JUDGMENT Sunil Ambwani, J.
1. Heard Sri Anil Kumar Yadav for the petitioner in Writ Petition No. 53139 of 2003 and Sri Ashok Khare, Senior Advocate, assisted by Sri Umesh Vats for petitioner in Writ Petition No. 40204 of 2004.
2. Both the parties have respectively appeared as respondent in the corresponding writ petitions. Learned Standing Counsel appears for the State respondents. The petitioners in their respective writ petitions are claiming their right to be appointed on the only post of a clerk in the Master Plan Department of the Regulated Area Authority of Jaunpur at Collectorate Jaunpur. Brief stated giving rise to these rival claims are as follows:
3. Sri Aziz Ullah, the petitioner in writ petition No. 53139 of 2003 alleges that in pursuance of an approval given by the Commissioner, Varanasi Division, Varanasi dated 23.11.1979, he was appointed by the Controlling Authority Regulated Area Jaunpur as a Clerk-cum-Typist, and had joined on 19.2.1980. Prior to his appointment he was working as Record Keeper(Legal) in Tehsil Sadar. His appointment along with Sri Kamlesh Narain Pandey serving as Peon in the Tehsil Badlapur in the office of Regulated Area, Jaunpur was approved in the meeting of the Controlling Authority dated 8.3.1980. The office of the Controlling Authority was established under U.P. (Regulations of Building Operation) Act. 1958 and is also known as Master Plan Establishment. Although the Collectorate and Master Plan Establishment are separate, the petitioner was wrongly transferred to the Collectorate on 31.10.1985. The petitioner made a representation on 20.1.1994 on which the Collector Jaunpur directed the petitioner to be sent back to the Master Plan Establishment. This order elated 24.1.1994 was stayed by the Collector on 25.1.1994. The petitioner once again made a representation on 27.5.1995, at the time when promotions of Junior Clerks to Grade-II were in progress. Thereafter several representations were sent by the petitioner, without any result. As against one of the representations dated 13.7.2001 sent by the petitioner to the State Government, he was given a show cause notice by the Additional District Magistrate (Finance & Revenue), Jaunpur, for making direct correspondence with the higher authorities.
4. In writ petition No. 53139 of 2003, the petitioner Sri Aziz Ullah has prayed for a direction to the respondents to transfer him to his parent department in the Master Plan Establishment and to post him in the cadre to which he is legally entitled with all consequential benefits.
5. In the impleadment application filed by Sri Rajeev Kumar Srivastava along with an affidavit it is stated that he was appointed in (he Collectorate on 16.5.1995 on compassionate grounds and was trarsferred from the office of the Collectorate to the office of the Prescribed Authority, Master Plan Jaunpur. The Board of the Controlling Authority vide resolution dated 26.3.2003 decided to regularize his services on the vacant post of clerk, Jaunpur, and consequently he was regularized by the Controlling Authority on 22.4.2003, on the post which was sanctioned by the State Government on 27.9.1978. The post was accordingly filled up and that the applicant is working since thereafter and is at present drawing salary in Grade-II in the pay scale of Rs. 3200-4900. There is no other post of clerk in the office of the Regulated Area and that the claim of the petitioner is misconceived.
6. In the counter affidavit of Sri Vijay Shanker Dubey, Tehsildar Sadar, District Jaunpur filed on behalf of State respondents including Commissioner, Varanasi Division Varanasi and the Collector, Jaunpur, it is stated that the petitioner Aziz Ullah had met with an road accident in 1985. He had proceeded on medical leave on 18.7.1985. On his return in September, 1985, he was not physically fit to carry out the responsibilities in the Regulated Area. His transfer order was stayed on 25.1.1994. In paragraph 13 and 15 of this Counter affidavit, the State respondents have supported the case of the petitioner Aziz Ullah and have stated that the petitioner cannot be adjusted in the Collectorate as he is an employee of Regulated Area and that Sri Rajeev Kumar Srivastava was irregularly appointed in the office of the Regulated Area. In para 16 it is stated that the District Magistrate has by his order dated 18.9.2004 posted the petitioner Sri Aziz Ullah on his parent post of Clerk-cum-Typist, in the Regulated Area in pursuance of which he joined on 22.9.2004 and Sri Rajeev Kumar Srivastava was sent back and posted at Collectorate.
