Shishir Kumar, J. - (1.) The present writ petition has been filed for issuing a writ of certiorari quashing the order dated 10.10.1991 (Annexure 19 to; the writ petition) passed by the respondent No. 2 and issuing a writ in the nature of mandamus directing the respondents not to interfere with the functioning of the petitioner as Khandsari Inspector and to regularize the services of the petitioner.
(2.) The fact arising out of the present writ petition is that the petitioner was initially appointed as Junior Clerk in the Sugar Department of the State of U.P. in the month of November, 1974. The petitioner was confirmed on 1.9.1979 vide order dated 15.9.1987. As the various posts of Khandsari Inspectors were lying vacant and the same were to be filled after selection by the Public Service Commission, the petitioner along with number of other persons were appointed as Khandsari Inspectors by direct recruitment on ad hoc basis vide its appointment letter dated 5.2.1975. The appointment of the petitioner on the said post was to continue till regular selection is made by the Commission. The petitioner has filed the order of appointment dated 5.2 1975 as Annexure 1 to the writ petition and the name of the petitioner appears at Serial No. 18. The post on which the petitioner was appointed as Khandsari Inspector on ad hoc basis was admittedly vacant and no selection was made by the Commission, therefore, the petitioner as well as various other persons were permitted to continue on ad hoc basis. The State Government in exercise of powers conferred under Article 309 of the Constitution of India took a policy decision for regularization of ad hoc appointees (on the post within the perview of Public Service Commission) without approval from the Commission and a Rule was framed called as "Uttar Pradesh Regularization of Ad hoc Appointments (on the post within the perview of Public Service Commission) Rules, 1979 published on 14 9.1979. These rules provided that all the ad hoc appointees of before 1.1.1977, who possesses the requisite qualification on the date of ad hoc appointment and has completed three years of continuous service be regularized in permanent or temporary vacancies as may be available on the basis of service record and suitability, meaning thereby that all ad hoc appointees were to be regularized subject to rejection of unfit. Relevant Rules is 4( 1). The same is being reproduced below:" 4.(1) Any person who (i) was directly appointed on ad hoc basis before January 1, 1977 and is continuing in service, as such, on date of commencement of these rules; (ii) possessed requisite qualifications prescribed for regular appointment at the time of such ad hoc appointment; and (iii) has completed or, as the case may be, after he has completed three years continuous service, shall he considered for regular appointment in permanent or temporary vacancy as may be available on the basis of his record and suitability before any regular appointment is made in such vacancy in accordance with the relevant service rules or orders."
(3.) It has also been stated by the petitioner that the suitability on the basis of service record was to be seen by the Selection Committee constituted by appointing authority as provided under Rules 4 and 5 of the said Rules and the select list was to be prepared in order of seniority. Rule 7(1) provides that person appointed under these rules shall be entitled to seniority only from the date of appointment after selection and were to be placed below the persons appointed through regular selection before the appointment of such persons and Rule 8 provides that the services of a person, who is not suitable, shall be terminated. The entire scheme under the Rule shows that exercise for selection had to be taken just after framing the Rules in 1979 because according to Rule 7(1) the seniority was to be fixed from the date of appointment after selection and they were to be placed below the persons appointed through a regular selection before the appointment of said persons and the selections were to be made from available permanent or temporary vacancies on the basis of service record. In the year 1979, immediately after publication of the aforesaid Regularization Rules, the petitioner had completed more than four years since the petitioner was appointed on a permanent vacant post and the post was available. The petitioner was having unblemished service record and is entitled for regulanzation on a permanent post of Khandsari Inspector and on 5.7.1982, the petitioner was communicated an adverse entry for the year 1977-78. The petitioner filed a representation on 1.10.1982. The representation of the petitioner was rejected on 26.11.1987. The adverse entry, representation, as well as the rejection has been filed as Annexures 5, 6, and 7 to the writ petition. It appears that in the meantime, the Selection Committee has considered the case for regulanzation and has published a list of selected candidates for regulanzation on 31.12.1987. 47 persons were selected of which four persons from Serial No. 44 to 47 were juniors to the petitioner. It is submitted that the persons selected at Serial No. l Sri Gyan Prakash Ahluwalia was ultimately awarded the punishment of permanently with-holding five annual increments and his integrity was noted as doubtful. The said integrity against the aforesaid person is dated 16.11.1986. Sri Ahluwalia has been selected while the petitioner has not been shown in the select list. One Sri Pawan Kumar Jain, his integrity was also being noted as doubtful yet he has been selected and has placed at Serial No. 4 of the select list, which has been filed as Annexure 2 to the writ petition. The second select list was published on 16.6.1989. In the aforesaid list, one Sri B.D. Pandey was shown at Serial No. l and Sri Chhabi Lal at Serial No. 4 and the entries of both these persons have been marked as doubtful. The petitioner specifically submitted that a specific averment has been made in the writ petition regarding the aforesaid fact;