Court No.

- 20

Case :- SERVICE SINGLE No. - 909 of 2014

Petitioner :- Raj Kumar

Respondent :- State Of U.P. Through Prin. Secy. Nagar Vikas Lko. & Ors.
Counsel for Petitioner :- Km. Vishwamohini,Vimal Kumar
Counsel for Respondent :- C.S.C.,Namit Sharma

Hon'ble Abdul Moin,J.

Heard learned counsel for the petitioner, learned Standing Counsel

appearing for respondents No.1 and 2 and Sri Namit Sharma, learned
counsel appearing on behalf of respondents No.3 and 4.

By means of the present petition, the petitioner has prayed for the
following reliefs:-

"i. That a Writ, Order or Direction in the nature of certiorari quashing the
impugned order dated 31.01.14 passed by O.P. No.3 and order dated
18.11.13 passed by O.P. No.1 as contained in Annexure No.12 & 13 Apex
Court order should also be complied with.

ii. That any other Order or Direction which may be deemed fit and proper
in the facts and circumstances of the case may also be passed in favour of
the petitioner and against the opposite parties including reinstatement
with all consequential benefits.

iii. That Cost of the writ petition may also kindly be allowed in favour of
the petitioner and against the opposite parties."

The case set forth by the petitioner is that he was initially appointed on
15.1.1986 on daily wage basis on the post of Sub Station Attendant in Jal
Sansthan, Zone-3, Lucknow and was subsequently regularised on the said
post in the year 1989. It is also submitted that in September, 1995 the
petitioner was confirmed on the post of Sub Station Attendant. On
24.7.1997, directions were issued by the Principal Secretary, Urban
Development, Lucknow for the purpose of chlorination and improving the
quality of potable water. In pursuance thereof, the General Manager of the
Jal Sansthan, Lucknow required the Finance Officer and the Secretary of
the Lucknow Jal Sansthan to enlist those employees who have done their
B.Sc. with Chemistry, Botany and Zoology in order to take work from
them as Water Analyst. Copy of the said order has been filed as Annexure-
7 to the petition. In pursuance thereof, the petitioner claims to have been
appointed through an order dated 20.9.1997, a copy of which has been
filed as Annexure-10 to the petition. The order of appointment of the
petitioner reads that he is being appointed on ad-hoc basis as Water
Analyst in the pay scale of Rs.1200-2040 till the approval from the
Government. It is also provided in the appointment order that his
appointment is temporary and the same could be ended without any notice.
The petitioner claims to have continued to work as Water Analyst in
pursuance to the appointment letter dated 20.9.1997 when all of sudden his
appointment as Water Analyst was cancelled in pursuance to the directions
issued on 18.11.2013 by the Special Secretary, Government of U.P., a copy
of which has been filed as Annexure-12 to the petition. Thereafter the
order dated 31.1.2014 was also issued by the respondent No.3, a copy of
which has been filed as Annexure-13 to the petition.

Being aggrieved with the orders dated 18.11.2013 and 31.1.2014, the
petitioner is before this Court.

This Court vide order dated 13.2.2014 stayed the operation of the
impugned orders dated 18.11.2013 and 31.1.2014 in pursuance of which
the petitioner claims to be working on the post of Water Analyst.

Learned counsel for the petitioner while seeking to challenge the

impugned orders dated 18.11.2013 and 31.1.2014, contends that the
impugned order dated 31.1.2014 has been passed cancelling his
appointment on the ground that appointment was made without permission
of the State Government and without there being any post. The said
contention is said to be patently misconceived inasmuch as through an
order dated 24.7.1997 passed by the General Manager, Jal Sansthan,
Lucknow all the Executive Engineers of Zone 1 to 6 had been stressed
with the importance of the quality of potable water. It is contended that in
pursuance thereof, the petitioner has been validly appointed and there was
also necessity of his continuation on the post of Water Analyst. It is also
contended that as the petitioner is working uninterruptedly since the year
1997, consequently it is in the fitness of things that his continuance as
Water Analyst be continued and the petitioner be also regularised on the
said post for which a separate petition has already been filed which is
pending. It is also contended that continuance of the petitioner for such a
long time on the post of Water Analyst has given rise to a legitimate
expectation to the petitioner of being regularised and there being a need of
his services as Water Analyst, consequently the petitioner should not be
reverted and should be allowed to continue on the post of Water Analyst. It
is also contended that the long working of the petitioner has been
appreciated by the respondents.

