- (1.) D. P. Mohapatra, CJ. The facts and the contentions raised in the aforementioned Special Appeal and writ petitions being similar, they were heard together with the consent of learned counsel for parties and they are being disposed of by this common judgment.
(2.) THE controversy raised in all those case relates to recruitment/ap pointment in the post of Diploma Engineer U. P. Rajkiya Nirman Nigam Ltd. (for short the Nigam) which is a State Government undertaking. THE respondent in the special appeal and petitioners in the writ petition (except ing writ petition No. 5686 of 1990) submitted applications for appointment in the post in pursuance of the advertisement issued by the Nigam on 26-11-1988 (Annexure 1 in the special appeal), inviting applications for appointment in 70 posts, Subsequently, the number of posts was enhanced to 146 in July 1989 (Annexure 3 in writ petition No. 42288 of 1992 ). THEy appeared in the written test and also in the interview held by the Nigam vide Annexure 4. When the result of the examination was not declared for good length of time, the applicants filed writ petitions in 1990, 1992 and 1993 with the prayer, inter alia, to declare the result of the recruitment examina tion and issue appointment orders to them. On such writ petition bearing No. 5859 of 1991 filed by one Maheh Kumar was disposed of by judgment rendered on 30-9-1991 in which the learned single Judge directed the respon dents, that is, the Nigam and its Managing Director, to declare the result of the examination within two weeks and if the petitioner comes out successful in the said examination issue appointment order to him within one month from the date of the declaration of the result. Following the said judgment, the learned single Judge disposed of writ petition No. 30071 of 1992 filed by Santosh Kumar Srivastava by the judgment rendered on 21-5-1993. THE said judgment is under challenge in special appeal No. 384 of 1993. When the special appeal was taken up for the hearing, on the statement made by learned counsel for parties that some writ petitions involving similar facts and seeking similar reliefs are yet to be disposed of, this Court directed all the case to be listed together. That is how all these cases were listed and heard together. The factual development which has arisen after disposal of the writ petition filed by Mahesh Kumar is that in writ petition No. 5686 of 1990 filed by muster roll Diploma Engineers Sangh U. P. Rajkiya Ntrman Nigam Ltd. , Lucknow, challenging the advertisement issued by the Nigam inviting applications for the posts, the Lucknow Bench of this Court passed an order recording an undertaking by the Advocate for the Nigam that the result of the recruitment examination will not be declared. 'though the undertaking was given for specified period, as appears from the order-sheet of the case, it was extended from time to time and by the order dated 5*8-1993 the interim order was extended until further orders. The record of that case was requisitioned by the Hon'ble Chief Justice and ordered to listed along with the writ petitions filed by the applicants for fresh appoint ment. It the said writ petition, the gist of the case of the petitioner is that a large number of Diploma Engineers have been serving in the Nigam as ad hoc or daily rated employees. They had been serving, for long years and without considering their claim for regularisation of service the Nigam had issued the advertisement inviting fresh applications when this unfair and unjust action was brought to the notice of the Nigam then a settlement was arrived at between the management of the Nigam and the petitioner association that ad hoc daily rated Diploma Engineers, who had rendered service for more than two years, will be considered for regularisation in the post according to the procedure set out in the settlement. From the arguments advanced before us it appears that the Nigam supports the claim for regularisation of services of the ad Ace/daily rated Diploma Engineers.
(3.) THE trust of the submissions of Sri L. P. Naithani, learned counsel appearing for the Nigam and its Managing Director, who are appellants in special appeal No. 384 of 1993, is that the learned single judge erred in giving direction for issue of appointment letters to petitioners, who come out successful in the recruitment examination. It is Ms submission that at the most a direction could be given only for consideration of the cases of successful candidates. THE further submission of Sri Nathani is that in view of the undertaking given by the Advocate for the Nigam before the Lucknow Bench of this Court in writ petition No. 5686 of 1990, which is still in force, the Nigam is not in a position to comply with the direction issued in writ petition No. 30071 of 1992 giving rise to special appeal No. 384 of 1993. In his submission the learned single Judge also erred in ignoring/by-passing this fact while disposing of the writ petition. Elucidat ing this point Sri Naithani submitted that during the pendency of the special appeal the State Government issued a circular letter to all the corporations requiring them to furnish the number of posts required in their establish ments, which was followed by the Government order not to make any fur ther appointment to a post till the matter is finally decided. In pursuance of the said Government order dated 18-7-1993 (Annexure 1 in the special appeal), the Corporation by order dated 23-8-1993 (Annexure 2 in the special appeal) conceited the recruitment examination held in pursuance of the advertisement of 1988. Shri Shailendra Kumar, learned counsel appearing for the respon dent in the special appeal and Sri K. M. L. Hajela appearing for the writ petitioners strsnuousiy urged that the conduct of the authorities of the Nigam in the matter has not been fair and independent. According to thom the alleged settlement entered with the Diploma Engineers Sangh and the attempt to regularise the services of the Diploma Engineers have been sub sequently engineered to render the claim of the writ petitioners on the basis of the advertisement of 1988 infructuous and to deny them the relief as directed by this Court. This position, according to the learned counsel, is manifest from the letter of the Government as also the Nigam that ex cepting Mahesh Kumar no other petitioner will be entitled to claim relief on the basis of the recruitment examination. Learned counsel candidly admitted the position that it was not open to this Court to issue a writ of mandamus to issue appointment orders to successful candidates of the recruitment examination, instead the appropriate order should have been to consider their cases for appointment according to available vacancies posts and merit. It is also submitted by the learned counsel that the Diploma Engineers holding appointments on ad /toe/daily rated basis filed applications in pursuance of the advertisement issued in 1988 and appeared in the recruitment examination and, therefore, it is not open to them to claim regularisation of their services.;