the Court, on principle, it would before pronouncing its judgment bear in mind the historical background. While judging the validity of classification the Court shall have to be conscious about the need for maintaining the efficiency in service and also whether the required qualification is necessary for discharging of duties in the higher post.“ 31. In my considered opinion, the aforesaid legal propositions can be taken into aid to defend the validity of rules of recruitment and/ or of promotion, but these propositions can not be pressed into service by the respondents where they did not point out any such rules of recruitment or Board’s order for such preferential treatment to the persons having higher educational qualification in recruitment of Class-IV employees like post of Mali, Chaukidar, etc. in respect of which the petitioner stakes his claim. 32. Apart from aforesaid aspect of the matter in Bhagwati Prasad v. Delhi State Mineral Development Corporation, AIR 1990 SC 371 , Hon’ble Apex Court went on saying that “the practical experience would always aid the person to effectively discharge the duties and is a sure guide to assess the suitability. The initial minimum educational qualification prescribed for the different posts is undoubtedly a factor to be reckoned with, but it is so at the time of initial entry into service. Once the appointments were made as daily rated workers and they were allowed to work for a considerable length of time, it would be hard and harsh to deny them the confirmation in respective posts on the ground that they lacked the prescribed educational qualifications.” It was further viewed by the Apex Court that “three years experience, ignoring the artificial break in service for short period, created by the respondents, in circumstances, would be sufficient for confirmation.” 33. Applying the aforesaid legal proposition in given facts and circumstances of the case, I find that it is not the case of respondents that the petitioner has no minimum educational qualification prescribed for the post in question. It has also not been disputed that since July, 1972 the petitioner was continuously working in the establishment as daily wage muster roll employee and the persons named in para 13 of the writ petition which is also revealed from various paragraphs of the affidavit filed by Sri K.K. Maurya (Ex. Eng.) quoted earlier were appointed straightway subsequently without any reference to the rules of recruitment and without any regular process of selection after the appointment of the petitioner while he was working on muster roll daily wage employee and by the time of appointment of those junior persons i.e. till year 1977 he has already gained sufficient experience of the post of Mali available in the establishment in question, as such in view of law laid down by the Hon’ble Apex Court in Bhagwat Prasad’s case (supra) he was entitled to be absorbed or regularised on the post of Mali or any other Class IV post in the establishment in question, but he has been denied of his regularization in service on the said post merely on the ground that the other persons who have been appointed straightway in regular pay scale subsequent to the appointment of the petitioner have better educational qualification than the petitioner. In wake of the legal proposition stated hereinbefore, in my considered opinion, the denial of regularization of petitioner in service or his regular appointment like aforesaid persons on the post of Mali or any other equivalent class IV post in the establishment in question on the basis that other persons have better educational qualification has no rational nexus with any object sought to be achieved by same as the duties attached to the aforesaid posts have no rational nexus or material bearing with the better educational qualification, therefore, the aforesaid action of respondents is irrational, arbitrary and cannot be sustained. 34. Besides, aforesaid aspect of the matter, there is another aspect of the matter, on that basis also the impugned action of the respondents has to be held arbitrary and discriminatory. 34. Besides, aforesaid aspect of the matter, there is another aspect of the matter, on that basis also the impugned action of the respondents has to be held arbitrary and discriminatory. In Satendra Nath Bajpai v. Inspector General of Registration U.P. and another, (1996) SC 674, Hon’ble Apex Court held that if the candidates shown in the approved list below the appellant employee, were regularized, the appellant employee is also entitled to be appointed on regular basis, A Division Bench of this Court in Bimal Chandra Pandey and another v. Engineer-In-Chief Public Works Department and others, (2000) 1 UPLBEC 240 , held that the Department cannot keep a person as temporary or on daily wage basis indefinitely. It was observed that it is indeed unfortunate that some employees are often kept on daily wage basis or on temporary basis for years. No doubt the confirmation of a temporary employee is the prerogative of the employer but employer cannot act arbitrarily in this regard and the authorities must act in a non arbitrarily manner. In the aforesaid case, the authorities concerned were directed to regularize the employees concerned and further directed to pay the salary as regular employee to them. In another case of Awadhesh Kumar Yadav v. Divisional Forest Officer Mainpuri and others, 2000(1) ESC 181, it was held that to keep an employee on daily wage basis for 18 years is wholly arbitrary and direction was issued by Division Bench of this Court to regularize such employees. In U.P. State Electricity Board v. Pooran Chandra Pandey and others, (2008) 1 UPLBEC 466, while distinguishing the case of Secretary State of Karnataka and others v. Uma Devi and others, 2006(2) ESC 192 (SC), a Divisional Bench of Hon’ble Apex Court held that Uma Devi’s case cannot be applied to a case where regularization has been sought for in pursuance of Article 14 of the Constitution of India or based on discrimination. The aforesaid decisions are binding upon me, therefore, in my opinion, Uma Devi’s case can also be of no assistance to the case of respondents. 35. The aforesaid decisions are binding upon me, therefore, in my opinion, Uma Devi’s case can also be of no assistance to the case of respondents. 35. At this juncture, it is to be pointed out that normally this Court does not grant relief of regularisation in service to the daily wage muster roll or ad hoc employees straightway with retrospective effect instead thereof directions are issued to the concerned authority to consider the claim of regularisation of such employees in service with prospective effect according to the scheme or rules of regularisation and/or according to the observations made by the Court with prospective effect but where the claims of regularisation in service of daily wage muster roll or ad hoc employees are based on discrimination from such other employees or from juniors to such employees, in such situation, it would be appropriate to redress the grievances of such daily wage muster roll employees by granting relief of regularisation to them with retrospective effect from the date since when junior persons have been regularised in service. Therefore, in given facts and circumstances of the case and legal position stated herein before, I am of the considered opinion that the petitioner shall be treated to be regularized in service on class IV post of respondents’ establishment since 1977 when his juniors mentioned in para 13 of the writ petition have been given straightway regular appointment without reference to any rules of recruitment and/or have been regularised in service by-passing the claim of regularization of the petitioner in service, while he was continuing in the establishment in question as daily wage muster-roll employee. 