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Court No.24
Writ Petition No. 4411 (SS) of 1992
Ashok Kumar Srivastava and others ... Petitioners
Versus
The State of U. P. and others ... Opposite parties
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Hon'ble Rajiv Sharma, J.
Heard learned Counsel for the parties.
Through this writ petition, the petitioners prays for quashing
the orders dated 28.9.1991, contained in Annexure Nos.7, 8 and 9
of the opposite parties 3 to 6, whereby they have been confirmed
and the petitioners’ representation has been rejected and they
have been held to be juniors to the opposite party nos.3 to 6.
Further pray for quashing of the Rule 7 reproduced in para 28
holding it to be arbitrary and illegal and ultra vires has also been
made.
Brief facts of the petitioners’ case are that in December,
1985, the Controlling Chairman, U. P. Public Services Tribunal
(hereinafter referred to as the ‘Tribunal’ for the sake of brevity)
invited applications through Employment Exchange for
appointment on various Ministerial posts in the Tribunal. On
19.2.1986, the Controlling Chairman passed an order appointing
the petitioners 1 to 8 and one Smt. Mohini Misra on the posts of
Clerk-cum-Typist. Thereafter, the petitioner No.9 was also given
appointment to fill up the quota of Scheduled Caste category.
Subsequently, one Smt. Mohini Misra resigned her job and in her
place, petitioner No.10 was given appointment as his name was
already in the waiting list.
Petitioners’ Counsel further asserted that appointment of
the petitioners cannot be said to be ad hoc in nature as they faced
selection committee and full procedure for appointment on regular
basis was followed. In any case, the appointment of the
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petitioners was termed to be ad hoc only, because the petitioners
were not selected by the District Level Selection Committee and
therefore, on coming into force of the Government Order dated
24.6.1986 and subsequent Rules on 8.9.1986, the nature of
petitioners’ appointment automatically became regular as the
condition No.3 in the appointment order became redundant. The
appointment of the opposite parties 3 to 6 cannot be said to be
valid as the orders of appointment were passed by the competent
authority. The Controlling Chairman failed to appreciate that the
petitioners’ appointment was regular in nature. Further, the
Chairman committed an error in holding the petitioners junior and
failed to see that on the basis of continuous officiation, the
petitioners would become senior. No discrimination can be made
by the State Government in providing criteria for determination of
seniority of those appointed directly and of those appointed
through promotion.
On the other hand, learned Standing Counsel submits that
on 16.3.1985, the Government of U. P. in exercise of powers
conferred by the proviso to Article 309 of the Constitution enforce
vide notification No. 20/3/82, The Subordinate Offices Ministerial
Staff (Direct Recruitment) Rules, 1985 for regulating recruitment
of Ministerial Staff in the Subordinate Government Offices in the
State. This Rule also governed recruitment to all ministerial posts
in the Services Tribunal. The State of U. P. in Karmik Anubhag – 2
in exercise of powers conferred in proviso to Article 309 of the
Constitution of India have also framed and enforced with
immediate effect Uttar Pradesh Sew Adhikaran, Lipik Verg Sewa
Niyamawali, 1987 vide notification dated 1st July, 1987. These
Rules are exhaustive and contain details regarding recruitment to
substantive vacancy, its procedure, formation of Selection
Committee, probation period, confirmation, promotion, seniority
etc. These Rules are applicable at present to All Ministerial
Employees of Services Tribunal. When the representation of the
petitioners was rejected, U. P. Government Seniority Rules, 1991
were in force. At that time, the petitioners were placed on
probation, whereas the opposite parties 3 to 6 were confirmed.
The petitioners filed their writ petition after lapse of one year,
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therefore, the writ petition is barred by limitation.
Considered the submissions made by the learned counsel
for the parties and perused the record. Admittedly, when the
representation of the petitioners was rejected, U. P. Government
Seniority Rules, 1991 were in force. Therefore, the impugned
order has rightly been passed. Further, the opposite parties 3 to 6
were sponsored by the Employment Exchange for regular vacant
posts of Typists/Junior Clerks. The selection committee for
recruitment of all the petitioners was different to the selection
committee for recruitment of the opposite parties 3 to 6.
Therefore, the contention of learned counsel for the petitioners
that the selection committees for the petitioners and the opposite
parties were same or the nature of selection was identical is not
acceptable. Once the appointment has been accepted by the
petitioners, they should not raise their grievance that too after
lapse of six years. To clarify this point, it is reiterated that after
selection, the petitioners were joined in the year 1986, whereas
the representation of the petitioners was rejected in the year
1991. Subsequently, the writ petition was filed after one year from
the date of passing the impugned order. Therefore, I do not find
any illegality or infirmity in the impugned order and the writ
petition lacks merit.
Accordingly, the writ petition is dismissed.
Dt.3.2.2010
Lakshman/