- (1.) D. K. Seth, J. The petitioner was ap pointed on daily wage basis on 1st of March, 1987. He was regularized in service by virtue of a resolution dated 25th December, 1990, contained in Annexure 3. Persuant to this resolution, an appoint ment letter was issued to the petitioner on 26th December, 1990 contained in An-nexure-4. The said resolution was sub sequently cancelled persuant to a resolu tion dated 29th March, 1991. In terms of the resolution dated 29th March, 1991, the appointment of the petitioner was can celled by a communication dated 13th April, 1991 contained in Annexure-5. This resolution dated 29th March, 1991 is An nexure C. A. 1 to the counter-affidavit filed by the respondents. This resolution dated 29th March, 1991 and the order dated 13th April, 1991 has since been challenged in this writ petition.
(2.) MR. K. C. Shukla, holding the brief of MR. Ashok Khare, counsel for the petitioner contends that this resolution and the order of termination was issued without giving any opportunity to the petitioner in violation of the principles of natural justice and equity. He further con tends relying on the Government Order dated 24th October, 1989 contained in Annexure-2 to the writ petition, that he having completed 3 years service having 240 days work in each completed year of service, is eligible to regularisation per suant to the said Government Order and therefore, his service could not have been dispensed with in the guise of cancellation of resolution or cancellation of his ap pointment. He further contends that the case made out in the counter-affidavit is that the petitioner was appointed under the Dying in Harness Rules cannot be sus tained since it is apparent from the ap plication made by the petitioner that he had never applied for appointment under the said Rules. He points out from An nexure-1 that he had applied for appoint ment on daily wage basis. He also relies on a few decisions in support of his conten tion which will be dealt with at an ap propriate stage. Mr. Rakesh Pandey, learned coun sel for the respondents on the other hand contends that it is apparent from the resolution contained in Annexure-3 that the petitioner was sought to be appointed under Dying in Harness Rules. But the said Rules which were framed in 1974 can not be attracted in the facts of the case since admittedly, the petitioner's father died in I960. Inasmuch the 1974 Rules is prespective in nature as provided in Rule 5 thereof. He further contends that the period of three years in terms of Govern ment Order dated 29th October, 1989 con tained in Annexure-2, is to be counted on the basis of cut off date provided in the said Order as on 2th October, 1989. In order to be eligible under the said Government Order, the petitioner ought to have in his credit 3 years' service having 240 days of work on each completed year of service as on llth October, 1989. The petitioner having been appointed on 1st March, 1987, had completed only 2 years 7 months of service. Therefore, he has not fulfilled the criteria laid down in the said Govt. Order and as such, he cannot claim any benefit there from. He further contends that even in Annexure-1 which is a recom mendation, the fact that the petitioner was the son of the deceased employee, has been mentioned and due to which he was so recommended though no reference was made to the 1974 Rules. According to him, be that as it may, if the appointment is illegal and invalid and cannot be made under the 1974 Rules which the resolution was purported to have taken, in that event, it was a void appointment since the same has been pur ported to be done dispensing with the ef fect of Articles 14 and 16 of the Constitu tion persuant to the 1974 Rules, which is prospective in nature and not applicable in the case of the petitioner. The same does not confer any legal right in the petitioner for which he could claim any right of hearing. Then again if the ap pointment itself is void, in that event, it is open to the appointing authority to recallor cancel the appointment. Inasmuch the appointment being void, it has no exist ence in' the eye of law and, therefore, the resolution cancelling the appointment or the resolution is only a recognition that the appointment is void and is not dispen sation of service requiring giving of hear ing to the petitioner. He contends that the 1974 Rules cannot be given retrospective effect which is a settled principle of law. He further contends that the petitioner has not disputed the fact that his father had died in 1967. He has also not been able to make out a case that he has a legal right to regularisation. Therefore, he contends that this writ petition may be dismissed, He relies on a few decisions, which will be referred to at an appropriate stage.
(3.) I have heard both the learned counsel at length. The fact remains that in order to ob tain the benefit of the Government Order dated 24th October, 1989, one has to fulfill the eligibility criteria laid down in the said Government Order. Unless the eligibility criteria laid down in the Government Order is fulfilled, no right can be said to have accrued to a person. The said Government Order provides for a cut off date as on llth October, 1989 laying down the eligibility criteria to the extent that a person who has completed three years' of service as on llth October, 1989 having 240 days of work in each completed year of service may be considered for regularisa tion. The petitioner having been ap pointed on daily wage basis on 1st March, 1987 did not complete three years' of ser vice as on llth October, 1989 having 240 days of work in each completed year of service. This fact is not disputed as it ap pears from the pleadings. However, Mr. Shukla has sought to make out a case that by the time the petitioner was sought to be regularized, he had completed three years' of service and thus fulfilled the eligibility criteria. But this contention cannot be ac cepted in view of the simple reason that the said order had provided a cut off date specifically which cannot be ignored. If any benefit is to be obtained out of the said order, the benefit is to be obtained from the whole of the order providing the eligibility criteria. Since the cut off date has been provided, the contention of Mr. : Shukla to the extent mentioned above does not find any support. Thus it appears that the petitioner has not been able to make out legal right for regularisation on the basis of the said Government Order independent of the Dying in Harness Rules. Now the resolutation dated 25th December, 1990 clearly mentions that the appointment was being made under the Dying and Harness Rules, 1974. Similarly the order of appointment dated 26th December, 1990 as well mentions about the appointment under the said Rules persuant to the said resolution. Therefore, the appointment on the face of the record, appears to have been made persuant to the 1974 Rules.;