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2002 DIGILAW 1075 (ALL)

Ashok Kumar v. State of U. P.

2002-08-23

A.K.YOG

body2002
JUDGMENT A.K.Yog 1. Shri Ashok Kumar, petitioner, has filed this writ petition under Article 226, Constitution of India claiming following prayers : "(i) issue a writ, order or direction in the nature of mandamus commanding the respondents to regularise the petitioner daily rated appointment on the post of Assistant Cashier falling under Group 'C' as per the mandate of the U. P. Regularisation of Daily Wages Appointment on Group 'C' Posts (Outside the Purview of U. P. Public Service Commission) Rules, 1998. (ii) issue a writ, order or direction in the nature of mandamus commanding the respondents not to interfere with the petitioner's daily wages appointment on the post of Assistant Cashier till petitioner's daily wages appointment is regularised into regular appointment on the post of Assistant Cashier under the aforesaid Rules, 1998. (iii) issue a writ, order or direction in the nature of ad-interim mandamus commanding the respondents to regularise the petitioner's daily wages appointment to regular appointment on the post of Assistant Cashier forthwith and not to interfere with petitioner's daily wages appointment on the post of Assistant Cashier except in accordance with law. (iv) issue a writ order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case. (v) award cost of the petition to the petitioner." 2. Undisputed, facts of the case, relevant for deciding the controversy in the present petition, are being noted hereinafter. Petitioner passed U. P. Board Intermediate Examination in the year 1989 with Mathematics. Petitioner subsequently passed Intermediate with Accountancy Examination conducted by the U. P. Board in the year 1998. Secretary, U. P. Board, in his letter written to the Senior Treasury Officer, Bijnor, dated 9.2.1999, certified that the petitioner had passed Intermediate with Accountancy subject which was equivalent to have passed Intermediate Examination with Audit and Accounts course. (Annexure-8 to the writ petition). 3. Petitioner was engaged as daily-wager to discharge duties as Assistant Cashier, Cash Branch, in the Treasury Office at Bijnor. 4. Petitioner, as daily-wager, worked for the following periods : (i) 9.2.1991 to 27.8.1991 (ii) 3.9.1991 to 6.4.1995, and (iii) 21.9.1995 to date. Learned counsels for the parties submitted that regular appointment on the post of Assistant Cashier could be done under Uttar Pradesh Koshagar (Rokad Shakha) Lipik Varg Sewa Niyamawali, 1987. 5. 4. Petitioner, as daily-wager, worked for the following periods : (i) 9.2.1991 to 27.8.1991 (ii) 3.9.1991 to 6.4.1995, and (iii) 21.9.1995 to date. Learned counsels for the parties submitted that regular appointment on the post of Assistant Cashier could be done under Uttar Pradesh Koshagar (Rokad Shakha) Lipik Varg Sewa Niyamawali, 1987. 5. The Uttar Pradesh Regularisations of Daily Wages Appointment on Group 'C' posts (Outside the Purview of Uttar Pradesh Public Service Commission) Rules, 1998/Annexure-6 to the writ petition (called the Rules, 1998) was enforced w.e.f. July, 1998. 6. Rule 3 (i) of the Rules, 1998, defines appointing authority in relation to any post to mean an authority empowered, under relevant rules (namely Rule, 1987) to make appointment. Rule 4 of the Rules, 1998 reads : (1) Any person who : (i) was directly appointed on daily wages on Group 'C' post in the Government service before July 29, 1991 and is continuing in service as such on the date of commencement of these rules ; and (ii) possessed requisite qualification prescribed for regular appointment for that post at the time of such appointment under the relevant service rules on daily basis shall be considered for regular appointed on Group 'C' post in permanent or temporary vacancy as may be available on the date of commencement of these rules on the basis of his record and suitability before any reappointment is made in such vacancy in accordance with relevant service rules or orders. (2) .......................................... (3) For the purpose of sub-rule (1) the appointing authority shall constitute a selection committee in accordance with the relevant provisions of the services. " 7. There is no relaxation clause in 1998 Rules, whereas, Rule 26 of 1987 Rules provides for relaxation by the State Government if it is satisfied that circumstances do warrant it. 8. There is no dispute that the petitioner was appointed before July 29, 1991 ; he was working when 1998 Rules came in force on July 9, 1998 and that he was continuing throughout till date. The petitioner approached the concerned authority including the District Magistrate, Bijnor, to regularise his services. It is also not disputed that the case of the petitioner for regularisation was placed before a selection committee as contemplated under Rule 4 (3) of the Rules, 1998. The petitioner approached the concerned authority including the District Magistrate, Bijnor, to regularise his services. It is also not disputed that the case of the petitioner for regularisation was placed before a selection committee as contemplated under Rule 4 (3) of the Rules, 1998. The selection committee, being in some doubt as to whether petitioner possessed requisite minimum qualification in the year 1991 when he was appointed for the first time as daily wager or not and whether he could be granted relaxation by the State Government and in this backdrop, case of the petitioner was recommended by the then District Magistrate, Bijnor, to the State Government (vide letter dated April 18, 1998/Annexure-7 to the writ petition). The District Magistrate verified the work done by the petitioner during relevant periods and recommended for regularisation in favour of the petitioner. 