Pankaj Mithal, J. - (1.) PETITIONER by means of this writ petition is claiming that he should be appointed on the post of Part time/Assistant Tub -well Operator in view of his selection dated 27.5.1994. He has further prayed for quashing of the orders dated 27.6.2007 and 29.11.2008 whereby his representations to the aforesaid effect have been rejected by respondent No. 1, the Executive Engineer Tube -well Division, Sahjahanpur.
(2.) ACCORDING to the petitioner he appeared in the examination and interview for selection on the post of Part time/Assistant Tub -well Operator on 12.5.1994 whereupon vide order dated 27.5.1994 he was declared selected. On his aforesaid selection he was sent for training which he completed successfully. However, he was not permitted to join the services in view of the judgment and order of the Lucknow Bench of the Allahabad High Court dated 18.5.1994 passed in writ petition No. 3538 of 1992 Suresh Chandra Tiwari and Ors. v. State of U.P; interim order in Special Leave Petition No. 16219 of 1994 of the Sate of U.P. arising therefrom; and the directions of the authorities dated 4.10.1994 not to appoint any part -time/Assistant Tube well operators till the disposal of the Special Leave Petition. After the dismissal of the special leave petition on 22.3.1995, the petitioner represented for issuing appointment letter but when no action was taken, he preferred writ petition No. 7003 of 1996 seeking direction for his appointment. The said writ petition was disposed of on 22.3.1996 with the direction to the authorities concern to decide the representation of the petitioner in that regard within a time bound period. The above order was modified on 10.7.1996 and it was also provided that in deciding the representation the authorities shall also keep in mind the decision of the Supreme Court dated 22.3.1995 dismissing the Special Leave Petition. The petitioner as such again represented to the authorities and ultimately after going through the process of initiation of contempt proceedings, final order was passed on 24.9.1997 by the respondent No. 2 rejecting the petitioner's claim. When the said order was brought to the notice of the contempt Court in contempt petition No. 1503 of 1997, the Court vide order 20.4.2001 held that the aforesaid order dated 24.9.1997 can not be treated as an order passed in compliance of the order of the High Court. In such a situation, the petitioner again submitted a fresh representation for giving him appointment which was rejected vide order dated 3/4.10.2002. However, the said order was set aside by the High Court in writ petition No. 50610 of 2002 of the petitioner on 10.4.2007 and the matter was remitted to the authorities concerned to reconsider the same. It is thereafter that on the fresh representation of the petitioner, one of the impugned orders dated 27.6.2007 rejecting the claim/representation of the petitioner has been passed. A fresh order was passed by the respondent No. 1 on 29.11.2008 refusing the claim of the petitioner and other similarly situated persons for appointment as Part time/Assistant Tub -well Operator in pursuance to the selection of the year 1994 on the ground that the aforesaid posts have been declared to be a dying cadre.
(3.) IN the counter affidavit as well as in the second supplementary counter affidavit filed on behalf of respondents they have taken a stand that the petitioner is not entitle for appointment as Part time/Assistant Tub -well Operator, as the said posts were ex -cadre posts and have been declared as dying cadre vide government orders dated 17.12.1996 and 14.1.1997. The petitioner has not been discriminated in any manner. He stands altogether on a different footing from those who have given appointment, in as much as, he was never appointed and had worked as Part time/Assistant Tub -well Operator. Accordingly, he can not be appointed and even regularized under the provisions of U.P. Irrigation Department (Regulation of Part time Tub -well Operators) Rules, 1996.;