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PETITIONER: RAM GANESH TRIPATHI & ORS.

       Vs.

RESPONDENT: STATE OF U.P. & ORS.

DATE OF JUDGMENT:       17/12/1996

BENCH: K. RAMASWAMY, G.T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T      NANAVATI, J.      Leave granted.      In spite of serious criticism by the High Court, in the earlier proceedings between the parties, that the Government had abused  its powers  and indulged  into  favouritism  and nepotism, the  Government has  again tries  to frustrate the legitimate rights  of the direct recruits in order to favour and protect  those ad  hoc promotees  who are  alleged to be relations  and   favourites   of   Ministers,   Members   of Legislative Assemblies  and Secretaries  to the  Government. The wrong  committed is  not only  required  to  be  set  at naught, but  the Government  also deserves  to be criticised for acting in that manner.      Even though  U.P. Palika  (Centralised)  Service  Rules (for short the Rules) were framed in 1966 for recruitment to the various  posts mentioned  therein and  even though under Rule 20  the posts  of Sahayak  Nagar Adhikaris  had  to  be filled  up   in  equal   numbers  by  promotion  and  direct recruitment,  the   Government  went   on  making   ad   hoc appointments to  those posts  for ten  years. Even  when the process of  recruitment for  the said  posts had  started in 1976 and  in all  14 persons  were selected  by  the  Public Service Commission  (hereinafter referred to as the PSC) the Government appointed  only four persons, selected candidates who were  not  given  appointments,  therefore,  filed  Writ Petition No.  279 of  1980 in the Allahabad High Court for a writ of  mandamus directing  the Government to appoint them. Pursuant to  the interim  order  passed  in  that  petition, Appellant  Nos.  4  and  13  and  other  regularly  selected candidates were  given appointments. In order to accommodate those direct recruits, the Government was really required to terminate  the  services  of  as  many  ad  hoc  appointees, including the  respondents. Instead of doing so, with a view to favour  them, the  Government promoted them to the higher posts of Up Nagar Adhikaris on ad hoc basis. The appellants, therefore, challenged  promotions of  those respondents  and other promotees by filling Writ Petition No. 2808 of 1980 in the Allahabad  High Court  on 4.3.82. The High Court allowed the writ  petition, quashed the promotion of the respondents

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and directed  the Government to prepare a seniority list and make promotion  to higher  posts of  Up Nagar  Adhikaris  in accordance with Rules 20 and 21 of the Rules. That order was challenged by  the State Government and ad hoc appointees in this Court but their special leave petitions were dismissed.      On 23.5.84,  the Government issued an order prescribing that only those who had permanently and substantively served in the  capacity of  Sahayak Nagar  Adhikaris for  six years will be  eligible for  promotion to  the posts  of Up  Nagar Adhikaris and  that only  those officers who had permanently served on  the posts of Up Nagar Adhikaris would be eligible for selection  grade for  those  posts  provided  they  have completed 15  years of  service as Up Nagar Adhikari/Sahayak Nagar Adhikari and five years‘ service as Up Nagar Adhikari. Thereafter, on  30.8.84, the Government inserted Rule 21A in the Rules for regularising the services of ad hoc employees. Again, on 20.11.84, the Government amended its earlier order dated 23.5.84 and provided that only those officers who have permanently or  substantively served  as Up  Nagar Adhikaris will be  eligible for the selection grade provided they have completed 15  years‘ service  as Up  Nagar  Adhikari/Sahayak Nagar Adhikari and five years‘ service as Up Nagar Adhikari. On 23.3.1995,  the Government  amended the seniority list of Sahayak Nagar  Adhikaris. It rightly included only those who were  directly   recruited  and  those  who  were  regularly promoted to  those posts.  Those who  were ad hoc appointees were not  included in  the said list. But soon thereafter on 17.5.85, the  Government, exercising  its  power  under  the newly introduced  Rule  21A,  regularised  the  services  of respondents and other ad hoc appointees. Even though regular appointees on  the posts  of Sahayak  Nagar  Adhikaris  were entitled to  substantive promotion  to the posts of Up Nagar Adhikaris, they  were given  promotions  on  ad  hoc  basis. Again, the  Government granted  ad  hoc  promotions  to  the respondents and  other ad  hoc appointees  even though  they were  not   eligible  and  in  order  to  favour  teem,  the Government on  29.7.86 passed  an order that selection grade in any  post will be available only on 20 per cent posts and that  the  minimum  service.  On  13.10.93,  the  Government granted selection  grade to the respondents and other ad hoc employees who  were regularised  only on 17.5.85, but denied benefit to  the appellants  and other  regular employes even though they were seniors.      The appellants,  therefore, challenged  the said  order dated 13.10.93  by filing Writ Petition No. 39776 of 1993 in the  Allahabad  High  Court.  During  the  pendency  of  the petition the  Government published  a seniority list showing the appellants  as seniors  to  the  respondents.  The  High Court, therefore,  held that  in view of that seniority list the lis  between the  parties did  not survive.  As  regards their specific  grievance that  in spite  of showing them as seniors in  the seniority lists they are not given selection grade, the  High Court observed that for getting that relief the appellants  should move  the authorities  concerned.  So without considering  the propriety and legality of the order dated 13.10.93  which was  challenged in  the petition,  the High Court  disposed of  the petition with that observation. The appellants have, therefore, filed this appeal.      It is  difficult to appreciate how the High Court could hold that  in view  of the seniority list dated 31.12.94 the grievance of  the appellants did not survive. The appellants had challenged  the action  of giving selection grade to the respondents and other ad hoc appointees who were regularised only on  17.5.85 and  thus were their juniors. They had also sought a  mandamus directing  the Government  to grant  them