9. Annexure-R.A. 1 is the letter dated April, 15, 1999, written by the Joint Secretary, U. P. Government to the District Magistrate, Bijnor (filed along with the rejoinder-affidavit sworn by the father of the petitioner) show queries made on various factual aspect with regard to the petitioner's initial appointment and thereafter as also requesting for clear recommendation in favour of the petitioner for regularisation. The District Magistrate vide his letter dated 28.4.1999 (Annexure-R.A. 2 to the rejoinder-affidavit) again verified aforesaid facts and categorically requested for relaxing conditions contained in Rules 4 (1) (i) and 4 (1) (ii) of the Rules, 1998 emphasizing at the end that petitioner had acquired requisite academic minimum qualification (viz. Intermediate with Accountancy in the year, 1998). 10. Learned counsel for the petitioner, on instructions from his client, submitted that the correspondence in this respect has been still going on between State Government and the District Magistrate and that the District Magistrate has passed some specific orders directing the petitioner to continue as daily wager till final decision is taken by the State Government. In my opinion, said Rules, 1987 have no application to the facts of the case which is for regularisation of a daily wager. The State Government is nowhere in picture under 1998 Rules. It is for the selection committee to consider regularisation strictly in accordance with 1998 Rules. 11. AS the Rules, 1998 stands, there is no clause/provision for relaxation. In my opinion, said Rules, 1987 have no application to the facts of the case which is for regularisation of a daily wager. The State Government is nowhere in picture under 1998 Rules. It is for the selection committee to consider regularisation strictly in accordance with 1998 Rules. 11. AS the Rules, 1998 stands, there is no clause/provision for relaxation. If that be so, the selection committee was not justified in referring the matter to the State Government to issue instructions/ guidelines to relax requisite minimum academic qualification required for the post in question and consequently, such a objection was not at all tenable particularly when, undisputedly, petitioner had already acquired, the requisite minimum academic qualification (namely Intermediate with Accountancy). 12. Learned counsel for the petitioner has placed reliance upon the case of Gujarat Agricultural University v. Rathod Labhu Bechar and others, 2001 (1) AWC 2.3 (SC) (NOC) B : (2001) 1 UPLBEC 834 : "The appellant is an educational institution fully aided by the State Government and is engaged in the educational activities in agriculture and allied sciences and humanity and is also prosecuting research in agriculture and other allied science. It performs its duties and functions under the statutory provisions and in doing so, it engages daily rated labourers for various activities. According to the appellant these labourers are being paid their wages as per the minimum wages fixed by the State Government from time to time under the Minimum Wages Act. They were engaged due to exigencies of work, without considering relevant factors about their educational qualifications, age limit and other relevant requirements for the purpose of regular appointment under the recruitment rules. There are different agricultural reasarch centres at different places with different projects and these daily rated workers are unskilled, semi skilled and skilled labourers of different categories. Since the University is grant-in-aid institution fully funded by the State Government it requires prior permission/sanction of the State Government for appointment of its employees. In fact, all the posts are sanctioned by the State Government and thereafter they are filled by the university, as per the recruitment rules. The present case pertains to daily wage workers who are plumbers, carpenters, sweepers, pump operators, helpers and masons etc. According to the appellant, no posts are sanctioned for them and hence they are working on daily rated basis. The present case pertains to daily wage workers who are plumbers, carpenters, sweepers, pump operators, helpers and masons etc. According to the appellant, no posts are sanctioned for them and hence they are working on daily rated basis. Thus, their appointments are on irregular basis and not in accordance with the recruitment rules ...... We heard learned counsel for the parties at length and considered the objections of the respondents with respect