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2006 DIGILAW 2149 (ALL)

State of U. P. v. Satish Chandra Singh

2006-08-30

B.B.AGARWAL, PRADEEP KANT

body2006
JUDGMENT : Pradeep Kant and B.B. Agarwal, JJ. This special appeal has been filed against the order passed by learned single Judge dated 16.11.2000 by means of which the writ petition filed by Respondent has been disposed of with the direction that the opposite parties (present Appellants) shall regularize the services of the Petitioner within three months from the date a certified copy of this order is produced by the Petitioner (now Respondent). 2. Sri Rakesh Nigam, learned standing counsel for the Appellants, assailing the aforesaid order, submitted that the order passed by the learned single Judge does not give any reason, for issuing a direction to the opposite parties for regularizing the services of the Petitioner, who had worked for some time as a Daily Wager in the Registration Department of Government of U.P. The case of Dr. Ashok Kumar Vs. State of U.P. and others, (1998) 3 AWC 2193 which has been relied upon by the Court is also not applicable in the facts of the case as it does not lay down any such law. 3. The Respondent had filed the writ petition, claiming in para 4 of his petition that he had worked as daily wager right from 1986 for a period of 90 days up to the year, 1994 in each year and that his services were thereafter terminated, therefore, he be allowed to be continued in service and also be paid salary with arrears. He had also prayed that a scheme be directed to be framed for regularisation of the services of the daily wage employees in the registration department. 4. The Respondent, thus, himself was aware that under rules he was not entitled for regularisation of his services and there was no scheme in the department under which he could be regularized. Therefore, he specifically made a prayer that the Court should direct for framing of a scheme for the purpose. 5. The learned Counsel for the Appellant has vehemently urged that a daily rated employee cannot be regularized unless, of course, there are rules in that regard, in which he falls within the category of eligible daily rated employees or unless a scheme is framed for the purpose with respect to a large number of employees, if they so exist. Relying upon the case of Secretary, State of Karnataka and Others Vs. Relying upon the case of Secretary, State of Karnataka and Others Vs. Umadevi and Others, AIR 2006 SC 1806 he submitted that regularisation could not have been done in the' absence of any Rule as it amounts to creation of new mode of appointment which cannot be permitted. 6. Sri Raj Kumar Dwivedi, holding brief of Sri Ramesh Kumar Srivastava in response submitted that the Respondent was entitled to the benefit of the case of Commissioner of Income Tax, Jullundur Vs. Ajanta Electricals, Punjab, AIR 1995 SC 2172 of the Apex Court decided on 27.9.1995 wherein the Court had directed that the daily rated employees working in the Registration Department need be regularized under the provision of Rule 4 of the U.P. Regularisation of Ad hoc Appointments (On the Post of Outside the Purview of the Public Service Commission) Rules, 1979 as amended. 7. For testing the aforesaid plea we have been taken through the order of the Apex Court and directives issued therein. The Supreme Court had said that the Petitioners or other similarly placed persons, namely, who were working in the Registration Department and were employed as registration clerks on daily wages basis prior to 1.10.1986 they shall be considered for regularisation under the provisions of the aforesaid rules, if they have completed three years continuous service. 8. Admittedly, the Respondent, who was engaged as daily wager prior to 1.10.1986, does not have to his credit three years continuous service but for the service of only 90 days in each year as stated by the Respondent himself in his writ petition. Thus, the aforesaid directive is not of any assistance to the Respondent. 9. The Rule known as U.P. Regularisation of Ad hoc Appointments (On the Post Outside the Purview of the Public Service Commission) Rules, 1988 also prescribes for regularisation of daily rated employees in service wherein eligibility criteria under the aforesaid rule is given in Rule 4. The first condition of which is that such a daily rated employee ought to have been directly recruited on or before 29.6.1991 and should be in continuous service as such, on the date of enforcement of the Rule, i.e., 9.7.1988. The services of the Respondent were terminated in the year 1994 and he was not working thereafter, though the Respondent disputes in the special appeal that he had worked for 502 days and up to the year 1995. 10. The services of the Respondent were terminated in the year 1994 and he was not working thereafter, though the Respondent disputes in the special appeal that he had worked for 502 days and up to the year 1995. 10. Even if it is assumed that the Respondent was allowed to work for some time in 1995, though specifically disputed by the counsel for the Appellant relying upon the averments made by the Respondent himself in the writ petition and also on the basis of stand of the State, still will not make him eligible for consideration for regularisation under the Rules of 1988. 11. No other rule has been brought before us by the learned Counsel for the Respondent under which his regularisation could have been ordered or could have been considered. As already observed, no scheme exists for which the Respondent had himself made a prayer in the writ petition and therefore, regularisation of services of Respondent could not be ordered. 12. The Respondent (Petitioner), who had worked only for 90 days in every year is not entitled to be regularized under any provision of the Rules nor he is entitled for any such advantage because of his work for such a limited period in every year. Unless the service rendered by a daily wager or daily rated employee is of such length that it brings him under the category of eligible employee for being considered under any Rule or under any provision of law, the Court would not pass an order for regularisation of services of the employee, which would otherwise mean recruitment de hors the Rules and without any authority. The High Court would always be reluctant and hesitant in either creating a new mode of recruitment to service or in inducting a person in regular service in violation of the statutory rules nor a person can be appointed or regularized, unless such appointment and regularisation is, backed by any rule. 13. The Respondent's plea that he should be paid salary for 502 days on the strength of certificate annexed to the writ petition stands repelled by the learned Counsel for the State, who has categorically stated and submitted that the aforesaid certificate would not be sufficient as his claim for payment of salary for 502 days has already been rejected. 14. The Respondent's plea that he should be paid salary for 502 days on the strength of certificate annexed to the writ petition stands repelled by the learned Counsel for the State, who has categorically stated and submitted that the aforesaid certificate would not be sufficient as his claim for payment of salary for 502 days has already been rejected. 14. We are also informed that since against the order of the learned single Judge an interim order is working against the Respondent, therefore, the order passed by the learned single Judge has not yet been given effect to. 15. For the reasons stated above, the order passed by the learned single Judge cannot be sustained and with respect, while differing with the view expressed by him, we set aside the same. The impugned order dated 16.11.2000 is thus hereby set aside. The writ petition is consequently also dismissed. 16. The special appeal is allowed. Costs easy.