ZILA PARISHAD JHANSI Vs. UDAI PRATAP SHUKLA

JUDGEMENT

(1.) This special appeal has been filed by the appellant, who was respondent in the writ petition, against the judgment and order dated 24.2.1997 passed by learned single Judge.

(2.) Brief facts for the purposes of the present appeal, as stated by the petitioner-respondent are that the petitioner obtained Diploma in Civil Engineering from Government Polytechnic College, Jhansi, in the year 1984. In Zila Parishad, Jhansi, there was requirement of two Junior Engineers. The Upper Mukhya Adhikari, Zila Parishad, wrote a letter on 23.8.1984 to the Principal, Government Polytechnic College, Jhansi, for sending ten names from the merit list of the candidates having Civil Engineering Diploma for appointment on the post of Junior Engineer. Petitioner's name was sent by the Principal, Polytechnic College, Jhansi. The Zila Parishad, Jhansi, permitted the petitioner to join on the post of Junior Engineer, Civil with effect from 26.10.1984. As sanction for regular post was not received by the Commissioner. Jhansi Division, Jhansi, the petitioner was appointed on daily wages at the rate of Rs. 12 per day. It is further stated that subsequently vide order dated 9.1.1985 sanction for two permanent posts was given by the Commissioner. Jhansi Division, Jhansi. The Zila Parishad Initiated proceedings for appointment on the permanent post. On 20.10.1986, the petitioner appeared before the selection committee constituted by Zila Parishad for selection on the post of Junior Engineer and it is alleged that he was found suitable and eligible for the permanent post of Junior Engineer, but before the appointment letter could be Issued a radiogram dated 18.2.1987 was Issued by the Government by which the appointments were stopped on those posts since these posts were likely to be treated in Central Transferable Cadre. Thus, according to the petitioner, subsequently vide U. P. Zila Parishad (Central Transferable Cadre) 5th Amendment Rules, 1987, which was published in the U. P. Extraordinary Gazette Part IVth dated 1.2.1987, the post of Junior Engineer was included in the Central Transferable Cadre and by the Schedule, the appointing authority was substituted as the State Government. The contention of the petitioner is that he was fully entitled to continue on the post of Junior Engineer since his selection was completed prior to the amendment in the rule and as the amendment became enforceable with effect from 1.5.1987, hence the petitioner was entitled to get appointment. It Is further stated by the petitioner that he wrote a letter on 23.4.1987 for Issuance of regular appointment letter on the post of Junior Engineer. It is further stated that the District Magistrate/President, Zila Parishad, Jhansi vide his letter dated 2.5.1987 wrote to the Government asking its permission for the appointment on the post. Subsequently, a recommendation was made by the District Magistrate as President, Zila Parishad on 31.7.1987 for the appointment of the petitioner on the post of Junior Engineer. The petitioner, it is stated, also wrote a letter to the Secretary, Panchayat Raj, U. P. Government, Lucknow for his appointment on the post of Junior Engineer in Zila Parishad, Jhansi. It is stated that reminders were sent by the District Magistrate but the petitioner was continuing only the post of Junior Engineer as daily wager and he has not been paid his dally wages with effect from 1.6.1989. The petitioner prayed for a writ of mandamus directing the respondents to regularise his service on the post of Junior Engineer in Zila Parishad, Jhansi and has also prayed for a writ of mandamus directing the respondents to pay the arrears of salary for the post of Junior Engineer. Zila Parishad, Jhansi, with effect from June, 1989 and other benefits of service.

(3.) A counter-affidavit has been filed by one Hari Ram Yadav, a Public Work Clerk in Zila Parishad, Jhansi, against the writ petition. It is stated that the petitioner's initial appointment was only a temporary appointment on daily wages. It is further stated that the petitioner was neither appointed nor any appointment letter was Issued to him and he was permitted to work on work charge. He has not worked continuously from 25.10.1984 rather there are breaks in service and he was paid only for the days he worked. It is also stated that petitioner's work was unsatisfactory. It is admitted that the petitioner was called for interview but the committee could not finalize the selection as there were complaints against the selection committee and enquiry was made and before it could be completed, a radiogram was received that the post had come under Central Transferable Cadre and Government was made the appointing authority. It is stated that the District Magistrate wrote letter but the State Government took policy decision that the State Government will make all appointments of Junior Engineers which were of Central Transferable Cadre and no approval to appoint the petitioner was accorded. It is further stated that from June, 1989 to August. 1989, the petitioner did not work under the guidance and instructions of the Engineer. He did not produce the stock register for verification, therefore, the payment could not be made from September, 1989 till January. 1990. In February. March and April, 1990, no work was done by the petitioner.