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2009 DIGILAW 3537 (ALL)

SANTOSH KUMAR BAJPAI v. STATE OF U. P.

2009-11-18

SUDHIR AGARWAL

body2009
JUDGMENT Hon’ble Sudhir Agarwal, J.—The grievance of the petitioner is that he was appointed as daily wage employee in 1988 in District Rural Development Agency (hereinafter referred to as “D.R.D.A.”) and has been continuously working since then. In the meantime, he approached this Court twice in the matter of regularization and this Court disposed of the writ petition directing him to approach the concerned authority but the request has been rejected by the authorities concerned. Hence, by means of the present writ petition he has challenged the order dated 5.10.2007 whereby his representation has been rejected and the authority has also said that no employee need be appointed in Class IV service in D.R.D.A. The petitioner has also sought a writ of mandamus commanding the respondents to continue him to work on daily wage basis and pay salary accordingly and to reconsider his case in the light of the judgment passed in writ petition No. 2280(S/S) of 2006 (Badloo Ram and another v. State of U.P. and others) decided on 19.4.2006 a copy whereof has been placed on record as Annexure 4 to the writ petition. 2. From the scheme of D.R.D.A. it is evident that it is a society registered under the Societies Registration Act but considering its bye laws, its management etc. which is only made by the officials of the State Government, it may be said that it satisfies the definition of ‘State’ within the meaning of Article 12 of the Constitution of India being an instrumentality of the State. However, that itself is not sufficient to make the employees of DRDA at par with the employees of the State Government or to attract the statutory provisions applicable to the State Government employees framed under Article 309 (Proviso) of the Constitution of India suo motu. 3. A perusal of the Government Order dated 17.3.1994 shows that since the funds to DRDA are made available by Central Government as well as State Government collectively, hence finding it difficult to make any set of rules for the employees of DRDA, certain guidelines were issued by the State Government with respect to appointment, seniority, pay and other service conditions of the employees of DRDA. Para 5 of the Government Order dated 17.03.1994 shows that since DRDA itself is a temporary body, the entire appointments shall be made therein on purely temporary basis and they shall be liable to be terminated at any point of time. It further provides that the employees recruited directly in DRDA shall be considered for permanence if the permanent posts are made available. In respect to seniority, efficiency bar and pay scales etc., separate guidelines have been given in paragraphs No. 6, 7 and 8 and thereafter in para 9 it provides for other subjects which are not already dealt with in the said Government Order that the incumbents appointed in the DRDA may be governed by such rules, regulations or orders as are applicable generally to govern the servants of State Government. Para 9, therefore, does not per se attracts the entire set of rules and regulations applicable to the government servants, to the employees of DRDA but it is applicable only in those matters which are not already dealt with in the said Government Order or not governed by some special orders. To that extent only the remaining aspects shall be governed by the corresponding rules, regulations and Government Orders applicable to the serving Government servants generally and not beyond that. 4. A daily wage employee has been held to be not a Government servant even if he is working in the State Government. The Apex Court in the General Manager, Uttranchl Jal Sansthan v. Laxmi Devi and others, JT 2009 (13) SC 573 has considered and held that the government servant does not mean a daily wager. 5. The petitioner in the case in hand seeks benefit of U.P. Regularisation of Daily Wages Appointments on Group ‘D’ Posts Rules 2001 (hereinafter referred to as “2001 Rules”) and, reliance has been placed on the judgment of this Court in Badloo Ram (supra). Having gone through the above judgment, I find the issue which has been considered by the Court therein is “whether DRDA is an instrumentality of the State and is within the definition of ‘State’ under Article 12 of the Constitution”, and, having considered various aspects of the matter, the Court has held that it is a ‘’State’ under Article 12 of the Constitution. Thereafter, in that case, in penultimate three paragraphs, it has referred to submissions made by the petitioner’s counsel therein and without considering the question as to whether 2001 Rules are applicable to the employees of DRDA or not, has simply issued mandamus to the respondents to consider the petitioner in that case for regularisation in accordance with the said Rules. There is nothing to show that the issue as to whether 2001 Rules are applicable to the employees of DRDA has been raised, argued or even decided therein. Therefore, I am of the view that the judgment relied upon by the petitioner cannot be said to be an authority laying down a precedent binding on this Court to make 2001 Rules applicable to the employees of DRDA since the Court after noticing the submission of the petitioner’s counsel in that case proceeded on the assumption that the said Rules are applicable and thus issued such mandamus but has not decided the issue whether 2001 Rules at all apply to DRDA employees or not. 6. In the case in hand, however, learned Standing Counsel has specifically raised an issue that 2001 Rules are not applicable to the employees of DRDA and, therefore, the petitioner in the case in hand cannot take benefit of 2001 Rules simply by referring to the judgement in Badloo Ram (supra). 