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2016 DIGILAW 2497 (ALL)

Prem Chandra Verma v. State of U. P. Thru Prin. Secy. Deptt. of Harizan & Social

2016-07-19

ANANT KUMAR, NARAYAN SHUKLA

body2016
JUDGMENT The petitioners have assailed the judgment and order dated 13.04.2016 passed by the State Public Service Tribunal, Lucknow (in short 'the Tribunal') in claim petition no.1797 of 2015. 2. The petitioners had filed a claim petition before the Tribunal with the following reliefs: "1. That this Hon'ble Tribunal may graciously be pleased to direct the opposite parties to regularized the petitioners w.e.f. 29.08.1986 or prior to 1991 and consequently modify the order of regularization of the petitioners with all consequential service benefits and further the benefit given to the petitioners shall not be withdrawn, which was accorded to the petitioner. 2. That the cost of the claim petition along with any other relief which this Tribunal being fit and proper in the circumstances in the case be also awarded in favour of the petitioner." 3. The facts of the case in brief are that the petitioners were initially appointed as daily wagers on the post of Clerk-cum-Typist in the office of Directorate, Harizan & Social Welfare, Lucknow in 1982 and 1983. They were initially appointed for three months but their terms of appointment were extended time to time till 28.02.1986. In 1986, the State Government took a decision to abolish the system of making recruitment of ministerial staff in subordinate offices through District Level Selection Committee and introduced another system for recruitment through Subordinate Offices Ministerial (Direct Recruitment) Rules, 1985. Under the Rules, a District Level Selection Committee was constituted, which prepared a select list for recruitment on ministerial posts in subordinate offices of Lucknow District, pursuant to which the petitioners had been given appointment vide appointment order dated 29.08.1986 and accordingly they joined their duties on the post of Junior Clerk/Typist on 29.08.1986. The petitioners had claimed that on such an appointment they stood substantively regularized, however, it is not in dispute that they had been considered for regularization later on under the Uttar Pradesh Regularization of Daily Wages Appointments (on Group-C Posts) Rules, 1998 (in short 'the Rules, 1998') since they had fulfilled eligibility criteria and under the order passed by Hon'ble the Supreme Court. Their services had been regularized w.e.f. 09.07.1998 i.e. the date of enforcement of Rules, 1998. 4. Their services had been regularized w.e.f. 09.07.1998 i.e. the date of enforcement of Rules, 1998. 4. Learned counsel for the petitioners has submitted that meanwhile the petitioners' juniors had been given regular appointment and if the petitioners are treated to be regularized under the Rules, 1998, they would be junior to the persons, who had been petitioners' juniors as their services had been counted as regular service from the date of their initial appointment. Accordingly, the petitioners have also claimed their regular appointment since before the date of their initial appointment i.e. 29.08.1986 or much less prior to 1991, which was the cut of date fixed under the Rules, 1998 for determination of eligibility criteria. 5. In support of her submission, learned counsel for the petitioners has cited a decision of the Supreme Court rendered in Secretary, Minor Irrigation Department & other v. Narendra Kumar Tripathi; (2015) 11 SCC 80 in which the Hon'ble Supreme Court has held that in service jurisprudence, a person who possesses the requisite qualification for being appointed to a particular post and then he is appointed with the approval and consultation of the appropriate authority and continues in the post for a fairly long period, then such an appointment cannot be held to be "stopgap or fortuitous or purely ad hoc?. 6. In view of the aforesaid judgment, when we have examined the case on hand, we found that the petitioners' were appointed on daily wage basis/temporarily. Merely their fulfillment of eligibility criteria as was provided under the Rules, 1998 does not give them right to claim their regularization from the cut of date fixed for eligibility criteria. It is a settled view of the Supreme Court that merely possession of qualification/eligibility criteria does not create a right of appointment rather it has to be dealt with under the relevant rules. Rules, 1998 definitely had come into force w.e.f. 09.07.1998, therefore, the petitioners' regularization have rightly been considered from the date of enforcement of the Rules 1998. 7. Learned Tribunal has considered the whole aspect of the matter as also directives issued by the Supreme Court, which we quote as under: "Special leave petition is dismissed. Rules, 1998 definitely had come into force w.e.f. 09.07.1998, therefore, the petitioners' regularization have rightly been considered from the date of enforcement of the Rules 1998. 7. Learned Tribunal has considered the whole aspect of the matter as also directives issued by the Supreme Court, which we quote as under: "Special leave petition is dismissed. However, it make clear that the dismissal of the petition shall not stand in the way of the petitioners taking recourse to the liberty granted to them in the impugned order to work out their in appropriate forum, in view of the submission that quite of the few persons, junior to the petitioners as daily wagers are in continuity in different categories as per the U.P. Regularization of Daily Wages Appointments (On Group-C Posts) Rules, 1998 and the petitioners will not be able to continue as daily wagers." 8. The order passed by the Supreme Court reveals that the Supreme Court has considered the facts that few persons junior to the petitioners were in continuity in service, but a liberty was granted to the petitioners to claim their regularization only under the Rules 1998 under which they had been considered and have been given regular appointment from the date of enforcement of the Rules, 1998 i.e. 09.07.1998, prior to it no such Rules were in force for consideration of regularization of the appointment of persons like the petitioners, who were, admittedly, appointed on daily wage/temporarily. 9. Learned Tribunal has examined the petitioners' matter in light of the Rules, 1998 as well as the directives issued by the Supreme Court and has found that the petitioners were entitled for their regularization from the date of enforcement of the Rules, 1998 only, which had been enforced on 09.07.1998. The petitioners had failed to show any such other Rule, which has been in force prior to 09.07.1998 for consideration of the petitioners' appointment. Therefore, we do not find error in the order passed by the Tribunal. In the result, the writ petition stands dismissed.