Order on Delay Condonation Application
1. This is an application seeking condonation of delay in filing this appeal.
2. Heard.
3. Delay in filing this appeal is explained satisfactorily. It is hereby condoned. The application is accordingly allowed.
4. Let this appeal be registered with regular number and old number shall also continue to be shown in bracket for finding out details of case, whenever required by parties with reference to either of two number.
Order Date :- 27.2.2018 sailesh
1. Heard Sri K.K. Tiwari, learned counsel for appellant, Sri Vimlesh Kumar Rai, Advocate and learned Standing Counsel for respondents.
2. This intra-Court Appeal under Chapter VIII Rule 5 of Allahabad High Court Rules, 1952 (hereinafter referred to as "Rules, 1952") has arisen from judgment and order dated 25.04.2011 passed by learned Single Judge in Writ Petition No. 11813 of 1993, whereby writ petition of appellant was dismissed.
3. Initially, appellant was appointed as daily wage employee in U.P. Jal Nigam at Allahabad. A new post of Lab Assistant was created vide Government Order dated 08.05.1991. It was clarified that post of Lab Assistant shall be filled directly from available staff of Jal Nigam.
4. Executive Engineer, Allahabad, however, published an advertisement (Annexure no. 3 to the writ petition) inviting applications from working employees of Jal Nigam working at Allahabad only. Pursuant thereto vide order dated 07.12.1992 passed by Executive Engineer appellant was selected and appointed as Lab Assistant.
5. Thereafter matter was complained to higher authorities that aforesaid appointment was made without giving opportunity or consideration of all other employees of Jal Nigam since selection was not confined to the employees working on daily wage basis at Allabahad, Jal Nigam but open to entire Jal Nigam.
6. The matter was examined by Chief Engineer and vide order dated 22.03.1993 he has found that as per order creating new post of Lab Assistant, appointment was to be made from amongst presently working staff of U.P. Jal Nigam, therefore, confining selection for working employees of U.P. Jal Nigam at Allahabad and making appointment therefrom amounts to denial of opportunity to other eligible employees working in Jal Nigam. In the aforesaid order dated 22.03.1993, Chief Engineer has also issued directions to cancel appointment letter(s) of Lab Assistant made after making selection at local level. Pursuant thereto, consequential order was issued by Executive Engineer cancelling appointment letter of appellant whereby he was appointed as Lab Assistant.
7. The aforesaid order was challenged before learned Single Judge, who has upheld the said orders, hence, this appeal.
8. Learned counsel for appellant contended that appellant was appointed after following due procedure of selection and, therefore, impugned order of termination is in violation of principles of natural justice, hence, the same is liable to be set aside. He further contended that selection was made in accordance with law and there was no irregularity in selection of appellant, therefore, his appointment ought to be treated valid.
9. We find no force in both the submissions advanced by learned counsel for the appellant for the reason that appointment of Lab Assistant was not made after giving opportunity and considering all existing staff of Jal Nigam but it was confined to only one district i.e. Allahabad. There was utter violation of conditions of the Government Order which resulted denial and lack of consideration to other employees of Jal Nigam working at places other than Allahabad. The selection was clearly illegal and, therefore, appointment letter has rightly been cancelled.
10. In effect, it is not the case of termination of service of employees but cancellation of appointment made illegally by violating right of consideration to other eligible persons established under Article 16 of the Constitution if India. The eligibility criteria was not confined only to Allahabad. We find difficult to accept otherwise submissions of counsel for appellant. Confining selection to only working employees of Jal Nigam at Allahabad pursuant whereto appellant was appointed, was illegal and contrary to the conditions of recruitment.
11. Hence, we find no substance in the appeal.
12. Appeal lacks merit. Dismissed.
Order Date :- 27.2.2018 sailesh