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Allahabad High Court · body

2017 DIGILAW 879 (ALL)

STATE OF U. P. v. LAIK AHMAD

2017-03-29

ASHOK KUMAR, V.K.SHUKLA

body2017
JUDGMENT Hon’ble Ashok Kumar, J.—The State of U.P. through Secretary Financial Institution U.P. Government, Lucknow and three others are before this Court assailing the validity of the order dated 24.8.2012 passed by the learned Single Judge in Civil Misc. Writ Petition No. 44520 of 1993 (Prakash Chandra and others v. State of U.P. and others), whereby the learned Single Judge has allowed the writ petition filed by the petitioners-respondents in this special appeal. 2. The State has filed the instant special appeal by which it has sought the relief to call for the records of the aforesaid writ petition, allow the appeal and set aside the judgement and order dated 24.8.2012 as well as to dismiss the writ petition. 3. We have heard Sri Ravi Shankar Prasad, learned Standing Counsel appearing on behalf of appellants-respondents and Sri J.J. Munir, learned counsel for the respondents-petitioners. 4. Brief facts of the case are that the respondents-petitioners were engaged as Daily Wages Registration Clerks and they have worked time to time with some artificial break. In the year 1991 an advertisement was published for appointment of the Registration Clerks through subordinate selection commission and the respondents-petitioners continued to discharge their duty on daily wage basis. 5. Several writ petitions were filed which were decided by the Division Bench of this Court vide order and judgement dated 8.2.1995 whereby the writ petitions were dismissed on the ground that petitioners/candidates are daily wage Registration Clerks, they are not adhoc appointee and are not entitled for regularization taking the benefit of U.P. Regularization of Adhoc Appointment (on the Post Outside Purview of Public Service Commission) Rule, 1979 as amended time to time. 6. 6. Being aggrieved by the said judgement and the order of Division Bench of this Court, large number of Special Appeals have been filed before the Hon’b’ble Apex Court and were decided by common judgment in the case of Khagesh Kumar v. Inspector General of Registration and others, 1996 AIR SC 417, in which the Hon’ble Supreme Court has been pleased to hold that the working of the Registration Clerks under Rule 101 of the Registration Manual may be treated as working on daily wage basis and the person working under Rule 101 be paid their wages for the said period and further it has been directed that though the registration clerks were engaged on daily wages basis but they may be given benefit of U.P. Regularization of Adhoc Appointment (on the Post Outside Purview of the Public Service Commission), Rule 1979 and on that date the rule of regularization as was amended provides that any person who have been appointed on adhoc basis on or before 1.10.1986 and completed 3 years of service may be entitled for regularization. Consequently a direction has been issued to regularise the services of the Registration Clerks who have been engaged on or before 1.10.1986 and completed three years of service the special benefit have been granted to the Registration Clerks. The said judgement was modified in the case of Inspector General of Registration v. Awadhesh Kumar, 1993 UPLBEC 1744. 7. The main objection raised by the State Government before the Supreme Court was that the petitioners were not eligible to be regularised, on account of the fact that, they were not working on their post on adhoc basis and they did not have 3 years continuous service w.e.f 1986 to 1989. 8. Learned Standing Counsel submitted before us that the learned Single Judge has failed to take notice of the facts of the case that the petitioners-respondents had not worked regularly. Further the order of the learned Single Judge is not acceptable as he has erred in coming to the conclusion that the petitioners-respondents had continued in service. He has further submitted that it is well-settled that the regularisation cannot be claimed as a matter of right and the same can be considered only in accordance with prescribed rules or scheme framed for the purpose. 9. He has further submitted that it is well-settled that the regularisation cannot be claimed as a matter of right and the same can be considered only in accordance with prescribed rules or scheme framed for the purpose. 9. Learned counsel for the State further submitted that the order of learned Single Judge is not correct as he has proceeded to hold that the petitioners-respondents continued in service during the said period and was entitled to be considered for regularisation. Rule 4(1) of the Regularization Rules provides; as follows : “Rule 4. Regularization of ad hoc appointments- (1) Any person who- (i) was directly appointed on ad hoc basis before January 1, 1977 and is continuing in service as such on the date of commencement of these rules; (ii) possessed requisite qualifications prescribed for regular appointment at the time of such ad hoc appointment; and (iii) has completed or, as the case may be, after he has completed three years continuous service, shall be considered for regular appointment in permanent or temporary vacancy as may be available on the basis of his record and suitability before any regular appointment is made in such vacancy is accordance with the relevant service rules or orders.” 10. Before the learned Single Judge, learned counsel appearing on behalf of the State has submitted that the petitioners were not eligible to be regularised in the service as they did not satisfy the requirement of Rule 10 as they have neither appointed on adhoc basis nor they have three years service from 1986 to 1989. 