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N.K.Dwivedi v. State - WRIT - A No. - 1214 of 1993 [2007] RD-AH 16751 (23 October 2007)

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Court No. 26

Civil Misc. Writ Petition No. 1214 of 1993

Nand Kishore Dwivedi and four others


State of U.P. and others

Connected with

Civil Misc. Writ Petition No. 28985 of 1991

Sri Nand Kishore Dwivedi and others


State of U.P. and others

Hon'ble V.K. Shukla, J.

Petitioners claim that they had been appointed as clerk with Zila Nirvachan Adhikari, Banda, and had been performing and discharging duties with utmost sincerity, but their services have been sought to be dispensed with for no rhyme or reason. At the said juncture, petitioners filed writ petition No.28985 of 1991, questioning the validity of said dispensation of their services. This Court on 09.10.1991 passed following interim order:

"The learned Standing Counsel prays for and is granted one month's time to file a counter affidavit. Rejoinder affidavit, if any, shall be filed within the same period. List thereafter for admission.

So long as the work assigned to the petitioners is decided to be taken by the respondents by ad hoc appointee, then the petitioners, if their work continues to be satisfactory, will be permitted to continue and they shall be paid salary/wages as admissible to them under the rules."

During pendency of aforementioned writ petition, selection process were being undertaken for making selection and appointment on substantive basis on the post of clerk. At the said juncture Civil Misc. Writ Petition No. 1214 of 1993 was filed. In this writ petition counter affidavit has been filed and therein precise plea has been taken that as per exigencies of work, petitioners were provided work and thereafter, their services had been dispensed with, and coupled with this, it has also been contended that none of the legal rights of petitioners are being infringed. To this counter affidavit, rejoinder affidavit has been filed, disputing the statement of facts mentioned in the counter affidavit and reiterating that of writ petition.

After pleadings mentioned above have been exchanged, present writ petition has been taken up for final hearing and disposal with the consent of the parties.

Sri R.K. Pandey, Advocate, representing the petitioners, contended with vehemence that petitioners were recruited after following due process of selection as prescribed under law, and therefore, petitioners were treated as retrenched employees, as such they were entitled to preferential treatment to be given while making regular appointments, and the entire proceedings with regard to dispensation of their services and fresh recruitment are vitiated in law.

Learned Standing counsel, on the other hand, contended that in the present case petitioners were engaged as stop gap arrangement, without following due procedure of law and none of their legal rights has been infringed, as such writ petition is liable to be dismissed.

After respective arguments have been advanced, factual position which emerges is to the effect that petitioners claim that they were validly appointed after following due procedure as prescribed under law. However, this fact has been denied in the counter affidavit and it has been contended therein that at no point of time any selection process was undertaken, inasmuch as, petitioners never faced written examination and interview. Rejoinder affidavit makes it clear that appointment was for fixed period, against temporary post. Petitioners' engagement was thus as per exigency of work, and not against substantive vacancies, and their services have been dispensed with strictly as per terms and conditions of appointment, as appointment in question was purely temporary in nature.

Petitioners' services were dispensed with in 1991 and thereafter regular process was undertaken to fill up the vacancies, and the vacancies have been filled up accordingly. Petitioners have not impleaded the selected/appointed incumbents as respondents. Once substantive appointments have been made and since then more than 16 years' period has elapsed, no relief can be accorded to petitioners, who were engaged by way of stop gap arrangement, in view of the law laid down by Hon'ble Apex Court in the case of Secretary, State of Karnataka vs. Uma Devi, 2006 (4) SCC page 1, and who had failed in typing test. Writ petitions are dismissed accordingly.




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