36. In view of foregoing discussions, the instant writ petition could be decided by this Court on the limited question of discrimination as stated herein before and the petitioner’s grievance could be redressed by treating him regularised from 1977 and by granting other consequential reliefs by moulding the reliefs claimed in the writ petition merely on the basis of assertions made in paras-13 and 14 of the writ petition and reply of the aforesaid paragraphs alongwith the material brought on record by the affidavit filed by Sri K.K. Maurya (Ex. Eng.) extracted and legal position stated herein before. Eng.) extracted and legal position stated herein before. But in order to demonstrate various other gross-illegalities committed by the respondents while dealing with the case of the petitioner denying his claim of regular appointment, I think it proper to deal with the other questions involved in the writ petition hereinafter. 37. Now next question arises for consideration is that as to whether withholding of the approval of appointment of the petitioner on the post of Mali by the Chief Engineer (H.Q.) of U.P.S.E.B. and consequently denial of payment of regular salary to him on the post of Mali w.e.f. 20.11.1992 in pursuance of letter of appointment dated 6.3.1991 in given facts and circumstances of the case is justified or not, If so, what relief can be granted to the petitioner? 38. It is not in dispute that the petitioner was initially appointed as daily wage muster roll employee in the establishment of the respondents in July, 1972 and continued as such till 1983, thereafter he was consecutively appointed four times for a period of six months each on the post of water man w.e.f. 1.4.1988 to 30.9.1991. The aforesaid letters of appointment are on record as Annexure-1, 1A, 1B and 1C of the writ petition. From a perusal of aforesaid letters of appointment it appears that vide letter of appointment dated 1.4.1988 (Annexure-1 of the writ petition) the petitioner was appointed on the post of waterman (seasonal) for a period of six months w.e.f. 1.4.1988 to 3.9.1988 on temporary basis in pay scale of Rs.900-15-960-20-1040-25-1100 plus other allowances admissible under rules of the Board from time to time. Similar appointment letters were again issued by the Executive Engineer with the same terms and conditions w.e.f. 1.4.1989 to 30.9.1989 in the slightly different pay scale of Rs.900 to 1190 (Annexure-1A of the writ petition) and he was again appointed w.e.f. 1.4.1990 to 30.9.1990 (Annexure-1B of the writ petition) and w.e.f. 1.4.1991 to 30.9.1991 (Annexure-1C of the writ petition). 39. Similar appointment letters were again issued by the Executive Engineer with the same terms and conditions w.e.f. 1.4.1989 to 30.9.1989 in the slightly different pay scale of Rs.900 to 1190 (Annexure-1A of the writ petition) and he was again appointed w.e.f. 1.4.1990 to 30.9.1990 (Annexure-1B of the writ petition) and w.e.f. 1.4.1991 to 30.9.1991 (Annexure-1C of the writ petition). 39. It is also not disputed that on 13th November, 1990, Superintending Engineer Janpad (Vidyut Nirman Mandal) Electricity Construction Circle, U.P. State Electricity Board, Bank Road, Allahabad had written a letter to the Chief Engineer ( Janpad) U.P. State Electricity Board, Indira Nagar, Lucknow (Annexure-2 of the writ petition) for seeking permission for appointment of the petitioner on permanent post of Mali stating therein that the petitioner was senior most retrenched muster roll employee and one post of Mali was lying vacant and there was urgent need of Mali. It is also not in dispute that after the aforesaid correspondence the respondent No. 3 had directed the petitioner to furnish his medical fitness certificate so that he may be appointed on regular basis on the post of Mali in the establishment in question. In pursuance of oral direction of the respondent No. 3 the petitioner had obtained his medical certificate on 5.3.1991 from the Chief Medical Officer, Gorakhpur. A photostat copy of the medical certificate of the petitioner dated 5.3.1991 issued by the Cheif Medical Officer, Gorakhpur is on record as Annexure-3 of the writ petition. It is stated in the writ petition that thereafter vide letter No. 376/ECCD(G)/E-3 dated 6.3.1991 the petitioner was appointed as temporary Mali by the respondent No. 3 in the pay scale of Rs. 900 -1190 plus other allowances admissible by the Board subject to the conditions inter alia that joining report of the petitioner will be accepted on the approval of Chief Engineer. 40. For ready reference it would be useful to extract the content of letter of appointment of the petitioner dated 6.3.1991 (Annexure-4 to the writ petition) in extenso as under : “OFFICE OF THE EXECUTIVE ENGINEER ELECTRICITY CIVIL CONSTRUCTION DIVISION U.P. STATE ELECTRICITY BOARD MOHADDIPUR, GORAKHPUR “OFFICE MEMORANDUM NO. /90-91” Sri Sobha Ram Yadav S/o Kinkau Yadav R/o Village Gondipur, Pargana Balrampur, Tehsil Balrampur, District Gonda, Senior Most retrenched Back Ward class Muster Roll employees is hereby appointed as Temporary “Mali” in the scale of Rs. /90-91” Sri Sobha Ram Yadav S/o Kinkau Yadav R/o Village Gondipur, Pargana Balrampur, Tehsil Balrampur, District Gonda, Senior Most retrenched Back Ward class Muster Roll employees is hereby appointed as Temporary “Mali” in the scale of Rs. 900-15-960-20-1040-24-1190 plus other allowance as admissible by the Board from time to time and is hereby posted in Electricity Civil Construction Division, Mohaddipur, Gorakhpur w.e.f. date of joining. The above appointment is subject to following conditions : 1. The above appointment is purely temporary and liable to be terminated at any time without any notice or assigning any reason whatsoever. 2. Can be transferred at any place in Uttar Pradesh. 3. On declaration of Medical Fitness certified by Chief Medical Officer, Gorakhpur. 4. Having not more than one living wife. 5. On verification of good character and antecedent by the Police authorities as per rules. 6. The joining report will be accepted on the approval of C.E. (Civil). Sd/- (M.K. Qureshy) Executive Engineer No. 376/ECCD(G)/E-3 Dated/ 6-3-1991 Copy forwarded to following for information and necessary action : 1. Chief Engineer (Civil) Indra Nagar, Lucknow-with due request may kindly accord the approval for his appointment. So that his joining can be accepted. 2. Superintending Engineer, Electricity Civil Construction, Circle UPSEB, 11-Bank Road, Old Katra, Allahabad with the request approval may kindly be accorded at an earliest possible so that his pay can be disbursed accordingly. 3. Sri Shobha Ram Yadav with reference to his application dated. 4. Personal file of incumbent. 5. Divisional Accountant/Sri P.H. Shukla BOC/ 6. Spare copy for O.M.Register. Sd/- (M.K. Qureshy) Executive Engineer” 41. From the perusal of the aforesaid letter of appointment it is clear that in terms of the letter of appointment, the copies of the same were sent to the Chief Engineer (Civil), Indra Nagar, Lucknow for seeking approval of appointment from him for accepting the joining of the petitioner and to the Superintending Engineer Electricity Civil Construction Circle Allahabad for approval to make payment of salary to the petitioner. It appears that on receipt of the copy of the said appointment letter, the Superintending Engineer (Head Office) vide his letter dated 11.3.1991 had asked from the Executive Engineer, Vidyut Janpad Construction Division, Gorakhpur -that when the power of appointment of Class-IV employees according to the rules of Board was lying with the Executive Engineer, why the approval of such appointment was sought for from the Chief Engineer? A copy of said letter is on record as Annexure-6 of the writ petition. It would be useful to extract the contents of the letter dated 11.3.1991 written by the Superintending Engineer (Head Office) U.P. State Electricity