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2018 DIGILAW 177 (ALL)

JAI PRATAP NARAIN SINGH v. STATE OF U. P.

2018-01-19

SIDDHARTH

body2018
JUDGMENT Hon’ble Siddharth, J.—Heard Sri A.K. Srivastava, learned Counsel for the petitioner and learned Standing Counsel for the respondents. 2. This writ petition has been filed by the petitioner, praying for quashing of the impugned orders dated 24.4.1985 and 29.4.1985, passed by District Magistrate, Jalaun and Executive Engineer (Minor Irrigation),Jalaun at Orai, whereby, he was reverted from the post of Junior Engineer (Minor Irrigation) Orai, to the post of Boring Mechanic. The petitioner has further prayed for a direction commanding the respondent No. 2, Chief Engineer, Minor Irrigation Department, U.P. Lucknow to regularZe the services of the petitioner, on the post of Junior Engineer in Minor Irrigation Department. 3. The brief facts of the case are that the petitioner was appointed as Assistant Boring Mechanic in the department of Minor Irrigation on 18.12.1964 and he was promoted to the post of Boring Mechanic on 18.10.1965, whereon, he was confirmed on 1.4.1975, on account of his good work and unblemished service record. By the order dated 18.4.1980, the District Magistrate, Jalaun promoted the petitioner on the post of Junior Engineer on officiating basis against leave vacancy. On 20.6.1980, the petitioner was promoted on substantive vacancy as Junior Engineer on temporary basis by the District Magistrate. He was sent for training on 19.9.1983 alongwith other Junior Engineers to Gujrat. The Chief Engineer, Minor Irrigation Department, Lucknow was sent recommendation dated 25.10.1980 by the Assistant Engineer, Minor Irrigation Department and the Executive Engineer also sent a letter to the Superintending Engineer, Minor Irrigation Department, Jhansi Circle, Jhansi, recommending regularZation of the service of the petitioner on the post of Junior Engineer by the letter dated 12.4.1985. By the letter dated 13.4.1985, the Superintending Engineer aforesaid recommended that the petitioner should be continued on the post of Junior Engineer. The District Development Officer also recommended his confirmation on the post of Junior Engineer by his letter dated 13.2.1981 to the Chief Manager of the Department at Lucknow. One Sonebhadra Sharma, who was appointed Boring Mechanic alongwith petitioner was regularZed in service, but the petitioner was not considered for regularZation. A Government Order dated 4.6.1975 was issued by the Government directing regularZation of employees working on temporary posts for 3 years. The Government Orders dated 28.1.1979 and 30.3.1979 were also issued in this regard. One Sonebhadra Sharma, who was appointed Boring Mechanic alongwith petitioner was regularZed in service, but the petitioner was not considered for regularZation. A Government Order dated 4.6.1975 was issued by the Government directing regularZation of employees working on temporary posts for 3 years. The Government Orders dated 28.1.1979 and 30.3.1979 were also issued in this regard. However, by the order dated 25.4.1985, the District Magistrate, Jalaun directed the petitioner to be reverted to his earlier post of Boring Mechanic and the Executive Engineer also passed the order dated 29.4.1985 in compliance of the order dated 25.4.1985 of the District Magistrate, Jalaun communicating the letter of the District Magistrate aforesaid and directing him to hand over the charge to Sri S.D. Verma. 4. The petitioner challenged the orders dated 25.4.1985 and 29.4.1985 issued by the District Magistrate and the Executive Engineer respectively before this Court and by the order dated 21.5.1985, their operation were stayed by this Court and the petitioner continued on the post of Junior Engineer. 5. The respondents filed their Counter-affidavit stating that the petitioner was not eligible for the post of Junior Engineer since he has no qualification of I.T.I. required for the post. He was given only temporary appointment by the District Magistrate, while it was Superintending Engineer, who was authorZed to appoint the petitioner on the post of Junior Engineer. It was admitted that Sri Shailendra Singh, Boring Mechanic, who was sent for training alongwith the petitioner, has been promoted as Junior Engineer but he is not getting salary. It was further stated that Sri Sonebhadra Sharma was regularZed on the post of Junior Engineer, because he was senior to the petitioner. 6. The petitioner filed his Rejoinder-affidavit stating that the petitioner has retired from service on 28.2.2001, on the post of Junior Engineer after his promotion on 20.6.1980. Sri Shailendra Singh, who was sent for training with the petitioner is working as Assistant Engineer. One employee, Rajveer Singh, who was also retired from service without regularZation in service and had approached this Court by way of Writ Petition No. 25022 of 1997, was allowed, entire benefits of regularZation of services by the order dated 18.11.1997. Sri Shailendra Singh, who was sent for training with the petitioner is working as Assistant Engineer. One employee, Rajveer Singh, who was also retired from service without regularZation in service and had approached this Court by way of Writ Petition No. 25022 of 1997, was allowed, entire benefits of regularZation of services by the order dated 18.11.1997. In the aforesaid case, this Hon’ble Court considered the provisions of U.P. RegularZation of Adhoc Promotion (On Posts with Purview of Public Service Commission) Rules, 1988, Rule-4 whereof, provided that the employees appointed on promotion before 1.1.1985 were eligible for regular promotion, provided they have completed 3 years of service on the said post. But Sub Rule-3 provided that for such purpose, a selection committee was required to prepare a list of eligible candidates for appointment on the basis of seniority. It was further held by this Court that the respondents were required to constitute such a Committee in accordance with Rule and should have considered the case of the petitioner for confirmation on regular post, but in the Counter-affidavit, there is no such averment. Since the petitioner has been retired from service without consideration of promotion to the post of Junior Engineer, therefore, the respondents were directed to regularZe the petitioner in service from the date, he became eligible and grant him all such benefits to which he was entitled. 