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2020 DIGILAW 673 (ALL)

Ashok Kumar Singh v. U. P. P. C. L.

2020-03-03

ROHIT RANJAN AGARWAL

body2020
ORDER : Rohit Ranjan Agarwal, J. 1. Heard Sri Siddharth Khare, learned counsel for petitioner and Sri Abhishek Srivastava, learned counsel appearing for the Power Corporation. 2. This writ petition has been filed assailing the order dated 22.08.2014 passed by respondent No. 1 whereby the claim of petitioner for seniority as well as for grant of benefit of Old Pension Scheme has been turned down. Further, a writ of mandamus has been sought for extending benefit of increment and revision of pay-scale w.e.f. May 1996. 3. Facts, in brief, as disclosed in the writ petition, are that General Manager, Anpara-B, Thermal Power Project, Sonbhadra, which was a part of U.P. State Electricity Board, had issued an advertisement on 19.10.1992 and 20.10.1992 inviting applications for 93 posts of Supervisor (Thermal) for appointment at Anpara-B Thermal Power Plant at Sonbhadra. By corrigendum published on 31.10.1993 the post of Supervisor (Thermal) was redesignated as post of Junior Engineer (Thermal). Petitioners along with other candidates applied for the post of Junior Engineer (Thermal) (Mechanical). Interview was held by the Selection Committee between the period 27.06.1994 and 21.07.1994, in the said interview petitioners also appeared and qualified. It appears that, thereafter, a select list was prepared but was not published. From the said alleged list 38 persons were appointed as Junior Engineer (Thermal). 4. Petitioners along with two other candidates approached this Court through writ petition No. 23555 of 1997 for a direction upon the respondent State Electricity Board to declare result of selection held pursuant to the advertisement dated 19.10.1993 and 20.10.1993. This Court on 12.01.2001 held that selection does not confer indefeasible right to be appointed and writ petition was dismissed. Against the said order, special appeal No. 139 of 2001 was filed and in the said appeal the Corporation was directed to produce relevant records qua the selection. It was found that result was prepared but was not published. It was also noted that petitioner No. 1 got 47 marks while petitioner No. 2 obtained 49 marks, the Court also observed that one Sudhir Kumar having scored lesser mark than the petitioners was offered appointment for which no explanation was furnished. On 21.04.2008 while deciding the special appeal, the Court directed the Appointing Authority to offer appointment to both the petitioners within one month from the date of production of certified copy of the order. On 21.04.2008 while deciding the special appeal, the Court directed the Appointing Authority to offer appointment to both the petitioners within one month from the date of production of certified copy of the order. Pursuant to the same, Deputy General Manager, U.P. Rajya Vidyut Utpadan Nigam Limited issued appointment order on 30.06.2008, the same has been brought on record as Annexure Nos. 6 and 7 to the writ petition. 5. Thereafter, petitioner No. 1 joined the respondent Nigam on 24.07.2008, while petitioner No. 2 joined on 16.07.2008 at Anpara Thermal Power Project as Junior Engineer (Mechanical). Their services were regularized vide order dated 23.04.2011 w.e.f. 17.12.2010. It appears that the regularisation order dated 23.04.2011 was modified on 11.11.2013 and the services of the petitioners stood regularized from 16.12.2010. Once the services of the petitioners stood regularized they sought seniority on the basis of appointment letter which provided that the same shall be in accordance with the names of the persons falling in the merit list, however, it shall be effective after regularisation. Petitioners claimed that they were placed at serial Nos. 47 and 49 respectively in the select list and one Sudhir Kumar who was appointed prior to them was at serial No. 52 in the merit list was promoted as Assistant Engineer (Mechanical) on 23.02.2006. 6. Further, petitioners claimed that they are entitled for the pension governed under the Old Pension Scheme as the delay in issuing the appointment orders was due to arbitrary action of the respondent authorities and they cannot be denied the said benefit. Ventilating their grievance number of representations were moved by the petitioners and when they were not addressed by the respondent authorities, they approached this Court through writ petition No. 28247 of 2014. This Court on 21.05.2014 directed the authorities to decide the claim of petitioners. By the order impugned dated 22.08.2014 the representations moved by the petitioners were rejected. 7. Ventilating their grievance number of representations were moved by the petitioners and when they were not addressed by the respondent authorities, they approached this Court through writ petition No. 28247 of 2014. This Court on 21.05.2014 directed the authorities to decide the claim of petitioners. By the order impugned dated 22.08.2014 the representations moved by the petitioners were rejected. 