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2015 DIGILAW 839 (ALL)

Devpal Singh Chandel v. State of U. P.

2015-04-16

SUDHIR AGARWAL

body2015
JUDGMENT Sudhir Agarwal, J. 1. Heard learned counsels for parties and perused the record. 2. The only relief sought in this writ petition is that a mandamus be issued to respondents to regularize the petitioners from the date of their initial appointment with all consequential benefits. 3. On a query made by this Court as to under which provision, petitioners are seeking regularization, learned counsel for petitioners stated that he is seeking regularization under the provisions of U. P. Regularization of Daily Wages Appointments on Group 'D' Posts Rules, 2001 (hereinafter referred to as the "Rules, 2001"). 4. Petitioners are working as Stenographer/Clerk/Bill Server/ Gang-man etc. in Jal Sansthan, Lucknow. I do not find that the aforesaid Rules, as such, are applicable to the petitioners. The posts of Stenographer/Clerk/Bill Server/ Gang-man etc. are Group 'C' posts and, therefore, are not governed by Rules, 2001. Even otherwise, rules applying for regularization are only in respect of vacancies which were available on the date of issuance of aforesaid rules, i.e., 20.12.2001. There is no such pleading in the entire writ petition that any such vacancy was available. 5. Moreover, these rules are applicable to holders of civil posts who are governed by rules framed under proviso to Article 309 of the Constitution. It is not shown that the employees in Jal Sansthan, Lucknow are governed by aforesaid rules. Though orally it is stated that rules applicable to government servants have been adopted in U.P. Jal Sansthan but nothing has been shown to this Court. 6. Even otherwise, it is the admitted position that no sanctioned post was available whereagainst petitioners are seeking regularization. When the sanctioned posts are not available, question of regularization does not arise at all. In absence of any statutory provision the plea of regularization cannot be accepted, particularly when it is not the case of petitioners that their initial engagement was after giving due opportunity of consideration to all others, consistent with Article 14 and 16(1) of the Constitution. I, therefore, do not find that petitioners are entitled for relief as sought for in the writ petition particularly keeping in view the law laid down by Apex Court in Secretary, State of Karnataka Vs. I, therefore, do not find that petitioners are entitled for relief as sought for in the writ petition particularly keeping in view the law laid down by Apex Court in Secretary, State of Karnataka Vs. Uma Devi, 2006(4) SCC 1 , wherein the Constitution Bench of Apex Court held: "The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularization or permanent continuance unless the recruitment itself was made regularly and in terms of the Constitutional Scheme." 7. Following Uma Devi (supra), in Surinder Prasad Tiwari Vs. U.P. Rajya Krishi Utpadan Mandi Parishad & others, 2006 (7) SCC 684 , it was held: "Equal opportunity is the basic feature of our Constitution. ...Our constitutional scheme clearly envisages equality of opportunity in public employment. .... This part of the constitutional scheme clearly reflects strong desire and constitutional philosophy to implement the principle of equality in the true sense in the matter of public employment. In view of the clear and unambiguous constitutional scheme, the courts cannot countenance appointments to public office which have been made against the constitutional scheme. In the backdrop of constitutional philosophy, it would be improper for the courts to give directions for regularization of services of the person who is working either as daily-wager, ad employee, probationer, temporary or contractual employee, not appointed following the procedure laid down under Articles 14, 16 and 309 of the Constitution." 8. Elaborating the procedure of regular appointment, in Union Public Service Commission Vs. Girish Jayanti Lal Vaghela 2006 (2) SCC 482 , the Court observed that regular appointment to a post under the State or Union cannot be made without issuing advertisement in the prescribed manner, which would include inviting of applications from the employment exchange where eligible candidates get their names registered. Any regular appointment made on a post under the State or Union without issuing advertisement inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would violate the guarantee enshrined under Article 16 of the Constitution. 9. In State of Rajasthan and others Vs. Any regular appointment made on a post under the State or Union without issuing advertisement inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would violate the guarantee enshrined under Article 16 of the Constitution. 9. In State of Rajasthan and others Vs. Daya Lal & others, 2011(2) SCC 429 following the decision in Uma Devi (supra), it was held as under: "The High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularization, absorption or permanent continuance, unless the employees claiming regularization had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and Courts should not issue a direction for regularization of services of an employee which would be violative of constitutional scheme." 10. In State of U.P. and others Vs. Rekha Rani, JT 2011(4) SC 6, the Apex Court referring to its decision in Daya Lal (supra), in para 12 of the judgment, said: "12. It has been held in a recent decision of this Court in State of Rajasthan vs. Daya Lal 2011(2) SCC 429 following the Constitution Bench decision of this Court in State of Karnataka vs. Umadevi (2006) 4 SCC 1 that the High Court in exercise of its power under Article 226 cannot regularize an employee. Merely because some others had been regularized does not give any right to the respondent. An illegality cannot be perpetuated." 11. In view of above exposition of law and considering the facts and circumstances of the case, I do not find any merit in the writ petition. 12. Dismissed. 13. Interim order, if any, stands vacated.