Decided on March 07,2002

STATE OF U.P Respondents

Cited Judgements :-



- (1.)Shri Ramesh P. Bhatnagar is the appellant in this case which arises out of the judgment of Allahabad High Court in W. P. No. 122/1991 as well as the order of the said high Court in the review petition filed against the same. The main grievance of the appellant is to several government orders issued, on the ground that those orders were not constitutionally valid and it is prayed that on such a declaration being given, the appellant sought the relief of re-determination of the seniority in the cadre of assistant engineers and further consequential benefits flowing therefrom for promotion as well as pecuniary benefits. This case has a chequered career having come to this Court and being sent back on remand and appellant himself withdrawing the SLP and filing an application for review. But, it is not necessary for us to dilate on those orders. Suffice it to say that the appellant had already superannuated 1998 and is no longer in the cadre. He was promoted to the post of executive engineer and then while working as executive engineer, he has superannuated in the year 1998, as already stated. Against the judgment of allahabad High Court dated 4.7.1994 disposing of a batch of writ applications, several other special leave petitions had been filed and this Court dismissed those applications, though in limine. Even the appellant himself had come on an earlier occasion and raised the contention that the constitutionality of the government orders have not been decided and yet the court did not think it proper to entertain the petitions, but the learned counsel made the statement that it would be open for him to take appropriate measures in the appropriate forum whereafter, the application was dismissed and the appellant filed an application for review, which also stood dismissed and that order of dismissal of the review is under challenge.
(2.)It is in these circumstances, we are not persuaded to examine the contentious issue regarding the constitutionality of the different government orders at the behest of the appellant, Shri Bhatnagar, who has already superannuated. We, therefore, decline to interfere with the impugned judgment of the Allahabad High Court including the judgment passed on review petition.
(3.)Shri J. P. Tyagi, who was a co-petitioner in the writ petition before the High Court, had been arrayed as a party-respondent in this proceeding, but he has since been transposed by an order of this Court. Mr. Dwivedi, learned senior counsel appearing for Shri Tyagi, contended that Shri Tyagi was appointed as an assistant engineer under the rules then in force, after being duly selected by the selection committee having all the necessary qualifications for the post, though before his appointment in the year 1964, there had been no consultation with the Public Service Commission. The process of consultation ultimately came through in the year 1970 and therefore, the state government passed an order in the year 1982 treating the period from 1964 to 1970 to be on probation and that period has not been counted for the seniority of Shri Tyagi in the cadre of assistant engineers. According to Mr. Dwivedi, the said Shri Tyagi, having all the prescribed qualifications for the post and having gone through on process of selection by the duly constituted selection committee and having discharged the services as assistant engineer, his appointment having been ultimately approved by the Public Service commission, there should be no rhyme or reasons not to consider the period from 1964 to 1970 to be a regular service for the purpose of his seniority in the cadre and according to him, principle (B) of the Direct recruit Class II Engineering Officers' association v. State of Maharashtra and Ors. [ (1990) 2 SCC 715] would govern the case. In the case in hand, it is a conceded position that there existed a rule governing the recruitment to the post of assistant engineer and the appointment had not been made in accordance with the said rules, as there was no consultation with the Public Service Commission. In the circumstances, the Direct Recruit case is of no application. So far as the rules in question are concerned, the appointment to the post of assistant engineer could be made by the state government only after consultation with the Public Service Commission. Any appointment made without any consultation with the Public Service Commission would not enure to the benefit of the appointee for the purpose of reckoning his seniority in the cadre and cannot be held to be a substantive appointment in the cadre. Government, therefore, was fully justified in not considering the period from 1964 to 1970 for the purposes of reckoning the seniority of Shri Tyagi in the cadre of assistant engineer. That apart, Shri tyagi was satisfied with the order of the high Court dated 4.7.1994 and never assailed the same until he was allowed to be transposed by an order of this Court. In the aforesaid premises, we do not see any infirmity with the impugned judgment vis-a-vis Shri Tyagi requiring our interference. This appeal fails and is accordingly dismissed.

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