1. The present petition has been filed challenging the order dated 15.07.2008 whereby the representation of the petitioner was dismissed by the District Judge, Gorakhpur rejecting his claim for seniority above the respondents no.3 to 51 as arrayed in the petition, who were granted appointment in pursuance to the selection which has undertaken in the year 1990 wherein the petitioner had also participated and stood first.
2.Initially, the notices on behalf of the respondents no.1 and 2 have been accepted by the counsel who was served the notices of the present petition before filing the same. Subsequently, vide order dated 23.02.2012 notices were issued to respondent nos.3 to 51 as matter relates to seniority list. The counsel for the petitioner was permitted to serve the notice by dasti summons. Accordingly, an affidavit of service for the respondents no. 3 to 51 was filed on 20.03.2012 which is on record.
3.In paragraph 3 of the affidavit of service, it is stated that all the respondents no.3 to 51 have refused to accept the notices, as such the service of respondent nos.3 to 51 is deemed to be sufficient.
4.I have heard learned counsel for the petitioner and Sri Rajeev Gupta appearing for the respondent nos.1 and 2. The parties have filed counter affidavit, rejoinder affidavit and several supplementary counter affidavits and supplementary rejoinder affidavits.
5.From perusal of record, the undisputed facts as emerged are that the petitioner had appeared in the examination held on 05.09.1990 in pursuance to the advertisement no. 561/I dated 05.04.1990. He stood first in the select list with 195 marks. The select list is on record as Annexure-3 to the petition. Subsequently, on 09.07.1991, since the select list of the examination held on 05.09.1990 was stayed by this Court, the petitioner accepted ad-hoc appointment on 09.07.1991 as an interim measure to sustain his livelihood. Subsequently, this court vide judgement dated 24.03.1994 directed the District Judge, Gorakhpur to regularised the ad-hoc employees working in class IV. Accordingly, the case of the petitioner who was appointed before 21.05.1992 was covered under the aforesaid judgement as he was appointed on ad hoc on 09.07.1991. It is relevant to mention that the select list of the test held on 05.09.1990 was stayed by this Court and the litigation remain pending during this period when the petitioner was working as interim arrangement on ad-hoc basis to sustain his livelihood. Subsequently, the controversy regarding select list of 1990 was said to had been taken up to the Hon'ble Apex Court wherein SLP was rejected against the judgement of this Court in Special Appeal No. 232 of 1998 (District Judge, Gorakhpur & Anr. Vs. Arvind Kumar Pandey & Ors). In view of the aforesaid, the result of the examination held on 05.09.1990 was declared on 31.07.1995 (a copy whereof is on record as Annexure-6 to the petition).
6.It is pertinent to note here that the petitioner was regularised on the same date i.e. 31.07.1995 in pursuance of the judgement of this Court dated 24.03.1994 passed in Writ Petition No.9913 of 1993 (Adya Prasad Misra and others Vs. State of U.P. and another) along with other connected writ petitions.
7.It is not in dispute that the result of the examination held on 05.09.1990 and the regularisation order of the petitioner was passed on 31.07.1995 i.e. on the same date.
8.Now, it is alleged that on 31.07.1995 the seniority list was prepared, wherein the petitioner was placed at serial no.1. Subsequently, the selectees of the direct recruitment of year 1990 were granted appointment on 05.10.1995 and another seniority list was prepared on 08.10.1995, wherein the petitioner was placed at serial no. 59. Before finalisation of the seniority list dated 08.10.1995 the petitioner had filed a representation dated 06.10.1995 before the District Judge, Gorakhpur claiming that since the petitioner was selected in pursuance to the examination held on 05.09.1990 and was at serial no.1, therefore, he was entitled for seniority and was also entitled for appointment on regular basis and that illegality has been committed by regularising his service on ad-hoc basis and making him on a paid apprentice. It is categorically stated in the aforesaid representation that he had never agreed for any such regularisation for his ad-hoc service and he was entitled for regular appointment on the basis of select list of the year 1990. The aforesaid representation is on record as Annexure-3 to the counter affidavit filed on behalf of respondent no.2. A perusal of the Annexure-3 to the counter affidavit contains an order dated 13.10.1995 rejecting the representation of the petitioner on the ground that since the petitioner along with 5 ad-hoc employees who stood in the select list of year 1990 have been regulsarised as ad-hoc employee, therefore, their names have been deleted from the select list, hence he is not entitled for seniority. His subsequent representations were also rejected as his first representation dated 06.10.1995 had already been rejected for the reasons disclosed hereinabove. A perusal of the order under challenged dated 15.07.2008 would disclose that since his earlier representations have already been rejected, therefore, his claim for seniority over and above the other direct selectees is liable to be rejected.