7. The learned Standing Counsel submits that para 9 makes such Rules of the Government employees generally applicable and that too in respect to the matters which are not already provided. In respect to nature of appointment and confirmation in the employment of DRDA, para 5 of the Government Order dated 17.3.1994 says that since DRDA itself is a temporary establishment all appointments are made on temporary basis and it is only when the permanent posts are made available, the incumbents already appointed shall be considered for confirmation and not otherwise. In respect to nature of appointment and confirmation in the employment of DRDA, para 5 of the Government Order dated 17.3.1994 says that since DRDA itself is a temporary establishment all appointments are made on temporary basis and it is only when the permanent posts are made available, the incumbents already appointed shall be considered for confirmation and not otherwise. He further submitted that 2001 Rules are not the Rules of general application for all times to come but a perusal thereof shows that it is one time provision and was made by the State Government to consider such daily wage employees who were engaged in the State Government Departments before 29th June 1991 and were working on 21.12.2001 i.e. on the date the Rules came into force for consideration of regularisation against such vacancies which were available on the date of commencement of those Rules i.e. 21.12.2001 and not for vacancies which may subsequently arise. Therefore, what is implicit in the implementation of 2001 Rules is that even in the State Government Departments daily wage employees though may fulfil the requirement of their engagement i.e. having been appointed before 29.6.1991 and continuing on 21.12.2001, yet may not get benefit of regularisation due to want of vacancy since the regularisation is permissible only against those vacancies which were available on the date of commencement of those Rules, i.e. 21.12.2001. He further submits that regularisation is not as a matter of right particularly when an employee has not been recruited in accordance with the constitutional provision and in particular Article 16 of the Constitution giving equal opportunity of employment to all persons concerned and, therefore, 2001 Rules cannot be said to be Rules generally applicable to the Government employees but being one time measure they are a kind of special rules and hence, would not be covered by para 9 of the Government Order dated 17.3.1994. 8. I find substance in the above submissions of the learned Standing Counsel. In fact the learned counsel for the petitioner, except referring to Badloo Ram’s judgement could not give reply to any of the above submission. 9. The concept of regularisation involves within it a right in the employees concerned to hold the post which in service jurisprudence is normally known as ‘lien’. A lien, however, a person can have only when the post is permanent and the incumbent is appointed on permanent basis. 9. The concept of regularisation involves within it a right in the employees concerned to hold the post which in service jurisprudence is normally known as ‘lien’. A lien, however, a person can have only when the post is permanent and the incumbent is appointed on permanent basis. Once it is not disputed by the petitioner also that though DRDA has continued since long yet it is a temporary establishment and may be wound up at any point of time and when it is also not disputed that the post which have been created in DRDA are all on temporary basis the appointment of the employees or their engagement cannot be beyond the nature of the post but would be temporary like the post itself. 10. Besides para 5 of the said Government Order clearly excludes the possibility of permanent appointment so long as the post is temporary. That being so, it is difficult to comprehend that a person who is working on daily wage basis can be considered for regular appointment so as to create a right upon him to hold the post, i.e., the lien when the post itself is temporary. Besides, with respect to the nature of appointment, the matter having already been provided in para 5 of the Government Order dated 17.3.1994 it is difficult for me to read para 9 of the said Government Order so as to attract 2001 Rules to the employees of DRDA. Para 9 specifically starts with the words “other subjects”, meaning thereby that the Rules and regulations which are made applicable by virtue of para 9 are such in respect whereto the matter has not already been dealt with in the Government Order. It is not all the rules, regulations or orders which are applicable to the Government employees which have been made applicable to the employees of DRDA vide para 9 but it is restricted further with the words “generally applicable” meaning thereby that special rules or specific rules would not be included therein. Rule 4 of 2001 Rules reads as under: “4. Rule 4 of 2001 Rules reads as under: “4. Regularisation of daily wages appointments on Group ‘D’ posts.