Board, Indra Nagar, Lucknow to the Executive Engineer of concern Division as under : ^^bZ0 lrh’k dqekj xkSM+ m0iz0 jkT; fo|qr ifj"kn v/kh{k.k vfHk;Urk ¼eq[;ky;½ ,&539] bfUnjk uxj y[kuÅ fo"k;%&Jh 'kksHkkjke ;kno ekLVjjksy ds in ij dk;Zjr jgs] dks ekyh ds vLFkkbZ in ij fu;qfDr ds laca/k esaA fiz; Jh dqjs’kh] mijksDr fo"k;d Ñi;k vki vius dk;kZy; Kkiu la[;k 376&bZ0lh0lh0Mh0 ¼th0½@bZ0&3 fnukad 6-3-91 dk voyksdu djsaA bl laca/k esa eq>s ;g dgus dk funsZ’k gqvk gS fd ifj"kn ds orZeku fu;e ds varxZr prqFkZ Js.kh esa fu;qfDr djus dk vf/kdkj vf/k"kklh vfHk;Urk dks gSA vr% Ñi;k ;g Li"V djsa fd bl fu;qfDr dk vuqeksnu bl dk;kZy; ls D;ksa ekaxk x;k gS\ Jh ,e0ds0 dqjs’kh vf/k’kk'kh vfHk;Urk g0 vLi"V fo|qr tuin fuekZ.k [k.M 11-3-1991 xksj[kiqj lrh’k dqekj xkSM++ la0----------------------------eq0v0¼tuin½@rn~fnukad 11-3-91 izfrfyfi v/kh{k.k vfHk;Urk ¼tuin½ fo|qr tuin fuekZ.k e.My] bykgkckn dks mlds mijksDr dk;kZy; Kkiu ds laca/k esaSA g0 vLi"V 11-3-1991 lrh’k dqekj xkSM- v/kh{k.k vfHk;Urk ¼eq[;ky;½ Ñras eq[; vfHk;Urk tuinA** 42. It is also not in dispute that on receipt of the aforesaid letter, Executive Engineer, Construction Division, U.P. State Electricity Board, Gorakhpur, wrote a letter to the Superintending Engineer (Head Office) U.P. State Electricity Board, Indra Nagar, Lucknow, on 14.3.1991 stating therein that the petitioner was continuously working as muster roll employee since July 1972 and in seniority list sent by the office of Construction Division on 28.11.1986 to the Heard Office, he was found as senior most muster roll employee and since 1987 he was continuously engaged on the post of seasonal water man, and one post of Mali was also lying vacant and there was urgent need of Mali for maintaining the plants and lawn of newly constructed Guest House/Inspection House at 132 K.V. Semari Jamalpur, therefore, the appointment of the petitioner was made in pursuance of the Board’s order dated 24.10.1979, accordingly, he sought approval from the Chief Engineer (Head Office). The aforesaid letter is on record as Annexure-7 of the writ petition and the contents thereof are as under : ^^dk;kZy; vf/k’kk"kh vfHk;Urk fo|qr tuin fuekZ.k [k.M m0iz0 jkT; fo|qr ifj"kn xksj[kiqj i=kad 413 fo0t0fu0 ¼xks½@bZ&3 fnukad 14-3-91 ekyh ds vLFkkbZ ij ij fu;qfDr ds laca/k esaA v/kh{k.k vfHk;Urk ¼eq[;ky;½ bl vfHk;Urk tuin m0iz0 jkT; fo|qr ifj"kn bZ&539 bfUnjk uxjA y[kuÅA vki ds v)Z’kkldh; i=kad 655 eq0v0 ¼tuin½ 27ch&2@91 fnukad 11-3-1991 ds mijksDr fo"k;d ds laca/k esa vki }kjk iwNs x;s iz’u fu;qfDr ds i’pkr vki }kjk vuqeksnu gsrq vkxzg D;ksa fd;k x;kA bl laca/k esa vki ls vkxzg djuk gS fd % 1- Jh lksHkkjke ekLVjjksy deZpkjh ds :Ik esa o"kZ 1972&73 ls yxkrkj dk;Zjr jgs gSa rFkk bl dk;kZy; }kjk izsf"kr ofj"Brk lwph i=kad 3141 bZ0lh0lh0Mh0¼th½,e&37 fnukad 28-10-1986 ds vk/kkj ij lcls ofj"B ,DVj jksy deZpkjh gSaA bruk gh ugh o"kZ 1987 ls yxkrkj fltuy okVj eSu ds in ij Jh dk;Zjr jg pqdk gSA 2- ;g fiNM+h tkfr ¼vfgj½ dk gSA 3- bl dk;kZy; esa ,d in ekyh dk fjDr Hkh gSA 4- uo fufeZr 132 ds0oh0 midsUnz lwxjh tykyiqj esa vfrfFk x`g@fujh{k.k Hkou ds le{k fufeZr djk;s x;s HkO; yku rFkk ;gka ij yxk;s x;s ikS/ks ,oa Qwy ifRr;ksa ds j[k j[kko gsrq ekyh dh vR;f/kd vko’;drk gksus ds ifj.kkeLo:i rFkk v/kh{k.k vfHk;Urk tuin bykgkckn }kjk vki ls mDr in ds l`tu gsrq fd;s x;s vkxzg i= la[;k 4904 fo0t0fu0e0 ¼bZ½ch&5 132 ds0oh0 lsejh tekyiqj fnukad 3-10-1989 dks n`f"Vxr djrs gq, ifj"kn vkns’k la[;k 4121@ ih0,0,l0@ ,l0ih0oh0@ vkj&11@79 fnukad 24-10-1979 ds vk/kkj ij fu;qfDr dh x;h FkhA bruk gh ugha mRrj izns’k fctyh deZpkjh la?k ds ckj ckj ncko Mkyus ds dkj.k rFkk v/kh{k.k vfHk;Urk ,oa vki ds fujh{k.k ds le; Hkh ekSf[kd ,oa fyf[kr :i ls ,ts.Mk nsus ds dkj.k bl fu;qfDr dk vkns’k ikfjr fd;k x;k Fkk ijUrq vc ifj"kkKk ds vuqlkj vki dh ,oa ifj"kn dh vuqefr vko’;d Fkk bl dkj.k vki ls vuqeksnu dh vkdka{kk dh x;h FkhA bruk gh ugha vkns’k djus ls iwoZ Jh lksHkkjke dh izkFkZuk i= vko’;d layXuksa ds lkFk v/kh{k.k vfHk;ark }kjk i=kad 745 fo0v0fu0e0¼bZ½@bZ&8 fnukad 13-11-1990 ds }kjk vki ls vuqeksnu gsrq vkxzg fn;k x;k FkkA vr% vki ls vkxzg djuk gS fd ifj"kn ds fgr dks ns[krs gq, 132 ds0oh0 midsUnz lsejh tekyiqj fufeZr xsLV gkml@fujh{k.k x`g dh lkt lTtk dks cuk;s j[kus gsrq Jh lksHkkjke dks ekyh ds in ij fu;qfDr fd;s x;s vkns’kksa dks vius Lrj@¼ifj"kn½ ls vuqeksnu nsus dh Ñik dh tk; D;ksafd bl [k.M dks bruk esgurh o deZB rFkk bekunkj deZpkjh Hkfo"; esa miyC/k ugha gks ldsxkA vkids lsok esa voyksdukFkZ izsf"kr % layXud% 1& i=kad 745 fnukad 13-11-1990 2&i=kad 4904 fnukad 3-10-1989 ¼,e0ds0 dqjs’kh½ 3&i=kad 2103 fnukad 16-7-1990 vf/k’kk"kh vfHk;Urk 4&i=kad ---------- fnukad 3-7-1990 5&vkns’k la[;k 4121 fnukad 24-10-1979 i=kad& fo0t0fu0[k0 ¼xks½@bZ&3 fnukad 1991 izfrfyfi v/kh{k.k vfHk;ark fo|qr tuin fuekZ.k e.My m0iz0 jkT; fo|qr ifj"kn 11&cSad jksM iqjkuk dVjk bykgkckn dks lwpukFkZ ,oa bl vk’k; ds lkFk izsf"kr fd;k tkrk gS fd eq[; vfHk;Urk tuin ls vuqeksnu fnykus dh izfdz;k djus dh Ñik djsaA tSlk fd vki Lo;a foxr o"kZ xsLV gkml lsejh tekyiqj ij Jh 'kksHkkjke ds dk;Z dq’kyrk dks ns[k pqds gSa rFkk fu;qfDr djus dk vk’oklu Hkh ns pqds gSaA 43. Thus from a careful reading of para-4 of the aforesaid letter dated 14.3.1991 written by the Executive Engineer of concerned division to the Superintending Engineer (Head Office) U.P.S.E.B. Indra Nagar, Lucknow (Annexure-7 of the writ petition) it is clear that the petitioner was appointed to maintain the lawn and plants planted at newly constructed Guest House/Inspection House at 132 K.V. Sub-centre Sugari (Semari) Jamalpur on account of urgent need and in accordance of Board’s order dated 24.10.1979. It is also clear from the said letter that before the appointment of the petitioner on the said post of Mali, prior permission of Chief Engineer was also sought for through letter of Superintending Engineer dated 13.11.1990 (Annexure-2 of the writ petition) and since, according the Board’s order at the time of said appointment of the petitioner the approval of such appointment was needed from the Chief Engineer, Head Office, therefore, his approval was sought for by endorsing the copy of said letter to Superintending Engineer, Janapad Construction Circle Allahabad and he was also requested to take necessary steps in this regard. 44. It is stated in the writ petition that the aforesaid letter of appointment dated 6.3.1991 was not communicated to the petitioner till 20.11.1992 and when the said letter was communicated to him he immediately joined his duties in the office of respondent No. 3 on 20.11.1992. Since then the petitioner was discharging his duties on the permanent post of Mali in the office of respondent No. 3 but he was not paid his salary in regular pay scale on the said post of Mali, therefore, on 20.2.1996 the petitioner had made a representation before Superintending Engineer (Vidyut Janpad Nirman Mandal), Allahabad and requested for payment of current and regular salary for the post of Mali. The copy of representation of the petitioner dated 20.2.1996 is on record as Annexure-9 of the writ petition. 45. The copy of representation of the petitioner dated 20.2.1996 is on record as Annexure-9 of the writ petition. 45. It is further stated that finding no favour with the authorities the petitioner was compelled to file writ petition No. 39802 of 2001 seeking relief of mandamus commanding the respondents to pay the current and regular salary alongwith the arrears of salary to the petitioner since 20.11.1992 on the post of Mali in pursuance of appointment letter dated 6.3.1991 issued by Executive Engineer, Vidyut Janpad Nirman Khand, U.P.S.E.B., Mohaddipur Gorakhpur which was disposed of vide order dated 3.12.2001 passed by this Court whereby the direction was given to decide the representation of the petitioner. A copy of the order dated 3.12.2001 passed by this Court was served by the petitioner personally in the office of respondent No. 3 on 20.12.2001 alongwith representation dated 19.12.2001. But no order on the said representation was passed by the respondents for quite long time, as such the petitioner was compelled to file Contempt Petition No. 2104 of 2001. In the said contempt petition on issue of notices to the respondents-opposite parties, the respondent No. 3 has passed the impugned order dated 10.9.2002, whereby the representation of the petitioner was rejected absolutely in very arbitrary manner by ignoring the entire facts and circumstances of the case indicated herein before.. A copy of the impugned order is on record as Annexure-15 of the writ petition. 