7. In Writ Petition No. 40204 of 2004, filed by Sri Rajeev Kumar Srivastava, it is stated that by notification dated 27.9.1979, temporary posts were sanctioned in the office of the Controlling Authority under the U.P. Regulation of Building Operations Act, 1958, only for a period of one year, which was extended from time to time, and that the State Government, by notification dated 30.8.1996 converted the temporary post of Junior Clerk into permanent and substantive posts. The petitioner was initially appointed by the District Magistrate, Jaunpur on 1.8.1988 as Junior Clerks on compassionate ground. He was thereafter appointed as Junior Clerk in the Establishment of Regulated Area, Jaunpur vide order dated 16.5.1995. When the post became permanent, the petitioner requested for absorption/regularization. Prior to 1996, no one was permanently posted on this post. Sri Aziz Ullah, who was temporarily posted as Junior Clerk in Regulated Area was posted at Collectorate and thereafter one Sri Shiv Mohan was sent to the post of Clerk in Regulated Area. The District Magistrate vide his order dated 19.1.1988 confirmed the employees of Collectorate in accordance with the provisions contained in U.P District Office (Collectorate) Rules, 1980. In this list the name of Sri Aziz Ullah is at Sl. No. 19. Sri Aziz Ullah wanted approval of the Collector for his posting in the Regulated Area, whereas he was confirmed employee in the Collectorate Establishment. By a resolution dated 26.3.2003 passed of the Controlling Authority , Regulated Area, Jaunpur, he was appointed as Junior Clerk on regular basis. The petitioner is serving in the regulated area since after 16.5.1995 and after his absorption he has become a permanent employee on the sanctioned post of Clerk cum Typist in the office of Prescribed Authority Regulated Area, Jaunpur.
8. It is contended that the respondent No. 4 exerted pressure upon the District Magistrate through local political leaders upon which the District Magistrate passed an order dated 21.9.2004 transferring the petitioner to the Collectorate and Sri Aziz Ullah working as V.I.P. Clerk of the Regulated Area. Sri Rajeev Kumar Srivastava in this writ petition has prayed for quashing the order dated 21.9.2004 passed by the District Magistrate posting him in the Collectorate and Sri Aziz Ullah in the Regulated Area.
9. In the counter affidavit of Sri Aziz Ullah he has reiterated the same stand which he has taken in the writ petition. Sri Anil Kumar Upadhyay, Sub Divisional Magistrate, Machhali Shahar, Jaunpur has filed a counter affidavit on behalf of the Controlling Authority, Regulated Area, Jaunpur and the District Magistrate, Jaunpur. In paragraph 3 of this counter affidavit, the facts of appointment of Sri Aziz Ullah and the appointment of Sri Rajeev Kumar Srivastava on compassionate ground in the Cottectorate are admitted. It is stated that Sri Aziz Ullah met with an accident and was on medical leave from 8.7.1985 to 28.9.1985. After his return from medical leave, he started working in the Collectorate and Sri Rajeev Kumar Srivastava, appointed on compassionate ground, was transferred to the office of Controlling Authority, Regulated Area, Jaunpur. Sri Srivastava, conspired with the officers and employees in the Regulated Area, and reported the post to be vacant and got a resolution passed from the Controlling Authority, Jaunpur on 26.5.2003 regularizing his services. Sri Aziz Ullah had a lien on this post and as such it could not be treated as a vacant post. Sri Aziz Ullah had already filed a writ petition claiming his rights the post. Sri Aziz Ullah was never removed from the post and that the post of Clerk cum Typist was not vacant. In paragraph 19 of the counter affidavit it is stated that the petitioner Sri Rajeev Kumar Srivastava got his name deleted from the gradation list of the Collectorate. The District Magistrate has rectified the error and has passed the order dated 21.9.2004 to do complete justice between them.
10. The Jaunpur Regulated Area has been notified under Section 4 of the U.P. Regulation Building Operations Act, 1958. The Commissioner, Varanasi Division, Varanasi is the Chairman of the Controlling Authority. A temporary post of the clerk cum typist was sanctioned in the Authority on 23.11.1979. Sri Aziz Ullah was appointed in the establishment of the Collectorat at Jaunpur and was working as Assistant Record Keeper, Sadar. Instead of making a fresh appointment, he was transferred to the office of Controlling Authority, Regulated Area, Jaunpur vide approval of the Commissioner, Varanasi Division, Varanasi on 23.11.1979 which was further approved in the meeting of the Regulated Authority on 6.3.1980. Sri Aziz Ullah met with an accident and was on medical leave from 8.7.1985 to 28.9.1985. On his return he was not physically fit to discharge difficult duties and as such he was allowed to work in the Collectorate at Jaunpur. Sri Rajeev Kumar Srivastava was appointed as Junior Clerk in the Establishment of Collectorate on 1.8.1988 on compassionate ground. He was sent to the Regulated Area on 16.5.1995 on temporary basis. After about one year on 30.8.1996, the post of Junior Clerk was approved and made permanent by the State Government and that by a resolution dated 26.3.2003, passed in the meeting of the Controlling Authority, he was appointed as Clerk cum Typist on regular basis. The name of Sri Rajeev Kumar Srivastava was excluded from the gradation list of Collectorate and that his service book was sent to the office of the Regulated Area.
