Dilip Kumar Seth, J. - (1.) IT is alleged that the petitioner having undergone two years training in integrated course in Basic, Agriculture and Extensive Method prescribed by the Government of India, a certificate to that effect was issued to him on 14.1.1965. It is alleged that thereafter the petitioner had joined Minor Irrigation and was working on the post of Gram Sewak in the year 1971. A Government order dated 14.4.1971 was issued, which is Annexure -2 to the petition. By the said order those Gram Sewaks who were found eligible could be promoted to the vacant post of Asstt. Development Officers, Minor Irrigation, temporarily with the approval of the Supdt. Engineer, Irrigation Department Government of Uttar Pradesh. By an order dated 24.7.1973, which is Annexure -3 to the writ petition, the petitioner was promoted temporarily to the post of Assistant Development Officer, Minor Irrigation Department. Such promotion was approved by the Supdt. Engineer, which is apparent from the note contained in Annexure -11 to the writ petition. The petitioner, however, also passed relevant test after undergoing relevant training between 11.4.1977 and 30.6.1977. It is alleged that the petitioner's name was placed at serial No. '223' in the tentative seniority list of Assistant Development Officers published on 6.7.1977 by the department. The petitioner was sought to be reverted to the post of Gram Sewak by the Executive Engineer by an order dated 24.9.1977. The said order, however, was cancelled by order dated 27.9.1977 by the Chief Engineer, Minor Irrigation Deptt. The petitioner however, continued on the said post till his retirement namely till 30.9.1997. In the meantime on 27.1.1978 the Government order was issued providing reservation of 12.5% post of Assistant Development Officer to be filled up by promotion from amongst the Gram Sewak working in the Minor Irrigation Department in accordance with their seniority. Thereafter the petitioner had passed departmental examination on 21.6.1981. In the year 1982 the post of Assistant Development Officer was re -designated as Junior Engineer, Minor Irrigation. Right from 26th May, 1985 the petitioner had been making representation for regularisation on the post of Asstt. Development Officer, Minor Irrigation, which are Annexures '9' and '10' respectively to the writ petition. The Executive Engineer had also recommended regularisation of the petitioner on the said post by letter dated 12.3.1997, which is Annexure -11 to the writ petition. In the said recommendation it was pointed out that the petitioner was promoted from the post of Gram Sewak to the post of Assistant Development Officer on 24.9.1973 and such promotion was approved by order dated 31.9.1978. As the petitioner had also passed relevant departmental examination, therefore, he should be regularised since he was due to retire on 30.9.1997. On these facts the learned counsel for the petitioner contends that the petitioner is eligible and entitled to regularisation on the post of Asstt. Development Officer since been re -designated as Junior Engineer, Minor Irrigation Department, in view of Rule 4 of U.P. Regularisation of Ad hoc Promotion (on Posts within purview of Public Service Commission) Rules, 1988. According to him the petitioner fulfilled all the conditions laid down in the said Rule and that there are vacancies existing and the petitioner had been promoted on the post on ad -hoc basis before 1.1.1985.
(2.) SRI Virendra Kumar, learned standing counsel on the other hand very fairly states that if the facts are correct, in that event the petitioner's case should have been considered for being regularised provided he is so eligible. However, despite several opportunities he has pleaded that he is unable to file counter affidavit in order to ascertain the facts. It appears that successive adjournments were allowed in order to enable the State to file counter -affidavit, but no counter affidavit is forthcoming despite several reminders having been issued by the learned standing counsel. The matter appears to be pending for such a long time. The petitioner has also retired on 30.9.1997 and it appears that the petitioner had worked for long 26 years and right from 1973 for almost twenty four years he has worked on the said post, despite representations, the petitioner has not been regularised. It has also not been pointed out that as to whether any regularly selected candidate has been posted against the post held by the petitioner. Admittedly, from the recommendations it appears that no such posting was made by the respondents. Thus it appears that the post which was held by the petitioner was available for being filled up either by regularly selected candidates or by promotion in terms of the Government order dated 27.1.1978. It can not be conceived that right from 1978 the petitioner's seniority did not make him eligible to get benefit of 12.5% reservation on the said post. However, the said Government order dated 27.1.1978 looses its significance as soon as U.P. Regularisation of Ad -hoc Promotion (on posts within purview of Public Service Commission) Rules, 1988 (hereinafter referred to as Regularisation Rules) was enacted. The said Rule does not qualify as to the quantum of the vacancies to be reserved, as has been sought to be done in the said Government order dated 27.1.1973. On the other hand Rule 4 clearly indicates that any person who was appointed on promotion before 1.1.1985 is continuing in service either on the post on which he was so promoted or on equivalent or higher post on the date of commencement of the said rule, were eligible for regular promotion on the date of ad -hoc promotion provided he had completed three years of service on the said post. But sub -rule (3) provides that for such purposes a selection committee is to be constituted and such selection committee was to prepare a list of eligible candidates arranged in the order of seniority alongwith character roll including Confidential Roll entries, given after ad -hoc promotion and other records, as may be considered necessary, to assess the suitability. It is alleged that the petitioner was successful in the departmental examination on 21.6.1981. But nowhere it has been indicated that any Selection Committee was constituted and the petitioner's case with regard to suitability was gone into. It is also not forthcoming as to whether any such list was forwarded to the Appointing Authority. Under Rule 5 of the said rule the appointing authority was bound to appoint in order of seniority according to the list prepared by the Selection Committee. In absence of any material it is very difficult to hold as to whether such Selection Committee prepared the select list and despite such situation and the petitioner's eligibility and seniority the benefit of regularisation was denied. The petitioner contends that despite such recommendation and representation no reply was given to the petitioner nor any communication was made to him that the petitioner was ineligible for being so regularised. Admittedly, the petitioner had been continuing on the post from 1973 it is very difficult to conceive that during this period the petitioner's long period the petitioner's name has been placed at serial No. 223 in the seniority list, he could not come within the purview of seniority for the purposes of regularisation. Nothing has been shown that there was anything against the petitioner by which he could be assessed to be unsuitable. In the meantime the petitioner has retired. Had it been the case that the petitioner was not selected by the Selection Committee and his name was not included in the select list or that he was not eligible on account of his seniority in order of merit, in which his name was included in the select list and in that event the respondent ought to have communicated the same to the petitioner. It is alleged in the writ petition that no such communication was ever made to the petitioner. No counter -affidavit is forth -coming. In that view of the matter it is to be supposed that the assertions contained in the writ petition shall be deemed to have been admitted by the respondents.
(3.) IN the facts and circumstances of the case, therefore the petitioner appears to be eligible for being so promoted in terms of the Rule 4 of the said rule from the date as has been mentioned in the said rule. Accordingly the writ petition is allowed. Let a writ of mandamus be issued commanding the respondents to regularise the petitioner on the post in terms of Rule 4 of 1988 Rules from the date since when the petitioner is so eligible and according to the said rule treat him as regular employee on the post of Assistant Development Officer/Junior Engineer, Minor Irrigation and grant him all such benefits as are available to the said post for the period during which the petitioner would be holding the same in terms of the said rule. The petitioners' retiral benefit may also be made available to him on the basis of such regularisation as would be available to him in accordance with law. The exercise in terms of this order will be completed within a period of six months from the date of communication of this order to the concerned respondent and payment of retiral benefit including arrears, if any, should be paid to the petitioner within a period of four months thereafter. There will, however, be no order as to costs. Let a copy of this order be given to the learned counsel for the petitioner on payment of usual charges within a week.;