AZIMUL ISLAMversusEXECUTIVE ENGINEER SHARDA SAHAYAK KHAND-39 GOVINDPUR ALLD.

             HIGH COURT OF JUDICATURE AT ALLAHABAD
                         WRIT - A No. - 44895 of 2000

Azimul Islam
                                                              .....Petitioner(s)
                                    Versus

Executive Engineer Sharda Sahayak Khand-39
Govindpur Alld.                                             .....Respondent(s)

Counsel for Petitioner(s)                          :    Anand Tiwari
Counsel for Respondent(s)                          :    S.C.

Court No. - 34


Sl. No. 23

                 HON'BLE ANISH KUMAR GUPTA, J.

1. Heard Shri G.K. Singh, learned senior counsel assisted by Shri Anand
Tiwari for the petitioner and Shri Rajeev Gupta, learned Addl. C.S.C. for
the State.

2. The instant petition has been filed by the petitioner being aggrieved by
the order dated 28.9.2000 whereby the services of the petitioner on the
post of Seenchpal were terminated with immediate effect with one
month's salary in lieu thereof on the ground that no selection procedure
was followed nor any select list was prepared at the time of the
appointment of the petitioner and the reply submitted by the petitioner to
the show cause notice is not satisfactory.

3. Briefly stated facts of the case are that the petitioner herein was sent for
training/apprenticeship vide order dated 5.9.1994 passed by the Executive
Engineer, Irrigation Department, Pratapgarh. Thereafter the petitioner has
successfully completed apprenticeship with one Chhedi Lal Yadav,
Harkha VI Sub Division Kunda, Pratapgarh from 15.9.1994 to
14.12.1994. Thereupon the petitioner was appointed vide order dated
26.9.1995 as Seenchpal on temporary basis for six months as stop gap
arrangement as no other candidate from the waiting list was available and
the petitioner has already completed the apprenticeship. Thereafter a
select list prepared on 8.1.1996 by the Superintending Engineer, Irrigation
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Department, Pratapgarh whereby 10 persons including the petitioner were
selected for appointment as Seenchpal in terms of Rule 13 of the
Irrigation Department Patraul Service Rules, 1953. First five persons
were assigned the Raibareilly Division and the other candidates i.e. from
Sl. no.6 to 10 were assigned to Irrigation Division Pratapgarh. The
names of such persons, as mentioned in Annexure C.A. 1 of the counter
affidavit, read as under:

 "1. श्री चन्द्रभुवन पुष्पाकर
2. श्री मधुकर मिश्रा
3. श्री संजय कुमार मिश्रा                  रायबरेली (द०)
4. श्री जयशंकर दूबे                        शा०न० रायबरेली
5. श्री मुजीबुल इस्लाम

....................................

6. श्री सिद्धनाथ तिवारी
7. श्री लाल जी
8. श्री नीरज कुमार सिंह                    सिंचाई खण्ड, प्रतापगढ़।
9. श्री शालिक राम तिवारी
10. श्री सिद्धनाथ पाण्डेय"

4. Thereafter vide order dated 24.1.1996 the petitioner was appointed
temporarily on the post of Seenchpal on regular pay scale against the
regular post in terms of Rules, 1953. Subsequent thereto a writ petition
was filed by one Chandrabhuwan Pushpakar being Writ Petition No. 5412
of 1999 (S/S) (Chandrabhuwan Pushpakar Vs. State of U.P. and others)
alleging therein that the persons junior in the select list have been given
appointment to the post of Seenchpal but he has not been given the
appointment. In the said writ petition notice was issued to the
respondents and the respondents were required to file the counter
affidavit. In response thereto, the Chief Engineer, Irrigation Department
vide his letter dated 4.5.2000 has directed the Executive Engineer,
Raibareilly to terminate the services of the two junior candidates
appointed from the said select list on the post of Seenchpal after
completing all the necessary formalities so that the counter affidavit can
be filed. Again vide letter dated 13.2.2000 the Chief Engineer has
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directed the Superintending Engineer, Irrigation Department, Allahabad
to ensure the termination of the services of the petitioner as well as one
other person Jai Shanker Dubey who were working in the office of
Executive Engineer, Irrigation Division, Jaunpur. Thereafter the
Executive Engineer, Allahabad vide letter dated 27.6.2000 has issued a
show cause notice to the petitioner herein alleging that the petitioner has
obtained the selection and appointment in collusion with the officers of
the Department without following the due procedure and why the service
of the petitioner may not be terminated. Thereupon the petitioner herein
submitted a detailed reply on 10.7.2000 to the Executive Engineer,
Allahabad detailing each and every fact with regard to his appointment
and stated that after following the due procedure he has been appointed.
Thereupon in terms of the mandate issued by the Chief Engineer, vide
impugned order dated 28.9.2000 the services of the petitioner were
terminated on the ground that his appointment was made without
following the proper procedure as no selection committee was ever
constituted. Being aggrieved, the instant petition has been filed by the
petitioner.

5. Vide interim order dated 2.11.2000 this Court has directed that the
services of the petitioner pursuant to the impugned order dated 28.9.2000
shall not be dispensed with. In view of the said interim order passed in
the instant petition the petitioner has continued in service and has
completed more than 30 years of service and is still continuing in service.

