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Mohammad Rauf v. The D.J. Chandauli - WRIT - A No. 49137 of 2002  RD-AH 4266 (17 October 2005)
Civil Misc. Writ Petition No. 49137 of 2002
State of U.P. and others..................................................Respondents
2. Civil Misc. Writ Petition No. 49154 of 2002
Jai Shanker Singh.....................................................Petitioner
State of U.P. and others..................................................Respondents.
Upon the creation of judgeship of the Chandausi, the petitioner was appointed on an ad hoc basis on the post of a driver w.e.f. 3.6.1998 for a period of 3.6.1998 to 31.7.1998. It is alleged that the services of the petitioner was extended from time to time. On 20.12.2001, Rule 4 of the U.P. Regularisation of Ad Hoc Appointments(on posts out side the purview of the U.P. Public Service Commission) Rules, 1979 (hereinafter referred to as the Rules of 1979) was amended and the cut of date, i.e., 1.1.1977 was substituted by the date 30.6.1998. The High Court by an order dated 8.5.2002 intimated all the District Judges that the Regulations of 1979 as amended in 2001 had been adopted by the High Court and that necessary steps should be taken by the District Judges for the regularisation of the ad hoc employees.
Based on the aforesaid directions, the District Judge issued an order dated 15.5.2002 regularising the services of the petitioner. The District Judge held, that the petitioner was appointed on 20.3.1998 before the cut of date, i.e., 30.6.1998 and had completed three years of service as an adhoc employee. The District Judge further found that the petitioner possessed the requisite qualifications prescribed for a regular appointment at the time of the ad hoc appointment. Consequently, the District Judge regularised the services of the petitioner on a temporary post of driver in the pay scale of Rs.3050-4590.
After the expiry of five days, the District Judge recalled the aforesaid order, by an order dated 20.5.2002, on the ground, that the said order was passed erroneously without considering the notification dated 10.11.1993. The petitioner is aggrieved by the order dated 20.5.2002 and has filed the present writ petition.
Heard Sri Shailendra, the learned counsel for the petitioner and Sri K.R.Sirohi, the learned counsel appearing for the respondents.
The submission of the learned counsel for the petitioner is two fold, namely, that the impugned order had been passed without issuing a show cause notice or providing an opportunity of hearing to the petitioner and, therefore, the exparte order was violative of the principles of natural justice. Further, the notification dated 10.11.1993 was not applicable to the case of the petitioner and, therefore, the District Judge committed an error in recalling its order.
On the other hand, the learned counsel for the respondents submitted that the provision of Rule 4 of the Rules of 1979 had not been considered by the District Judge and since the District Judge had already constituted a Committee to consider this aspect, the Court should not interfere in the impugned order since the order of regularisation was not properly passed in the first instance.
In my view, if the order is ex facie incorrect and against the provisions of the Rules of 1979, the said order can be recalled suo moto by the authority without giving notice to the incumbent. In the present case, the mistake was realised by the District Judge and within five days of the passing of the order, recalled the said order. In my opinion, no show cause notice or opportunity of hearing was required to be given in the instant case.
The submission of the learned counsel for the petitioner, namely, that the notification dated 10.2.1993 is not applicable to the case of the petitioner, is correct. The notification dated 10.1.2003, mentions the cut of date as 1.1.1986 which admittedly has been substituted by the notification dated 20.12.2001. Therefore, on the face of it, the notification dated 10.11.1993 is not applicable. Consequently, the District Judge was not justified in recalling the order on this ground.
However, from a perusal of the order of regularisation dated 15.5.2002, I find that the District Judge has not adverted nor considered the provision of Sub Rule (2) of Rule 4 of the Rules of 1979 which contemplates that a regular appointment to be made under these Rules should be in accordance with the reservation policy. Sub Rule (4) of Rule 4 further indicates that the appointing authority would prepare an eligibility list arranged in the order of seniority and the same would be placed before the Selection Committee which has to be constituted under Sub Rule(3) by the appointing authority. Since this procedure was not followed, the regularisation of the petitioner was therefore, incorrect and against the provisions of Rule 4 of Rules of 1979. Consequently, even though the ground for recalling the order of regularisation was not correct, this Court is not inclined to interfere in the impugned order on the ground that Rule 4 of the Regularisation Rules 1979 was not followed.
In view of the aforesaid, this petition is disposed of with a direction to the District Judge to constitute a Committee as provided under Rule 4 of the Rules of 1979 and consider the case of the petitioner afresh, and pass orders with regard to the regularisation of the petitioner, if found eligible, within four months from the date of the production of a certified copy of this order.
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