7. Sri Siddharth Khare, learned counsel appearing for petitioners, submitted that pursuant to the advertisement published in the year 1993, petitioners alongwith other candidates were selected and placed in the merit list, one such candidate Sudhir Kumar, who was placed below the petitioners, at serial No. 52, in the merit list was given appointment but petitioners were not offered appointment as the select list was not published, thus petitioners alongwith other two candidates had approached this Court in the year 1997 for the declaration of result. As the said writ petition was dismissed in the year 2001, special appeal No. 139 of 2001 was preferred which ultimately resulted with a direction upon the respondent authorities in giving appointment to both the petitioners within a month. This order was passed on 21.04.2008, while Sudhir Kumar, being lower in merit, was given appointment in the year 1996 itself denying appointment to the validly selected candidates for no rhyme or reason for 12 years. 8. Sri Khare, invited the attention of the Court to the appointment letter issued on 30.06.2008, appended as annexure No. 6 to the writ petition, wherein clause 9 provides that seniority list shall be prepared on the basis of placement of the candidate in the merit list but the same shall be determined only after regularisation. He further submitted that the petitioners as well as Sudhir Kumar are from the select list of the year 1996 except the fact Sudhir Kumar was offered appointment in the year 1996, while the petitioners had to litigate before this Court for 12 years before getting the job in question and once their services stood regularized w.e.f. 16.12.2010 they are entitled for seniority as per select list of 1996. 9. 9. Second limb of argument of Sri Khare is that the Old Pension Scheme was applicable till 31.03.2005 and petitioners were selected pursuant to the advertisement of the year 1993 itself, though they were given appointment in the year 2008 but they are entitled for the Old Pension Scheme and the denial by the respondents was not justified. 10. Reliance has been placed upon a decision of Division Bench judgment of this Court rendered in case of Firangi Prasad v. State of U.P. and Ors., 2011 (2) UPLBEC 987 wherein this Court held as under; "10. The respondent-State appears to have filed a counter affidavit in the writ petition disputing the claim of the Appellant on the ground that the Appellant came to be appointed only on 25.08.1993, which is 19 days after the cutoff date mentioned in Section 33C of the Act, 1982 and therefore, the Appellant was not entitled to the benefit of the said provision. 11. Counter affidavit filed on behalf of the State did not dispute the allegation contained in the writ petition that the Appellant had been denied the letter of appointment by the Management in spite of repeated representations after his selection and the order of the District Inspector of Schools dated 18.01.1993. A supplementary affidavit has been filed by the Appellant bringing on record certain facts to dispute the correctness of the facts, which have been made basis by the learned single Judge to refuse the mandamus as prayed for. 19. The respondents cannot by their inaction, therefore, deprive a candidate of his or her legitimate right to claim continuance in service. It is, therefore, clear that there was a deliberate delay on the part of the Management in issuing the letter of appointment in the present case and accordingly, the right of the Appellant to claim continuance under the selection order dated 18.01.1993 cannot be denied. The appellant will, therefore, be entitled to the benefits flowing out of the order dated 18.01.1993 and in such a situation, the letter of appointment will relate back prior to the cut-off date i.e. 06.08.1993." 11. Reliance has also been placed upon decision rendered in Writ-A No. 55607 of 2008 [Kamlesh Kumar Sonakar v. State of U.P. and Ors. The appellant will, therefore, be entitled to the benefits flowing out of the order dated 18.01.1993 and in such a situation, the letter of appointment will relate back prior to the cut-off date i.e. 06.08.1993." 11. Reliance has also been placed upon decision rendered in Writ-A No. 55607 of 2008 [Kamlesh Kumar Sonakar v. State of U.P. and Ors. (AIR Online 2019 All 2260).] wherein a recruitment of Junior Engineer (Civil), Irrigation Department held pursuant to the advertisement published in the year 2002 wherein candidates were selected, out of which some were granted appointed prior to 01.04.2005 while several candidates joined after 01.04.2005, and it was the candidate who had joined subsequent to 01.04.2005 claimed that they are also entitled for the benefit of Old Pension Scheme as by notification the Old Pension Scheme stood discontinued from 01.04.2015. This Court on 19.12.2019 relying upon the decision of Firangi Prasad (supra), has granted the said benefit of Old Pension Scheme to those candidates, who were given appointment subsequent to 01.04.2005. 