JUDGMENT D.P. Singh, J.
1. Heard learned Counsel for the petitioner and the learned Standing Counsel for the contesting respondents.
2. This petition is directed against an order dated 5.2.1996 by which the working of the petitioner has been ceased and salary has also been stopped.
3. It is pleaded that the petitioner was appointed on Daily wage basis as a Junior Engineer in Nagar Palika Parishad, Bindki vide order dated 22.4.1989 as the only post of Junior Engineer was lying vacant and no selected candidate was available. However, the respondent No. 5 was transferred to the said post in June, 1990 and thus the services of the petitioner stood automatically ceased. Aggrieved, he preferred Writ Petition No. 10197 of 1990. A learned Single Judge of this Court vide order dated 15.5.1993, though came to the conclusion that the petitioner had no right, disposed off the petition with an observation that if in future vacancy arises on the post of Junior Engineer and the petitioner satisfies the other conditions of service as laid down in the relevant rules, he may be considered for appointment. However, the State Government vide order dated 4.10.1994, on the strength of the order of the learned Single Judge, transferred the regular incumbent Sri P.D. Jaiswal and on his post appointed the petitioner on daily wage basis. Sri Jaiswal preferred a writ petition challenging his dislodgement order and obtained an interim order therein. Again the government directed both the petitioner and Sri Jaiswal to function on the single post of Junior Engineer. The respondent Parishad finding that the payment of salary to two persons on a single post was not only illegal but against its financial interest passed the impugned order.
4. The foremost question, which arises, is, whether the petitioner has any legally enforceable right? The fountainhead of all the rights, which the petitioner has pleaded in this petition, is the order dated 15.5.1993 passed in his Writ Petition No. 10197 of 1990. The relevant part of the said order is quoted below:
Keeping in view of these circumstances, it will be in the interest of justice if the petitioner is considered by the opposite parties for giving employment on the post of Junior Engineer if there is some vacancy and the petitioner satisfies other conditions which may be laid down in the relevant rules or executive instructions for such appointment.
The writ petition is accordingly allowed to this extent that the opposite-parties are directed to consider the petitioner for employment on the post of Junior Engineer in future vacancies if he is eligible and suitable for the same and satisfies, the conditions for appointment. This may be done if and as a vacancy is available.
5. From the above, it is clear that the consideration of the petitioner for appointment was dependent upon a vacancy and after following the relevant rules. The State Government mistook this as a direction for his appointment and passed the order dated 2nd December, 1994 that he should be appointed on daily wages till the regularly selected candidate is available. But, in fact, there was no vacancy as the respondent No. 5 was working therein. Curiously, the State went out of its way and passed the order dated 6th October, 1994 transferring the respondent No. 5 to create a vacancy for appointment of the petitioner. The respondent No. 5 challenged the aforesaid orders in Writ Petition No. 33919 of 1994 wherein the aforesaid order of the State Government dated 6.10.1994 was stayed. Nevertheless, inspite of the said order, the State Government vide order dated 23.12.1994 directed the Nagar Palika Parishad, Bindki to allow both the persons to work on the single post and the Parishad was further burdened with payment of salary. The entire exercise of the State Government and the Director was de-hors the rules under the garb of the order dated 15.5.1993. The State Government cannot insist on appointment of a person de-hors the Rules and against the principles of Article 14 and Article 16 of the Constitution. No doubt after filing of the present petition an interim order dated 24.5.1996 was passed which was further modified on 11th June, 1996 on which basis, it is alleged, that the petitioner is continuing. It is apparent that the petitioner is continuing to function on the basis of an interim order of this Court but he has been unable to demonstrate any statutory legal right in his favour. It is not denied that the recruitment to the post of Junior Engineer is governed by U.P. Nagar Palika (Centralized Service) Rules, 1966 and the Commission has never selected the petitioner. A local arrangement of couple of months or a year would not enure to the benefit to the petitioner, especially in a case where he came by the back door. A Constitution Bench in the case of Secretary, State of Karnataka v. Smt. Uma Devi has held that where a person continues for a long period on the basis of such an interim order, he cannot claim any benefit unless his continuance is under an independent arrangement recognised in law.
