R. B. Misra, J. - (1.) -In this petition, initial prayers were made directing the respondents Chairman/Managing Director, U. P. Industrial Co-operative Association Ltd., 'UPICA BHAWAN' Kanpur to effect the appointment of the petitioners as Salesman in the existing pay scale of Rs. 950-1500 on the basis of select list finalised by the Chairman, U. P. Co-operative Institutional Service Board. Further prayer has been made commanding the respondents to fill all the vacancies in permanent and temporary posts of salesman in the UPICA as per 85% direct recruitment quota and not to fill a single post of Salesman against the 85% direct recruitment quota. Further amended prayers were made to quash the order dated 20.6.1996 and quashing the appointment of 38 salesman made by the Managing Director, UPICA, Kanpur by order dated 18.2.1991 as their continued appointment and retention in service since February, 1991.
(2.) HEARD Mrs. Rollie Kauser counsel for the petitioners and Sri Vivek Kumar Birla counsel for the UPICA. The case of the petitioners is that U. P. Industrial Co-operative Association (UPICA) sent a requisition dated 18th March, 1986 to the U. P. Co-operative Institutional Service Board, Lucknow (in short the Service Board) for selecting 100 persons for the post of Salesman. The posts were advertised on 18th December, 1986. It has been further claimed that the Service Board took written test on 16th July, 1989 and the interviews were held from 27 thNovember, 1989 to 2nd December, 1989. Ultimately a select list dated 11th December, 1989 (Annexure-1 to the writ petition) of 91 selectees was prepared and forwarded to UPICA. When UPICA failed to issue appointment letters in pursuance to the aforesaid select list, the petitioner filed a Writ Petition No. 10004 of 1990 Alok Kumar Dixit and others v. U. P. Co-operative Institutional Service Board and others, which was disposed of by this Court vide order dated 7th April, 1996 (Annexure-5 to the writ petition) with a direction to UPICA to issue appointment letters and in case they are not willing to issue the same they will pass a reasoned order for not doing so. The Managing Director rejected the representation of the petitioner giving valid reasons for not issuing appointment letter vide order dated 29th June, 1996 (Annexure-7 to the writ petition). The recruitment in UPICA is covered by the U. P. Co-operative Societies Employees Service Regulations, 1975.
(3.) LEARNED counsel for the petitioner has submitted following questions of law for determination of the writ petition : (a) Whether ad hoc appointments becoming ineffective after a lapse of six months period must have come to an end automatically, when candidates duly selected by the Services Board came to join service ; Or the ad hoc employees could, at the caprice of Managing Director, UPICA, remain at the job on extraneous considerations for over a decade de hors the mandatory provision of 'Proviso to Regulation 5' of the Service Regulation 1975? (Poonam Srivastava v. UPICA, Kanpur, 1997 (1) AWC 2.46 (NOC) : 1997 ALJ 563 (Paras 6, 8, 22 and 23). (b) Whether candidates found eligible, selected through open market competition and recommended also for appointment to the post of Salesman by the Services Board, could be by-passed or denied their right to appointment simply to allow 'back door entry' of daily wagers and ad hoc employees and also their unhindered continuance for long sixteen years? Or the latter had to yield place to the candidates duly selected by the Services Board? (E. Ramakrishanan v. State of Kerala, 1997 SCC (L and S) 331 and P. Ravindran v. U. T. of Pondicherry, 1997 SCC (L and S) 731). (c) If the appointment to the post of Salesman is within the exclusive purview of Services Board, then on what authority of law the mandarins of UPICA, Kanpur retained the services of 38 persons for about 7 years i.e., from 1st October, 1983 to the dates of issue of 'undisclosed to the High Court' Notification No. 3170/12-C-2-600 (159)-89, dated 20th July, 1990 providing for their appointment in the pay scale of Rs. 950-1500 from 18th February, 1991 bereft of regularisation till date (for want of requisite approval from the Services Board, Lucknow)? (S. K. Verma v. State of Bihar, 1997 SCC (L and S) 751 para 5). (d) Whether the daily waged salesman borne on the 'contingent establishment' and paid "wages" debitable to 'office contingencies' (as distinguished from salaried staff borne on the Office Establishment) have any entitlement to regularisation on the post of Salesman? (State of Uttar Pradesh v. Ajay Kumar, 1997 (3) AWC 1656 (SC) : 1997 SCC (L and S) 902 para 3). (e) Whether persons appointed on ad hoc/temporary basis as "salesman" de hors the Service Regulations, 1975 have a right to the post? Or they were bound to give place to the duly selected candidates, as per the 'Select List' dated 5th December, 1989? (Dr. Kishore v. State of Maharashtra, 1997 SCC (L and S) 779 para 2). (f) Whether the