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Shrikant v. Up State Road Tranport Corporation And Others - WRIT - A No. 55452 of 2004 [2005] RD-AH 190 (17 January 2005)


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                                                                                                        Court No.38

Civil Misc. Writ Petition No.   55452 of 2004

Sri Shrikant                      vs.                The U.P.State Road Transport

                                                             Corporation & others.

Hon'ble Vineet Saran, J

Heard Sri Ashutosh Srivastava, learned counsel for the petitioner as well as Sri Ajay Singh, learned counsel appearing on behalf of the respondents. Counter and rejoinder affidavits have been exchanged and with the consent of the learned counsel for the parties this writ petition is being disposed of at this stage.

In response to an advertisement dated 5.8.1997 issued by the Respondent-Corporation inviting applications for filling up the posts of drivers from amongst Scheduled caste/Scheduled Tribes candidates, the petitioners had applied. It is their case that after due selection all the four petitioners had been issued appointment letters in September/October, 1997.Thereafter by order dated 20.1.1998 the services of the petitioners had been dispensed with on the ground that their appointments had been made on posts which were neither sanctioned nor any budget allocation had been made for the same. Challenging the aforesaid action of the respondents, several similarly situated persons including the petitioners had filed several writ petitions. The judgment in one such writ petition no. 4498 of 1998 dated 20.3.1998 has been filed as Annexure-5 to this writ petition. The operative portion of the said judgment is quoted below:-

"Law in this connection has been made clear in the case of Ashwani Kumar and others (supra)* wherein similar consideration was involved and employees therein appointed by appointing authority were not granted any relief by the apex Court on the ground that appointments were made in excess of available vacancies and such recruitments were not supported by any budgetary grants although they were appointed long back. In so holding the apex Court considered the fact that "there would have to be recruitment to the sanctioned vacancies necessarily backed up by the financial budget support." It has been further held therein that "there cannot be an employee without a vacancy or post available on which he can work and can be paid as per the budgetary sanction."

In the aforesaid position of law in the present facts it appears that when appointments were made on mistaken calculation of vacancies for reserved candidates and in fact such vacancies were not there, impugned orders can not be interfered. But, as some selected candidates have been already appointed and petitioners' services have been terminated after their appointment under aforesaid circumstances, the respondents are required to give appointment to such selected candidates whose names have been included in the said select list against vacancies for reserved quota if found existing during or arising during the period the select list remains alive.

With the aforesaid direction the writ petition is disposed of finally. There will be no order as to cost."

Against the said judgment the petitioners and other such similarly situated persons have admittedly filed several Special Appeals which are still pending before the Division Bench of this Court. In the meantime the respondents have issued a fresh advertisement on 28.10.2004 inviting applications for filling up the posts of drivers from amongst the general category candidates as well as Scheduled caste/Scheduled Tribes category candidates. This writ petition has, thus, been filed challenging the said advertisement dated 28.10.2004 and also for a direction to the respondents to absorb/adjust/appoint the petitioners as drivers in the pay scale of Rs.3050-4590/- against the vacancies which have been advertised on 28.10.2004.

Having heard learned counsel for the parties and considering the facts and circumstances of this case, in my view the petitioners are not entitled to the reliefs claimed in this writ petition. As regards absorption/adjustment/appointment of the petitioners on the post on which they had been selected and appointed in the year 1997, the same had already been decided in the judgment passed in writ petition no.4498 of 1998. The said matter of appointment/absorption is pending before the Division Bench in Special Appeals filed by the petitioners and other similarly situated candidates which they can agitate in the said proceedings.

The prayer for quashing the advertisement dated 28.10.2004 also cannot be granted as after the judgment of the Single Judge in writ petition no.4498 of 1998 dated 20.3.1998 their claim for appointment/absorption was to remain till the select list remained alive. Learned counsel for the petitioner has very fairly accepted that as per Regulation 20 of the U.P.State Road Transport Corporation Employees (other than Officers) Service Regulations, 1981, the select list was to remain alive only for a period of one year from the date of its finalisation, which was done in 1997. As such the prayer for quashing of the advertisement also on such ground cannot be granted.

This writ petition is, accordingly, dismissed without making any observation on the merits of the claim of the petitioners pending adjudication in the Special Appeal filed against the judgment and order passed in their earlier writ petition. No order as to cost.

Dt/- 17.1.2005



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