11. After hearing the party at length the Supreme Court has passed the following orders; “For the reasons aforementioned, the impugned judgment of the High Court is upheld with the following directions : (1) The petitioners or other similarly placed persons who were employed as Registration Clerks on daily wage basis prior to October 1, 1986 shall be considered for regularization under the provisions of rule 4 of the Regularization Rules provided they fulfill the requirements of rule 4(1)(ii) and they have completed three years continuous service. The said period of three years service shall be computed by taking into account the actual period during which the employee had worked as Registration Clerk on daily wage basis. The said period of three years service shall be computed by taking into account the actual period during which the employee had worked as Registration Clerk on daily wage basis. The period during which such an employee has performed the duties of Registration Clerk under paragraph 101 of the Manual shall be counted as part of service for the purpose of such regularization. (2) In the event of appointment on regular basis on the post of Registration Clerks, the petitioners or other similarly placed persons who had worked as Registration Clerks on daily wage basis may be given one opportunity of being considered for such appointment and they be given relaxation in the matter of age requirement prescribed for such appointment under the Rules. (3) The Subordinate Services Selection Commission while making selection for regular appointment to the posts of Registration Clerks shall give weightage for their experience to the Registration Clerks who have worked on daily wage basis and shall frame suitable guidelines for that purpose. (4) If any of the petitioners or other similarly placed person was required to perform the duties of Registration Clerk as an Apprentice under paragraph 101 of the Manual, he may submit a representation to the appropriate authority setting out the full particulars of such employment within three months and the concerned authority, after verifying the correctness of the said claim, shall pass the necessary order for payment of emoluments on daily wage basis for the period he is found to have so worked on the post of Registration Clerk. The said payment shall be made within a period of three months from the date of submission of the representation. 12. Learned Single Judge has considered the issue at length and has noted as follows; “On the strength of the directions issued by the Supreme Court, the petitioners filed representations before the respondents and same were rejected on the ground that they did not satisfy the requirements of the rules of 1989. This order was questioned by the petitioners in Civil Misc. Writ Petition No. 5959 of 1997. An interim order was issued in the said writ petition directing the respondents to allow the petitioners to continue in service. This order was questioned by the petitioners in Civil Misc. Writ Petition No. 5959 of 1997. An interim order was issued in the said writ petition directing the respondents to allow the petitioners to continue in service. This petition came up for disposal before this Court and on 1.4.2004 and a direction was issued to the respondents to consider the case of the petitioners for regularization of their services in accordance with the rules as amended till date and also in view of the direction issued by the Apex Court. Especially in the case of Awadhesh Kumar (supra). It was also directed that till the exercise of regularization is completed with regard to the petitioners, they would continue in service if they are still working. It may be mentioned here that the respondents issued two sets of rules for regularization of services, which are U.P. Regularization of ad hoc appointment (on the posts outside the purview of the Public Service Commission) (IIIrd Amendment) Act, 2001 and U.P. Regularization of Daily Wages Appointment on Group ‘C’ (outside the purview of the Uttar Pradesh Public Service Commission) Rules, 1998. Under the Rules of 2001, the eligibility was that any person who was directly appointed on ad hoc basis or before June 30, 1998 and is continuing in service as such on the date of commencement of the Rules was entitled for regularization on completion of three years service. In the Rules of 1998, if any person who was directly appointed on daily wages basis on Group-C posts in the Government service before June 29, 1991 and is continuing in service as such on the the date of commencement of these rules and possessed requite qualifications for that post at the time of such appointment under the relevant service rules on daily wages basis shall be considered for regular appointment on Group-C post permanent or temporary vacancy as may be available on the date of commencement of these rules. The petitioners filed representations before the authority concerned, which were considered and disposed of by various orders. The representations were rejected stating that the petitioners were not entitled for regularization of their service. The following ground was taken for rejection of the representations : (a) That they have been appointed on 29.6.1991; (b) that they were not continuously working at the time of commencement of the rules of 2001. The representations were rejected stating that the petitioners were not entitled for regularization of their service. The following ground was taken for rejection of the representations : (a) That they have been appointed on 29.6.1991; (b) that they were not continuously working at the time of commencement of the rules of 2001. It is pertinent to mention here that this Court vide order dated 11.5.2004 directed the respondents to regularize the service of the petitioners as Registration Clerk against which Special Appeal is pending. The following questions require consideration in the present case : (a) Whether the petitioners would be deemed to be in service on the date the rules came into force even through they were continuing to work on the strength of the Court’s order; (b) Whether the directions issued by the Supreme Court to respondents to regularize the services of the persons who were initially appointed as daily wagers on the basis of Rules of 1989 would apply in the case of the petitioners, who were not party before the Apex Court. Earlier rules of 1979 provided that if a person is working on ad hoc basis on or before 1.10.1986 and has put more-than 3 years of service, he is entitled to regularization. Subsequently, regularization rules were amended and were replaced by U.P. Regularization of Ad Hoc Appointments (On posts Outside the Purview of the Public Service Commission) (Third Amendment) Rules, 2001 and Regularization Rules of 1998. Both the rules envisages that if an employee working on the date the rules came into force, he will be entitled to regularization of his services. The other condition provided under the rules is that he must have continuous service for more than three years. In the present case, the petitioners have continued to serve the department even though on the basis of interim directions passed by this Court. The said interim directions were subsequently merged with the final order passed by this Court whereby a direction was issued to respondents to regularize the services of the petitioner provided they are eligible under the rules. They will be allowed to continue in service till their cases are considered for regularization. The contention raised by the respondents that the petitioners were continuing on the basis of Court’s order, as such, would not be