U. P. Government Notification dated 30th July, 1985, ushering the Regularisation Regulation, 1985 was a deliberate, pre-emptive, and pre-meditated sinister move hatched jointly in close collaboration of Managing Director, UPICA, Kanpur to take out 67% posts from the purview of the Services Board (leaving to the latter bare 100 posts of Salesman to be recruited against Requisition No. C-2/86 dated 18th March, 1986 which too did not fructify owing to plethora of obstacles on the part of respondent Nos. 3 and 4)? (g) Whether the subsequent U. P. Government Notification No. 3170/12-C-2-200 (159)-89 dated 20th July, 1990 spelling out 1st October, 1986 as the 'new' cut off date (as per para No. 6 of UPCISB's counter-affidavit) tenta-mounting to give new lease of life to the Regularisation Regulation, 1985-that had otherwise become extant on 24th July, 1987 as per Annexure-III to the writ petition-was just a routine affair to give legitimacy to unauthorised continuance of ad hoc Salesman on the job from 25.7.1987 onwards with the mala fide intention to bury the selection process contemplated in Service Regulations, 1975? (Ram Sakhi Devi v. State of U. P., 1997 SCC (L and S) 963). (h) Whether it all could be disputed that the constitutional rights under the sacrosanct provisions of Article 16 (1) of the Constitution of India stood seriously eroded owing to : (a) Wanton denial of appoint-ment as salesman to 91 candidates selected by respondent No. 5 ; (b) advertant soiling of the recruitment process as per mischief of respon-dent Nos. 1 and 4 in systematically allowing usurpation of bulk of vacancies in the cadre of Salesman by the daily-wager/ad hoc employees via notification dated 30th July, 1985 and 20th July, 1990, ibid ; (c) false stand of extra financial burden which was to remain at the same level irrespective of whether the occupant of post in Rs. 950-1500 scale was a daily wager/or ad hoc employee/or a regularly selected person ; and (d) the endemic spectacle of not placing 'Requisition' for advertisement of posts (prior to November, 1985 and post to March, 1986) with the unexpressed 'policy decision' to render the Selection Board practically defunct and a non-entity? On behalf of the petitioners, following submission has also been made : (a) All along ten year period from 1983 to 1992 both respondent Nos. 1 and 4 'acted in a highly arbitrary manner' in letting all the vacancies in the post of Salesman being filled by persons other than candidates selected by the Services Board (with the exception of 14 candidates selected by the latter in the year 1986) via Notifications dated 30.7.1985 and 24th July, 1990 cited earlier ; (b) The decision of respondent Nos. 3 and 4 not to fill up the vacancies from select list of 91 candidates furnished by the Services Board on 5.12.1989 (as per Annexure-1 to the writ petition) was patently inappropriate ; actuated by mala fides and soiled by extraneous considerations to accommodate Muster roll borne daily wagers borne on 'Contingent Establishment' (not coming within the definition of 'Employee' vide Regulation 4 of Regularisation Regulations, 1985) and ad hoc Salesman who were illegally retained on the job for years together uninterruptedly even though their service warranted cessation automatically after expiry of six months vide proviso to Regulation 5 of the Service Regulations, 1975. (c) Managing Director, UPICA, Kanpur discriminatingly picked up S/Sri A. Kumar, D. K. Srivastava, I. B. Shukla and M. Wasim from the Select List dated 5.12.1989 and also one Mr. Matloob Ahmad in permitting them the regular pay scale of Rs. 950-1500 from 18.2.1991 and August, 1992 (as detailed in paragraph Nos. 29 and 30 above) in flagrant disregard of the comparative merit of the candidates spelled out in Annexure-1 to the writ petition. (d) The Managing Director, UPICA, Kanpur (respondent No. 5) in none of three counter-affidavit filed in this case have made any averment to demonstrate that : 'daily-waged Salesman' and ad hoc Salesman possessed 'indefeasible right' to be appointed in the regular pay scale of Rs. 950-1500 ; 91 candidates, as per Select List dated 5.12.1989 forwarded by the Services Board, were legitimately denied appointment because of the overriding claims of ad hoc Salesman/daily wage Salesman. (e) In the context of appointment of 38 persons as per order dated 18.2.1991 (Annexure-IV to the writ petition) the Managing Director, UPICA, Kanpur stands precluded from taking the stand that consequent to receipt of Select List dated 5.12.1989 none came to be appointed against the 100 vacancies notified by the Services Board (against UPICA's requisition dated 18.3.1986) ; and (f) The Supreme Court in Shankarsan Dash v. Union of India, (1991) 3 SCC 45, "upheld the decision to adopt a different policy with respect to Reserved Vacancies" as a justifiable cause for halting further appointments from the panel of select list, whereas such is not the case in the instant writ petition. ;