KANHAIYA LAL TRIPATHI Vs. STATE OF U P

JUDGEMENT

(1.) The petitioner was initially appointed on 16.11.1989 on daily wage basis in the department of Samaj Kalyan. He worked there till 9.6.1991. The petitioner on 3.6.1991 was given appointment in the post of clerk in the Department of Samaj Kalyan on regular basis. The petitioner submitted his joining report on 10.6.1991 and he had been working in the said department. By an order dated 31.1.1992 issued by the Director, the Deputy Director was directed to discontinue the service of the petitioner on the ground that the petitioner was appointed at a point of time when there was a ban on appointment and as such, his appointment having been illegal and irregular, it was not justified to continue his service. The Deputy Director by an order dated 3.2.1992 terminated the services of the petitioner on the ground that the petitioner was appointed as junior clerk against the vacancy in the post of senior clerk, on which one Udai Singh Verma has been reinstated, due to which the petitioner, a junior clerk, became surplus and, therefore, his service was terminated. These two orders have since been challenged in this writ petition. By an order dated 7.4.1992 both these orders were stayed by this Court.

(2.) Mr. M. D. Singh. learned counsel for the petitioner contends that some persons, namely, one Anil Kumar Srivastava. though junior to the petitioner has been allowed to continue while the petitioner's service was terminated on the ground that by reason of reinstatement of Udal Singh Verma. a senior clerk, the petitioner became surplus. But the petitioner could not have been said to be surplus in the post of junior clerk particularly when there were sufficient vacancies available and juniors to the petitioner were allowed to continue. He secondly contends that the petitioner having been appointed as junior clerk, he cannot be declared surplus by reason of the re-instalement of the senior clerk. He next contends that the petitioner having been regularly appointed and the said fact having not been disputed by the respondents, it cannot be said that the petitioner's appointment was irregular. He contends further that the petitioner was appointed on 3.6.1991 while the alleged ban was operative since 29.6.1991, therefore, petitioner's services cannot be terminated on the basis of the direction of the Director on the ground that his appointment was made when ban was operative. The Deputy Director had given a different reason than that of the Director, which was wholly misplaced and cannot be substantiated as contended by him earlier. He further contends that service of the petitioner cannot be terminated on these vague grounds as assigned in the impugned orders. Therefore, the order of termination should be set aside and the writ petition should be allowed.

(3.) Mr. K. R. Singh, learned standing counsel on the other hand contends that there cannot be any appointment on the post of junior clerk against the vacancy in the post of senior clerk. Since the appointment has been made against a particular vacancy, the petitioner cannot claim retention of his service against some other vacancy. According to him there being no vacancy in the post of junior clerk and the appointment having been made against the vacancy in the post of senior clerk, the petitioner did not acquire any legal right to espouse his cause. He further contends that regular appointment has been used in the pleadings in the writ petition in contradistinction to his appointment on daily wage basis. In the absence of specific pleadings, it cannot be said that the petitioner was appointed through regular recruitment process. Relying on the U. P. Government Servants Subordinate Offices Ministerial Staff (Direct Recruitment) Rules. 1975, he contends that the petitioner's appointment has not been made following the said Rules which requires appointment in the lowest grade after notification of the vacancies to the employment exchange through constitution of selection committee following the procedure provided in Rule 16 of the said Rules. There cannot be any appointment in the post of senior clerk which is not the lowest grade post. The appointment has been sought to be made in the post of junior clerk which is lowest grade against the vacancy in the post of senior clerk without following the said rules. Such appointment being void, the petitioner cannot claim any legal right which he can establish through writ proceedings. The writ Jurisdiction can be invoked only to enforce legal right, and not otherwise. He also contends that judicial process cannot be utilised to support a mode of recruitment de-hors the rules. Howsoever long the period of service may be. If initial appointment itself is invalid, no legal right, could accrue by reason of such appointment, in order to establish a legal right through writ proceedings.