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PETITIONER: STATE OF U.P.

       Vs.

RESPONDENT: GIRJA SHANKAR SONAKIYA

DATE OF JUDGMENT:       19/08/1998

BENCH: S. SAGHIR AHMAD, K.T. THOMAS

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T S. SAGHIR AHMAD, J.      The respondent  was appointed  as Assistant engineer in the Uttar  Pradesh Public  Works Department  purely in an ad hoc capacity  on 11th September, 1972. The post of Assistant Engineer was  within the  purview of the U.P. Public Service Commission (for short, the ’Commission’). 2.    During his tenure, the respondent was given an adverse entry for  the year  1976-77 and his integrity for that year was also  withheld. In the meantime, some posts of Assistant Engineer in the Irrigation Department were advertised by the Commission and  the respondent, perhaps being keen to change his status  from an  ad hoc  to  a  regular  employee,  also applied  for  one  of  the  posts.  He  was  interviewed  on 29.10.1977. His original certificates, including that of the High School Certificate, in which has date of birth was also mentioned, were  scrutinised and  it was  found that  by  an interpolation, the original date of birth, namely, 13.5.1945 was changed  to 13.5.1947.  This fact  was admitted  by  the respondent before  the Interview  Board as his date of birth was already  recorded as  "13.5.1945" in  his Service  Book, maintained in  the public  Works  Department  where  he  was working as  Assistant Engineer  in an  ad hoc capacity. When the respondent  was asked  to explain  the interpolation, he stated that  this was done by his wife. The Commission, vide its letter  dated 19.7.1978,  debarred the  respondent  from appearing in any of its competitive examination or selection for a period of give years. The Government was also informed of the above fact. 3.   Since the  process  of  selection  through  the  Public service  Commission,   for  making   regular   appointments, invariably took  a long  time and  a large  number of ad hoc employees were  working  on  posts  which  were  within  the purview of  the Commission  without being  regularised,  the State Government, in exercise of its power under Article 309 of the  Constitution, made  the Uttar Pradesh Regularisation of Ad  Hoc Appointments  (on Posts within the purview of the Public Service  Commission)  Rules,  1979.  Rule  4,  as  it existed originally, provided as under:-      "4.  Regularisation   of   ad   hoc

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    appointments.-      (1) Any person who-           (i) was  directly appointed on           ad hoc basis before January 1,           1977  and   is  continuing  in           service, as  such, on  date of           commencement of these rules;           (ii)    possessed    requisite           qualifications prescribed  for           regular  appointment   at  the           time   of    such    ad    hoc           appointment; and           (iii) has completed or, as the           case  may  be,  after  he  has           completed     three      years           continuous service.      shall  be  considered  for  regular      appointment   in    permanent    or      temporary   vacancy   as   may   be      available  on   the  basis  of  his      record and  suitability before  any      regular appointment is made in such      vacancy  in   accordance  with  the      relevant service rules or orders.      (2) In  making regular  appointment      under these  rules, reservation for      the  candidates  belonging  to  the      Scheduled Castes, Scheduled Tribes,      Backward    Classes    and    other      categories,  shall   be   made   in      accordance with  the orders  of the      Government in  force at the time of      recruitment.      (3) For  the  purpose  of  sub-rule      (i), the appointing authority shall      constitute  a  Selection  Committee      and    consultation     with    the      Commission shall not be necessary.      (4) The  appointing authority shall      prepare an  eligibility list of the      candidates, arranged  in  order  of      seniority as  determined  from  the      date of  order of  appointment and,      it  two   or   more   persons   are      appointed together  from the  order      in which  their names  are arranged      in the  said appointment order. The      list shall  be  placed  before  the      Selection  Committee   along   with      their  character   rolls  and  such      other records,  pertaining to them,      as may  be considered  necessary to      judge their suitability.      (5) The  Selection committee  shall      consider   the    cases   of    the      candidates on  the basis  of  their      records  referred  to  in  sub-rule      (4).      (6) The  Selection Committee  shall      prepare   a    list   of   selected      candidate, the  names in  the  list      being   arranged    in   order   of      seniority, and  forward it  to  the      appointing authority." 4.    Rule  5 provided  that the  appointing authority would