to the proposed scheme for the regularisation of daily rated workers. The opposed scheme is reproduced below : "Scheme for Regularisation of daily rated labourers of the Gujarat Agricultural University. (1) Daily wages workers, whether skilled, semi-skilled or unskilled, who have completed 10 years or more of continuous service with a minimum of 240 days in each calender year as on 31.12.1999, shall be regularised as regular employees with effect from 1.1.2000 and shall be put in the time scale of pay applicable to the corresponding lowest grade in the university subject to the following terms and conditions : (a) The daily rated employees shall be eligible and must possess the prescribed qualifications for the post at the time of their appointment on daily rated basis. (b) Daily wages employees shall be regularised in a phased manner to the extent of available regular sanctioned posts/ vacancies on the date of regularisation and on the basis of seniority - cum - suitability including physical fitness. (c) The work and conduct of such employees should have been of overall good category and satisfactory and no disciplinary proceedings are pending against them. (d) The regularisation will be against the posts/ vacancies of the relevant categories only ......................" From the aforesaid it emerges that the learned single Judge had concurred with the finding of the Tribunal that contesting workmen have been working in the appellant university regularly for a long number of years. The existence of permanent nature of work was inferred on this account and also due to the vastness of appellant-establishment. The regularisation is claimed only in respect of Class IV employees. The main objection, which was raised earlier before us is that a person could only be regularised on any vacant post and if there be one he should be qualified for the same as per qualification, if any, prescribed. The regularisation is claimed only in respect of Class IV employees. The main objection, which was raised earlier before us is that a person could only be regularised on any vacant post and if there be one he should be qualified for the same as per qualification, if any, prescribed. In fact, the Tribunal has held on the date of the award, most of the workmen had completed 10 years of their service. It is also well-settled, if work is taken by the employer continuously from daily wage workers for a long number of years without considering their regularisation for its financial gain as against employees' legitimate claim, has been held by this Court repeatedly as an unfair labour practice. In fact, taking work, from daily wage worker or ad hoc appointee is always viewed to be only for a short period or as a stop-gap arrangement, but we find new culture is growing to continue with it for a long time, either for financial gain or for controlling its workers more effectively with Sword of Damocles hanging over their head or to continue with favoured one in the cases of ad hoc employee stalling competent and legitimate claimants. Thus, we have no hesitation to denounce this practice. If the work is of such a nature, which has to be taken continuously and in any case when this pattern becomes apparent, when they continue to work for year after year, only option to the employer is to regularise them. Financial viability no doubt is one of the considerations but then such enterprise or institution should not spread its arms longer than its means. The consequent corollary is, where work is taken not for a short period or limited for a season or where work is not of part time nature and if pattern shows work is to be taken continuously year after year there is no justification to keep such persons hanging as daily rated workers. In such situation a legal obligation is cast on an employer, if there be vacant post to fill it up with such workers in accordance with rules if any and where necessary by relaxing the qualifications, where long experience could be equitable with such qualifications. If no post exists then duty is cast to assess the quantum of such work and create such equivalent post for their absorption ......................... If no post exists then duty is cast to assess the quantum of such work and create such equivalent post for their absorption ......................... What emerges is, all the respondent-workmen are eligible for absorption on the facts of this case subject to any eligible qualification under the rule if any. Though no recruitment rules were filed in the proceedings either before the Tribunal or in the High Court but while proposing the scheme a copy of the recruitment rules for various cadres have been placed before us on behalf of the appellant-university. This gives in column No. 1 the serial No. in column No. 2, the name of the post, in column No. 3 the pay scale, in column No. 4 the age limit and in column No. 5 the qualification, Serial No. 10 deals with peon and Class IV servants, serial No. 13 deals with operator-cum-mechanic, serial No. 14 deals with chowkidar, serial No. 25 deals with plumber and serial No. 33 deals with carpenter. This shows that recruitment rules did have these posts