12. Learned counsel for petitioner also relied upon decision of Apex Court in case of Surendra Narain Singh and others v. State of Bihar and others (1998) 5 SCC 246 : ( AIR 1998 SC 1841 ): (1998 Lab IC 1864). Relevant paras 17, 20, 24 and 25 of the judgment are extracted here asunder: "17. It was then urged that the BPSC and the State Government have no owner to convert 33 vacancies of SC/ST into general category. These vacant posts according to the learned counsel for the appellants ought to have been carried forward. This submission does not appeal to us for the reason that there is no provision under the 1955 Rules to carry forward the vacancies/posts reserved for SC/ST. In the absence of any such provision under the 1955 Rules, it was not permissible for the BPSC or the State Government to adopt such courses. This submission does not appeal to us for the reason that there is no provision under the 1955 Rules to carry forward the vacancies/posts reserved for SC/ST. In the absence of any such provision under the 1955 Rules, it was not permissible for the BPSC or the State Government to adopt such courses. It is true that the BPSC after submitting the original list of 152 candidates from general category, 10 from SC and 5 from ST categories corresponded with the State Government to convert these 33 vacancies/posts of SC/ST to general category and in that process, the Government ultimately took a decision converting these 33 vacancies/posts of SC/ST to general category in 1976 and only thereafter the BPSC submitted the supplementary list of 33 candidates from the merit list to the State Government for appointment as Munsiffs. In the absence of any provision under 1955 Rules to carry forward the SC/ST vacancies/posts and in view of mandate or Rule 20, the BPSC was obliged to nominate the candidates from the merit list to the vacant posts reserved for SC/ST. The nominations and appointments of Respondents 3 to 34 (32) candidates was delayed till 1976 because a supplementary list was not prepared because of some misconception of law for which these respondents cannot be blamed. It is in these circumstances, we are of the considered view that Respondents 3 to 34 belonging to the batch of 15th Examination held under 1955 Rules in 1974 will have to be given the placement in the seniority list in terms of the merit list. The appellants in Civil Appeals Nos. 1381-84 of 1991 were admittedly selected and appointed as Munsiffs pursuant to the 152 posts advertised on 14.10.1974 under the 1974 Rules after the 15th Examination was held under 1955 Rules. These appellants, therefore, cannot claim the seniority over Respondents 3 to 34 in the seniority list. 20. Mr. Tripathy relying upon this order urged that only such of the candidates who were selected under the 15th Examination and whose appointments were delayed on account of medical examination and police verification of antecedents alone would be entitled to claim seniority on the basis of their rank in the merit list of the 15th Examination. 20. Mr. Tripathy relying upon this order urged that only such of the candidates who were selected under the 15th Examination and whose appointments were delayed on account of medical examination and police verification of antecedents alone would be entitled to claim seniority on the basis of their rank in the merit list of the 15th Examination. He further urged that any appointment other than two categories referred to in the above quoted order of this Court, from the Select List of 15th Examination made subsequent to 23-5-1975 must rank in the seniority according to length of service from the date of actual appointment. As far as the first part of the order is concerned, there does not seem to be any difficulty in following the same. On the second part, namely, anyone appointed subsequent to 23-5-1975 on account of their being no vacancy will rank in the seniority according to the length of service from the date of actual appointment. What is the meaning of this second part of the order? We have already held that the Respondent 3 to 34 belonged to the batch of 15th Examination held under the 1955 Rules and if the supplementary list nominating their names would have been sent along with the main list prepared in terms of Rule 19, then obviously there would have been no difficulty. These Respondents 3 to 34 would have been appointed along with the other 158 candidates between 18-3-1975 and 22-5-1975. The difficulty arose because the supplementary list nominating the Respondents 3 to 34 came to be forwarded after 23-7-1975. Should they suffer for no fault of theirs? Answer is obviously in the negative. 24. For the foregoing conclusions, we are of the view that Respondents 3 to 34 who were appointed to the vacancies of 15th Examination under 1955 Rules will have to be given seniority over the appellants in Civil Appeal Nos. 1381-84 of 1991, although they came to be appointed later than 23-5-1975 but against 33 vacancies which were then existing to which these appellants had no right. 