9.The crux of the various affidavits filed by the parties revolves around the facts as mentioned above and need no reproduction for the purpose of the controversy involved in the present petition.
10.The question is as to whether the petitioner is entitled for seniority as per the select list of the examination held on 05.09.1990 or he is entitled for seniority only on the basis of his regularisation dated 31.07.1995 and his seniority to be counted on the basis of the same? There is no dispute about the fact that the petitioner had appeared in the examination held on 05.09.1990 and was at serial no.1 in the select list as secured highest marks. It is very much clear from the record that the aforesaid select list was under dispute before this Court which had been taken up to the Apex Court after the decision of the learned Single Judge as well as Hon'ble Division Bench of this Court and ultimately could be concluded with the dismissal of SLP by the Apex Court on 17.07.2007. It is also very much clear from the perusal of the representation of the petitioner dated 06.10.1995 moved by him before his seniority was down graded from serial no.1 to 59 and which is based on the assertion that since the petitioner along with the 5 others ad-hoc employee had already been regularised as paid apprentice, therefore his name is deleted from the select list and as such he cannot claim seniority over the direct recruit.
11.Learned counsel for the petitioner states that this act of the respondents was patently illegal inasmuch as his working as interim measure for livelihood has been taken as ground for seniority on the basis of his regularisation without any reason. Whereas he never surrendered his right as selected candidate in pursuance to the examination held on 05.09.1990. It was further assailed that no reasonable person would under any circumstance surrender his claim from year 1990 and would agree to work on lessor advantageous post and position when he had stood first in the merit list and is entitled for seniority since 1990.
12.Indisputably, under the facts and circumstances of the case, the respondent authorities were fully aware of the fact that the petitioner would have exercised his option either accepting the regularisation or keeping his claim on the basis of the select list of the examination held on 05.09.1990 and no such opportunity was ever given to the petitioner thus the petitioner was put to lessor advantageous position without providing any opportunity of hearing or to exercise his claim on the basis of select list of 1990. It is very natural that no person would exercise his option to accept disadvantageous position as petitioner has rightly protested in his representation dated 06.10.1995, Annexure-3 to the counter affidavit. Thus, clearly the respondent authority no.2 had acted in some what most unreasonable, unjust, arbitrary and illegal manner.
13.Learned counsel for the petitioner has relied upon the various decisions. I have gone through the same and I find that they are not applicable to the present case. They are mainly on the issue as to whether the ad hoc service rendered by an employee could be taken into consideration for fixation of seniority. In my opinion, the issue involved in the present petition is entirely different as the petitioner in the present case is claiming his right to be senior on the basis of select list of the examination held on 05.09.1990, wherein he stood first and that he never agreed to be regularised on the basis of his working as an interim measure on ad hoc basis. As such, the reference to such decisions is not required in the present facts and circumstances of the case.
14.In my opinion, the impugned order is not sustainable and order, rejecting the claim of seniority made by the petitioner on the basis of seniority list of 1990, is liable to be rejected, inasmuch as, the petitioner had never surrendered his claim on the basis of select list of year 1990 and it also seems to be highly unreasonable, unjust and arbitrary on the part of respondent no.2 to regularise the service of the petitioner on 31.07.1995 and on 31.07.1995 itself declare the result of the examination held on 05.09.1990 for the purpose of appointment and thus on the same day putting the petitioner on disadvantageous position. The undisputed fact remains that the petitioner had filed representation on 06.10.1995 categorically assailing that he had never surrendered his claim on the basis of the select list of 1990 and he had never opted or prayed for regularisation as paid apprentice on the basis of working as ad-hoc employee which was based on judgement of this Court dated 24.03.1994. Thus, in my opinion, the petitioner has been illegally deprived of his seniority for which he is fully entitled on the basis of select list for the examination held on 05.09.1995, wherein the petitioner had secured highest 195 marks and stood first.
15.The impugned order dated 15.07.2008 is set aside. The petitioner shall be entitled for his due seniority in accordance with the select list for the examination held on 05.09.1990 and he is also entitled for all consequential benefits regarding pay, promotion etc, as if he has been duly selected in direct recruitment of the year 1990 and was duly appointed in pursuance thereof.
16.The present petition is, accordingly, allowed.
Order Date :- 16.05.2014 Ajay