Gajendra Prasad vs Executive Engineer and Others

Pankaj Mithal, J.—Petitioner by means of this writ petition is claiming that he should be appointed on the post of Part time/Assistant Tub-well Operator in view of his selection dated 27.5.1994. He has further prayed for quashing of the orders dated 27.6.2007 and 29.11.2008 whereby his representations to the aforesaid effect have been rejected by respondent No. 1, the Executive Engineer Tube-well Division, Sahjahanpur.

According to the petitioner he appeared in the examination and interview for selection on the post of Part time/Assistant Tub-well Operator on 12.5.1994 whereupon vide order dated 27.5.1994 he was declared selected. On his aforesaid selection he was sent for training which he completed successfully. However, he was not permitted to join the services in view of the judgment and order of the Lucknow Bench of the Allahabad High Court dated 18.5.1994 passed in writ petition No. 3538 of 1992 Suresh Chandra Tiwari and Ors. v. State of U.P; interim order in SLP No. 16219 of 1994 of the Sate of U.P. arising therefrom; and the directions of the authorities dated 4.10.1994 not to appoint any part-time/Assistant Tube well operators till the disposal of the Special Leave Petition.

After the dismissal of the SLP on 22.3.1995, the petitioner represented for issuing appointment letter but when no action was taken, he preferred writ petition No. 7003 of 1996 seeking direction for his appointment. The said writ petition was disposed of on 22.3.1996 with the direction to the authorities concern to decide the representation of the petitioner in that regard within a time bound period. The above order was modified on 10.7.1996 and it was also provided that in deciding the representation the authorities shall also keep in mind the decision of the Supreme Court dated 22.3.1995 dismissing the Special Leave Petition. The petitioner as such again represented to the authorities and ultimately after going through the process of initiation of contempt proceedings, final order was passed on 24.9.1997 by the respondent No. 2 rejecting the petitioner''s claim. When the said order was brought to the notice of the contempt Court in contempt petition No. 1503 of 1997, the Court vide order 20.4.2001 held that the aforesaid order dated 24.9.1997 can not be treated as an order passed in compliance of the order of the High Court. In such a situation, the petitioner again submitted a fresh representation for giving him appointment which was rejected vide order dated 3/4.10.2002. However, the said order was set aside by the High Court in writ petition No. 50610 of 2002 of the petitioner on 10.4.2007 and the matter was remitted to the authorities concerned to reconsider the same. It is thereafter that on the fresh representation of the petitioner, one of the impugned orders dated 27.6.2007 rejecting the claim/representation of the petitioner has been passed. A fresh order was passed by the respondent No. 1 on 29.11.2008 refusing the claim of the petitioner and other similarly situated persons for appointment as Part time/Assistant Tub-well Operator in pursuance to the selection of the year 1994 on the ground that the aforesaid posts have been declared to be a dying cadre.

In the counter affidavit as well as in the second supplementary counter affidavit filed on behalf of respondents they have taken a stand that the petitioner is not entitle for appointment as Part time/Assistant Tub-well Operator, as the said posts were ex-cadre posts and have been declared as dying cadre vide government orders dated 17.12.1996 and 14.1.1997. The petitioner has not been discriminated in any manner. He stands altogether on a different footing from those who have given appointment, in as much as, he was never appointed and had worked as Part time/Assistant Tub-well Operator. Accordingly, he can not be appointed and even regularized under the provisions of U.P. Irrigation Department (Regulation of Part time Tub-well Operators) Rules, 1996.

Heard Sri Manu Saxena, learned Counsel for the petitioner and Sri A.C. Tripathi, learned Standing Counsel for the respondents.

The selection and appointment of Tube-well operators in the State of U.P., is governed by the Irrigation Department Tube-well Operators Rules, 1953. The said Rules provide for the number of posts of Tube-well operators unless otherwise notified by the Governor from time to time. The Rules does not provide for any post of part time/Assistant Tube well operators. The appointments of Tube-well operators are required to be made by direct recruitment on the basis of selection which comprises of physical fitness, written examination, apprenticeship(one month training) and practical examination.

Learned Standing Counsel has submitted that the petitioner was not finally selected for appointment as he has not undergone practical examination after training. Therefore, he can not be appointed.

