State
of U.P. Vs. Girja Shankar Sonakiya [1998] INSC
424 (19 August 1998)
S. Saghir
Ahmad, K.T. Thomas S. Saghir Ahmad, J.
ACT:
HEAD NOTE:
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 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 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 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:
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