25. Coming to Civil Appeal Nos. 1385-86 of 1991 filled by two appellants who belonged to the reserved category, were selected in the 15th Examination under 1955 Rules and were appointed between March, 1975 and 22-5-1975. Admittedly, they were below Respondents 3 to 34 in the merit list. 25. Coming to Civil Appeal Nos. 1385-86 of 1991 filled by two appellants who belonged to the reserved category, were selected in the 15th Examination under 1955 Rules and were appointed between March, 1975 and 22-5-1975. Admittedly, they were below Respondents 3 to 34 in the merit list. As stated earlier, the merit list of the selected candidates forwarded by the BPSC was required to be adhered to and there could be no change in the merit list. Consequently, these appellants cannot claim seniority over Respondents 3 to 34. The claim of the appellants is therefore without any merit." 13. On the other hand, Sri Abhishek Srivastava, learned counsel appearing for the respondent Nigam submitted that petitioners had joined on 24.07.2008 and 16.07.2008, respectively in pursuance to decision of this Court dated 21.04.2008 and final examination after training was organised on 21.09.2010 and results were declared on 16.12.2010, thus, they cannot claim seniority from the year 1996. Further, under the U.P. State Electricity Board Servants Seniority Regulation, 1998, seniority would be considered from date of substantive appointment and as selection year, training and appointment of petitioners are different from the person from whom they are claiming, therefore, Rule 5 was not applicable, as they were not in service until year 2008. 14. Appointment letter of petitioner itself provided condition in Para 5 (B) (V) that rules and regulations which were in effect on the date of appointment will govern the services and further Clause 5 (d) (1) provided that C.P.F. Regulations will apply to them, thus, no question for claim of old pension arises, as petitioners themselves had accepted the condition and legal provisions provided in the appointment letter. 15. Further, Sri Srivastava contended that U.P.S.E.B was divided into three companies incorporated under the Companies Act, 1956 and as per Transfer Scheme, 2000 framed by State Government, the rights of only those persons who were appointed and working in the previous Board had been given benefit of not be affected by new rules and regulations, as may be framed/adopted by new companies. As petitioners were appointed in new company namely, U.P. Rajya Vidhyut Utpadan Nigam Ltd., therefore, they cannot seek seniority against persons who had been appointed in U.P.S.E.B, prior to 2000. 16. As petitioners were appointed in new company namely, U.P. Rajya Vidhyut Utpadan Nigam Ltd., therefore, they cannot seek seniority against persons who had been appointed in U.P.S.E.B, prior to 2000. 16. It was also brought to the notice of the Court that U.P. State Electricity Board Servants Seniority Regulations, 1998, as amended vide Office Memorandum No. 08, dated 07.01.2010 specifies the provision/procedure of seniority in Regulation No. 8, that "Where according to the Service Regulations appointment are made both by promotions and by direct recruitment, the seniority of the persons appointed shall, subject to the provisions of the following sub-rules, be determined from the date of the order of their substantive appointment, and if two or more persons are appointed together, in the order in which their names are arranged in the appointment order. "Provided that if the appointment order specifies a particular back date, with effect from which a person is substantively appointed, that will be deemed to be the date of order of substantive appointment and, in other cases it will mean, the date of issuance of the order." 17. As there is no mention of any particular back date in the appointment letter so issued, the substantive date of appointment in case of petitioners shall be deemed to be 24.07.2008 and 16.07.2008, respectively. 18. Further, petitioners being governed under Contributory Provident Fund (C.P.F.) scheme, applicable to employees at that time, and their services being non-pensionary, General Provident Fund (G.P.F.) scheme and family pension scheme had not been applicable to petitioners at the time of their substantive appointment. 19. Reliance has been placed upon a decision of Apex Court rendered in case of Satya Prakash v. U.P. Rajya Vidyut Utpadan Nigam Ltd. and others, Special Appeal No. 3353 of 2019, decided on 01.04.2019, wherein a candidate selected pursuant to advertisement of the year 1993 was given appointment to the post of Junior Engineer (Electrical), but the Court clarified that seniority would be determined only from the date, when he joins the services. Similarly reliance has also been placed upon decision of Apex Court in Special Appeal No. 6967 of 2013 : (AIR 2013 SC (Supp) 513), State of U.P. and others v. Ashok Kumar Srivastava and another. 20. I have heard learned counsel for the parties and perused the material on record. 21. Similarly reliance has also been placed upon decision of Apex Court in Special Appeal No. 6967 of 2013 : (AIR 2013 SC (Supp) 513), State of U.P. and others v. Ashok Kumar Srivastava and another. 20. I have heard learned counsel for the parties and perused the material on record. 