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2009 DIGILAW 3131 (ALL)

SHREE PRAKASH MISHRA v. STATE OF U. P.

2009-09-14

SUDHIR AGARWAL

body2009
JUDGMENT Hon’ble Sudhir Agarwal, J.—List has been revised. None appeared for the petitioner. Learned Standing Counsel and Sri Srikant Shukla, Advocate for the respondents are present. However, I have perused the record. 2. The petitioner has sought the following reliefs : “(i) issue a writ, order, rule or direction in the nature of writ of mandamus directing the respondent No. 2 to treat the services of the petitioner as permanent being regularised and not to interfere in the discharge of duty by the petitioner as clerk. (ii) issue a writ, order, rule or direction in the nature of writ of mandamus directing the respondent No. 2 to pass formal order regularising the ad hoc services of the petitioner. (iii) issue a writ, order, rule or direction in the nature of writ of mandamus directing the respondent No. 2 to pay the salary of the petitioner without any break alongwith arrears forthwith. (iv) issue any other writ, order, rule or direction which this Hon’ble Court may deem fit and proper in the circumstances of the case. (v) award the cost of petition.” 3. The entire claim of petitioner is that having worked for 240 days in a year he is entitled to be treated as regular in view of the law laid down by this Court in Jai Kishan v. U.P. Cooperative Bank Ltd., 1989(1) UPLBEC 144. 4. From the facts narrated in the writ petition, however, it appears that the petitioner was appointed as a seasonal clerk on ad hoc basis for a period of three months in U.P. State Food and Essential Commodities Corporation Ltd, (hereinafter referred to as the “Corporation”) and posted at Sewarhi Purchase Centre. Thereafter he was further employed for another period of three months by order dated 15.1.1985 and so on. After amendment of the U.P. Regularisation of Ad hoc Appointments (on Posts Outside the Purview of the Public Service Commission), Rules 1979 (hereinafter referred to as the “1979 Rules”) and extension of the cut off date as 1.10.1986 the petitioner claimed regularisation and it appears that the Deputy Finance Manager (Purchase) made a recommendation on 14.6.1998 for sanction of a post whereagainst the petitioner may be considered for regularisation and thereafter this writ petition has been filed. 5. 5. Admittedly, from the facts stated in the writ petition it is evident that there was no post available whereagainst the petitioner could have been appointed or regularised or made permanent in service. It further appears that seeking a similar relief some other writ petitions were filed and one of such is Civil Misc. Writ Petition No. 20398 of 1988, Rakesh Kumar Saxena v. U.P. State Food and Essential Commodities Corporation Ltd. and others, which was dismissed by this Court vide judgement dated 26.10.2006 and the said judgement of Hon’ble Single Judge has been confirmed in Special Appeal No. (7) of 2008, Tek Chand and others v. U.P. State Food and Essential Commodities Corporation Ltd. and others, dismissed on 7.1.2008. 6. It is well settled that in the absence of any post neither the question of regularisation nor permanence is permissible. Besides the appointment made for a fixed term or ad hoc appointment does not confer any right upon the incumbent concerned to claim regularisation unless it is provided under the statutory rules. The judgement of this Court in Jai Kishan (supra) has no application to the facts of this case inasmuch as this aspect has already been considered by a Division Bench of this Court in Dukhi Singh v. State of U.P. and others, 2007(4) ADJ 186 and it has been held that was a case decided in the absence of any defence taken by the respondents, and it has no universal application to other matters. The validity of cut off date prescribed under 1979 Rules has already been upheld by this Court in several cases. In Subedar Singh and others v. District Judge, Mirzapur and another, 2001 (1) AWC 287 (SC) the Hon’ble Apex Court confirmed the judgment of a Division Bench of this Court upholding the cut of date as 1.10.1986 fixed under the U.P. Regularization of Ad hoc Appointment (On Posts outside the Purview of U.P. Public Service Commission) Rules, 1979, as amended by Second (Amendment) Rules, 1989 where this Court held as under : “.......One of the relevant considerations for regularisation is the length of the service rendered by the ad hoc employee ... but we see no rationale behind the view that all the employees even if they had put in only one day of service as ad hoc should have been made eligible to be considered and, therefore, the cut off date specified in Rule 10 is irrational. .... What should be the length of service is a matter of policy to be decided by the Rule making authority. Further, length of service is not the only criterion to be taken into consideration while making such decision. There can be no rule of thumb in such matters. It is not beyond the competence of the Rule making authority to limit eligibility to the employees who joined service as ad hoc employees upto a specified date...” 7. The judgment of this Court was confirmed by the Hon’ble Apex Court on merit, agreeing with the reasoning and the conclusion given in the judgment, as is apparent from para 3 of the judgment, in Subedar Singh (supra) wherein the Hon’ble Apex Court held as under : “... The High Court has examined all the contentions by a detailed discussion of the relevant provisions of the Rules and we do not find infirmities with the reasoning and conclusions of the High Court in the impugned judgment. No rule, law or regulation, nor even any administrative order had been shown to us on the basis of which the appellants could claim the right of regularisation, in the aforesaid premises, we do not find any merit in any of these appeals which accordingly stands dismissed but in the circumstances, there will be no order as to costs.” 8. Again the cut of date of 30.6.1998 provided in U.P. Regularization of Ad hoc Appointment (on posts outside the Purview of U.P. Public Service Commission) Rules, 1979, as amended in 2001 came up for consideration before a Hon’ble Single Judge in Shivaji Singh and others v. High Court of Judicature at Allahabad and others, Civil Misc. Writ Petition No. 52755 of 2002 decided on 8.8.2003 and the Hon’ble Single Judge upheld the aforesaid cut of date. The matter went in Special Appeal No. 705 of 2003 and upholding the cut of date a Division Bench held as under : “It further observed that the proposed amendment substituting the cut off date did not create two classes of persons. The matter went in Special Appeal No. 705 of 2003 and upholding the cut of date a Division Bench held as under : “It further observed that the proposed amendment substituting the cut off date did not create two classes of persons. It created only one class of persons who possessed requisite qualification for regular appointment at the time of ad hoc appointment and had been directly appointed on ad hoc basis on or before 30.6.1998 and was continuing on service as such on 20.12.2001 and had further completed 3 years of service. From the scheme underlying the amendment only one class of person had been taken up for consideration for regularisation i.e. a person who filled all the 3 conditions given in Rule 4 of the Rules 2001.” 9. Following the aforesaid two judgments another Division Bench of this Court in Vinita Singh and others v. State of U.P. and others, 2006 (2) AWC 1738 has upheld the cut of date 30.6.1998 provided U.P. Regularization of Ad hoc Appointment (on posts within the Purview of U.P. Co-operative Institutional Service Board) Regulation 1985, as amended vide notification dated 24.3.1993. 10. Besides, the matter is also covered by the decisions of this Court in Rakesh Kumar Saxena (supra) and Tek Chand (supra). The writ petition, therefore, lacks merit and is accordingly dismissed. Interim order, if any, stands vacated. ————