- (1.) THE special appeal arises from a judgment and order of the learned Single Judge dated 29 August 2013 allowing the writ petition filed by the respondent under Article 226 of the Constitution with consequential benefits.
(2.) THE respondent was initially appointed on 24 February 1990 as a Sinchpal. His services were discontinued under the Uttar Pradesh Temporary Government Servants (Termination of Service) Rules, 1975. The respondent filed a writ petition, in which the learned Single Judge while issuing notice directed that the operation of the order of termination shall remain stayed until further orders of the Court. The petition, which was filed in 1992, was eventually heard by the learned Single Judge on 29 August 2013. The learned Single Judge proceeded to record that admittedly, the respondent was appointed on the post of Sinchpal by an order dated 24 February 1990 as a candidate belonging to a Scheduled Caste in order to fill up the quota of reservation. The view of the learned Single Judge was that the respondent was appointed in a regular capacity against a permanent post and hence, his services could not have been terminated without following the procedure under the law. Finally, the learned Single Judge noted that as a result of the interim order the respondent had continued since 1992 and that it was not appropriate in the fitness of things to examine the validity of his appointment.
(3.) THE first submission, which has been urged on behalf of the State, is that the learned Single Judge was not justified in holding that it was not appropriate to examine the validity of the appointment of the respondent merely on the basis that the respondent had continued on the strength of an interim order, which was passed on 27 March 1992. On this aspect of the matter, the learned Single Judge has held as follows: "It is not disputed that on the strength of the interim order of this Court, the petitioner has been continuously working on the post of Sinchpal/Tube Well Operator and getting his salary regularly month to month on the post in question, till date and, accordingly, after a lapse of huge period of 21 years, it is not appropriate in the fitness of things to examine the validity of appointment of the petitioner on the post held by him and thereby take a contrary view to oust him from service." We find merit in the contention of the State that merely because the respondent continued on the strength of an interim order, cannot legitimise an order of appointment unless the appointment was duly made after following the procedure prescribed by the Rules. In response to the petition, the State has specifically set up the following defence in paragraph -7 of the counter affidavit: "The contention of the petitioner that he was already working in the office of Respondent no. 2 as Sinchapal and was subsequently appointed on the permanent post of Sinchapal vide appointment letter dated 24 -2 -1990 is totally false and incorrect. The petitioner was appointed on the temporary post of Sinchapal vide letter dated 2 -2 -1990 and he joined duties on 1 -4 -1990 prior to this appointment he was not working under the Respondent no. 2 in any capacity whatsoever. The contents of the petitioner that there were 229 vacancies or 229 sanctioned post of Sinchpal are not correct. In fact, there are only two sanctioned posts of Sinchapal in the Division concerned. It is also submitted that out of 2 sanctioned posts of Sinchpal no post is reserved for S/C or S/T. candidates.";