Court No. - 3
Case :- WRIT - A No. - 5626 of 2018 Petitioner :- Mahipal Singh Respondent :- State Of U.P. And 3 Ors.
Counsel for Petitioner :- Satya Prakash Rai,Prateek Rai Counsel for Respondent :- C.S.C.,M.N. Singh
Hon'ble Pankaj Mithal,J. Hon'ble Saral Srivastava,J.
Heard Sri Radha Kant Ojha, learned Senior Counsel assisted by Sri Prateek Rai, learned counsel for the petitioner, learned Standing Counsel for the respondent nos. 1, 3 & 4 and Sri Nisheeth Yadav, learned counsel for the respondent no.2.
The respondent no.2 U.P. Public Service Commission issued an advertisement bearing advertisement no.A-1/E-1/2015 dated 28.01.2015 inviting applications in respect of the Combined State/Upper Subordinate Services (Gen.Rectt.) Examination-2015 and Combined State/Upper Subordinate Services (Special Rectt.) Examination-2015.
The petitioner being eligible applied in pursuance of the aforesaid advertisement in OBC category. At the relevant time, the petitioner was working as Excise Inspector posted at Central Excise & Service Tax Division-II, Muzaffarnagar. The petitioner was selected on the post of Commercial Tax Officer and was issued an appointment letter dated 19.04.2017. As per the appointment letter, the petitioner was to join within one month.
It appears that the petitioner could not join within the time stipulated in the appointment letter and the petitioner submitted a representation dated 17.06.2017 to the Commissioner, Commercial Tax U.P., Lucknow requesting for extension of time for joining. The respondent no.3 Commissioner, Commercial Tax U.P., Lucknow by order dated 10.07.2017 granted time upto 08.08.2017 to the petitioner for joining in the department. Thereafter, the petitioner could not join within the stipulated time provided in the order dated 10.07.2017. The respondent no. 3 again by order dated 16.10.2017 granted last extension of time for joining to the petitioner upto 13.11.2017 but again petitioner failed to join within time provided for joining.
It appears from the record that the petitioner had fallen ill and was diagnosed Dengue.
The petitioner submitted a representation dated 14.11.2017 to the respondent no.3 for extension of time for joining, as he was suffering from Dengue. In the meantime, the respondent no.3 passed an order dated 22.11.2017 cancelling the appointment of the petitioner on the post of Commercial Tax Officer on the ground that despite the time was extended several times for joining, the petitioner did not join. Thereafter, the petitioner submitted representations against the order dated 22.11.2017 to the respondent no. 3 which were also rejected by orders dated 08.12.2017 and 02.01.2018.
In the present petition, the petitioner has assailed aforesaid three orders dated 22.11.2017, 08.12.2017 and 02.01.2018 passed by the respondent no.3.
Learned counsel for the petitioner has urged that the impugned orders have been passed on the basis of a Government Order dated 15.11.1999 but the respondent no.3 has ignored the Rule 184 of Chapter XVIII of the Financial Hand Book (Vol. II, Part II to IV), wherein the competent authority can extend the period of joining as the petitioner had fallen ill and for the reasons beyond his control, he could not join within the time granted by the respondent no.3. Rule 184 of Chapter XVIII of the Financial Hand Book (Vol. II, Part II to IV) is extracted herein below:-
“184. Within the prescribed maximum of 30 days a competent authority may, on such conditions at it thinks fit, grant to a Government servant a longer period of joining time than is admissible under the rules in the following circumstances:
(a). ....
(b). ....
(c) when the rules have in any particular base operated harshly, as for example, when a Government servant has though no fault on his part missed a steamer or fallen sick on journey”.
The submission is that the Rule 184 of Chapter XVIII of the Financial Hand Book (Vol. II, Part II to IV) has been framed by the Hon'ble The Governor under Fundamental Rule 106 and, therefore, the aforesaid Rule 184 would prevail over the Government Order dated 15.11.1999. Further submission is that Rule 184 has been framed with an object to consider the extension of time for joining in a sympathetic manner in cases where the selected candidate for the reasons beyond his control could not join in time granted by the authorities.
Per contra, learned counsel for the respondents submitted that the petitioner was given sufficient time by the authorities and the petitioner himself was negligent in not joining within the time granted by the authorities and as such, the orders impugned in the writ petition do not suffer from any illegality. In the alternative, their submission is that the matter may be remanded to the authorities to consider afresh in view of Rule 184 of Chapter XVIII of the Financial Hand Book (Vol. II, Part II to IV).
We have considered the rival submission of parties and perused the record.
We find that the petitioner was issued an appointment letter dated 19.04.2017 containing stipulation that the petitioner was to join within one month. Thereafter, several extension of time was granted to the petitioner for joining and the petitioner did not join within the time allowed to him and consequently, his appointment was cancelled by the authorities.
The petitioner in his last representation dated 24.11.2017 and subsequent representation dated 13.12.2017 has stated the reasons for not joining within the time, as he had fallen ill and was suffering from Dengue.
The respondent no.3 while rejecting the representation dated 13.12.2017 has not considered the Rule 184 of Chapter XVIII of the Financial Hand Book (Vol. II, Part II to IV).
Considering the fact that under Rule 184 (c) of Chapter XVIII of the Financial Hand Book (Vol. II, Part II to IV), the State Government can extend the period of joining in case a candidate was prevented by sufficient cause for not joining within the time provided to him.
Thus, in the facts and circumstances of the case, we find it proper that the respondent no.3 Commissioner, Commercial Tax U.P., Lucknow should consider the case of the petitioner for granting extension of time for joining in the light of Rule 184 (c) of Chapter XVIII of the Financial Hand Book (Vol. II, Part II to IV). The respondent no.2 may take a decision afresh in the light of the observations given above, preferably within a period of six weeks.
It is needless to say that in the event of passing of a fresh order by the respondent no.3 in pursuance of the order of this Court, earlier orders of the respondent no.3 shall stand eclipsed.
The writ petition is disposed off with the above observation. There shall be no order as to costs.
Order Date :- 27.2.2018 S.Sharma