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2023 DIGILAW 800 (ALL)

N. Haider v. A. S. O. C.

2023-03-24

SAURABH SRIVASTAVA

body2023
JUDGMENT : 1. Heard Shri Mata Prasad, learned counsel for the petitioner and learned Standing Counsel for the State respondents. 2. It is case of the petitioner that he has been engaged for the post of Lekhpal (Consolidation) way back on 08.12.1987 as a substitute and on the basis of the work and experience his services were again accepted vide order dated 20.03.1989 under the short term vacancy for considering the training of the petitioner and the same has been considered at the later stage. 3. Certain matters of the similarly situated candidates who rendered their services for more than a year for the post of Lekhpal (Consolidation) the same has been considered in pursuance to the letter dated 25.03.1989 issued by the Commissioner (Consolidation), in lieu of the same the services of the petitioner has been again considered under the Stop Gap Arrangement vide order dated 20.05.1989. 4. Vide order dated 01.05.1991, in pursuance to the order dated 29.04.1991, the services of the petitioner came to an end which impugned the present petition. 5. While challenging the aforementioned order passed by respondent no. 1, the grounds relied upon by the counsel for the petitioner as narrated in the petition with regard to the competency of the authority who passed the order dated 01.05.1991 it is alleged that the same is contrary to the Government Order dated 16.09.1988 circulated by the respondent no. 2 and the appointment of the petitioner was against the substantive vacancy and the same has been treated as Stop Gap Arrangement and after the passage of time the same has been confirmed also. 6. Per contra, the stand taken in the present petition has been diluted by the respondents by way of preferring the detailed counter affidavit wherein the prayer as made in the petition has been opposed on the ground that the services of the petitioner has never been regularized and the entire services whatsoever has been rendered by the petitioner is only on the basis of Stop Gap arrangement and under capacity of substitute arrangement. Moreover, after the order dated 01.05.1991 the continuance as mentioned by the petitioner over the same post was under the strength of interim orders of the Court. 7. So far as the Government Order dated 25.03.1989 is concerned, it has been stated by the learned counsel for the respondent, the same is misconstrued as a Government Order. Moreover, after the order dated 01.05.1991 the continuance as mentioned by the petitioner over the same post was under the strength of interim orders of the Court. 7. So far as the Government Order dated 25.03.1989 is concerned, it has been stated by the learned counsel for the respondent, the same is misconstrued as a Government Order. By bare perusal of the Annexure No. 5 to the petition which is said to be a Government Order is issued by the Consolidation Commissioner. The Authority under the business rules pertaining to the State of U.P. a Government Order is a specific orders issued under the signatures/instructions of the Chief Secretary/Additional Chief Secretary and at the time when the order has been passed way back in the year 1989, it is the Principal Secretary who was competent to pass any Government Order under the delegated power permitted by the Chief Secretary. 8. The narration of the petition does not disclose any statutory rights accrued in favour of the petitioner to be continued over the same post for a long time and as such, the indulgence made by the competent authority while issuing the order dated 01.05.1991 has been defended by the learned counsel for the respondents on the ground that the same was justified since perpetuating the continuance over the substantive vacancy in favour of the persons who has not been inducted as per proper procedure for recruitment over the post concerned may create complexities for those who have already inducted in the services over the same post after due process of law. 9. Learned counsel for the petitioner relied upon the orders passed during rendering services of the petitioner which have already been appended along with the supplementary affidavit as Annexure No. 2 available at page No. 50. Order dated 20.03.1999 through which the services of the petitioner declared as permanent subject to outcome of the pendency of the writ petition and thereafter the above mentioned order dated 20.03.1999 was passed by the Settlement Officer, Consolidation, District-Badaun in pursuance of the order dated 03.06.1991 passed by this Court through which the interim protection has been granted in favour of the petitioner with regard to only continuance of the services till 29.07.1991 and the same has been extended from time to time. 10. 10. During pendency of the present petition certain event took place in shape of dismissal of the petition and thereafter the Special Appeal has been preferred by the petitioner through which the matter has been restored and the same has been come up for adjudication on merits before this Court. 11. The reliance over the order dated 20.03.1991 is only for the conferment of services over post of Lekhpal on the strength of the interim protection as granted by this Court in favour of the petitioner, whereas on the precise query as made before the learned counsel for the petitioner with regard to the confirmation, regularization or the mandatory training which has been defined under the statutory provisions contained in the services of the Lekhpal (Consolidation) is concerned, the same are missing in the records meaning thereby the services of the petitioner has never ever been regularized by formal order passed by any of the competent authority of the responding department. 12. The basic principle of service law pertaining to the confirmation over the respective post against the substantive vacancy must be followed with the order of regularization. In the present case the petitioner had been inducted in services on 08.12.1987 under the capacity of substitute and later on continued till the impugned order dated 01.05.1991 in stop gap arrangement, the services of the petitioner were never been regularized and as such, the confirmation as defined by the service law does not take place. 13. In the instant matter, it is apparent from the records that the services of the petitioner has never ever been regularized by any of the competent authority after adopting the due process of law and as such, "Sthahi" (confirmation) cannot be treated as confirmation over the post whereas it is only upon the strength of the interim protection as granted way back in the year 1991 at the time of admission of the instant writ petition and the authority was conscious about the same and as such, the endorsement of this confirmation was subject to outcome of writ petition has been duly mentioned in the order dated 20.03.1999, which has been stated by the learned counsel for the petitioner as the order of confirmation over the respective post. 14. 14. After hearing the rival submissions advanced by the learned counsel for the parties, it is crystal clear that the services of the petitioner has been initiated and accepted over the post of Lekhpal (Consolidation) without adopting the due process of recruitment as prevailing in the year 1989 and after certain gaps the same were adjusted only on the basis of experience gained by the petitioner over the respective post by conduction and rendering the services for the similar nature. 15. By bare perusal of the different orders issued in favour of the petitioner for the post of Lekhpal (Consolidation) clearly shows that the services of the petitioner were taken only against the Stop Gap Arrangement or under substitute arrangement. 16. So far as regarding the "Sthahi (Permanent) is concerned, the same is only at the strength of the interim protection as granted in favour of the petitioner. 17. As discussed above, the words "permanent" so far as relating to services of any establishment are concerned, must be followed with the process of regularization which has to be culminated in shape of formal orders for regularization of services of any incumbent who has already been inducted in the services from any mode either its temporary/daily wager/work charge/contractual/ or as the case may be. 18. It has been informed by the learned counsel for the petitioner that under the strength of the interim order as passed by this Court at the admission stage the petitioner rendered his services up to the highest satisfaction of the authorities and attained the age of superannuation on 30.01.2014 and thereafter he is no more in services and as such, there is hardly any ground available for seeking any retiral benefit since the services of the petitioner has not been regularized and the order dated 29.04.1991 is justified. Learned counsel for the respondents has placed reliance upon the following judgments of the Apex Court:- 1. Dr. Chanchal Goyal (Mrs.) Vs. State of Rajasthan (2003) 3 SCC 485 . 2. Secretary, State of Karnataka and Others Vs. Umadevi and Others (2006) 4 SCC 1 . 19. It is made clear that the services of the petitioner has never been regularized by any specific formal order issued by the competent authority. The instant petition does not warrant any interference by this Court and is accordingly dismissed.