R.A. Sharma, J. - (1.) THESE four writ petitions have been filed by 17 Assistant Engineers, one Assistant Architect and 55 Junior Engineers, working under the Meerut Development Authority (hereinafter referred to as M DA), for writ in the nature of mandamus directing the Respondents, namely, the State of U.P M.D.A. and their officials, to regularise their services and not to terminate their services on any ground.
(2.) THE M.D.A. has filed counter -affidavit and the, Petitioners have filed rejoinder -affidavit in reply thereto. I have heard Sri A. KYog and Sri Sunil Ambwani, Learned Counsel for the Petitioners and Sri Bhupeshwar Dayal, Learned Counsel for M.D.A. and the learned Standing Counsel appearing for the State. Learned Counsel for the Petitioners have argued that in view of the orders of Supreme Court in writ petition No. 853 of 1990 Ram Kishun and Ors. v. Union and Ors. the Petitioners are entitled to be regularised by the Respondents and their services as such, cannot be terminated. The said contentions of the Learned Counsel have been opposed by the Learned Counsel for M.D.A. and learned Standing Counsel.
(3.) IT appears that some Assistant Engineers and Junior Engineers, working under Ghaziabad Development Authority, on the basis of daily wages, filed writ petitions before Supreme Court for appropriate directions for regularisation of their services. Supreme Court by its order dated 21 -2 -1991 directed the authority to take step through the State of U.P. for regularisation of the services of the Petitioners therein. The authorities were, however, given liberty to screen those Petitioners in regard to their qualifications, as also suitability, subject to the condition that at the time of regularisation the period spent on duty shall be adjusted against age prescription and public Service Commission would take into account the past service to consider, if any weight age should be given. This order was modified by the Supreme Court subsequently by its order dated 4 -9 -1991. The order dated 4 -9 -1991 passed by supreme Court, is quoted below: We have heard counsel for the parties. On February 21, 1991, in Writ Petition No. 853 of 1990, after hearing the Petitioners therein as also the Ghaziabad Development Authority, Respondent No. 1, we made an order which, inter alia, directed: The State of Uttar Pradesh is represented before is and counsel appearing for it has been put to notice of the order. At the time of regularisation the period spent on duty shall be adjusted against the age prescription and the Public Service Commission would take into account the past service to consider if any weight age should be given and performance under the Authority may be taken into account for such purpose. There is no dispute before us at present that the Ghaziabad Development Authority has regularised the Petitioners from daily wage basis to monthly based employment.The question is one of recruitment into U.P. Developmental Centralised service. For that purpose we understand that there are a set of rules and recruitment is through the State Public Service Commission. Our direction on February 21. 1991 is obviously not intended to require regularisation, contrary to the rules in force We intended to condone the age, qualification by requiring previous employment to be taken into account and we left to the State Public Service Commission to consider whether on the basis of the past service and performance credit could be given to the Petitioners when they became candidates for regularisation. I.A. No. 7 of 1991 has been filed which calls in question a part of our direction. This application for clarification is dismissed as there is nothing to be clarified. I.A. No. 9 of 1991 is dismissed as the relief claimed is the same as in W.P. No. 833/91 which was propose to deal with separately. I.A. No. 8 of 1991 is an application of the Junior Engineers which is covered by our order in the main writ petition since disposed of. We have already fixed their monthly remuneration at Rs. 1750/ - p.m. taking into account their entitlements otherwise. We do not think we should interfere with that order now. Once they are regularised on behalf selected they would be entitled to their grade pay -scale. This application is therefore, dismissed too. (Emphasis supplied) By the aforesaid order dated 4 -9 -1991 the Supreme Court has clarified that regularisation of the Petitioners in those basis is not to be made contrary to the rules in force. The rules in force for Centralised Services in Development authorities in the State of U.P. are the Uttar Pradesh Development Authorities Centralised Services Rules, 1985 (hereinafter referred to as the Rules). Rule 3 has specified the categories of the posts in the cadre of the Centralised Services which include, so far as the engineering is concerned the posts of the Chief Engineer, Executive Engineer, Assistant Engineer and Junior Engineer. Rule 8 which provide for recruitment, is reproduced below: 8. (1) Recruitment to the various categories of posts in the service shall be made from the following sources namely - - (1) the posts mentioned in schedule I shall be filled in by promotion from the posts specified against each, in the manner laid down by Rule 21; (2) the posts mentioned in schedule II shall be filled in by direct recruitment in the manner laid down in Rule 19; (3) the posts mentioned in schedule HI shall be filled in equally from the source specified in Sub -rules (1) and (2) and in the manner mentioned in the said Sub -rules so however that the odd post, if any, shall be filled in by promotion; (4) the posts mentioned in schedule IV shall be filled in by promotion from the posts specified against each in the manner laid down in Rule 24; (5) the posts mentioned in schedule V shall be filled in by direct recruitment in the manner laid down in Rule 23; (6) the posts mentioned in Schedule VI shall be filled in equally from the sources specified in Sub -rules (4) and (5) and in the manner mentioned in the said sub rules so however that the odd post, if any, shall be filled in by promotion; Provided that mere existence of a vacancy shall not confer any right for promotion; Provided further that notwithstanding anything contained in Sub -Rule (1) of Rule 8 above or anywhere else in these rules it shall be open to the State Government to fill in any vacancy by deputation from amongst the officers serving under the Government of U.P. Palika (Centralised) Service. Rule 9 provides for reservation of candidates belonging to the Schedule Caste/ Scheduled Tribes and other categories According to Rule 8 recruitment to the posts mentioned in Schedule I appended to the Rules is to be made by promotion from the posts specified against each on the basis of seniority subject to rejection of unfit in accordance with the U.P. Promotion by Selection in Consultation with Public Service Commission (Procedure) Rules, 1970, as amended from time to time. So far as the engineering branch is concerned this schedule has specified the posts of the Chief Engineer and the Executive Engineer. Recruitment to the post of Chief Engineer is to be made by promotion from the post of Executive Engineers who have served on first July of the recruitment year for a minimum period of 15 years on the post of Assistant Engineer and Executive Engineer together, of which atleast 8 years service should have been on the post of Executive Engineer. The appointment on the post of Executive Engineer is also required to be made by promotion from the post of Assistant Engineers, who have served for a period of seven years on the above posts on 1st July of the recruitment year. According to Sub -rule (2) of Rule 8 the recruitment to the posts specified in Schedule II is required to be made by direct recruitment by Public Service Commission in accordance with Rule 19. Only post of engineering branch mentioned in Schedule II is that of Junior Engineer. However, as per Rule 8(3) recruitment to the posts mentioned in Schedule III shall be made equally from the sources specified in Sub -rules (1) and (2) i.e. 50 percent by promotion and 50 percent by direct recruitment. In Schedule III, so far as engineering branch is concerned, only the post of Assistant Engineer has been mentioned. According to the Rules 50 percent posts of Assistant Engineers are to be filed in by direct recruitment and the remaining 50 percent posts are required to be filed in by promotion of the Junior Engineers, who were having requisite qualifications and have completed minimum service of ten years as qualified Junior Engineers on first July of recruitment year. In view of the aforesaid provisions 50 percent of the available vacancies in the cadre of Assistant Engineers can be filled in by regularisation of the ad hoc appointees and remaining 50 percent vacancies have to be filled in by means of promotion of the employees working in lower rank.;