The letter of the Executive Engineer dated 27.5.1994 establishes that the petitioner was subjected to written examination and interview on 12.5.1994 for the post of Part time/Assistant Tube-well Operator which he had qualified. The letter dated 5.10.1994 again of the Executive Engineer states that the petitioner on the basis of the examination held on 12.5.1994 was selected and he was to undergo a month''s training (without any payment) whereupon on completion he has to reappear in the examination to be so organized. The procedure for recruitment as provided under Rules 12, 13 and 14 demonstrate that a candidate who is found physically fit on being selected shall undergo apprenticeship i.e., one month''s training (without any pay) and thereafter has to appear for practical examination. It is on successfully qualifying the said examination he would be entitle to appointment on probation. The aforesaid Rules though does not in specific terms speak about any written examination or interview prior to apprenticeship but qualifying practical examination after successful completion of training is mandatory. It appears that for the purposes of selection for training petitioner was subjected to a written examination and interview but after completion of training no practical examination was taken as provided under Rule 14 so as to assess his knowledge in operation and maintenance of pumping plant and operation of Tube-wells etc. No material in any form has been brought on record by the petitioner to establish that he had appeared in the practical examination after training and had successfully qualified the same. In the absence of such a material the petitioner can not be treated to have been finally selected for appointment. Therefore, he is not entitle for appointment as it would be dehors the aforesaid Rules.

Learned Standing Counsel has also placed reliance to the Government Orders dated 17.12.1996 and 14.1.1997 which have been appended as annexures 4 and 6 to the supplementary counter affidavit. Under the aforesaid Government Orders it has been provided that the posts of Part time/Assistant Tube-well Operators which were created in administrative exigency by the various orders issued from time to time though not envisaged under the Rules stand abolished. In all 15226 posts of Part time/Assistant Tube-well Operators were abolished and the said ex- cadre posts were declared as dead.

Sri Manu Saxena learned Counsel for the petitioner to counter the above Government Orders placed reliance upon the Government Orders dated 3.9.1996, 1.7.99, 22.5.2004, and 25.1.2006 (annexures 18, 19, 20 and 21 to the writ petition) and has submitted that the posts have been revived.

I have carefully gone through the aforesaid Government Orders specially the Government Order dated 25th January 2006 and I find that none of the aforesaid Government Orders in any way contemplates revival of the posts of Part time/Assistant Tube-well Operators. The aforesaid Government Order only envisages that all cadre employees working as Gram Panchayat Vikas Adhikaris i.e. of Gram Panchayat Adhiarki cadre, Gram Vikash Adhihari (Samaj Kalyan) cadre and the Tube-well Operator cadre are revived subject to their sanctioned strength. It no where in specific terms provides for revival of the posts of Part time/Assistant Tube-well Operators which is altogether a different post/cadre from that of Tube-well Operators.

In view of the above the cadre posts of Part time/Assistant Tube-well Operators stand abolished and do not stand revived at all. Therefore, in the absence of the posts and the ex-cadre posts being declared as dead, there is no question of making any appointment of the petitioner pursuant to his alleged selection of the year 1994.

The submission that the respondents have acted in a discriminatory manner by not appointing the petitioner though certain other candidates have been appointed, has no substance and has been noted only to be rejected for the simple reason that the petitioner was never appointed and had not worked as Part time/Assistant Tube-well Operators which distinguishes him from the other candidates, in as much as, on selection they were allowed to function and therefore they were given appointment subsequently. Moreover, even if any wrong appointment has been made, the petitioner can not claim parity on its basis when he has no legal right to be appointed. In such a situation, the principle of Article 14 of the Constitution of India would not be attracted.

It may not be out of context to make a note of a settled legal position that mere selection does not give any right for appointment to the selected candidate and the appointment at such a long distance of time from the date of alleged selection is also not justified under law.

To conclude the claim of the petitioner for appointment as prayed for can not be accepted in short for the following reasons:

(1) Petitioner was never finally selected for appointment as he had not undergone and qualified the practical examination as provided under Rule 14 of the Rules;

(2) There are no cadre posts of part time/Assistant Tube-well Operators under the Rules and the posts of Part time/Assistant Tube-well Operators temporarily created were declared dead and have not been revived;

(3) The petitioner has not been discriminated as he was never allowed to function in pursuance to his alleged selection and even otherwise any irregular or illegal appointment, would not permit the petitioner to take shelter of Article 14 of the Constitution and to seek appointment on the basis of parity with the alleged wrong appointment;

(4) Selection alone, if any, does not give any right for appointment; and

(5) There is no justification for giving appointment to the petitioner at such a long distance of time on the basis of selection of the year 1992.

In view of the aforesaid circumstances, I am of the considered opinion that the respondent No. 1 has committed no error of law in rejecting the petitioner''s claim for appointment of Part time/Assistant Tube-well Operator on the basis of alleged selection of the year 1994.

Accordingly, no case has been made out for interfering with any of the impugned orders. The writ petition as such is devoid of merit and is dismissed.