21. The sole controversy hinges around the question whether appointment given to petitioners in the year 2008 pursuant to direction of this Court dated 21.04.2008 relates back to the year 1996, as other selected candidate of the merit list prepared pursuant to advertisement of the year 1993, wherein some persons were allowed to join in 1996, while some had to litigate before this Court or the Apex Court for a long period of time to get justice. 22. It is not in dispute that 93 posts of Supervisor (Thermal) was advertised in the year 1992 by erstwhile U.P.S.E.B. By corrigendum notice published on 31.10.1993, post of supervisor (thermal) was redesignated as Junior Engineer (Thermal). It is further not in dispute that result of the selection made to the said advertisement was never published, though a merit list was prepared. 38 candidates were given appointment, further one Sudhir Kumar, who was placed at lower in the select list, having secured lesser marks than petitioners was given appointment way back in the year 1996. 23. After a long drawn battle, petitioners ultimately succeeded in the year 2008 and Division Bench of this Court on 21.04.2008 while directing the appointing authority to offer appointment to petitioners within a month, categorically recorded that petitioner No. 1 was placed at Serial No. 47 while petitioner No. 2 was placed at Serial No. 49 and other candidate, Sudhir Kumar having secured lesser marks than petitioners was offered appointment and the Board came to offer appointment to less meritorious candidates, for which no explanation was furnished. 24. As U.P. Rajya Vidyut Utpadan Nigam Ltd. was one of three companies which were formed from erstwhile U.P.S.E.B, acquired the assets and liabilities from the same and further Transfer Scheme 2000 framed by State Government provided for rights of those persons who were appointed and working in the previous Board and had been given benefit, was not effected by new rules and regulations as may be framed/adopted by new company. The new company had also taken over the employees who were working in the erstwhile U.P.S.E.B. 25. The new company had also taken over the employees who were working in the erstwhile U.P.S.E.B. 25. As the advertisement of 1992/93 itself discloses that appointment was being made for Anpara-B Thermal Power Project, Sonebhadra, which was a generating unit of erstwhile U.P.S.E.B, petitioners in the year 2008 were given appointments pursuant to Court's order by the company formed for the power generation that is U.P.R.V.U.N.L. 26. The argument of Sri Khare that seniority was to be determined once services of petitioners stood regularised on the basis of merit list, has force to some extent as Clause 9 of appointment letter provides for the same. Petitioners being higher in the merit list were denied appointment without justification by U.P.S.E.B and this Court while deciding Special Appeal on 21.04.2008 had categorically held that respondents failed to furnish any explanation as to why person lower in merit was offered the job, ignoring meritorious candidates. The finding and judgment rendered by this Court was never subject to challenge by respondents Nigam and the same attained finality. 27. This Court while relegating back the matter on 21.05.2014 in Writ Petition No. 28247 of 2014 had directed respondent Nigam to decide the representation of petitioners by reasoned and speaking order, petitioners had raised specific objection/claim, seniority over Sudhir Kumar contending that once their special appeal was allowed and they were appointed in 2008, it relates back to appointment so made between August, 1994 to 1996, to which the answering respondents failed to decide the issue so raised through their order dated 28.08.2014. 28. The moot question which was to be decided by authorities was as to the fact that once petitioners were given appointment pursuant to directions of this Court for selection held in pursuant to advertisement of the year 1992/93, thus their seniority was to be determined according to Rule 5, as they were from the same merit list, the only fact was that some of candidates were given appointment between August, 1994 to May, 1996, while petitioners could get their claim fructified only on the indulgence of this Court in the year 2008, for which they were at no fault and the respondent Nigam completely failed to justify the denial of right of appointment as per merit list to petitioners. 29. 29. Decision of this Court in Firangi Prasad (supra) also hovers around the inaction of the State, depriving a candidate of his legitimate right, this Court held that the candidate was entitled to the benefits and letter of appointment will relate back prior to cut-off date. 30. Relying upon the said judgment in Kamlesh Kumar Sonakar (AIR Online 2019 All 2260) (supra), this Court while considering the question for grant of old pension scheme to candidates, who had appeared in same advertisement and some of whom were issued appointment letter before the cut-off date and some being given appointment subsequent to cut-off date, the Court held that those petitioners who were offered appointment after the cut-off date were entitled to the old pension scheme. 