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selection grade  from the  date they have become entitled to it in  accordance with  the Government  order dated July 29, 1986. It was their grievance that the Government was wrongly treating those  ad hoc appointees as regular appointees from a date  earlier than  17.5.85. In  view of  these facts  and circumstances it  was not  proper  for  the  High  Court  to dismiss the  petition on  the ground  that the  list did not survive and  leave the  appellants again to the mercy of the Government which was out to defeat their legitimate claims.      Rule 21A  provides for  regularisation of service of ad hoc employees  by treating  them as persons appointed in the service on the date of their regularisation. Rule 9 provides that a person appointed under that Rule shall be entitled to seniority only  from the date of appointment after selection in accordance  with the  said rules and shall, in all cases, be placed  below the  employees appointed in accordance with the  procedure   for  direct   recruitment  prior   to   the appointment of  such persons  under those  Rules. In view of these statutory Rules, the Government could not have treated the respondents  and other  ad hoc  employees whose services were regularised  on 17.5.85  as persons regularly appointed from an  earlier date. Nor could the Government have counted seniority from  an earlier dated either for promotion to the higher post or for the purpose of giving selection grade.      In spite  of this clear position, the Government by its letter dated  March 23,  1993 informed the Director of Local Bodies, U.P.,  Lucknow that  the Government,  in exercise of powers under  Rule 40(2)  of the Rules, has passed and order to the effect that the date of confirmation of the employees working in  the U.P.  Palika (Central)  Service since before the year 1977 and who have not been selected through PSC and who  have   not  been  regularised  on  the  posts  but  are continuously working, shall be determined as under:      " (i) The employees appointed on ad      hoc basis  and working continuously      shall be  made  permanent  on  that      just 2  years  after  the  date  of      joining on  which post the employee      joined his after being appointed."      The Government  thereby has  tried to give seniority to the respondents and those other ad hoc employees by treating them as  permanently appointed promotees since 2 years after the date  of  their  joining  the  posts  as  Sahayak  Nagar Adhikaris. Thus  the respondents  and other ad hoc employees who had  been appointed  temporarily and whose services were not regular and were regularised only on 17.5.85,  will have to be treated as permanently appointed in 1974, as they were for the  first time  appointed on  those posts  in 1972. The said order was not challenged in the writ petition as it had not come  to the notice of the appellants. It has been filed in this Court along with the counter affidavit of Respondent Nos. 3,7,8  and 9 and is relied upon by all the respondents. This order  also  deserves  to  be  quashed  as  it  is  not consistent with the statutory Rules. It appears to have been passed by  the Government  to  oblige  the  respondents  and similarly situated ad hoc appointees.      We,  therefore,   allow  this  appeal  and  direct  the Government not  to treat  any ad  hoc Sahayak Nagar Adhikari who was  originally appointed  on ad  hoc  basis  and  whose service was  regularised only  on 17.5.85  as senior  to the direct recruits who were appointed before that date. We also quash and set aside the order passed by the Government under Rule 40(2)  of the  Rules whereby the employees appointed on ad  hoc  basis  and  working  continuously  have  been  made permanent on  those posts with effect form 2 years after the

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date of  joining on  those posts. The Government is Directed to consider  the seniority of the appellants and respondents as stated  above  and  further  consider  the  case  of  the appellants for  selection  grade  accordingly  and  also  in accordance with  the Government  order dated  July 29, 1986. The Government shall grant them the said benefit immediately if  they  are  found  to  be  eligible  for  the  same.  The Government shall complete the whole exercise within a period of two  months from today. In the facts and circumstances of the case, there shall be no order as to costs.