in its ambit about which we are concerned, yet no posts were created. This proposed creation of post is churned out only after his long battle by the workmen as against the appellant. It was not expected from the institutions like the present appellant, especially when it is fully funded by the State Government that this process of absorption should have taken such a long time and to have yielded to it only after this long battle. This legal position is well-known not only to the appellant but the State who is funding it, then why to do it only after Courts' intervention. It is true, creation of post does involve financial implication. Hence, financial health of a particular institution plays important role, which Courts also keep in mind. The Court does exercise its restraint to where facts are such where extent of creation of post creates financial disability. But at this juncture we would like to express our note of caution, that this does not give largess to an institution to engage larger number of daily wage workers for long number of years without absorbing them or creating posts which constitutes an unfair labour practice. But at this juncture we would like to express our note of caution, that this does not give largess to an institution to engage larger number of daily wage workers for long number of years without absorbing them or creating posts which constitutes an unfair labour practice. If finances are short engagement of such daily wage workers could only be for a short limited period and if continuous work is required, it could only do so by creating permanent post. If finances are not available, take such work which is within financial mean. Why take advantage out of it at the cost of workers. ............................ " In Bhagwati Prasad v. Delhi State Mineral Development Corporation, JT 1989 (4) SC 541 : 1990 (1) SCC 361 , this Court observed : "The main controversy centres round the question whether some petitioners are possessed of the requisite qualifications to hold the posts so as to entitle them to be confirmed in the respective posts held by them. The indisputable facts are that the petitioners were appointed between the period 1983 and 1986 ever since, they have been working and have gained sufficient experience in the actual discharge of duties attached to the posts held by them. Practical experience would always aid the person to effectively discharge the duties and it is sure guide to assess the suitability. The initial minimum educational qualification prescribed for the different posts is undoubtedly a factor to be reckoned with, but it is so at the time of the initial entry into the service. Once the appointments were made as daily rated workers and they were allowed to work for a considerable length of time, it would be hard and harsh to deny them the confirmation in the respective posts on the ground that they lack the prescribed educational qualifications." Thus, in view of their long experience on the fact of this case and for the concerned posts the prescribed qualification, if any, should not come in the way of the their regularisation. Clause 1 (b) provides for the regularisation of daily wagers in a phased manner to the extent of available sanctioned post." The aforesaid decision is complete answer to the question before us. Clause 1 (b) provides for the regularisation of daily wagers in a phased manner to the extent of available sanctioned post." The aforesaid decision is complete answer to the question before us. In view of the exposition of law by the Apex Court, judgment in the matter of regularisation of daily wagers, Clause 4 (ii) cannot be rigidly interpreted and it is to be interpreted pragmatically to the effect that a daily wager shall not be excluded for being considered for regularisation if he did not possess requisite minimum qualification at the time of his initial entry as daily wager, provided there has been no misrepresentation, concealment or fraud on the part of the employee in this respect. As held by the Supreme Court in the aforementioned case, long working of the petitioner without objection on the score that a person did not possess minimum qualification when he was initially engaged as daily wager cannot be allowed to raise and rather his long experience should be deemed to have been compensated for the same. 13. In the opinion of this Court, Rules, 1998 require to be suitably amended/modified so as to bring in consonance with the exposition of law and its declaration by the Apex Court. 