Learned counsel for the petitioner has also placed reliance on a

recommendation made by the Executive Engineer, Jal Sansthan, Lucknow
dated 18.9.1997 to the General Manager of the Jal Sansthan, a copy of
which has been filed as Annexure-8 to the petition, for the purpose of
conversion of an equivalent post as that of Water Analyst to a post of
Water Analyst after due permission from the Government to contend that
the petitioner's appointment was made in pursuance of the said
recommendation by conversion of an equivalent post to that of Water
Analyst and as such the post of Water Analyst was very well existing in
the Department on which his appointment was correctly made.

On the other hand Sri Namit Sharma, learned counsel for respondents
No.3 and 4 on the basis of averments contained in the counter affidavit,
contends that the post of Water Analyst had never existed in the Jal Kal
Department, Lucknow nor had it ever been approved or sanctioned by the
State Government. It is further contended that as per Section 27 of the
Uttar Pradesh Water Supply and Sewerage Act, 1975, it is the State
Government which can sanction or provide approval for any post and in
absence of the same no temporary arrangement can continue. It is further
contended that as no post of Water Analyst was existing in the
Department, consequently when this fact was realilsed, the impugned
orders were issued duly indicating the said fact. It is also contended that
the petitioner does not acquire any right in terms of the order of
appointment as Water Analyst inasmuch as it was specifically indicated in
the appointment order that his appointment was only till approval from the
State Government, it being a temporary appointment and could be ended
at any point of time. It is contended that as no approval was received from
the State Government and the appointment of the petitioner was temporary
and against a non existent post, consequently impugned orders have been
passed cancelling the appointment of the petitioner as Water Analyst. Sri
Sharma also contends that the terms and conditions contained in the
appointment order were fully accepted by the petitioner and at no stretch
of time the same were ever challenged and consequently now at this stage
it cannot be said that because the petitioner continued for a long period on
a non existent post of Water Analyst, he has become entitled for
continuance on the said post.

Heard learned counsel for the contesting parties and perused the record.

From the facts that have been culled out above, it is clearly apparent that
the petitioner was appointed on 20.9.1997 as Water Analyst in the pay
scale of Rs.1200-2040. A perusal of the appointment order of the petitioner
as Water Analyst clearly indicates that the said appointment is only till
approval by the Government, it is temporary and the same can be ended
without any prior notice. The terms of appointment were fully acceptable
to the petitioner as the same were never challenged. The petitioner joined
on the said post and continued to work when by means of the impugned
orders dated 18.11.2013 and 31.1.2014 his services as Water Analyst were
dispensed with and he was sent back to his original post of Sub Station
Attendant. The reasons indicated in the impugned orders are that there is
no post of Water Analyst in the Department. Once there was no such post
of Water Analyst, consequently it is not understood as to on what basis the
petitioner could even be appointed as Water Analyst. On a specific query
being also put as to whether any such post of Water Analyst existed in the
Department, despite specific averment in the counter affidavit that there is
no post of Water Analyst in the Department, learned counsel for the
petitioner was unable to point out from the record or otherwise from the
Service Rules of existence of any post of Water Analyst. Hence it is clear
that the petitioner was appointed on a non-existent post of Water Analyst.

So far as the argument of learned counsel for the petitioner that in terms of
the recommendation dated 18.9.1997 made by the Executive Engineer to
the General Manager for conversion of an equivalent post to that of a
Water Analyst after due permission from the Government, suffice to state
that no such approval ever saw the light of the day, meaning thereby the
petitioner's appointment done on the post of Water Analyst was on a non
existent post and no approval was received from the Government and
when this fact was recovered, the impugned orders were passed. As such
even the said recommendation dated 18.9.1997 cannot and will not
validate the appointment of the petitioner as Water Analyst. Thus, once no
such post of Water Analyst existed in the Jal Kal Department nor the
Government ever granted its approval for creation or sanction of any such
post, consequently the order dated 18.11.2013 as passed by the Special
Secretary, Government of U.P. noticing this fact and directing for
reversion of the petitioner does not call for any interference. Merely
because the petitioner has continued on a post which was non existent in
the Department cannot also give him any right for seeking continuance on
that post. Also, merely because this Court has passed an interim order
staying the operation of the impugned orders dated 18.11.2013 and
31.1.2014 cannot give any right for continuance of the petitioner on a non
existent post or on a post which itself is not available in the Department.

Keeping in view the aforesaid discussions, no case for interference is

made out. The writ petition is dismissed. The interim order dated
13.2.2014 stands vacated.

Order Date :- 16.4.2019

Rakesh

(Abdul Moin, J.)