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make appointments  from the list prepared under sub-rule (6) of Rule  4 in the order in which the names of the candidates stand in the list. 5.   Rule 6  provided that the appointments so made shall be deemed to have been made under the relevant Service Rules. 6.   Rule 8 provided as under:-      "8. Termination  of services.-  The      services of  a person, appointed on      ad  hoc  basis  who  is  not  found      suitable  or   whose  case  is  not      covered by  sub-rule (i)  of Rule 4      of these rules, shall be terminated      forthwith and, on such termination,      he shall  be entitled to receive on      month’s pay." 7.   After the above Rules were made, the Government took up the job  of regularising  the services  of ad hoc employees. The Selection  committee, constituted under the above Rules, considered the  case of  the respondent but did not find him suitable and  consequently his  services were  terminated by order dated  28.4.1980 ad  required by  Rule 8 quoted above. This order  was challenged  by  the  respondent  in  a  Writ Petition filed  in the  Allahabad High Court (Lucknow Bench) and  the   High  Court,   by  the  impugned  judgment  dated 23.1.1992, allowed  the Writ  Petition and directed that the respondent’s  case   for  regularisation   on  the  post  of Assistant Engineer  may be  reconsidered. It is against this judgment the  present appeal has been filed 8.   The appellant,  it is  submitted, had  contended before the High court and had also pleaded in the counter-affidavit that the  respondent was  found unsuitable  for the  reasons that  on   the  date   on  which   he  was   considered  for regularisation by  the Selection Committee, there existed an adverse entry in his character roll for the year 1976-77 and his  integrity  for  that  year  was  also  found  withheld. Moreover,  the  respondent  was  also  found  to  have  made interpolation in  the original High School Certificate so as to reduce  his age  by two  years, and was, for that reason, debarred from  appearing in  any competitive  examination or selection of  the commission  for five  years.  These  three factors were  specifically pleaded by the appellant in their counter-affidavit to  indicate that the Selection Committee, for these  reasons,  had  found  him  unsuitable.  Even  the respondent, in  his counter-affidavit  filed in  this  court against the  application of  interim relief, has stated that his services were terminated for three reasons, namely,           (i)  The adverse  entry in  the character Roll for                1976-77;           (ii) Withholding  of integrity  for the year 1976-                77;           (iii)Interpolation in the original High School                Certificate. 9.   The judgment  passed by  the High  Court indicates that the High  Court interferred with the order of termination on the ground  that during  the pendency  of the Writ Petition, the adverse  entry for  the year  1976-77  was  expunged  by Engineer-in-chief, U.P. P.W.D., by his order dated 29.7.1982 and by  an order  passed on the same date, his integrity was also certified.  In the opinion of the High Court, these two factors could  not. therefore,  legally constitute the basis for terminating  the services of the respondent particularly as his  representation against the adverse entry was pending on the date on which he was considered for regularisation. The High  Court, consequently,  directed  the  appellant  to reconsider the  case of  the respondent  for  regularisation

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under the Rules. 10.  Strangely, there is a vital omission on the part of the High Court.  While it  considered the two factors enumerated above and  held that  the adverse entry having been expunged and the  integrity having been certified by the Engineer-in- Chief, U.P.  P.W.D., the  case of the respondent deserved to be reconsidered,  it  did  not  consider  the  relevance  or significance of the third factor, namely, that on account of interpolation in  the original  High School Certificate, the respondent had  already been debarred by the commission from appearing in any of its competitive examination or selection for a  period of  five years.  Interpolation in the original High School  Certificate so  as to  gain the  benefit of two additional years in service was a serious matter which could hardly be  ignored. Since  this factor  was also  taken into consideration by  the Selection Committee, constituted under the above  Rules, the High Court could not legally issue any direction for reconsideration of respondent’s case unless it excluded by  a positive  finding, the third factor also from consideration. 11.  In view  of the  above,  the  appeal  is  allowed.  The judgment and  order dated 23.01.1992 passed by the Allahabad High Court  (Lucknow Bench)  are set  aside and  the case is remanded back  to the  High Court  to hear the Writ Petition and decide  it afresh in accordance with law in the light of the observations  made above.  There will  be no order as to costs. IN THE MATTER OF: