Petitioner before this Court made an application for being appointed in Rajya Krishi Utpadan Mandi Parishad, Lucknow. On the basis of the application so made by the petitioner, without following any procedure known to law and without there being any advertisement, the petitioner is stated to be appointed.
The Hon'ble Supreme Court of India has repeatedly held that direct recruitment in institutions, which answer the meaning of State under Article 12 of the Constitution of India, without any advertisement are violative of Article 14 of the Constitution of India.
However, it is not necessary for this Court to dilute any further facts on the aforesaid aspect of the matter, for the facts as are on record of the present writ petition.
From the records it is established that the petitioner proceeded on leave between 21.01.1983 to 12.07.1985 i. e. for more than two years and six months. According to the petitioner he rejoined on 12.03.1985 and made an application for the leave being sanctioned. It is stated that repeated correspondence was entered into for the purpose. On record is a letter of the Deputy Director (Administration) dated 04th July, 1987 which records that the application addressed to the Additional Director (Administration), Krishi Utpadan Mandi Parishad, Lucknow, qua sanction of leave to the petitioner, has yet not been granted, and the petitioner is requesting for regularization, therefore, appropriate orders may be passed on both the aforesaid aspects of matter.
There is nothing on record to establish that such leave was ever granted to the petitioner till the date of issuance of the order of regularization, which has been enclosed as Annexure-15 to the writ petition. The order of regularization records that the services of the petitioner are being regularized under the U.P. Regularization of Ad hoc Services (On Posts Outside the Purview of the Public Service Commission) Rules, as amended in the year, 1989.
Under the aforesaid order of regularization it was specifically provided that the regularization, which is being offered to the petitioner is subject to the orders which may be passed by the Court in the pending writ petition and the services of the petitioner may be terminated without any notice in writing and that his seniority shall be determined in accordance with the Rules thereafter.
According to the petitioner a seniority list was published qua the employees working in the Krishi Utpadan Mandi Parishad on the post of Typist-cum-Clerk. The petitioner was allotted a place in the seniority list having regard to the date of regularization of his services i. e. dated 20th October, 1990. This, according to the petitioner, was illegal. He claims that his past services between 1981 to 1990 are also be taken into account for determination of his seniority. He, therefore, made a representation. The representation has been rejected under order dated 27.04.1991. It is against this order that the present writ petition has been filed.
By means of the rejoinder affidavit filed today, the petitioner has brought on record an order of the Additional Director (Administration) dated 09.12.2003 wherein the period of absence of the petitioner between 21.01.1983 to 12th July, 1985 i. e. for two years and 5 months and 21 days have been declared as an extraordinary leave without pay. Petitioner with reference to the aforesaid fact submits that since his services have been regularized under an order of the year 1990, his past services are also liable to be counted for the purpose of determination of seniority in view of the judgment of the Hon'ble Supreme Court in the case of S. Sumnyan and others vs. Limi Niri and others, passed in Civil Appeal No. 3512 of 2010 dated 20th April, 2010.
Counsel for the petitioner further explains that a Division Bench of this Court in the case of C.M. Pandey v. State of U.P. and others; 2006(2) ESC 1431 (All)(DB) has held that in absence of any procedure provided for selection and appointment under Section 26-F of the U.P. Krishi Utpadan Mandi Adhiniyam, 1964, any appointment made would be legal even if there has been no advertisement preceding such selection/appointment.
Counsel for the petitioner has also referred to the document brought on record as Annexure-27 to the writ petition, which according to the petitioner refers to an enquiry being held against the petitioner in respect of his long absence and ultimately a punishment of warning being recorded in his service book.
I have heard learned counsel for the petitioner and have examined the records.
This Court may record that a person who claims to have been appointed on ad hoc basis becomes entitled for being considered for regularization under the U.P. Regularization of Ad hoc Services (On Posts Outside the Purview of the Public Service Commission) Rules, as amended in the year, 1989 on satisfaction of the conditions mentioned in the rules i. e. (a) that he was appointed on ad hoc basis on or before the cut of date and (b) that he has been continuously working on such post till the date of issuance of the Rules of regularization.
From the facts, as they exist on record, it is not in dispute that the petitioner had not been working continuously in the employment of respondent. He had proceeded on unauthorized leave for more than 2 years and 5 months between the period 21.01.1983 to 12.07.1985. Counsel for the petitioner could not demonstrate as to under which statutory provision such long leave can be granted to an ad hoc employee. What is further surprising to not is that the application made by the petitioner for grant of such long leave has ultimately been granted by the competent authority only in the year 2003 and then too an order has been passed treating the said period of more than 2 years and 5 months as extraordinary leave without pay.
In view of the aforesaid, this Court has no hesitation to record that on the date the petitioner claims to have been regularized i. e. 1990, there was no order sanctioning the leave of the aforesaid period nor under any statutory provision for such long leave being provided to an ad hoc employee. The order of regularization dated 20th October, 1990 is therefore held to be a mere waste paper.
This Court may further note that under the U.P. Regularization of Ad hoc Services (On Posts Outside the Purview of the Public Service Commission) Rules, as amended in the year, 1989 there is specific provision which lays down that the seniority shall be determined from the date of regularization only. (Reference-Rule-7 of the U.P. Regularization of Ad hoc Services (On Posts Outside the Purview of the Public Service Commission) Rules,1979).
The petitioner, having accepted the order of regularization without any protest, cannot be permitted to contend that his seniority may be determined from the date of initial ad-hoc appointment and not from the date of regularization. No relief can be granted to the petitioner.
The judgments relied upon by the counsel for the petitioner is clearly distinguishable in the facts of the present case. There is a statutory provision under the Regularization Rules, which provides for the date of determination of seniority. The statutory provision is not under challenge, the seniority has been determined accordingly. No mandamus can be issued to act contrary to the statutory provisions.
Writ petition lacks merit and is dismissed.
Order Date :- 21.2.2011 Pkb/