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Sukhbir Singh v. State Of U.P. & Others - WRIT - A No. 23974 of 2005 [2006] RD-AH 20072 (27 November 2006)


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Court No. 1


Sukhbir Singh Vs. State of U.P. & others.


Hon'ble D.P. Singh, J.

Heard learned counsel for the petitioner and the learned Standing Counsel for respondent No. 1 and Shri Anshu Chaudhary for respondent Nos. 2 and 3.

This petition was initially filed challenging an order dated 25.2.2005/1.3.2005 cancelling the appointment of the petitioner. By an amendment a further relief for quashing of a Government order dated 7.2.2005 has also been sought which is the basis of the first impugned order.

In pursuance of an open advertisement published in the daily newspaper "Aaj" on 14.9.2004 inviting applications for recruitment on two posts of driver, the petitioner along with others applied for it and after interview and driving test on 2.10.2004 he was selected in the scale of 3050-4050 and an appointment letter dated 11.11.2004 was issued in his favour. In pursuance of the said appointment he joined the Zila Panchayat on 16.11.2004 and started working. However, by the impugned order dated 25.2.2005/1.3.2005 his appointment was cancelled on the basis of a Government order dated 7.2.2005. The Government order dated 7.2.2005 refers to the fact that there was a ban on appointment on the post of driver and, therefore, the appointment was illegal.

It is not denied at the bar that otherwise the appointment of the petitioner was in accordance to the Rules and there is no allegation of any other illegality in the appointment of the petitioner.

A perusal of the Government order dated 7.2.2005 shows that it refers to another Government order dated 4.11.2004 by which an embargo was placed on appointment of drivers in Zila Panchayats. It is specifically averred in paragraph 9 of the Amendment Application (corresponding to paragraph 12-A of the amended petition) that the aforesaid Government order dated 14.11.2004 was not published in the gazette. This factual averment has not been denied in the counter affidavit filed on behalf of the State Government. In fact, it is admitted that the aforesaid Government order was received in the office of the Zila Panchayat only on 17.11.2004 i.e. after the appointment and joining of the petitioner. Since the Government order dated 14.11.2004 was not published it can only be given effect by the respondent Zila Panchayat from the date of its receipt and since the order was received after the appointment and joining of the petitioner, the action of cancellation on this account cannot be sustained. However, learned Standing Counsel has, with some vehemence, referred to an earlier Government order dated 11.8.2003 by which complete ban on appointment in all the Government Departments including on the post of drivers had been imposed and on this basis, it is urged, that even before the advertisement inviting applications for appointment to the post of driver was published, there was complete ban and the Zila Panchayat illegally advertised the vacancy. A perusal of the Government order dated 11.8.2003 shows that it is a general order imposing ban on appointments. However, perused of another Government order dated 29.8.2003, which is part of the record, shows that the Principal Secretary had in fact permitted the respondent Zila Panchayat to make appointment to the two vacant posts of driver. By the same Government order it had also created two new posts of Administrative Officers and permitted the Zila Panchayat to make appointments on those posts also. In pursuance thereof, the advertisement of 9.9.2004 was published on 14.9.2004. It is by now well settled that a general law or order will give way to a special law or order. The earlier Government order is a general order applying to all the department and posts while the subsequent one applies only to the respondent Panchayat and is in the nature of an exception to the earlier one. Therefore, in view of the permission granted by the Government itself vide its Government order dated 29.8.2003 irrespective of the complete ban by the general order dated 11.8.2003, the respondent Nagar Panchayat was well within its jurisdiction to go ahead with the recruitment on the posts and, therefore, this argument of learned Standing Counsel cannot be sustained.

For the reasons given above, this petition succeeds and is allowed and the impugned orders dated 25.2.2005/1.3.2005 and the Government order dated 7.2.2005 are hereby quashed and the petitioner would be entitled to the consequential benefits. No order as to costs.

D/- 27.11.2006



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