IMPORTANT POINT
An in-service candidate who has already been holding a lien in a post but working in another department on ad hoc basis cannot be considered to be a candidate appointed from the open market for the purpose of regularisation required under the Rules.

ORDER

We have heard learned counsel on both sides.

2. Initially, the special leave petition was filed against an order of the learned Single Judge made on September 23, 1991 in Civil Misc. Writ Petition No. 20281 of 1988 directing the State to promote Gayatri Devi Pandey to the post of Vocational Guidance Counsellor. On August 21, 1995, when the matter was heard for some time, it was suggested to the counsel whether the writ petition itself could be disposed of on merits, instead of remitting the matter to the High Court for decision on merits. In fairness, both the counsel agreed that the writ petition itself could be disposed of by this Court. Accordingly, the writ petition pending in the High Court was withdrawn. We have heard the petition on merits. Consequently, all the relevant material has been placed before us.

3. Smt. Gayatri Devi was initially appointed as a School Psychologist on December 17, 1962; she joined the post on January 3,1963 and was selected on regular basis by the Uttar Pradesh Public Service Commission on August 5, 1964. Since those posts came to be abolished, she had consented to her being appointed as a L.T. Grade teacher; consequently, she came to be appointed on March 5, 1966. It is also clear from the record that she was also regularised as L.T. Grade Teacher w.e.f. April 1, 1965. By proceedings dated April 18 1975, she was appointed on ad hoc basis as Assistant Psychologist in the scale of Rs. 400-750/- in the Bureau of Psychology subject to the terms that her service will be terminated at any time without prior notice and she would be reverted back to her original post. Later, she came to be promoted further on ad hoc basis by proceedings dated August 12, 1975 within four months as Vocational Guidance Counsellor in the scale of Rs. 450-850/- as was existing at that time. Her representation for confirmation as Assistant Psychologist came to be rejected by the Department, Resultant Writ Petition No. 3096/83 was disposed of by order dated February 17, 1988 directing the authorities to consider and decide the representation with a speaking order. The authorities by proceedings dated July 13, 1988 rejected the representation. Calling that order in question, the present writ petition came to be filed.

4. Shri R.D. Upadhyay, learned counsel for Smt. Gayatri Devi Pandey. Contended that by operation of U.P. Regulation of Ad hoc Appointment (on posts within the purview of Public Service Commission) Rules, 1979 (for short, the Rules ) issued by the Governor, in exercise of the power under proviso to Article 309 of the Constitution, procedure is prescribed for regularisation of the ad hoc appointments in accordance with Rule 4 thereof and appointment to be made under Rule 5 and such an appointment was deemed to be according to the relevant Rules by operation of Rule 6 thereof. Therefore, Smt. Gayatri Devi must be deemed to have been appointed as Assistant Psychologist and thereafter as Vocational Guidance Counsellor in the Psychology Department and a direction in that behalf be given.

5. Shri D.V. Sehgal, learned senior counsel for the State, contended that admittedly, Smt. Gayatri Devi was appointed as L.T. Grade Teacher, when the vacancy for the post of Assistant Psychologist in the Manovigyanshala (Bureau of Psychology) had arisen; pending regular recruitment according to the Rules, Smt. Gayatri Devi and four others were appointed on ad hoc basis. Therefore, her service was taken as on deputation to foreign service. She cannot claim any regularisation in the post of Assistant Psychologist or promotion as Vocational Guidance Counsellor. According to the learned counsel, these posts are within the purview of the Public Service Commission and appointment should be made of the selected candidates recommended for such appointment by the Public Service Commission. The appointment dated April 18, 1975, therefore, could be only on deputation basis but not on regular basis, though de hors the Rules. Consequently, sh