46. A copy of the impugned order is on record as Annexure-15 of the writ petition. 46. It would be useful to extract the impugned order dated 10.9.2002 in extenso as under : ^^dk;kZy; vf/k’kk"kh vfHk;Urk fo|qr tuin fuekZ.k [k.M m0iz0 ikoj dkjiksjs’ku fy0 eksgn~nhiqj] xksj[kiqjA i=kad& 1522&fo0t0fu0[k0 ¼xks0½@lh&10 fnukad 10-9-2002 fo"k;%& Jh 'kksHkkjke ;kno ¼52 o"kZ½ iq= fdUdw ;kno ds fnukad 20-2-1996 ds izfrosnu ds lacaèk esaA Jh 'kksHkkjke ;kno iq= Lo0 Jh fdUdw ;kno xzke& dknhiqj] ijxuk cyjkeiqj rg0& cyjkeiqj] ftyk&xks.MkA ekuuh; mPp U;k;ky; }kjk fjV isVh’ku la0 39802@2001 ij fnukad 3-12-2001 ds vkns’k ds vuqikyu esa vkids izfrosnu fnukad 20-12-1996 ij v/kksgLrk{kjdrkZ us lE;d fopkj djus gsrq rF;ksa] lqlaxr fjdkMZ vkSj ykxw fu;e ds lw{e ijh{k.k ds ckn ;g ik;k fd fu;qfDr i= 376@fo0t0fu0[k0 ¼xks½@,e&3 fnukad 6-3-1991 tks rRdkyhu vf/k’kklh vfHk;Urk Lo0 Jh ,e0ds0 dqjs’kh }kjk cuk;k x;k FkkA tks vkidks dHkh Hkh fuxZr ugh fd;k x;k D;ksafd iz’uxr fu;qfDr i= b.Vj ,fy;k Fkk D;ksafd v/;{k jkT; fo|qr ds i= la[;k 4121@ih0,0,l0@,l0b0ch0@1 vkj&11@79 fnukad 24-10-1979 A ftlds vuqlkj lHkh fu;qfDr;ksa ij izfrcU/k FkkA iSjk 665 ds uksV la[;k 2 QkbusfU’k;y gS.Mycqd ckY;we&6 ds vuqlkj eq[; vfHk;Urk dh vuqefr ds fcuk dksbZ Hkh vLFkk;h fu;qfDr ekU; ugh FkhA 2- ;g fd 20-11-1992 dks ekyh in dh Tok;fuax tkyh gSA D;ksafd cxSj fu;qfDr ds fo|qr tuin fuekZ.k [k.M xksj[kiqj esa vkidh Tok;fuax dk iz'u gh ugh mBrkA 3- ;g fd rRdkyhu vf/k’kklh vfHk;ark Lo0 Jh ,e0ds0 dqjS’kh ds dk;kZy; Kkiu la[;k 523&fo0t0fu0[k0 ¼xks0½@g&3 fnukad 1-4-1991 }kjk vkidks okVj eSu ds in ds fy, 1-4-1991 ls 30-9-1991 rd fu;qDr fd;k x;k ftldk vkidks Hkqxrku fd;k x;k FkkA vr% Li"V gS fd bl vof/k ls iwoZ vkidh dksbZ fu;qfDr ugh dh x;h FkhA 4- ;g fd vkius ekyh in ij dHkh Hkh fo|qr tuin fuekZ.k [k.M xksj[kiqj esa dk;Z ugh fd;kA vr% vkidks dksbZ Hkh Hkqxrku ns; ugh gSA vr% mijksDr rF;ksa ds vk/kkj ij vkidk izfrosnu vLohdkj fd;k tkrk gSA vf/k’kk"kh vfHk;UrkA** 47. From a careful reading of impugned order dated 10.9.2002 passed by Executive Engineer it appears that the petitioner’s representation was rejected on the ground that the letter of appointment of the petitioner dated 6.3.1991 prepared by the then Executive Engineer has never been issued to the petitioner for the reason that all the appointments were banned by the order of Chairman of U.P. State Electricity Board dated 24.10.1979 and in view of para 665 Note-2 of Financial Hand Book Vol. VI any appointment without approval of the Chief Engineer could not be accepted. Accordingly joining of the petitioner dated 20.11.1992 on the post of Mali is forged. It has also been mentioned in the impugned order that the petitioner has never worked on the post of Mali in Vidyut Janpad Nirman Khand, Gorakhpur, therefore, he is not entitled for payment of salary. 48. At this juncture, it would be useful to examine the Office Memorandum of U.P. State Electricity Board dated 24th October, 1979 whereby the appointments were allegedly banned by the Chairman of the Board. The aforesaid order is extracted in extenso as under : “U.P. STATE ELECTICITY BOARD SHAKTI BHAWAN, 14 ASHOK MARG LUCKNOW No. 4121-PAAS/SEB-IR-II/79 Dated: Oct. 24, 1979. OFFICE MEMORANDUM Vide B.O. No. 147-G/SEB-I-10-A/1979 dated January 17, 1979 followed by B.O. No. 1989-G/SEB-I-10A/79 of July 3, 1979 the engagement of labour on muster-roll was banned for the operation and maintenance of generation, transmission and distribution works and also for construction and any other activity throughout the State. It has, however, come to notice of the Board that these orders are not being implemented in the right spirit and the engagement of labour through contractors which was allowed exclusively in case of emergency is being done indiscriminately even for regular nature of work. A number of advertisements are appearing in the news-papers for the engagement of large force of labour through contractors which is not desirable. 2. The yardsticks for Distribution and Transmission works have already been issued. The Chief Zonal Engineers are, therefore, required to review the requirement and deploy the staff from the surplus pocket to the place where it is required. 3. 2. The yardsticks for Distribution and Transmission works have already been issued. The Chief Zonal Engineers are, therefore, required to review the requirement and deploy the staff from the surplus pocket to the place where it is required. 3. For electrification of Harijan Bastis, State Tubewells and other works if it is felt that the existing staff is not able to cope up with the work, such works can be carried out by finalising work contracts and schedule of rates for various jobs as per rules in force. However, it may be kept in mind that the schedule of rates will be finalised at circle level for uniformity of rates in the same district. Under no circumstances, Labour will be employed on muster-roll. 4. As far as the retrenched muster-roll and daily rated employees are concerned a category-wise seniority list of all the retrenched muster-roll/daily rated employees as ordered in B.O. No. 413/G/SEB-I-10A/79 dated February 19, 1979 should be maintained Division-wise in each Circle and in the Zones and in the event of vacancies required to be filled, the persons from the said list shall be employed on seniority and suitability basis subject to the other rules and regulations in force. CHAIRMAN 49. From a perusal of B.O. dated 24th October, 1979 it is clear that vide earlier B.O. dated 17th January, 1979 followed by B.O. dated 3rd July, 1979 the engagement of labour on muster-roll was banned for operation and maintenance of generation, transmission and distribution works and also for construction and any other activity throughout the State but it was found that the aforesaid order was not strictly implemented in the right spirit and the engagement of labour through contractors which was allowed exclusively in case of emergency was done indiscriminately even for regular nature of work, therefore, by the aforesaid Board’s order the Chief Zonal Engineers and other concerned officers were directed to review the requirement and deploy the staff from the surplus pocket to the places where it was required. vide para-4 of the said Board’s order it was directed that a category-wise seniority list of all the retrenched muster-roll/daily rated employees shall be maintained Division-wise in each Circle and in the Zones and in the event of vacancies required to be filled, the persons from the said list shall be employed on seniority and suitability basis subject to the other rules and regulations in force. 