11. The State respondents submit that Sri Rajeev Kumar Srivastava was guilty of misrepresentation and concealment of facts in getting the post of clerk cum typist declared to be vacant and got himself absorbed/regularized on the post. Since he had played fraud, the resolution of the Controlling Authority, Regulated Area dated 26.3.2003 is invalid and does not operate to give any benefit to Sri Srivastava.
12. Sri Anil Kumar Yadav, Sri Aziz Ullah has not challenged the resolution of the Controlling Officer Authority and the order of the District Magistrate. He has relied upon the judgments in Chandra Singh and Ors. v. State of Rajsthan and Anr. (1999) 8 SCC 16 (para 45) and Government of Maharastra and Ors. v. Deokar's Distillery, (2003)5 SCC 669 (para 38) in which the Supreme Court observed that where the petitioners had the not challenged the circular letter dated 30.7.1999 issued under Section 58A of the Prohibition Act, they are not entitled to challenge the demand notice which was merely a consequential communications. 13. Sri Aziz Ullah, after his return from medical leave, was posted in the Collectorate, in the year 1985. He might have made some representations in the beginning but did not persue the matter further. By that time the post of Clerk cum Typist was not made permanent and thus he could not have acquired any lien on the post in the office of Controlling Authority, Regulated Area, Jaunpur. He did not protest for enlisting his name in the gradation list of Collectorate and claimed promotion to higher grade in the Collectorate. At the time of his appointment on 1.8.1988, Sri Rajeev Kumar Srivastava was posted in the Collectorate and was thereafter transferred and posted in the Regulated Area, Jaunpur on 14.6.1995. The District Magistrate had vide his letter dated 11.12.1999 requested the Controlling Officer to regularize him as the other persons appointed after him were confirmed in the Collectorate. Sri Srivastava was not confirmed till then as he was working on temporary post in the office of Controlling Authority. The Controlling Authority, Regulated Area, Jaunpur in its meeting dated 26.3.2003 Presided by the District Magistrate, Jaunpur, Chairman, Nagar Palika Parishad, Jaunpur, Executive Engineer, Public Works Department and Executive Engineer, Jal Nigam, Kanpur accepted the request and absorb/regularize Sri Srivastava on the vacant sanctioned post of Clerk cum Typist. This resolution dated 26.3.2003 his not been challenged by Sri Aziz Ullah.
14. Sri Aziz Ullah was working in the Collectorate since after he came back from the medical leave on 28.9.1985. In his writ petition, he has stated in paragraph 8 that he made a representation on 20.1.1994 i.e. after about nine years. He has referred to repeated representations but has not annexed them to demonstrate that he had made any claim before 1994 to the post, By that time the post was not sanctioned as a permanent post. In Dr. S.K. Kacker v. All India Institute of Mecdical Services (1996) 10 SCC 734, State of Haryana v. Rajendra Saran, 1972 SLR 112 SC and Purushotrtram Lal Dhingra v. Union of India, AIR 1958 SC 36, it was held that a lien can be claimed only if the Government Servant holds a post substantively, either immediately or on termination of a period of periods of absence, a permanent post or a tenure post to which he has been appointed substantively.
15. I do not find any material on record to show that Sri Aziz Ullah had made any representation between 1985 to 1994 to be posted in the office of Controlling Authority, Regulated Area, Jaunpur. He did not have any lien on the post and that by his conduct he had acquiesced to his posting in the Collectorate, and had made no objections to his placement in the gradation list and promotion as Grade-II Clerk in the Collectorate.
16. Further I do not find any such circumstances or representation on the part of Sri Rajeev Kumar Srivastava, which may have mislead the Controlling Authority to pass a resolution regularizing his services in the office of Controlling Authority, Regulated Area, Jaunpur.
17. For the aforesaid reasons, the writ petition No. 53139 of 2003 is dismissed and the writ petition No. 40204 of 2004 is allowed. The order dated 21.9.2004 passed by the District Magistrate is set aside. Sri Rajeev Kumar Srivastava will be posted as regular employee in the office of Controlling Authority, Regulated Area, Jaunpur and Sri Aziz Ullah will be send back to the Collectorate. No order as to cost.