A.F.R. Court No. - 18 Case :- WRIT - A No. - 21226 of 1992 Petitioner :- Sunil Kumar Agarwal Respondent :- State Of U.P. & Others Petitioner Counsel :- Amit Sthalkar Respondent Counsel :- S.C.,M.M.D. Agarwal Hon'ble Arun Tandon,J.
Petitioner before this Court seeks quashing of the order dated 29.5.1992
whereunder the appointment offered to the petitioner as Assistant Lekha
Parikshak in Nagar Mahapalika, Kanpur vide order of the Mukhya Nagar
Lekha Parikshak, Nagar Mahapalika, Kanpur has been cancelled by the
Director, Local Bodies, U.P. Lucknow. Further prayer has been made that
the respondents may be directed to regularise the service of the petitioner.
Facts in short on record of this petition are as follows.
Petitioner was appointed as Sahayak Lekha Parikshak in the pay scale of
Rs. 420-735/- in the employment of Nagar Mahapalika, Kanpur on purely
temporary basis under order of the Mukhya Nagar Lekha Parikshak dated
6.6.1986. The order is on record as Annexure-4 to the writ petition which
recorded that exemption from the order of the Commissioner, Allahabad
Region, Allahabad, qua experience of two years working in the Accounts
Department of Local Bodies is to be obtained. The appointment so
offered to the petitioner has been cancelled under the impugned order
after recording that vide notification of the Government Order dated
3.5.1983, the post of Sahayak Lekha Parikshak has been brought within
the purview of the Mahapalika Centralised Services Rules and, therefore,
the Mukhya Nagar Lekha Parikshak had no jurisdiction/authority to offer
any such appointment. This Court finds that on 10.6.1987, the
Commissioner, Allahabad Region, Allahabad granted relaxation from two
years experience, in favour of the petitioner. A copy of the order in that
regard is enclosed as Annexure No. 5.
On behalf of the petitioner, supplementary affidavit has been filed on
8.4.2010. In paragraph 2, it is stated that under the U.P. Nagarpalika Seva
Order 1963 issued in exercise of powers under Section 106 read with
Section 109 of Mahapalika Adhiniyam qua, the Commissioner has been
conversed power to grant relaxation in the matter of essential
qualification prescribed. Copy of the Order 1963 has been enclosed as
Annexure SA-1. It has further been stated that on 30.4.2003, the State
Government has issued U.P. Palika Centralised Services 21st Amendment
Rules, 2003 which provide for regularisation of ad-hoc appointment on
centralised post. The case of the petitioner is squarely covered by the
aforesaid regularisation rules. Reference is also be made to the case of
Satya Priya Mishra, Dinesh Chandra Sharma and Sudhir Dutt Mishra who
are stated to be similarly appointed and the State Government has
directed that they should be regularized. Reliance has also been placed
upon by Division Bench Judgement of this Court in the case of Bharat
Sanchar Nigam Ltd vs. Brij Mohan Srivastava and another reported in
2002 (4) 610.
I have heard learned counsel for the parties and have examined the
records.
In the counter affidavit filed on behalf of the State respondents it has been
disclosed that the post of Assistant Audit Officer was brought within
Centralised Services vide Government order dated 3.5.1983, which fact
has not been disputed in the rejoinder affidavit. It is, therefore, apparent
that the post of Sahayak Lekha Parikshak become part and parcel of U.P.
Palika Centralised Services on 3.5.1983 with the issuance of the said
Government Order. Accordingly, Section 112-A of the U.P. Nagarpalika
Adhiniyam, 1959 became applicable and nothing contained in Section
106-110 of the U.P. Nagarpalika Adhiniyam, 1959 would have any
application qua appointment on the post. The method of recruitment and
conditions of services to such centralised post is to be made as per the
Centralised Service Rules and is regulated by the State Government only.
What logically follows is that no appointment on a post within the
Centralised Services should be made by any of the authorities under
Section 106 and 110 of the Nagar Mahapalika Adhiniyam. Consequently,
the impugned order which records that on the date the petitioner was
appointed as Sahayak Lekha Parikshak. Mukhya Nagar Lekha Parikshak
had no authority to offer such appointment is legally correct. The Mukhya
Nagar Lekha Parikshak did not have any authority to offer appointment
on centralised service post.
Even otherwise it may be record that under Clause 8 of the U.P. Nagar
Seva order 1963 which is sheet anchor of the argument advanced by the
petitioner, relaxation from the required essential two years experience of
working on an account posts in a Local Body before the appointment is
made. The Commissioner, in fact, granted the relaxation in 1987 that year
after the appointment. It is therefore clear that on the date, the petitioner
was appointed, it was not by proviso to clause 8 of the order 1963 also.
This Court also finds that the petitioner is not entitled to be regularised
under Rule 21A of the Centralised Services Rules as amended in 2003, as
the petitioner was not appointed on ad hoc by a competent authority
referable to Rule 21-A. Rule 21-A provides for regularisation to be
considered the candidate must have been possessed of the prescribed
minimum qualifications. Admittedly in the year 1986 when the petitioner
was appointed on temporary basis, he was not possessed of prescribed
minimum qualification as per Rule 12 of the Centralised Service Rule.
Lastly, the plea of parity raised by the petitioner also does not appeal to
the Court. This court will not issue an order directing the respondents to
perpetuate an illegal appointment. The Apex Court has repeatedly held
that there can be no negative equality. (Ref. Ghulam Rasool Lone vs.
State of Jammu & Kashmir, JT 2009 (13) SC. 422).
Writ petition is dismissed. Interim order, if any, stands discharged.
Order Date :- 21.7.2010
Puspendra