Sunil Kumar Sonkar vs State of U.P. and Others

Arun Tandon, J.—Petitioner before this Court seeks quashing of the order dated 29.5.1992 whereunder the appointment offered to the Petitioner as Assistant Lekha Parikshak in Nagar Mahapalika, Kanpur vide order of the Mukhya Nagar Lekha Parikshak, Nagar Mahapalika, Kanpur has been cancelled by the Director, Local Bodies, U.P. Lucknow. Further prayer has been made that the Respondents may be directed to regularise the service of the Petitioner. Facts in short on record of this petition are as follows:

Petitioner was appointed as Sahayak Lekha Parikshak in the pay scale of Rs. 420-735/- in the employment of Nagar Mahapalika, Kanpur on purely temporary basis under order of the Mukhya Nagar Lekha Parikshak dated 6.6.1986. The order is on record as Annexure-4 to the writ petition which recorded that exemption from the order of the Commissioner, Allahabad Region, Allahabad, qua experience of two years working in the Accounts Department of Local Bodies is to be obtained. The appointment so offered to the Petitioner has been cancelled under the impugned order after recording that vide notification of the Government Order dated 3.5.1983, the post of Sahayak Lekha Parikshak has been brought within the purview of the Mahapalika Centralised Services Rules and, therefore, the Mukhya Nagar Lekha Parikshak had no jurisdiction/authority to offer any such appointment. This Court finds that on 10.6.1987, the Commissioner, Allahabad Region, Allahabad granted relaxation from two years experience, in favour of the Petitioner. A copy of the order in that regard is enclosed as Annexure No. 5.

On behalf of the Petitioner, supplementary-affidavit has been filed on 8.4.2010. In paragraph 2, it is stated that under the U.P. Nagarpalika Seva Order, 1963 issued in exercise of powers u/s 106 read with Section 109 of Mahapalika Adhiniyam qua, the Commissioner has been conversed power to grant relaxation in the matter of essential qualification prescribed. Copy of the Order 1963 has been enclosed as Annexure SA-1. It has further been stated that on 30.4.2003, the State Government has issued U.P. Palika Centralised Services 21st Amendment Rules, 2003 which provide for regularisation of ad-hoc appointment on centralised post. The case of the Petitioner is squarely covered by the aforesaid regularisation rules. Reference is also be made to the case of Satya Priya Mishra, Dinesh Chandra Sharma and Sudhir Dutt Mishra who are stated to be similarly appointed and the State Government has directed that they should be regularized. Reliance has also been placed upon by Division Bench judgment of this Court in the case of Bharat Sanchar Nigam Ltd. v. Brij Mohan Srivastava and Anr. 2002 (4) 610

I have heard learned Counsel for the parties and have examined the records.

In the counter-affidavit filed on behalf of the State Respondents it has been disclosed that the post of Assistant Audit Officer was brought within Centralised Services vide Government order dated 3.5.1983, which fact has not been disputed in the rejoinder-affidavit. It is, therefore, apparent that the post of Sahayak Lekha Parikshak become part and parcel of U.P. Palika Centralised Services on 3.5.1983 with the issuance of the said Government Order. Accordingly, Section 112-A of the U.P. Nagarpalika Adhiniyam, 1959 became applicable and nothing contained in Section 106-110 of the U.P. Nagarpalika Adhiniyam, 1959 would have any application qua appointment on the post. The method of recruitment and conditions of services to such centralised post is to be made as per the Centralised Service Rules and is regulated by the State Government only. What logically follows is that no appointment on a post within the Centralised Services should be made by any of the authorities under Sections 106 and 110 of the Nagar Mahapalika Adhiniyam. Consequently, the impugned order which records that on the date the Petitioner was appointed as Sahayak Lekha Parikshak. Mukhya Nagar Lekha Parikshak had no authority to offer such appointment is legally correct. The Mukhya Nagar Lekha Parikshak did not have any authority to offer appointment on centralised service post.

Even otherwise it may be recorded that under Clause 8 of the U.P. Nagar Seva Order, 1963 which is sheet anchor of the argument advanced by the Petitioner, relaxation from the required essential two years experience of working on an account posts in a Local Body before the appointment is made. The Commissioner, in fact, granted the relaxation in 1987 that year after the appointment. It is therefore clear that on the date, the Petitioner was appointed, it was not by proviso to Clause 8 of the order 1963 also.

This Court also finds that the Petitioner is not entitled to be regularised under Rule 21-A of the Centralised Services Rules as amended in 2003, as the Petitioner was not appointed on ad hoc by a competent authority referable to Rule 21-A. Rule 21-A provides for regularisation to be considered the candidate must have been possessed of the prescribed minimum qualifications. Admittedly in the year 1986 when the Petitioner was appointed on temporary basis, he was not possessed of prescribed minimum qualification as per Rule 12 of the Centralised Service Rules.

Lastly, the plea of parity raised by the Petitioner also does not appeal to the Court. This Court will not issue an order directing the Respondents to perpetuate an illegal appointment. The Apex Court has repeatedly held that there can be no negative equality. (Ref. Ghulam Rasool Lone Vs. State of Jammu & Kashmir and Another,

Writ petition dismissed interim order, if any stands discharged.