STATE OF U P Vs. AHMAD SHAHEED

JUDGEMENT

(1.) This special appeal has been filed by the State of U, P. against the judgment and order dated 13.3.1997 passed by the learned single Judge in Civil Misc. Writ Petition No. 21087 of 1988, Ahmad Shaheed and others u. Stale of U. P. and others. By the impugned judgment and order, the learned single Judge has disposed of the writ petition filed by the respondents (writ petitioners) on the basis of the judgment and order dated 29.8.1996 passed in the Writ Petition No. 20393 of 1988, Anil Kumar and another v. State of U. P. and others.

(2.) Brief facts for the purposes of this special appeal, as stated in writ petition, are that respondents (writ petitioners) namely, Ahmad Shaheed, Habibeeb Khan and Shakeel Khan filed a writ petition giving rise to the present special appeal. Their case was that they were daily wages employees (on temporary muster roll) in the office of the Executive Engineer, Temporary Division, P.W.D., Aligarh, they continuously worked for a period of three years, the Assistant Engineer made a recommendation in their favour, the Chief Engineer. P.W.D.. Lucknow vide his order dated 21.6.1980 confirmed the petitioner No. 2 and he was appointed on temporary basis w.e.f. 1.1.1988, the petitioner No. 1 was also appointed on temporary basis (on permanent muster roll) vide order dated 30.1.1988. The petitioners contention is that their services were regularised and they were working as regular employees w.e.f. 1.1.1988, have been paid their regular salary upto the month of July, 1988. They have staled that in October, 1988, they were served with an order of the Assistant Engineer along with the copy of the order dated September 26. 1988, passed by the Executive Engineer (respondent No. 3) to the effect that the status of the petitioners have been changed from regular employee to daily paid employees. The petitioners have challenged this order dated 26.9.1988 by means of writ petition giving rise to this appeal on the ground that when the petitioners approval as permanent employees was made by the Chief Engineer, Agra Division, Public Works Department, Agra (respondent No. 2) on 18.8.1988, the respondent No. 3 (Executive Engineer) had no jurisdiction to pass any order changing the status oi the petitioners from permanent employee to that on temporary muster roll. It is further alleged that no opportunity was given to the petitioners to defend themselves before passing the impugned order and the impugned order is in violation of the principles of natural justice.

(3.) A counter-affidavit has been filed in the writ petition. In counter-affidavit, it is stated that the petitioners were directed to be placed on the muster roll by the Executive Engineer, who was not a competent authority to do so. Consequently, Chief Engineer on 18.8.88 passed an order which was communicated by the Superintending Engineer that the order passed by the Executive Engineer was not legal. In paragraph 5 of the counter-affidavit, it is stated that the Executive Engineer had no authority to regularise the services of the petitioners and he passed the order putting the petitioners on the muster roll without any authority or jurisdiction. The said order can only be passed by the Superintending Engineer who was the competent authority to regularise the services of the petitioners, therefore, the matter was reported to the Chief Engineer, Agra that such regularisation is irregular and accordingly, the order was withdrawn by the competent authority.