Court No. - 2 Case :- SERVICE SINGLE No. - 3381 of 2010 Petitioner :- Arjun Singh Kushwaha Respondent :- State Of U.P.Through The Secy. Govt. Of U.P.Lko.And Ors. Petitioner Counsel :- Alok Mishra Respondent Counsel :- C.S.C. Hon'ble Devendra Kumar Arora,J.
Reserved
Heard learned counsel for parties and perused record.
By means of this writ petition, petitioner has prayed for a writ
in the nature of certiorari for quashing of the impugned order
dated 07.05.2010, contained in Annexure No. 1 to the writ
petition. The petitioner has further prayed for a writ in the
nature of mandamus commanding the opposite parties not to
give effect the impugned order dated 07.5.2010 and to
reinstate him with full consequential benefits as well as to
allow him to work on the post of Driver as usual and to pay
his salary as and when the same falls due.
Submission of learned counsel for the petitioner is that the
opposite parties issued an advertisement dated 29.6.2007 for
inviting applications for appointment against 43 vacancies of
driver. The clause 6 of the advertisement provides that a
candidate should have driving license to his credit for at least
preceding three years from the date of notification of the
vacancies and he should have also passed Class VIII from the
recognized institution. The petitioner in pursuance of the
advertisement applied against the post of driver annexing all
the relevant documents including the driving license. The
petitioner was called for driving test and at the time of driving
test his driving license was also examined by the authority
concerned who conducted the driving test and after passing
the driving test petitioner was declared successful. The
petitioner was called for interview vide letter dated
28.11.2007 along with the educational certificate and the
driving license with one extra copy of the same. The
petitioner was issued appointment order on 9.1.2008 under
the signature of opposite party no. 2 (Vishesh Sachiv Evam
Rajya Sampati Adhikari). In para 3 of the Appointment Order
it has been mentioned that if any difference is found in
documents or certificates annexed along with the application
form regarding education, age, caste then the appointment
will be cancelled without giving any opportunity of hearing.
The petitioner in pursuance of the appointment order joined
on 16.1.2008 and till date he is working to the entire
satisfaction of the higher authorities. The petitioner was
shocked to the receive show cause notice on 17.4.2010
requiring him to submit his reply as to why his services may
not be terminated on the ground of false declaration regarding
his fulfilling of his requisite qualification. The petitioner
submitted his reply on 26.4.2010 and in para 27 of the same it
has been specifically mentioned by the petitioner that he has
not committed any fraud or misappropriation. It was also
submitted by the petitioner that all the original records
including the driving license were checked at the time of
driving test and again at the time of interview. But, without
appreciating reply of the petitioner in correct prospective, the
impugned order has been passed terminating the services of
the petitioner on the basic ground that at the time of
advertisement dated 29.6.2007 the driving license of the
petitioner was not of three years’ standing. It was essential
that the driving license of the candidate should have three
years old. The petitioner did not fulfil the essential eligibility
and as such appointment of the petitioner was void ab initio
and accordingly services of the petitioner were terminated
with immediate effect.
Submission of learned counsel for the petitioner is that the
advertisement did not prescribe any fix period of experience
of driving.
The candidate was only required to have driving license to his
credit for at least three years standing from the date of
advertisement. In other words, it can be said that the
candidate ought to have possessed three years’ old driving
license. The petitioner was issued the driving license on 4th
March, 2005 and admittedly Driving License of the petitioner
was not of three years preceding from the date of
advertisement of the vacancies but in due course of time, the
driving license of the petitioner has become about five years’
standing.
Learned counsel for the petitioner has placed reliance upon a
decision of Hon’ble Supreme Court reported in (1979) 1 SCC
168, Ram Sarup V. State of Haryana and Ors.
