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Reserved
Civil Misc. Writ Petition No. 38243 of 2002
Devendra Kumar Singh
Versus
The State of U.P. and others
Connected with
Civil Misc. Writ Petition No. 38242 of 2002
Mangleshwar Prasad
Versus
The State of U.P. and others
Hon'ble V.K. Shukla, J.
Present writ petitions have been filed by the petitioners for issuing a writ
in the nature of mandamus commanding respondent Nos. 1 and 2 to regularize
the services of the petitioners on the post of Accountant Grade-I and to ensure
payment of salary to them for the said post with effect from 05.09.1990 and
13.07.1992, respectively.
Since both the writ petitions involve common questions of law and fact,
and the parties having agreed, both have been taken up together for final
hearing and disposal with the consent of the parties; and Civil Misc. Writ
Petition No. 38243 of 2002 is being taken as leading case.
Brief background of the case, as mentioned in the writ petition, is that the
petitioner passed U.P. Nagar Palika Accountant Examination in the year 1983,
wherein he was selected and appointment letter was issued to him on
25.07.1989 with direction to join at Maunathbhanjan, but as he could not join
there, he was posted at Kairana, District Muzaffar Nagar, and thereafter, he
was transferred to Nagar Mahapalika, Varanasi. On 03.07.1995, petitioner
represented the matter for payment of salary of Accountant Grade-I, as he had
been working on the said post, but was being paid salary of the post of
Accountant Grade-II. Petitioner has stated that though he was appointed as
Accountant Grade-I, but neither salary has been paid to him for the said post
nor have his services been regularized on the said post. With this compliant
the aforesaid writ petitions have been filed.
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Counter affidavit has been filed, and therein plea has been taken that the
petitioner had been appointed purely on temporary and ad hoc basis under
Rule 31 of the U.P. Palika (Centralized) Service Rules, 1966. It has been
stated that the petitioner was appointed as Accountant Grade-II in the pay
scale of Rs.360/-; joined in the said capacity and was transferred to various
places and salary had also been paid accordingly; petitioner cannot be
ensured salary of the post of Accountant Grade-I, as his appointment had not
been made on the said post. It has also been stated that since the petitioner
was appointed as Accountant Grade-II, functioned as such, remuneration had
also been for the same post, as such his services were also regularized as
Accountant Grade-II. In this background, it has been requested that the writ
petition is liable to be dismissed.
Supplementary counter affidavit has been filed, and therein, it has been
stated that by Government Notification dated 03.05.1983, the post of
Accountant Grade-II of Nagar Palika Parishads has been taken into
Centralized Service due to the reason that promotional quota in the same was
negligible and accordingly, proposal was made to the State Government. The
Director, Local Bodies pursuant to letter dated 03.06.1987 in respect of making
ad-hoc appointment and temporary appointments on 20.10.1987 sent letter
and thereafter based on the said directives communication was sent and
incumbents had been offered appointment in the pay scale of Rs.485/-. In
compliance of the decision taken by State Government, the Selection
Committee firstly appointed the candidate mentioned at serial No. 6, and in the
same manner, the Selection Committee appointed the candidates placed at
serial Nos.7, 11, 15, 22, 23 and 25, who have been working on the post of
Accountant Grade-II in different Nagar palika Parishads. Thereafter, the
employees were given appointment as Accountant Grade-I.
Impleadment application has also been filed and the same has been
allowed. Supplementary affidavit, supplementary counter affidavit and rejoinder
affidavit have also been filed. After pleadings inter se parties have been
exchanged, present writ petition has been taken up for final hearing and
disposal.
Sri Ashok Khare, Senior Advocate, assisted by Sri H.N. Singh and Sri
Ranjan Srivastava, Advocates, contended with vehemence that in the present
writ petitions, appointment of petitioners had been approved for the post of
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Accountant Grade-I, as such they were entitled to receive remuneration for the
said post as others of same selection have been appointed and their services
were also liable to be regularized accordingly.
Countering the said submissions, learned Standing Counsel, on the
other hand, contended that the list which had been approved, therein no
distinction was drawn as Accountant Grade-I or Accountant Grade-II; the offer
of appointment was purely temporary and adhoc, and the same had been
accepted by the petitioners without raising any grievance, and after having
acquiesced to the same, as an after thought, challenge has been made to the
same. After their services had been regularized on the post of Accountant
Grade-II, at no point of time said order had been challenged, as such at this
stage no such relief can be claimed or accorded.
After respective arguments have been advanced, factual position which
emerges in the present case is that selection and appointment on the post of
Accountant in Nagar Palika Parishads is governed by the provisions of U.P.
Palika (Centralized) Service Rules, 1966. Part III of the aforesaid Rules deals
with recruitment; rule 6 thereof deals with the source of recruitment, absorption
and determination of service of existing officers and servants. Part V deals with
procedure for direct recruitment. Rule 15 thereof provides for communication of
number of vacancies. Rule 16 deals with applications for recruitment to the
Centralized Services Rule 17 deals with the mode of recruitment, scrutiny of
applications and interview etc. by the Commission. Rule 19 talks of approved
list. Rule 21 talks of regularization of adhoc appointees, it has been introduced
by way of amendment through U.P. Palika (Centralised) (21st Amendment)
Service Rules, 2003. Rule 31 deals with adhoc, temporary and officiating
appointments.
In the present case undisputed position is that at no point of time any
selection proceedings had been undertaken by the U.P. Public Service
Commission and the selection proceedings which had been undertaken were
for the post of Accountant under Rule 31 of 1966 Rules, which empowers the
State Government to make adhoc, temporary or officiating appointments
against substantive and temporarypost. The list which had been finalised by
the State Government, at no place it reflected that it was in reference to
Accountant Grade-I or Accountant Grade-II; rather said list had been finalised
pursuant to letter of the Director dated 20.10.1987, and same clearly
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mentioned that from the said list appointments of Accountant Grade II shall
also be made, and the way and manner, in which, preference was to be
accorded had also been given. Names of the candidates mentioned at serial
Nos. 1 to 42 were approved for making appointment on purely adhoc and
temporary basis strictly as per the preference provided therein. Petitioners and
others accepted the said appointment without raising any grievance on the
post of Accountant Grade-II and started functioning in the said capacity. It
appears from the record and in the year 1995 after having put in six years in
service, claim was sought to be made for according the scale of Accountant
Grade-I. The claim of the petitioners cannot be accepted, inasmuch as,
appointment in question was purely temporary by way of stop gap
arrangement, and the appointment letter which had been issued, clearly and
categorically mentioned that appointment offered to the petitioners was on the
post of Accountant Grade-II, which the petitioners accepted without raising any
grievance. The State Government while accepting the said proposal had given
direction, as per which appointments were to be offered, and it is not at all case
of the petitioners that the said directives had ever been breached. Preference
has been given to Scheduled Caste Employee and further to eligible
candidates who were already wormking as accountant in Shreni-II of Nagar
Palika Parishad, in the matter of adhoc/temporary appointment as Accountant
Grade-II. The fact of the matter is that the petitioners accepted said temporary
and adhoc appointments as Accountant Grade-II without raising any grievance
or objection, whatsoever, and thereafter as an after thought, they have started
raising such claim/grievance, which cannot be accepted in the facts of the
case, as petitioners’ appointment has been considered for regularization under
Rule 21 of 1966 Rules, and they have been absorbed as Accountant Grade-II,
as such, in the facts of the case relief claimed cannot be accorded.
Consequently, present writ petitions lacks substance and the same are
dismissed.
SRY
22.01.2010