14. As far as the other aspect of the matter is concerned, case of the petitioner in hand stands on a higher footing as compared to an ordinary daily wager who did not possess requisite qualification at the time of his initial engagement and continues to be so even at the time of consideration of regularisation. A daily wager who did not possess requisite minimum qualification at the time of his initial engagement, but acquires the missing qualification subsequently before any objection is raised, then in that situation such a daily wager cannot be non-suited. The reason is simple. When a daily wager has already acquired the requisite minimum qualification, which he lacked at the time of his entry in service, the said ground becomes non-existent and not available to be raised. The reason is simple. When a daily wager has already acquired the requisite minimum qualification, which he lacked at the time of his entry in service, the said ground becomes non-existent and not available to be raised. Such an objection, with the acquisition of missing qualifications, became stale and redundant ; and also of no consequence because the employer engaged him, took work from such a daily wager (in spite of not having minimum qualification) and, therefore, it showed that employer was fully satisfied with his performance in spite of daily wager not being fully eligible at the same time and such defect also vanishing prior to objection being raised on the score. Employer in such a case shall be deemed to have waived or relaxed the qualification which employee does not possess. 15. The above view finds support from the decision in the case of Ram Sarup v. State of Haryana and others, AIR 1978 SC 1536 . The relevant para 3 of the said judgment is reproduced : "The question then arises as to what was the effect of breach of Clause (1) of Rule 4 of the Rules. Did it have the effect of rendering the appointment wholly void so as to be completely ineffective or merely irregular, so that it could be regularised as and when the appellant acquired the necessary qualification to hold the post of Labour-cum-Conciliation Officer. We are of the view that the appointment of the appellant was irregular since he did not possess one of the three requisite qualifications but as soon as he acquired the necessary qualification of five years' experience of the working of labour laws in any one of the three capacities mentioned in Clause (1) of Rule 4 or in any higher capacity, his appointment must be regarded as having been regularised. THE appellant worked as Labour-cum-Conciliation Officer from 1st January, 1968 and that being a post higher than that of Labour Inspector or Deputy Chief Inspector of Shops or Wage Inspector, the experience gained by him in the working of labour laws in the post of Labour-cum-Conciliation Officer must be regarded as sufficient to constitute fulfilment of the requirement of five years' experience provided in Clause (1) of Rule 4. The appointment of the appellant to the post of Labour-cum-Conciliation Officer, therefore, became regular from the date when he completed five years after taking into account the period of about ten months during which he worked as Chief Inspector of Shops. Once his appointment became regular on the expiry of this period of five years on his fulfilling the requirements for appointment as Labour-cum-Conciliation Officer and becoming eligible for that purpose, he could not thereafter be reverted to the post of Statistical Officer. The order of reversion passed against the appellant was, therefore, clearly illegal and it must be set aside." 16. The aforesaid Supreme Court decision has been subsequently followed by this Court in case of Smt. Shanti Devi Verma v. Deputy Director of Education, Region 1, Meerut and others, 1982 UPLBEC 365; Relevant para 8 of the said judgment is reproduced : "................. The learned counsel for the petitioner, however, contended that the qualification prescribed by the Statute and the Regulations should not be given such a strict and rigid construction as to treat the appointment of a candidate, who falls short of such qualification, as a nullity. It may at best be regarded as an irregularity which is capable of being cured by subsequent acquisition of the qualification. An analysis of the various provisions aforementioned leads to the conclusion that the intention was not to invest these provisions with such inflexibility as to make any departure from the same fatal to appointment itself. An over-all examination of the relevant provisions warrants the conclusion that they are to be treated as elastic and, therefore, where before any punitive or other adverse action is taken against the candidate appointed, if the disqualification has disappeared and the candidate at that stage fully satisfies the prescribed qualification, then the irregularity should be treated as cured and the appointment should not be struck down. It may, however, immediately qualify the above statement by adding that where it is found as a matter of fact that the petitioner had secured any such appointment fraudulently or by studiously suppressing the correct facts or practicing misrepresentation with regard to the qualifications, the Court should refuse to give any relief to such petitioner notwithstanding the fact that at a later stage, the disqualification may have been cured. In a case, however, where there is no finding, as there is none in the instant case, to the effect that the petitioner had resorted to any such questionable means to obtain an appointment, and where before the irregularity is discovered and appropriate action is sought to be taken against the petitioner, he or she has already acquired the requisite qualification, then the appointment should be upheld. In fact, in a case like the one before me