Jagdish Prasad vs U.p. Awas Evam Vikas Parishad, Lucknow and Another

H.L. Gokhale, C.J.—Heard Mr. P.K. Khare, in support of this appeal. Mr. U.C. Pandey, appears for the Respondents.

The Appellant herein has filed this appeal to challenge the order passed by the learned Single Judge dated 15.3.1999 on his writ petition dismissing the same.

The short facts leading to this appeal are this wise. The Appellant had joined the services of the first Respondent-U.P. Awas Evam Vikas Parishad as a Class-IV employee on 28.2.1983 on an ad hoc basis. The appointment order clearly stated that he was employed for a period of six months or till regular appointments are made. The order further stated that his services could be terminated without any notice.

During this employment as a Class-IV employee, the Appellant was promoted to Class-Ill post on 25.6.1983 again on a similar ad hoc basis and on similar terms. This promotion order stated, as the earlier order, that his appointment was for a period of six months or till regularly selected persons become available. The Appellant appeared for a Class-Ill examination on 9.7.1984, but he failed therein. This was on the background of Government Order dated 22.3.1984 not to keep any ad hoc employees. Since the Appellant failed in the examination of Class-Ill post, he was terminated from his services on 15.1.1985.

That led to his filing of Writ Petition No. 542 of 1985 in February, 1985. The learned Single Judge, who heard the matter, granted an interim order on 12.2.1985, which reads as follows:

Learned Counsel for the opposite party concedes that there in a post of Class-IV available at present. Accordingly, the opposite party shall give appointment to the Petitioner against that Class-IV post. The Petitioner shall report on 14th February, 1985 at Faizabad and with effect from the date of his joining he shall be allowed to work. The appointment shall however be subject to further orders of the Court.

Ultimately when the writ petition was heard finally, it came to be dismissed by the order passed on 15.3.1999. Being aggrieved by that order, this appeal has been filed. The appeal has been admitted and the Appellate Court has granted an order on 6.4.1999, which reads as follows:

"Admit.

Notices have been accepted on behalf of the opposite parties Nos. 1 & 2 by Sri Mahesh Chandra, Advocate.

In the meantime, the operation of the order dated 15.3.1999 passed by learned Single Judge shall remain stayed. It is also provided that if the Petitioner/Appellant is continuing in pursuance of any interim order passed in the W.P. No. 542/1982, he shall be allowed to work till further orders of the Court.

We are informed that the Appellant has been continuing in a Class-IV position and there is no dispute from either of the Counsel with respect to that.

With respect to the discontinuation of the Appellant from his services on account of failure from the examination, Mr. Khare, learned Counsel for the Appellant, points out that in the rejoinder affidavit filed by the Appellant before the learned Single Judge, it has been pointed out that three persons, namely, one Sri Ram Kripal, Smt. Basanti Devi and Sri Sayeed Nazre Imam had neither appeared in the written test, nor were they called for typing test nor for interview and yet their services were regularised on 23.6.1989, 23.6.1989 and 7.10.1985 respectively. There is no further affidavit filed on behalf of the Appellant herein subsequent to the rejoinder affidavit. We have to note that this assertion has been made by the Appellant in the rejoinder affidavit for the first time and assuming that the statement is correct, these regularisations have taken place after filing of the writ petition and during the pendency thereof. Mr. Khare, learned Counsel for the Appellant, has not been able to show any particular rules under which the regularisation could be made.

Now the law laid clown is that any such appointment in the Slate Government has to be made by following the proper procedure, which will imply a due advertisement and a due selection process. This is the law laid down in Secretary, State of Karnataka v. Uma Devi (3). 2006 (109) FLR 826 (SC). That judgment in terms overruled the law earlier prevailing on account of the judgment in Dharwad District P.W.D. Literate Daily Wage Employees Association and Ors. v. State of Karnataka and others, 1988 (57) FLR 269 (SC). and in State of Haryana and others Vs. Piara Singh and others etc. etc., . Subsequently, in a recent case in Official Liquidator Vs. Dayanand and Others, . the Supreme Court has reiterated the law laid down in Secretary, State of Karnataka v. Uma Devi (3)(supra) by the Constitution Bench and has subsequently held that long years of service cannot be used as factors to grant any such orders.

As far as the Appellant is concerned, Mr. Khare, learned Counsel for the Appellant, has not been able to point out any rules under which the services of the Appellant could he regularised. The rules applicable in the instant case are the U.P. Avas & Vikas Parisad Ministerial Service. Regulations, 1980. Thereunder, there is no such provision for appointing any such persons on ad hoc basis and subsequently regularising them. In the circumstances, we cannot find any error in the order passed by the learned Single Judge.

As far as the three instances cited by Mr. Khare, learned Counsel for the Appellant are concerned, assuming that any such regularisation orders have been passed, one wrong order cannot justify another wrong order and this has been laid down by the Apex Court in Chandigarh Administration and another Vs. Jagjit Singh and another, . An authority cannot be directed to pass an order merely because another wrong order has illegally been passed by the authority concerned in some other case. The said judgment in terms holds that another wrong order does not entitle the High Court to compel the authority to repeat that illegality over again and again. The same view has been reiterated in State of Bihar and Others Vs. Kameshwar Prasad Singh and Another, .

In the circumstances, this submission also does not appeal to us.

For the reasons stated above, this appeal will have to be dismissed and the order of the learned Single Judge will have to be confirmed, which we hereby do except one part thereof. The learned Single Judge had noted that by the time he was passing the order on 15.3.1999, the Appellant had served the opposite parties for more than 15 years and the major portion of his service was on the basis of the interim order of the Court. The learned Single Judge had also observed that it will be just and equitable, if the opposite parties consider the case of the Appellant/Petitioner for employment with them favourably on any post which they deem fit. This observation was made when the law as laid down earlier in the case of State of Haryana v. Piara Singh(supra) was prevailing. In view of the judgemnts in Secretary, State of Karnataka v. Uma Devi (3)(supra) and particularly in Official Liquidator v. Daya Nand (supra), it will not be possible for this Court to issue any such directions.

The appeal is, therefore, dismissed with modification of the order impugned as above.