6. It is urged that several persons appointed together with the petitioner and even later, their services has been regularized ignoring his claim. He has relied upon an order dated 7.3.1995 in support thereof.
7. Though a vague statement to that effect has been made in the petition without giving their names and other details, but it would be worthwhile to examine the order dated 7.3.1995. A perusal of the said order shows that it was passed under Rule 31 of U.P. Palika (Centralized) Service Rules, 1966 granting adhoc appointment to all those Junior Engineers who were working on the date of the order and had completed three years of continuous service until 1.10.1994 and had worked for at least 240 days in each of the three years. However, the said order was not made applicable to those who were working under interim orders of the Courts and their appointments were to continue subject to the decision by the Courts. Admittedly, the services of the petitioner had been terminated in June, 1990 and on the alleged strength of the order of this Court dated 15.3.1993, the petitioner was appointed (as pleaded by him in para 4 of the writ petition) on 6.10.1994. Further, he admits that this order dated 6.10.1994 was stayed by this Court in Writ Petition No. 33919 of 1994 vide its order dated 25.10.1994 (Annexure-8 to the petition). However, as noted in the earlier part of the petition, on the basis of the direction of the Government, the petitioner was allowed to work vide order dated 4.1.1995 (Annexure-11 to the writ petition). By no stretch of imagination can it be said that the petitioner had completed three years of service on 1.10.1994 or 240 days in each year. Therefore, the argument that he was discriminated cannot be accepted.
8. Lastly, it is urged, that, the State Government had power under Rule 31 to make appointment even without selection and, therefore, once the Government had appointed the petitioner, he cannot be removed by the Nagar Palika Parishad.
9. Recruitment to centralized post is governed by the 1966 Rules. Under Rule 15 the Government has to send the number of vacancies to the U.P. Public Services Commission, upon which the Commission has to invite applications and after holding examination or interview, as the case may be, prepare a select list of candidate in the order of merit and send it to the Government which can make appointment under Rule 19 from the said list. To this general rule, an exception is carved out in Rule 31, which is quoted below:
31. Ad hoc and temporary officiating appointments. - Notwithstanding anything contained in Rule 21 the State Government may also make ad hoc appointments or temporary officiating arrangements for the posts falling vacant substantively or temporarily.
10. A perusal of Rule 31 shows that sin quo non to make any ad-hoc or temporary officiating arrangement is the existence of a substantive or temporary vacancy. It is apparent from the fact which has been noted above that there was no vacancy on the single post of Junior Engineer in Bindiki Parishad when the Government presumably exercised its power under Rule 31, no doubt it could appoint the petitioner in any other Parishad where there was vacancy, but it did not choose to do so, but malafidely it transferred respondent No. 5 to create an artificial vacancy, but that too was stayed by this Court. At the cost of repetition it may again be added, that the Government, like an errant child took umbrage at the Court order, directed that both may work on a single post, which apart from being illegal was also contemptuous. The Government had neither any power under the statute nor any moral right to post two persons on a single post and then burden the Parishad for salary. It could have created a new post, but it did not do so. Further, can the Government be said to possess such arbitrary power as to choose anyone from the street and appoint him under Rule 31? The answer has to be a big No. All actions of the State have to conform to the constitutional scheme of Articles 14 and 16 of the Constitution. It has to give even chances to its eligible citizens and cannot resort to pick and choose. While exercising the power under Rule 31, it has to invite open applications or seek names from the Employment Exchange. In Uma Devi's case (supra) the Constitution Bench has reiterated the constitutional scheme of equality of opportunity. Therefore, neither this argument be accepted nor the appointment of the petitioner can be upheld.
11. For the reasons above, this is not a fit case for interference under Article 226 of the Constitution of India. Consequently, the petition is dismissed and the interim order is vacated.