the employers may really be estopped from pleading a disability for the purpose of dispensing with the services of an appointee, when they have themselves initially permitted such disability not to stand in the way of the candidate and allowed him to function and discharge his duties to their satisfaction. Obviously, it would not be in conformity with the principles of equity and justice that despite the fact that the appointee has acquitted himself well in his post the employer may be allowed at a later stage to turn round and remove the appointee on the ground of his initial lack of qualification at the time of his appointment. This is a principle which needs be evolved in order to protect a candidate, who with the approval, tacit or otherwise, of the employer has entered into service and discharged his duties satisfactorily. THE correct thing always for the appointing authority is to scrutinize and examine the qualification possessed by a candidate before appointing him and refuse to appoint who falls short of the required qualification. But having once given a go - by to such requirement and permitted a candidate to prove his worth and mattle, it does not behave the employers later on to go back on their implied assurance and take advantage of their own failure to enforce the requirement of the qualification rigidly. The facts of the present case followed exactly the same pattern. The petitioner was appointed in 1976 and was permitted to function throughout until 1979 when the District Inspector of Schools granted approval to the proposal for termination of her services. It is very striking that even the resolution of the managing committee dated 16.1.1979 proposing to terminate the services of the petitioner was not sent to the District Inspector of Schools for six months and it was only on 25.10.1979 that it was ultimately dispatched to the District Inspector of Schools. It is very striking that even the resolution of the managing committee dated 16.1.1979 proposing to terminate the services of the petitioner was not sent to the District Inspector of Schools for six months and it was only on 25.10.1979 that it was ultimately dispatched to the District Inspector of Schools. There is nothing on record to indicate that during this period the petitioner was found inefficient in the discharge of her duties or was guilty of any misconduct. It does not stand to reason that without the connivance of the college authorities the petitioner would have been able to secure her initial appointment and, thereafter suffered to continue in her job for such a long time. In these circumstances at the crucial time when the petitioner's services were going to be terminated she had already acquired full qualification for her job and, therefore, she should not be visited with such penalty at the instance of the management." The aforesaid view has been taken by the Supreme Court in another case in M/s. National Aluminium Company Limited v. Deepak Kumar Panda and others, JT 2002 (5) SC 139. 17. Keeping in mind consistent recommendations made by the concerned District Magistrate, I find that matter has unnecessarily been referred to the State Government. The matter ought to have been finalized by the selection committee itself. Since this Court cannot direct the respondents to regularise the petitioner, the concerned selection committee is required to take appropriate decision in accordance with law as explained above. 18. A writ of mandamus is issued commanding the concerned selection committee to pass appropriate orders regarding regularisation of the petitioner w.e.f. the date it considered candidature of the petitioner along with others. In case petitioner is found suitable and there is no other legal impediment, the petitioner will be entitled for regularisation. Since petitioner is continuously working, it will not be fair to the petitioner if he is deprived of his seniority which he will be entitled, on the basis of his notionally serving since his batch mates are appointed. The concerned competent authority is required to pass appropriate orders regularising the petitioner from the date others have been considered and regularised. 19. The concerned competent authority is required to pass appropriate orders regularising the petitioner from the date others have been considered and regularised. 19. The petitioner is directed to produce a certified copy of this judgment before the District Magistrate, Bijnor, within six weeks from today and on receiving certified copy of this judgment the concerned District Magistrate shall ensure requisite action being taken and appropriate orders passed by the selection committee within eight weeks of the receipt of the certified copy by the concerned District Magistrate. 20. Writ petition stands allowed by moulding the reliefs as indicated above. There shall, however, no order as to costs. A copy of the judgment shall be sent to the Chief Secretary, Government of U. P., Lucknow, for consideration of the amendment of the Rules, 1998 properly in the light of this judgment. Registrar General, High Court, Allahabad shall get copy of the judgment dispatched within six weeks from today.