—(1) Any person who— (a) was directly appointed on daily wage basis on a Group ‘D’ post in the Government service before June 29, 1991 and is continuing in service as such on the date of commencement of these rules; and (b) possessed requisite qualification prescribed for regular appointment for that post at the time of such appointment on daily wage basis under the relevant service rules, shall be considered for regular appointment in permanent or temporary vacancy, as may be available in Group ‘D’ post, on the date of commencement of these rules on the basis of his record and suitability before any regular appointment is made in such vacancy in accordance with the relevant service rules or orders. (2) In making regular appointments under these rules, reservations for the candidates belonging to the Schedule Castes, Schedule Tribes, Other Backward Classes of citizens and other categories shall be made in accordance with the Uttar Pradesh Public Services (Reservation for Schedule Caste, Schedule Tribes and Other Backward Classes) Act, 1994 and the Uttar Pradesh Public Services (Reservation for Physically Handicapped, Dependents of Freedom Fighters and Ex-Servicemen ) Act, 1993 as amended from time to time and the orders of the Government in force at the time of regularisation under these rules. (3) For the purpose of sub-rule (1) the Appointing Authority shall constitute a Selection Committee in accordance with the relevant provisions of the service rules. (4) The Appointing Authority shall, having regard to the provisions of sub rule (1), prepare an eligibility list of the candidates, arrange in order of seniority as determined from the date of order of Appointment on daily wage basis and if two or more persons are appointed together, from the order in which their names are arranged in the said appointment order. The list shall be placed before the Selection Committee along with such relevant records pertaining to the candidates, as may be considered necessary, to asses their suitability. (5) The Selection Committee shall consider the cases of the candidates on the basis of their record referred to in sub-rule (4), and if it considers necessary, it may interview the candidates also. (6) The Selection Committee shall prepare a list of selected candidates in order of seniority, and forward the same to the Appointing Authority.” 11. (5) The Selection Committee shall consider the cases of the candidates on the basis of their record referred to in sub-rule (4), and if it considers necessary, it may interview the candidates also. (6) The Selection Committee shall prepare a list of selected candidates in order of seniority, and forward the same to the Appointing Authority.” 11. A perusal of 2001 Rules thus makes it clear that it is applicable to only such vacancies as were existing on the date of commencement of said Rules, i.e., 21.12.2001. As soon as such vacancies are filled in and get exhausted, no further regularisation is permissible. The rules are one time measure and shall render otiose as soon as the vacancies existing on 21.12.2001 are filled in. If that be so, it would be difficult to construe the word “generally applicable” so as to include such rules made for Government servants which have application only for a limited period or which are one time measure. On reading the various paragraphs of the Government Order dated 17.3.1994 pertaining to DRDA, I have no hesitation in holding that the employees of DRDA are liable to be appointed at the best on purely temporary basis and their services are liable to be terminated at any point of time. In the absence of any material or pleading that any permanent post has been made available in DRDA or that any post in DRDA of class IV has been made permanent, it would be contrary to the scheme to direct the respondents to make regular appointment by giving benefit of regularisation under 2001 Rules to a daily wage employee of DRDA. 12. Besides, on facts also, I find that the petitioner is not entitled for any relief since 2001 Rules would not be applicable to him. Para 15 of the writ petition shows that the petitioner was engaged on daily wage basis in the year 1988. There is no averment in the entire writ petition that he was continuing in service on 21.12.2001. On the contrary, in para 18 of the writ petition he has said that he was disengaged after 15 years from service which comes to the year 2003. Since he was a daily wager, it was imperative to plead and demonstrate that he was continuing on 21.12.2001. The petitioner has not given the date of his disengagement. On the contrary, in para 18 of the writ petition he has said that he was disengaged after 15 years from service which comes to the year 2003. Since he was a daily wager, it was imperative to plead and demonstrate that he was continuing on 21.12.2001. The petitioner has not given the date of his disengagement. Since the crucial date to attract 2001 Rules is 21.12.2001, almost at the end of the year. In the absence of any otherwise pleadings in the writ petition, I have no option but to proceed as if the petitioner was not in service on 21.12.2001. Therefore, this is another ground on which no relief can be granted to the petitioner since 2001 Rules are not attracted. 13. Another aspect in the matter is that in the order dated 15.5.2002 passed by the Chief Development Officer, Bareilly (Annexure 6 to the writ petition) it has been said at different places that no vacancy of class IV was available either in the past or even on the date when the said order was passed. These facts have not been disputed by the petitioner. On the contrary, what has been said by the petitioner in para 24 of the writ petition does show that the vacancy in Class IV post was not available and this factum appears to be admitted by the petitioner also. In the absence of any pleading or material on record to show that any vacancy of class IV post was available on or before 21.12.2001 against which the petitioner could have a right to claim regularisation, even if it is assumed that he could have been considered for regularisation under 2001 Rules, I have no hesitation in holding that the petitioner cannot claim benefit of regularisation under 2001 Rules on the basis of vacancy, if any, arising subsequently inasmuch as, 2001 Rules are not applicable for the purpose of regularisation even to the Government servant for the vacancy arising subsequent to the date of commencement of 2001 Rules. This view finds support from this Court’s judgement in Janardan Yadav v. State of U.P., 2008(2) ESC 1359. 14. For what has been said above, I find no merit in this writ petition. In my view the petitioner is not entitled to any relief. 15. Dismissed. ————