31. The respondents in the present case are trying to take shelter of fact that petitioners had been given appointment in the year 2008 and their services being regularised in the year 2010, thus, in view of amended regulation 2010, they are entitled for seniority from the date of substantive appointment but the question is that it was the denial by respondent authorities themselves that petitioners who were legally entitled for their appointment, for no rhyme and reason, were prevented of their legitimate right and after litigating for 12 long years, they succeeded to get appointed. 32. Moreover, respondents neither in the earlier round of litigation nor in the present case has been able to justify why appointment was not offered to petitioners in the year 1996 itself, when a person lower in merit to them was given appointment. It is a case where respondents themselves ought to be blamed for defeating the legitimate claim of petitioners, and thereafter, denying the benefits such as seniority and old pension scheme available prior to formation of new company. It is a case where respondents themselves ought to be blamed for defeating the legitimate claim of petitioners, and thereafter, denying the benefits such as seniority and old pension scheme available prior to formation of new company. The respondents could not deny the fact that petitioners were not given appointment pursuant to merit list prepared after the examination was held pursuant to advertisement for the post in question in the year 1992/93, once it is an admitted position that petitioners are part of the same advertisement/selection process, and the only factum being that they were given appointment after 12 years, after the intervention of the Court, for which they cannot be faulted upon, the stand of respondent Nigam cannot be accepted to the extent that appointment letter provided for Contributory Provident Fund scheme and once they have joined, they are bound by appointment letter. 33. Had petitioners be at fault for not complying certain terms and conditions or were not qualified and were given appointment after completion of any training then, respondents could be justified that no benefit can be extended to them as has been given and offered to earlier inducted candidates from the same advertisement, but in the present case, petitioners being placed higher in merit and for no fault of theirs were denied appointment and persons lower in merit were offered appointment for no rhyme and reason and till date the Nigam having failed to justify its stands for not extending the benefit and as to why person lower in merit i.e. Sudhir Kumar was offered appointment. 34. Reliance placed by respondents upon decision in case of Satya Prakash (supra) is not applicable in the present case, as in the said case the Apex Court had made it clear that seniority of the candidate would be determined only from the date when he joins the service, but in the present case no such rider was placed by the Court, while passing the order dated 21.04.2008, and moreover the Court had recorded the fact that respondents had failed to justify why petitioners were denied appointment though they were higher in merit than the person who was given appointment. 35. Thus the order impugned dated 22.08.2014 having failed to adjudicate upon issue as to why petitioners are not entitled to seniority from candidates selected from the same advertisement though they were given appointment at different point of time. 35. Thus the order impugned dated 22.08.2014 having failed to adjudicate upon issue as to why petitioners are not entitled to seniority from candidates selected from the same advertisement though they were given appointment at different point of time. Once it is found that respondents had discriminated and failed to follow the rules while giving appointments to the various candidates selected from the one and same advertisement, then respondents cannot deny to extend the benefit of seniority and other benefits so applicable for no fault of such candidates and their action having been decided in the Court of law and found to be discriminatory and non-judicious, the order impugned dated 22.08.2014 is unsustainable in the eyes of law and the same is liable to be quashed. 36. However, as far as the benefit of extending the old pension scheme, I find that this Court in Kamlesh Kumar Sonakar (AIR Online 2019 All 2260)(supra) while deciding the claim of some of persons appointed later to cut-off date had held that as benefit which was passed on to other candidates, who were selected from the same advertisement and were given benefit of old pension scheme, the candidates offered appointment later to the cut-off date were also entitled for the same relief. 37. In the present case as it was the unjustified action of the respondent Nigam who had deprived petitioners of their legitimate claim of appointment in the year 1996 itself when the scheme of old pension was applicable and was extended to other so selected candidates from the advertisement of the year 1992/93, petitioners are also entitled for the same, and the same cannot be defeated by wrongful denial of respondent in giving appointment at the right time. 38. With the aforesaid observation, writ petition stands allowed.