NARAIN JI GOPAL Vs. THE STATE OF U.P.

JUDGEMENT

(1.) IN this case on 14 -5 -1990 this Court granted two months and no more time to the learned Standing Counsel to file counter affidavit but no counter affidavit has been filed. On 4 -1 -1992 this Court, despite order passed on 14 -5 -1990, gave one last opportunity to the Standing Counsel to file counter affidavit within one month, but no counter affidavit has yet been filed. In the circumstance, I am treating the allegations in the writ petition to be correct and disposing of the petition finally. The petitioner joined the Nagar Mahapalika, Allahabad as a junior Engineer on 23 -2 -1960. The Allahabad Development Authority was created on 20 -8 -1974, and the petitioner was transferred as Junior Engineer in the office of the Allahabad Development Authority. It has been alleged in paragraph 5 of the petition that a seniority list was circulated in which, petitioner was shown at Serial No. 1 while Sri Harihar Nath Tripathi was shown at serial No. 2 amongst the Junior Engineers. The petitioner was promoted in ad hoc capacity as Assistant Engineer vide order dated 29 -4 -1981 (Annexure -1 to the petition). Harihar Nath Tripathi was also promoted in ad hoc capacity as Assistant Engineer, and he continued to be junior to the petitioner. Subsequently the U.P. Urban Planning and Development Act, 1973 was amended by Ordinance of 1984 which added Section 5 -A. This provision laid down that a person serving on the post included in such service immediately before such creation shall unless be opts otherwise be absorbed in such service finally if he was already confirmed in his post, and provisionally if he was, holding temporary or officiating appointment The post of Assistant Engineer is in the centralised service and since the petitioner was working as Assistant Engineer in ad hoc capacity, he claims absorption under the aforesaid provision. The petitioner has alleged that he made an application dated 16 -8 -1984 seeking absorption. A true copy of his application dated 16 -8 -1984 is Annexure -2 to the writ petition. The petitioner has also alleged that Harihar Nath Tripathi who was junior to him has been absorbed finally in the service of the Development Authority. Since the petitioner is senior to Harihar Nath Tripathi, hence his non -absorption in the service of the Development Authority is clearly violative of Articles 14 and 16 of the Constitution of India.

(2.) IN paragraph 25 of the writ petition, it is alleged that the petitioner received a letter dated 2 -1 -1987 by which his application for absorption was rejected. A true copy of the order dated 2 -1 -1987 is Annexure -5 to the writ petition. In the said order, it was mentioned that the petitioner should first resign from the post of Assistant Engineer in palika service and his resignation would be accepted, and only then he will be considered. This requirement is clearly arbitrary as it is wholly unreasonable to first compel a person to resign and then again absorb him on the same post. At any event, the petitioner has himself offered to resign from palika centralised services vide letter dated 16 -8 -1984 (Annexure -2 to the writ petition). Hence there is no good ground for not absorbing him in the service of Development Authority particularly when Harihar Nath Tripathi has been absorbed. The petitioner made a representation dated 29 -1 -1987 (Annexure -6 to the writ petition) but the same was rejected by letter dated 19 -1 -1988 (Annexure -7 to the writ petition). Thereafter the petitioner again sent a representation dated 29 -4 -1988 (Annexure -8 to the writ petition), but no action was taken on the same. The Ghaziabad Development Authority by his order dated, 28 -7 -1988 has recommended the case of the petitioner, vide Annexure -9. In view of the above discussions, I am clearly of the view that non -absorption of the petitioner in the service of the Development Authority was arbitrary, discriminatory, and illegal. The writ petition is allowed, and mandamus issued to the respondents to absorb the petitioner in the service of the Development Authority respectively at least from the date when Harihar Nath Tripathi was absorbed. The petitioner shall also be considered for promotion as Assistant Executive Engineer, if Harihar Nath Tripathi has also been promoted. The petitioner may also be given all consequential benefits. There is no order as to costs.