50. Thus from a careful reading of entire order dated 24th October, 1979 passed by Chairman of U.P.S.E.B., it is no doubt true that engagement of labour on muster-roll basis through contractors was banned for operation and maintenance of generation, transmission and distribution works and also for construction and any other activity throughout the State in regard to the regular nature of work but the appointment/absorption of retrenched muster roll employees in work of regular nature was not at all banned by the said Board’s order dated 24.10.1979. Instead thereof the concerned officers were directed to review the requirement and deploy the staff from surplus pockets to the places where it was required. For that purpose, concerned officers were further directed to maintain category wise seniority list of all the retrenched muster roll daily rated employees and in event of the vacancies required to be filled, the persons from the said list were directed to be employed on seniority and suitability basis subject to other rules and regulations in force. Since the petitioner was senior-most daily rated retrenched muster-roll employee at that time, as such on account of urgent need of Mali at newly constructed Guest House at 132 K.V. Sub-centre Semari, Jalalpur, his appointment on the said post in substantive capacity initially on temporary basis was in accordance with the provisions of para-4 of the aforesaid Board’s order and cannot be held to be contrary to the aforesaid Board’s order. And after such appointment the approval from the Chief Engineer, Head Office, was also sought for, therefore, no fault can be found in the said appointment of the petitioner on the vacant post of Mali and the view taken by Executive Engineer vide impugned order, contrary to the aforesaid view taken by me, is wholly misconceived and based on non-existant fact, accordingly cannot be sustained on that score. 51. Another ground of rejection of petitioner’s representation was that the said appointment was contrary to the Note-2 of Para 665 of U.P. Financial Hand-Book Vol. VI. Therefore, it is necessary to examine the said provisions and are extracted as under : “CHAPTER XXI Establishment A—TEMPORARY ESTABLISHMENT 665. 51. Another ground of rejection of petitioner’s representation was that the said appointment was contrary to the Note-2 of Para 665 of U.P. Financial Hand-Book Vol. VI. Therefore, it is necessary to examine the said provisions and are extracted as under : “CHAPTER XXI Establishment A—TEMPORARY ESTABLISHMENT 665. In order to meet the demand for extra supervision which may arise from time to time, as well as to ensure that the Public Works establishments shall be capable of contraction as well as of expansion as the expenditure on works diminishes or increases, the permanent establishments may be supplemented by temporary establishment to such extent as may be necessary, and varying in strength from time to time according to the nature of the work to be done. Temporary establishment will include all such non-permanent establishment, no matter under what titles employed, as is entertained for the general purposes of a division or sub-division, or for the purpose of the general supervision, as distinct from the actual execution of a work or works. The powers of the several authorities to sanction such temporary establishment will be found in Vol. I of the Handbook or in the departmental manual or orders. NOTES—(1) All persons so engaged must be required to sign the declaration indicated in paragraph 666. Petty establishments and establishments whose pay is charged to works under paragraph 667 are exempted from submitting temporary service declarations. (2) Engineers, overseers and office establishment shall not be charged to works but shall be employed as temporary establishment and provided for in the budget.” 52. From a careful reading of paragraph 665 of U.P. Financial Hand-Book Vol. VI which is recited in the impugned order dated 10.9.2002, there is nothing to indicate that in given facts and circumstances of the case, the appointment of petitioner on the post of Mali was any way contrary to the aforesaid paragraph of Fundamental Rules, therefore, in my considered opinion, the impugned order passed by concerned Executive Engineer on aforesaid ground is wholly misconceived and cannot be sustained. Besides this, it transpires from the record that said order has been passed by the respondent No. 3 to save his skin from contempt proceeding initiated by the petitioner for compliance of order passed by this Court in Writ Petition No. 39802 of 2001 on 3.12.2001 earlier filed by him. Besides this, it transpires from the record that said order has been passed by the respondent No. 3 to save his skin from contempt proceeding initiated by the petitioner for compliance of order passed by this Court in Writ Petition No. 39802 of 2001 on 3.12.2001 earlier filed by him. Thus the impugned order dated 10.9.2002, in my considered opinion, also suffers from vice of malice. 53. Apart from the aforesaid grounds another ground of rejection of claim of petitioner was that the appointment letter dated 6.3.1991 was never issued to him thus his joining on the post of Mali on 20.11.1992 was forged. In this regard it is to be noted as indicated in preceding paragraphs that the petitioner’s appointment on the post of Mali was made on 6.3.1991 by the then Executive Engineer of the concerned division on account of urgent need of Mali for maintaining the plants and lawn at newly constructed Guest House/Inspection House at 132 K.V. Sub Centre, Semari Jamalpur, having regard to his past service ,work and conduct and his seniority position. For that purpose prior permission from Chief Engineer (Head Office) through letter of Superintending Engineer, Construction Circle dated 13th November, 1990 (Annexure-2 of the writ petition) was also sought for. As revealed from letter of appointment of petitioner dated 6.3.1991 (Annexure-4 of the writ petition) it is no doubt true that the joining report of the petitioner was liable to be accepted on the said post of Mali on approval of Chief Engineer(Civil) but for the said purpose a copy of said appointment letter was also sent to the Chief Engineer (Civil), Indra Nagar, Lucknow and from the letter of Superintending Engineer (Head Office) dated 11.3.1991 it is clear that the copy of aforesaid letter of appointment dated 6.3.1991 was received by him and on receipt of which he had written the letter dated 11.3.1991 (Annexure-6 of the writ petition quoted earlier) asking the Executive Engineer of concerned division that why the approval of appointment of petitioner was sought from the Head office. 54. 54. It can also not be disputed that on receipt of the said letter of the Superintending Engineer (Head Office), the Executive Engineer, Vidyut Janpad Construction Division, U.P. State Electricity Board, Gorakhpur vide his letter dated 14.3.1991 (Annexure-7 of the writ petition quoted herein before) had informed the Superintending Engineer (head office) that the petitioner was continuously working as Muster Roll Employee since 1972 and thereafter he was also appointed as Waterman on seasonal basis four times consecutively w.e.f. 1.4.1988 to 30.9.1991 for a period of six months in each year and there was urgent need of Mali for maintaining the lawn at newly constructed Guest House/Inspection House at 132 KV Upkendra Semri Jamalpur and according to the order of the Board dated 24.10.1979 the approval of appointment from the Head office/Board was necessary that is why the approval for joining was sought for but there is nothing to indicate in the impugned order or any where else in any of the counter affidavits filed by the respondents that as to why the approval of appointment of the petitioner could not be given by the Chief Engineer of U.P. State Electricity Board and if such approval was not necessary as to why the concerned Executive Engineer was not informed accordingly. Therefore, in my opinion, in given facts and circumstances of the case, the withholding of such information and/or withholding of such approval of appointment of the petitioner without any justification is malicious and mala fide, as such cannot be sustained and concerned Chief Engineers (Head Office) working during the aforesaid period is accountable for his arbitrary and mala fide action for withholding the approval of appointment of the petitioner. 