entitled to regularization. They will be allowed to continue in service till their cases are considered for regularization. The contention raised by the respondents that the petitioners were continuing on the basis of Court’s order, as such, would not be entitled to regularization. They have placed reliance on various decisions of this Court which envisage that no benefit could be given to the employee in case he continues in service on account of interim order passed by the Court. Since the interim order ultimately culminated into final order, which provided that the petitioner shall be regularize under the Regularization Rules of 1998 and 2001 and till then, they will be allowed to continue in service. It cannot be said that they were continuing on the strength of the interim directions of this Court. Their right stand determined by this Court which provides that their cases for regularization has to be considered. Therefore, the contention of the respondents cannot be accepted in this behalf. It is concluded that the petitioners shall be deemed to be in service on the date the Rules of 2001 came into force. Their exclusion from consideration on this count is not permissible on the plea that they have continued on the strength of the Court’s order. In terms of the directions issued by this Court, the respondents were required to consider the case of the petitioner provided they satisfies the following requirements : (a) they were appointed on or before 29.6.1991 on ad hoc or daily wage basis and continued in service till the rules came into force; (b) Whether the petitioners had continuous service of three years on the said post. It is admitted that the petitioners were appointed on or before June, 2001 and continued to serve in the department till the rules came into force. It is stated herein Supra that the petitioners were in service on the basis of the interim order passed by the Court. When the Rules came into force, the interim order had merged. There is no dispute with respect to their date of appointment. The petitioners were admittedly appointed prior to 29th June, 1991 and were in service when the rules came into force, as stated above. The second question as to whether the petitioner had three years continuous service as on daily wage or ad hoc basis. There is no dispute with respect to their date of appointment. The petitioners were admittedly appointed prior to 29th June, 1991 and were in service when the rules came into force, as stated above. The second question as to whether the petitioner had three years continuous service as on daily wage or ad hoc basis. In this behalf the decisions of the Apex Court in the cases of Khagesh Kumar v. Inspector General of Registration and others, (1996) 1 UPLBEC 23 and Awadhesh Kumar (Supra) are relevant. While dealing with the issue the Apex Court has held that the persons who were employed as Registration Clerks on daily wage basis prior to October 1, 1986 shall be considered for regularization under the provisions of rule 4 of the Regularization Rules provided they fulfill the requirements of rule 4(1) and they have completed three years continuous service. The said period of three years service shall be computed by taking into account the actual period during which the employee had worked as Registration Clerk on daily wage basis. The period during which such an employee has performed the duties of Registration Clerk under paragraph 101 of the Manual shall be counted as part of service for the purpose of such regularization. Continuous service as reflected in the Rules has been interpreted by the Apex Court that they should have actually worked three years on daily wages basis and not continuous service, as stated by the respondents. The word ‘continuous’ has been replaced by actual period the employee has worked as Registration Clerk. The petitioners have actually worked for three years as daily wage clerk and they would be covered by the rules. This aspect is required to be considered by the respondents while considering their claim. The stand of the respondents that the judgment of the Apex Court will be applicable to those persons who have filed writ petition before the Supreme Court. This is in contravention of decision of the Apex Court. The Supreme Court while dealing with this question has categorically stated that the petitioners and other similarly placed persons were employed as daily wage Registration Clerks. This by itself is sufficient to indicate that it is judgment in rem and not personam. The respondents have fell into error in holding that it is applicable only to those persons who were party in the Supreme Court. This by itself is sufficient to indicate that it is judgment in rem and not personam. The respondents have fell into error in holding that it is applicable only to those persons who were party in the Supreme Court. The plea of the respondents that the petitioners have been engaged on need basis, and as such, their services cannot have trapping of continuity. This argument is mis-conceived. The Supreme Court has specifically dealt with the issue. It was held that the actual period is the period the petitioners had spent in service. 13. The submissions of the learned counsel appearing for the appellants-respondents are not acceptable and learned Single Judge while allowing the writ petition and setting aside the order passed by the Inspector General of Registration, Allahabad Camp office Lucknow, the respondent No. 2 as well as the order of the Assistant Inspector General of Registration, Etah, has directed the respondents to consider the regularisation of the service of the petitioners-respondents. Further the learned Single Judge has directed the appellants-respondents that while confine themselves on the question as to whether the petitioners have spent three years service as daily wagers, in view of the judgement of Khagesh Kumar (supra), which clearly mean that the petitioners-respondents must have actually worked three years even though not continuously, then the directive issued by the learned Single Judge does not warrant interference by us. 14. The order of the learned Single Judge is perfect as he has fully applied the judgment of the Supreme Court in the case of Khagesh Kumar (supra) and Inspector General of Registration v. Awdhesh Kumar (supra). 15. Consequently, considering the facts of the case, the opinion that has been expressed by the learned Single Judge does not suffer from any infirmity, keeping in view of dictum of the decisions of the Apex Court in the case of Khagesh Kumar (supra) and Inspector General of Registration v. Awdhesh Kumar (supra). The special appeal sans merit and, accordingly, dismissed.