Para 3 of the same reads as under:-
“The question then arises as to what was the effect of breach
of clause (1) of Rule 4 of the Rules. Did it have the effect of
rendering the appointment wholly void so as to be completely
ineffective or merely irregular, so that it could be regularized
as and when the appellant acquired the necessary
qualifications to hold the post of Labour-cum-Conciliation
Officer. We are of the view that the appointment of the
appellant was irregular since he did not possess one of the
three requisite qualifications but as soon as he acquired the
necessary qualification of five years’ experience of the
working of Labour Laws in any one of the three capacities
mentioned in clause (1) of Rule 4 or in any higher capacity,
his appointment must be regarded as having been
regularized. The appellant worked as Labour-cum-
Conciliation Officer from January 1, 1968 and that being a
post higher than that of Labour Inspector, or Deputy Chief
Inspector of Shops or Wage Inspector, the experience gained
by him in the working of Labour Laws in the post of Labour-
cum-Conciliation Officer must be regarded as sufficient to
constitute fulfillment of the requirement of five years’
experience of Rule 4. The appointment of the appellant to the
post of Labour-cum-Conciliation Officer, therefore, became
regular from the date when he completed five years after
taking into account the period of about ten months during
which he worked as Chief Inspector of Shops. Once his
appointment became regular on the expiry of this period of
five years on his fulfilling the requirements for appointment
as Labour-cum-Conciliation Officer and becoming eligible
for that purpose, he could not thereafter be reverted to the
post of Statistical Officer. The order of reversion passed
against the appellant, was, therefore, clearly illegal and it
must be set aside.”
On the strength of the aforesaid observations of the Hon’ble
Supreme Court it has been submitted by learned counsel for
the petitioner that petitioner’s appointment cannot be said to
be void on account of the fact that he was not having driving
license of three years prior to the date of advertisement and
the same at the most can be said to be irregular and with
passage of time that irregularity get cured as now petitioner’s
driving license has become approximate five years old. It is
also submitted that appointment of one Pramod Kumar Tharu
who was also appointed as a Driver like petitioner in Rajya
Samnpatti Vibhag, was challenged by Jagjivan Ram, Kadir
Bux and Ishrat Ali, the class IV employees of the Department
by way of filing a writ petition no. 1699 (SS) of 2008 before
this Court on the ground that he (Pramod Kumar Tharu) was
not having the requisite qualification as per the
advertisement. In the said writ petition, an interim order was
passed on 31.3.2008, directing the opposite parties to file
reply to the averments made in paras 2, 3 and 27 and it was
provided that the continuance of the opposite parties no. 4 to
9 (Pramod Kumar Tharu was arrayed as opposite party no. 9
therein) shall abide by the final order passed by the Court.
The said writ petition is still pending. It is further submitted
by learned counsel for the petitioner that it appears that in the
said writ petition personal affidavit of Rajya Sampatti
Adhikari was called for and in order to save his skin a show
cause notice was issued to the petitioner and other similarly
situated persons and after receipt of their respective replies by
means of impugned order petitioner’s services were
terminated on the ground that the driving license of the
petitioner was not of three years’ standing at the time of
advertisement.
Learned Counsel for opposite parties, while opposing the writ
petition, submitted that the petitioner was not having the
prescribed qualification and, as such, his selection was illegal
and therefore before taking any action a show cause notice
was issued in order to provide opportunity and after
considering the reply of the petitioner the impugned order
was passed. As such there is no illegality in the impugned
order.
I have considered the submissions of the learned counsel for
the respective parties and gone through the recall.
It is admitted position that the petitioner possess education
qualification and he has also possess the driving license but
the same was not three years old on the date of notification of
the vacancies. The petitioner is working on the post of driver
since January, 2008 and now petitioner’s driving license is
about 5 years standing. In writ petition no. 1699 (SS) of 2008,
Jagjeewan Ram and others V. State of U. P. and others the
appointment of Pramod Kumar Tharu has been challenged
and this Court by means of order dated 31.3.2008 provided
that the appointment of the Pramod Kumar Tharu (respondent
no. 9) shall abide the final orders passed by this Court in the
said writ petition.
In view of the above, I am of the considered view that since
the petitioner was working as Driver with the opposite parties
w.e.f. January, 2008 without any complaint and presently his
driving license is about five years’ standing and at the time of
driving test and joining, the opposite parties themselves
checked the documents including the driving license and
allowed the petitioner to join on the post of Driver, hence, it
cannot be said that petitioner has concealed any fact or record
from the opposite parties. As such, a case for interim relief is
made out.
Let counter affidavit be filed within four weeks. Rejoinder
Affidavit, if any, may be filed within a week thereafter. List
alongwith Writ Petition No. 1699 (SS) of 2008, Jagjeewan
Ram & others vs. State of U. P. & others in the month of
September, 2010.
In the meantime, the impugned order dated 07.05.2010,
contained in Annexure No. 1 to the writ petition will be kept
in abeyance and petitioner will be allowed to perform his
duties on the post of Driver.
Order Date :- 22.7.2010
ashok