55. So far as denial of salary to the petitioner on the ground that he has not worked on the post of Mali at Vidyut Janapad Niman Khand, Gorakhpur, is concerned, it is to be pointed out that in counter affidavit inasmuch as in the impugned order only this much is stated that the petitioner has not worked on the post of Mali in pursuance of letter of appointment dated 6.3.1991 w.e.f. 20.11.1992 but it is not specifically stated that he was not working in the establishment in question even as daily wage muster roll employee. Besides this, there is nothing to indicate from the record that any other person was deputed to work as Mali at newly constructed guest house at 132 K.V. Sub-Centre, Semari Jalalpur for maintenance of which the petitioner was appointed. The power of appointment on the post of Mali which is Class IV post was undisputedly lying with the Executive Engineer and there is nothing to indicate in the Board’s order dated 24.10.1979 quoted herein before that any such appointment could not be made by the Executive Engineer without prior approval of the Chief Engineer and/or if such appointment is made, that would be void ab initio. In such a situation, in my view, it was but natural for the Executive Engineer to permit the joining of the petitioner on the post of Mali even unofficially to cater the need of work of Mali in anticipation of approval of the appointment of the petitioner by the Chief Engineer. Therefore, in given facts and circumstances of the case, it cannot be held that joining of the petitioner on the post of Mali on 20.11.1992 was forged and even if the appointment of the petitioner was not approved by the Chief Engineer it cannot be held that he could not join the said post of Mali on 20.11.1992 and has not worked on the said post. Thus, the petitioner cannot be made to suffer on account of fault of concerned respondents and he cannot be deprived of from his salary admissible to the said post w.e.f. 20.11.1992 alongwith other admissible allowances by the Board from time to time till the date as revised from time to time. The view taken by the concerned Executive Engineer vide impugned order dated 10.9.2002, contrary to the view taken by me, cannot be sustained and the same is hereby quashed. 56. The petitioner shall be treated to be appointed on the post of Mali i.e. Class IV post in the establishment in question in pursuance of letter of appointment of Executive Engineer dated 6.3.1991 w.e.f. 20.11.1992 in regular capacity and he is entitled for payment of salary alongwith admissible allowances of said post from the aforesaid date till the date as revised from time to time. If any amount has already been paid to him during this period as daily wage muster roll employee, said amount shall be deducted therefrom while computing the arrears of salary liable to be paid to the petitioner. Such payment of arrears of salary shall be made to the petitioner alongwith 9% simple annual interest thereon, within two months from the date of production of certified copy of this order before respondent Nos. 3 and 4 of the writ petition. If the petitioner has not attained the age of superannuation by now, he shall be paid his current salary admissible to Class-IV post alongwith admissible allowances regularly month to month. 57. Before parting with the judgment it is necessary to point out that from the records it transpires that although the petitioner has claimed his continuance on the post of Mali on regular basis w.e.f. 20.11.1992 in pursuance of his appointment dated 6.3.1991, but the authorities of the Board were treating him senior most retrenched muster roll employee as indicated herein before and went on recommending his regularisation to the superior authorities. In this connection a reference can be made to a letter of Chief Engineer (Civil) U.P.S.E.B. to the Director Karmic U.P.S.E.B. dated 28.9.1992 (Annexure-8 of the writ petition) for permanent appointment of the petitioner on the vacant post of Mali. Not only this but on 30.10.2000 General Manager, Janpad Pareshar, U.P. Power Corporation Ltd., Lucknow also wrote a letter to the Secretary, Electricity Service Commission, U. P. Power Corporation Lucknow in respect of absorption of retrenched muster roll daily wage employees on regular basis, whereby a list of daily wage muster roll employees was sent to the Electricity Service Commission after verification of their working alongwith other particulars on prescribed format, wherein the name of the petitioner was at serial No. 1 on the top of the said list, in pursuant thereof the petitioner was asked by the Electricity Service Commission to appear in physical, efficiency test and in interview vide letter dated 19.2.2002. On 8.3.2002 the Executive Engineer, Janpad Construction, Gorakhpur U.P. Power Corporation Ltd. also wrote a letter to the Secretary, Electricity Service Commission, U.P. Power Corporation Ltd., Lucknow stating therein that the petitioner was discharging his duties in the department since 1972 as muster roll employee. On 8.3.2002 the Executive Engineer, Janpad Construction, Gorakhpur U.P. Power Corporation Ltd. also wrote a letter to the Secretary, Electricity Service Commission, U.P. Power Corporation Ltd., Lucknow stating therein that the petitioner was discharging his duties in the department since 1972 as muster roll employee. His work and conduct was quite satisfactory and he was senior most muster roll employee, hence he should be regularized on the post of Mali. A copy of the aforesaid letter dated 8.3.2002 is on record as Annexure-14 of the writ petition. In pursuance of letter of respondent No. 1 dated 19.2.2002 the petitioner appeared before the Commission on 13.3.2002 and participated in the test but the result of the aforesaid selection was not communicated to the petitioner. 58. In para 10 of the supplementary counter affidavit sworn by Sri S.K. Mishra, Secretary Electricity Service Commission on 15.4.2008 filed in the writ petition, it is stated that the petitioner appeared before the commission but was found unfit. A photostat copy of the result dated 12.12.2002 is filed as Annexure-1 of the said affidavit. From a perusal of aforesaid result it appears that the said selection was based on interview of retrenched muster roll employee engaged in the establishment prior to 4.5.1990, wherein several retrenched muster roll employees were found fit and selected for regular appointment and/or regularization, whereas some retrenched muster roll employees were declared unfit for regular appointment and/or regularization in service on the grounds mentioned in the order dated 12.12.2002. The petitioner was declared unfit for regularization in service on the ground that he has become overage i.e. more than 37 years of age on 1.1.1999. Whereas some candidates were declared unfit for regularization on the ground that they have not completed 18 years age at the time of their initial appointment on muster roll daily wage basis. 59. In paras 11, 12, 13 and 14 of the said affidavit of Sri S.K. Mishra dated 15.4.2008 it is stated that the other candidates who were found unfit in the said selection process have filed Civil Misc. Writ Petition No. 13402 of 2003 Om Prakash and others v. U.P. Power Corporation Ltd. and others. vide order dated 8.1.2004 passed by this Court the impugned result of said selection dated 12.12.2002 was quashed and Electricity Service Commission was directed to reconsider the case in the light of aforesaid decision. Writ Petition No. 13402 of 2003 Om Prakash and others v. U.P. Power Corporation Ltd. and others. vide order dated 8.1.2004 passed by this Court the impugned result of said selection dated 12.12.2002 was quashed and Electricity Service Commission was directed to reconsider the case in the light of aforesaid decision. Against the aforesaid order a Special Appeal No. 175 of 2004 was filed by U.P. Power Corporation Ltd. which was disposed of on 20.11.2004 by a Division Bench of this Court and order of learned Single Judge was modified to the extent that at the time of consideration of absorption of employees it should be seen whether they were over age in terms of statutory provisions applicable in the Corporation at the time of their initial recruitment. Judgement of Division Bench is enclosed as Annexure-3 of the said affidavit. Against the aforesaid order special leave petition was preferred before Apex Court wherein order of Division Bench of this Court has been set aside and matter has been remitted back to decide the said appeal afresh. The photostat copy of the judgment and order of Apex Court dated 1.9.2006 is on record as Annexure-4 of the said affidavit. As a result of the aforesaid order passed by Apex Court the said special appeal has been restored to its original number and it is stated that the matter is still subjudice before this Court. 