7. The petitioner filed a Supplementary-affidavit bring on record, the order dated 18.11.1997, passed in Writ Petition No. 25022 of 1997, Rajveer Singh v. Chief Engineer, Minor Irrigation Department, wherein, the petitioner was not considered for regularZation on the post of Junior Engineer in the Minor Irrigation Department and he is retired and therefore, this Court directed the regularZation of his services in terms of Rule-4 of U.P. RegularZation of Adhoc Promotions (On Posts with in Purview of Public Service Commission) Rules, 1988. The petitioner also brought on record the List of Boring Technicians, who were selected by the Public Service Commission, for promotions to the post of Junior Engineer, even after retirement between the years 2010-2012 without consideration of their promotion. 8. This Court vide order dated 8.7.2013, allowed this writ petition of the petitioner, which was challenged by way of Special Appeal No. 1336 of 2013. 8. This Court vide order dated 8.7.2013, allowed this writ petition of the petitioner, which was challenged by way of Special Appeal No. 1336 of 2013. The aforesaid Special Appeal was allowed by the order dated 31.3.2014 on the ground that the earlier order of this Court was passed only on the basis of the statement of the Counsel for the petitioner that the petitioner has retired and is getting the retiral benefits and therefore, the writ petition was allowed upholding entitlement of the petitioner for post retiral dues, without examining the merits of the petition. 9. The Counsel for the petitioner and the Standing Counsel have been heard at length. The learned Counsel for the petitioner has stated that when the petitioner was given temporary appointment in the year 1980, there were no service rules for promotion of the Boring Technician to the post of Junior Engineer and certain Government orders were holding the field and they provided that the employees, who have worked on promotional posts on ad-hoc/temporary basis for 3 years shall be considered for regularZation on the post. Even in the Rule of 1988, the 3 years period of working on promotional post was there, but the powers of promotional selection were given to a Committee duly constituted under the provisions of the Rules. He further contents that the petitioner’s entitlement to confirmation on promotional post has arisen in view of the Government Orders dated 4.6.1975. 18.6.1978 and 30.3.1979, which were on record of the writ petition, but he was never considered for regularZation even after he worked on substantively vacant post of Junior Engineer from 20.6.1980 to 25.4.1985. The petitioner was discriminated while his juniors were promoted. Later, this Court, in the case of an employees of the Minor Irrigation Department, namely Rajveer Singh in Writ Petition No. 25022 of 1997, directed that the petitioner, who was not considered for timely promotion and has retired without consideration of his regularZation in service, shall be regularZed in service from the date of his entitlement. The petitioner has also been retired from service on 28.2.2001, when in terms of Rule-4 of U.P. RegularZation of Ad-hoc Promotions (On Posts with in Purview of Public Service Commission) Rules, 1988, he was required to be considered for promotion on the post of Junior Engineer on confirmed basis. The petitioner has also been retired from service on 28.2.2001, when in terms of Rule-4 of U.P. RegularZation of Ad-hoc Promotions (On Posts with in Purview of Public Service Commission) Rules, 1988, he was required to be considered for promotion on the post of Junior Engineer on confirmed basis. Therefore, the argument of the learned Counsel for the respondent that the petitioner was not entitled to be confirmed on account of his appointment being of temporary nature and in stop gap arrangement cannot be accepted. The petitioner rendered long service on the permanent post of Boring Technician and then on the post of Junior Engineer on ad-hoc basis, from the year 1965 to 2001, without ever being considered for regular promotion on the post of Junior Engineer, when he has stated that, one Sonebhadra Sharma, who was also selected alongwith the petitioner as Boring Mechanic was promoted on the post of Junior Engineer and one Shailendra Singh, who was sent for training alongwith the petitioner was also confirmed on the post of Junior Engineer, but he was denied confirmation on the post and reverted there from. In paragraph No. 8 of the Counter-affidavit, the respondents admitted Sri Shailendra Singh has been promoted and confirmed on the post of Junior Engineer but he is not being paid his salary. No reason has been given, why Sri Shailendra Singh is not been paid his salary even after promotion. 10. Therefore, it is clear that the petitioner’s case is of denial of opportunity of promotion from the respondents. This Court in Writ Petition No. 25022 of 1997 by order dated 18.11.1997 has directed regularZation and payment of post retiral dues of the employee, deprived of the regularZation in service on the post of Junior Engineer from the date of his entitlement. 11. Even, if the petitioner had not worked on the promotional post, he could have been granted notional promotion since he was not considered for promotion to the promotional post for no fault on his fault, but on account of the fault of the authorities concerned and arrears of pay and allowances were payable to him as per the law settled in the case of Food Corporation of India v. S.N. Nagarkar, AIR 2002 SC 208 . 12. 12. Hence the orders dated 24.4.1985 and 29.4.1985, passed by District Magistrate, Jalaun and Executive Engineer (Minor Irrigation), Jalaun at Orai, whereby, he was reverted from the post of Junior Engineer (Minor Irrigation) Orai, to the post of Boring Mechanic are hereby quashed. The respondent No. 2, Chief Engineer, Minor Irrigation Department, U.P. Lucknow is directed to regularZe the services of the petitioner, on the post of Junior Engineer in Minor Irrigation Department, w.e.f., the date Sri Shailendra Singh, co-employee of the petitioner was regularZed on the post of Junior Engineer and pay his post retirement dues accordingly alongwith the arrears with simple interest @ 7% per annum from the date they fell due. 13. The writ petition is allowed. No order as to costs.