R.A.Sharma, J. - (1.) PETITIONER , who was Overseer in Public Works Department, was promoted, on officiating basis, in 1959 to the post of Assistant Engineer. In 1962 the petitioner is said to have been approved by the Public Service Commission, U.P. for officiating appointment to the post of Assistant Engineer, on temporary basis. However, he was reverted on 7 -6 -1956 to the original post of Overseer. The petitioner thereafter filed a writ petition. The petitioner on his reversion which was allowed on 26 -7 -1970 and order of reversion was quashed. Special appeal filed against the aforesaid order of this court was dismissed on 8 -10 -1972. After the writ was allowed the petitioner was appointed, by letter, dated 25 -6 -1970, as officiating Assistant Engineer, copy of which has been filed as Annexure -II to the writ petition. Thereafter by order, dated 27th May, 1974 the petitioner has been retired compulsorily under Article 465 -A of Civil Services Regulations. In the said order of compulsory retirement it has been, mentioned that as it is not in public interest to keep the petitioner in service any more, he is being retired compulsorily. Against this order the petitioner filed a claim petition before U.P. Public Service Tribunal (hereinafter referred to as Tribunal) which has also been dismissed by the Tribunal by order, dated 27 -1 -1982. It is against these orders that this writ petition has been filed before this Court. Writ petition was admitted in 1982 and the State was required to file counter -affidavit. But no counter -affidavit has been filed till today.
(2.) SRI S.P. Srivastava, learned counsel for the petitioner has argued that by virtue of Article 349 -A, Article 468 -A applies to those Government servant's who were appointed substantively and as the petitioner's appointment to the post of Assistant Engineer was on officiating basis and was not substantive in nature he could not have been retired under Article 465 -A, Article 349 -A is reproduced below: 349 -A. (1) The rules in Articles 404 -A, 468 -A, 474 -A and 475 -A apply to officers........appointed substantively to the service or appointment specified below who - - (a) joined their appointment after 29th August, 1949, or (b) were in service on 29th August, 1949 who have been definitely elected in writing with the permission of Government who come under them. In view of the aforesaid provisions it is apparent that the order of compulsory retirement under Article 465 -A can be passed only against those Government servants who are appointed substantively to the post. The fact that the petitioner was appointed to the post of Assistant Engineer on officiating basis, has been categorically stated in the writ petition, which has set been disputed by the respondents - -From perusal of the appointment letter (Annexure -II) and the averments made in the writ petition specially para. 33 of the writ petition it is quite clear that the petitioner was appointed to the post of Assistant Engineer on officiating basis only. For the reasons, mentioned above, the petitioner could not have been retired compulsory under Article 465 -A. For officiating appointment even Article 56 of Fundamental Rules cannot apply and the Government servant working as officiating appointed cannot be retired under the aforesaid Fundamental Rule. In this connection reference has been made be the case of Union of India v. K.R. Tahiliani, : AIR 1980 SC 953 wherein it has been laid down by the Supreme Court that as a person appointed on officiating or temporary basis has no right to the post and cannot be said to be in that service or post as member of that service, he can always be removed from service or reverted to his substantive post. The question of compulsory retiring such an employee does not arise. The writ petition is allowed. Order of compulsory retirement, dated 27th May, 1974 (Annexure -17) and order of the Tribunal, dated 29 -1 -1982 (Annexure -21) are quashed. During the pendency of the writ petition the petitioner has attained the age of retirement and the question of his reinstatement does not arise. He will however, be entitled to get his pay and allowances for the period from the date of compulsory retirement (27 -5 -1974) to the date on which he attained the age of superannuation. Payment of the pay and allowances for the aforesaid period shall be made within a period of six months from the date of presentation of certified copy of this order. In case payment of three months' salary in lieu of the notice as mentioned in the impugned order of retirement, has already been made to the petitioner the same shall be adjusted while making payment of the arrears in pursuance of this judgment.;