60. At this juncture, it is necessary to point out that in given facts and circumstances of the case stated in preceding part of the judgment although for disposal of instant writ petition it is not necessary to decide the validity of rejection of petitioner’s candidature by Electricity Service Commission vide order dated 12.12.2002 whereby on account of becoming over age on cut off date i.e. 1.1.1999 fixed by Electricity Service Commission, the petitioner was declared unfit for regularisation in service but since the aforesaid facts have been brought on record through the supplementary counter affidavit filed by Sri S.K. Mishra, therefore, it would be appropriate to deal with the same herein after. 61. 61. In this connection at very outset, it is to be noted that normally under the Rules of Regularisation of ad hoc appointees or daily wage muster-roll employees the cut off date is fixed for the purpose of determination of suitability of such ad hoc and/or daily wage muster-roll employees, and is not fixed for the purpose of determination of their eligibility. The eligibility in respect of age and/or qualification has to be determined with reference to the date of initial appointment of such ad hoc or muster roll employee. The suitability of candidates can be assessed from their experiences gained during the course of employment as reflected from the decision of Apex Court rendered in Bhagwati Prasad’s case (supra) and same is also revealed from the provisions of U.P. Regularisation of ad hoc Appointments (on posts outside the purview of the Public Service Commission) Rules, 1979 as amended from time to time, U.P. Regularisation of ad hoc Appointments (on posts within the purview of the Public Service Commission) Rules, 1979, as amended from time to time, U.P. Regularisation of daily wages appointment on Group ‘C’ Posts (outside the purview of the Uttar Pradesh Public Service Commission) Rules, 1998 and similar other rules and laws enacted by U.P. Legislature in respect of regularisation of ad hoc teachers appointed in privately managed Government aided secondary institutions and degree colleges, despite thereof it appears that the Commission had fixed cut off date 1.1.1999 in reference of which it had determined the age of retrenched muster roll employees who were to be treated eligible for regularization in service. The daily wage muster roll employees, who were within the age limit on 1.1.1999 prescribed for fresh candidates of direct recruitment through open competition were treated to be eligible for regularization/absorption in service, and those who have crossed the maximum age limit for such direct recruitment in Government employment on 1.1.1999 were declared unfit for regularization. In my opinion, the age limit applicable to fresh recruitment from open market cannot be pressed into service while considering the claim for regularization of daily wage muster roll- employee as they are different class altogether. In my opinion, the age limit applicable to fresh recruitment from open market cannot be pressed into service while considering the claim for regularization of daily wage muster roll- employee as they are different class altogether. The view taken by me also finds support from the decision of Hon’ble Apex Court, rendered in U.P. State Electricity Board v. Pooram Chandra Pandey (Supra), wherein in para 19 of the decision Hon’ble Apex Court observed that “Apart from the discrimination, Article 14 of the Constitution will also be violated on the ground of arbitrariness and unreasonableness if employees who have put in such long service are denied the benefit of regularization and are made to face the same selection which fresh recruits have to face”. Thus, in my considered opinion the view taken by Electricity Service Commission, contrary to the view taken by me, is arbitrary, unreasonable and violative of Article 14 of the Constitution inasmuch as contrary to the well established norms of Service Law Jurisprudence. 62. Besides this, there is nothing to indicate from the record brought through the supplementary counter affidavit filed by Sri S.K. Misra, Secretary, Electricity Service Commission as to why the aforesaid cut off date 1.1.1999 was fixed by the commission for determination of the age of daily rated retrenched muster-roll employee to become eligibile for regular appointment. No statutory rule or Board’s order was placed before the Court showing any relevance of the said cut off date for regularization of daily wage muster roll employees. In absence of any rule or Board’s pre-existing order showing any relevance of the aforesaid cut off date, in my opinion, is arbitrary, irrational and imaginary in nature, thus cannot be sustained. 63. It is also well settled that the matter regarding eligibility of candidates such as age and qualification has to be seen or determined while initial recruitment of employees and it cannot be seen at the time of their absorption in service as reflected from the decision of Hon’ble Apex Court in Bhagwati Prasad’s case (supra). 63. It is also well settled that the matter regarding eligibility of candidates such as age and qualification has to be seen or determined while initial recruitment of employees and it cannot be seen at the time of their absorption in service as reflected from the decision of Hon’ble Apex Court in Bhagwati Prasad’s case (supra). It implies that if the daily rated muster roll employee seeking absorption or regularization in service is found to be eligible and qualified under rules or Government order at the time of his initial engagement in service on muster roll daily wage basis, such candidate cannot be declared unfit merely on the ground of becoming overage while considering his claim of regularization in service. 64. Further, it is not a case where it can be said that Electricity Service Commission was not aware of the aforesaid legal position while considering the claim of regularization of daily wages muster roll employees, instead thereof the Commission was well aware of the aforesaid legal position as revealed from the result of selection dated 12.12.2002, wherein the candidature of several candidates have also been rejected on the ground that they had not attained 18 years age, at the time of their initial engagement as daily rated muster roll employees prescribed as minimum age for recruitment. (see page 14 to 18 of Annexure 1 of the affidavit of Sri S.K. Mishra, Secretary Electricity Service Commission sworn on 15th April, 2008). Thus from intrinsic material available on record it is clear that Electricity Service Commission has illegally carved out aforesaid ground of becoming overage on 1.1.1999 for rejection of candidature of petitioner and several other daily rated muster roll employees with certain oblique and ulterior motive though it was well within the knowledge of the Commission that the aforesaid date was not relevant for determination of the age of candidates for their regularization in service and only relevant date for the said purpose was the date of their initial appointment as muster roll employee, that is why, at the time of initial stage of hearing of the instant case I had summoned the Chairman and members of commission and other concerned officers of Board for fixing their individual accountability and for awarding heavy exemplary cost against them, but now I am of the view that nominal exemplary cost of Rs. 50,000/- would meet the bare minimum expenses incurred to the petitioner during aforesaid litigation and ends of justice. Awarding heavy exemplary cost would burden state exchequer inasmuch as would create an additional ground for respondents to drag the petitioner into further litigation at cost of state exchequer. This cost of Rs. 50,000/- shall be paid by the respondents alongwith the payment of the arrears of salary to the petitioner as directed herein before. 