6. Shri G.K. Singh, learned senior counsel appearing for the petitioner
submits that the services of the petitioner are governed by the Irrigation
Department Patraul Service Rules, 1953 and the Rule 13 thereof provides
the apprenticeship/training which is a three months unpaid training under
already working Patraul/Seenchpal and thereafter under Rule 3-B of the
Rules, 1953. the Superintending Engineer is required to constitute a
Selection Committee of two Executive Engineers and the Senior
Executive Engineer would be convenor of the said Committee and
thereafter   from      the   persons     who       have     completed     the
apprenticeship/training successfully a select list is required to be prepared
by the convenor of the said Committee and the said convenor is required
to give the names of the selected candidates to the Superintending
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Engineer. Thereupon a select list is required to be notified by the
Superintending Engineer, which has been duly notified on 8.1.1996 in the
instant case. Pursuant thereto on 24.1.1996 the petitioner was appointed
out of the said select list. Since the Chandrabhuwan Pushpakar who was
at serial no. 1 in the select list dated 8.1.1996 was not given appointment
he has filed the writ petition and has claimed that since his juniors have
been appointed from the same select list, therefore, he should also be
appointed on the post of Seenchpal. The said writ petition was allowed
vide order dated 12.3.2012 and the judgement was affirmed by the Apex
Court and consequently the said Chandrabhuwan Pushpakar was also
given appointment. Therefore, learned senior counsel submits that since
the appointment of the petitioner was done after the due select list was
prepared on 8.1.1996 and notified after following the due procedure as
provide in the Rules, 1953, therefore, this Court has not disturbed the
appointment of the petitioner. However, the appointment of the petitioner
has been terminated only on the direction of the Chief Engineer by a
cryptic order without assigning any reason or giving through the details of
the appointment, which were given by the petitioner in his representation
submitted to the show cause notice issued to him. Therefore, learned
counsel for the petitioner submits that the impugned order is liable to be
quashed and since the petitioner has already worked for more than 30
years and he is still working pursuant to the interim order the impugned
order is liable to be quashed.

7. Per contra, Shri Rajeev Gupta, learned Addl. C.S.C. reiterates and
supports that no due selection process while appointing the petitoiner was
followed and since the said Chandrabhuwan Pushpakar was senior to the
petitioner in the select list and ignoring him the appointment to the
petitioner was granted, therefore, the same was cancelled by the
impugned order dated 28.9.20000. Learned Addl. C.S.C. is not in a
position to dispute the document Annexure C.A.-1 and the select list
dated 8.1.1996 is admitted by the Executive Engineer Pratapgarh and it
was also admitted that from the said select list various candidates were
not appointed and had approached the High Court by filing the separate
writ petitions and all the three petitions filed by such persons were
ultimately allowed and they were given the appointment on the basis of
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the select list dated 8.1.1996 published by the Superintending Engineer
and it is also admitted to the Addl. C.S.C. that pursuant to the order dated
5.9.1994 the petitioner as well as the said Chandrabhuwan Pushpakar
were sent for training simultaneously and both of them have completed
the training and thereafter though the petitioner has been given the
appointment directly the said Chandrabhuwan Pushpakar was given the
appointment after the direction issued by this Court in the writ petition
filed by him and the contention of the respondents that no select list was
prepared or the selection process was not followed was categorically
rejected by this Court in its order dated 12.3.2012, passed in the writ filed
by the said Chandrabhuwan Pushpakar.

8. Thus from the facts of the instant case, it is apparent that the select list
is required to be prepared only after the three month's unpaid training is
undergone by the candidates and it is undisputed case of the petitioner
that the petitioner has completed the three month's training as required
pursuant to the direction of the Executive Engineer and thereupon a select
list was prepared on 8.1.1996, in which the name of the petitioner finds
place at sl. no. 5. Pursuant thereto the petitioner was given appointment
to the post of Seenchpal though on the temporary basis initially as the
confirmation on the said post was subject to successful completion of
probation period. It is undisputed that the petitioner has worked since his
appointment on 24.1.1996 till the date of his termination i.e. 28.9.2000
and thereafter he is continuing pursuant to the interim order dated
2.11.2000 and nothing adverse against them has been brought on record.

9. Thus it is apparently clear that the petitioner was given appointment
vide order dated 28.1.1996 following the due procedure. However, only
on the ground that the authority had committed some mistake by not
giving appointment to the said Chandrabhuwan Pushpakar who was
placed at serial number one and the petitioner who was placed at serial no.
5 of the select list, the said Chandrabhuwan Pushpakar has filed a writ
petition before this Court which was allowed rejecting the contention of
the respondents with regard to non following of the due procedure. In
such circumstances this Court do not find any illegality in the
appointment of the petitioner vide order dated 28.1.1996 though there
may be some irregularity that ignoring the candidate place at serial no. 1,
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                                    the petitioner had been given the appointment from the same select list
                                    but that itself would not be sufficient to cancel the appointment of the
                                    petitioner. Further pursuant to the interim order, the petitioner has
                                    complete more than 30 years of service and is still continuing in service.

                                    10. For the reasons aforesaid, the impugned order dated 28.9.2000 cannot
                                    be sustained and is hereby quashed. The writ petition is accordingly
                                    allowed.



                                                                                    (Anish Kumar Gupta,J.)
                                    September 8, 2026
                                    o.k.




Digitally signed by :-
OM KRISHNA CHOUDHARY
High Court of Judicature at Allahabad