65. At this juncture it is to be further noted that the matter of regularization of daily wage muster-roll employee is within sole domain of employer to consider the same whenever he likes. The employees cannot force the employer to consider their such claim within a time frame scheme unless the employer is obliged to do so under certain rules or scheme or takes his own decision but at the same time, in my considered opinion, it shall not be open for the employer to engage daily rated muster roll employees and permit them to continue as such for long time without considering their claim for regularization in service and after long lapse of time reject their claim for regularization in service on the ground that at the time of consideration of their claim they became over age for regular recruitment. I am of the view that the employer cannot be permitted to take advantage of his own wrong. The employee cannot be punished for the fault of employer, who was sitting idle over the claim of regularization of employees for such a long time and delayed the consideration of claim of regularisation, till they crossed the maximum age limit for direct recruitment. Therefore, the view taken by Electricity Service Commission vide order dated 12.12.2002 while rejecting the claim of regularization of the petitioner on the ground that he has become overage on 1.1.1999, is highly arbitrary and irrational, thus cannot be sustained and the same is hereby quashed. It is not in dispute that while initial appointment of petitioner in July, 1972 as daily wage muster roll employee, he was within prescribed age limit and was eligible for Government/Board’s employment, thus he ought to have been regularised by the Commission as nothing adverse was found against him. 66. It is not in dispute that while initial appointment of petitioner in July, 1972 as daily wage muster roll employee, he was within prescribed age limit and was eligible for Government/Board’s employment, thus he ought to have been regularised by the Commission as nothing adverse was found against him. 66. Since I have decided the questions formulated herein before independently which are not connected with each other, therefore, in given facts and circumstances of the case it would be appropriate to harmonize them so that the directions given in the judgment should be carried out by the respondents without any confusion and clarification. Accordingly the same are summarised as under : (i) The petitioner shall be treated to be regularised in service on Class IV post of respondents’ establishment since 1977 and since then he will be treated to be in regular service of respondents only for the purpose of his length of service, seniority and other consequential benefits of service indicated hereinafter, since when his juniors mentioned in para 13 of the writ petition have been given straightway regular appointment without reference to any rules of recruitment and/or have been regularised in service by-passing the claim of regularization of the petitioner in service while he was continuing in the establishment in question as daily wage muster roll employee. (ii) The petitioner shall be treated to be appointed on the post of Mali on Class IV post in the establishment in question in pursuance of letter of appointment of Executive Engineer dated 6.3.1991 w.e.f. 20.11.1992 in regular and substantive capacity and he is entitled for payment of salary alongwith admissible allowances on said post w.e.f. 20.11.1992 till date as revised from time to time. If any amount has already been paid to him during the period w.e.f. 20.11.1992 till date as daily wage muster roll employee in the establishment in question, the said amount shall be deducted therefrom while computing arrears of salary payable to the petitioner. Such payment of arrears of salary shall be made to the petitioner alongwith 9% simple annual interest thereon within a period of two months from the date of production of certified copy of the order passed by this Court before the respondent Nos. 3 and 4 of the writ petition. Such payment of arrears of salary shall be made to the petitioner alongwith 9% simple annual interest thereon within a period of two months from the date of production of certified copy of the order passed by this Court before the respondent Nos. 3 and 4 of the writ petition. (iii) If the petitioner has not attained the age of superannuation by now, he shall be paid his current salary on the post of Mali/Class IV post alongwith admissible allowances regularly month to month. (iv) It is made clear that since 1972 the petitioner was permitted to continue as daily wage muster roll employee in the establishment till March, 1983 and thereafter he was given appointment as seasonal waterman for a period of six months each in four consecutive years w.e.f. 1.4.1988 to 30.9.1991 and thereafter he was given regular appointment vide letter of Executive Engineer dated 6.3.1991 on the post of Mali and he joined the said post in pursuant thereto on 20.11.1992 and is continuously treated to be working on the said post till date, therefore, during this period when he was out of employment should be excluded from the length of his service for the purpose of determination of his seniority and other consequential benefits of service including post retiral dues. Thus, the period running from April, 1983 upto March, 1988 shall be excluded from the length of service of the petitioner and thereafter the other breaks in service while working as seasonal waterman w.e.f. 1.4.1988 to 30.9.1991 shall also be excluded from the length of his service for the purpose of seniority and other consequential benefits of service including the post retiral dues. But after 20.11.1992 till date the petitioner shall be treated to be in continuous service for all practical purposes including the seniority, post retiral dues and other consequential benefits of service by adding the earlier period right from 1977 after excluding the aforesaid breaks in service. (v) The petitioner shall not be paid any arrears of salary between the period 1977 till 20.11.1992, any amount paid to him during this period as muster-roll employee and seasonal waterman shall be treated to be sufficient payment for the said period. However, for other purposes the aforesaid period as indicated herein before shall also be treated to be regular service rendered by the petitioner from 1977 till date, for other service benefits as indicated herein before. However, for other purposes the aforesaid period as indicated herein before shall also be treated to be regular service rendered by the petitioner from 1977 till date, for other service benefits as indicated herein before. (vi) A sum of Rs.50,000/- cost shall be paid to the petitioner by the respondents within a period of two months from the date of production of certified copy of the order passed by this Court before respondent Nos. 3 and 4. 67. With the aforesaid observations and directions, writ petition succeeds and is allowed to the extent indicated herein above. ————