Mukul Agrawal And 2 Others vs State Of U.P. And Another on 9 October, 2023

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Allahabad High Court

Mukul Agrawal And 2 Others vs State Of U.P. And Another on 9 October, 2023

1. The instant intra-Court appeal is directed against the order dated 16.08.2023 passed by learned Single Judge in a batch of petitions raising identical issues. The appellant no.1 Mukul Agrawal was petitioner in Writ-A no.43583 of 2014; appellant no.2 in Writ-A no.8921 of 2009 and appellant no.3 in Writ-A No.59234 of 2008. All of them were employed for doing clerical work by Madhyamik Shiksha Parishad, U.P. Prayagraj (non-appellant no.2) in the year 1986 as daily wagers/casual workers.

2. In due course of time, respondent no.2 stopped taking work from them. Aggrieved thereby, Writ No.10718 of 1988 (Anil Kumar Misra and others Vs Madhyamik Shiksha Parishad, UP) alongwith five other writ petitions were filed by the appellants and other identically situated persons. The writ petitions were allowed by this court by judgment dated 11.01.1991 with following directions :-

"(a) By a writ of mandamus it is directed that the petitioners shall be taken back a daily wage/casual workers within one month from the date of production of a certified copy of this order before the respondent and shall be paid wages according to law by the respondent;

(b) The petitioners shall be paid wages at such rates as are admissible to the regular employees of the Board for rendering similar services which are rendered by the petitioners;

(c) The petitioners shall be considered for appointment as Lower Division Clerk on the basis of their qualifications and seniority as daily wage labourers as and when posts are available or fell vacant with the respondents;

(d) Their services shall not be dispensed with till they are absorbed in the regular establishment against the posts as and when the same are available or fall vacant; and

(e) From the date their services were orally terminated till the date they are taken back by the respondent Board, they shall not be entitled to any wages for they did not render any work to the Board."

3. The Board challenged the order of this court in Special Leave Petition before the Supreme Court. The Supreme Court allowed the special leave petition by judgement dated 19.08.1992 and in supersession of the directions issued by this Court, issued the following directions :-

"6. The appellant-Parishad has offered to consider the cases of these 27 respondents, who were writ petitioners before the High Court, for purposes of recruitment to the post of Lower Division Clerks as and when vacancies arise and steps for filling up of those posts are taken up by the appellant. The appellant submits that if the respondents make appropriate applications at the appropriate time of filling up of the vacancies and if they possess the requisite minimum qualifications for the posts and if they were not beyond the prescribed maximum age limit as on the date on which utilization of their services commenced in the year 1986, their cases would be duly considered, affording to them preference in the recruitment, other conditions being equal subject to the reservation-policy. Appellant also requires registration of the respondents with the employment exchange. For purposes of the age limit, their respective age as at the time of commencement of their earlier casual employment would be reckoned."

4. In between 2008-2011, the appellant and other similarly situated persons filed different writ petitions before this Court, wherein the relief claimed was for a direction to the State-respondents to give regular appointment to them in view of the undertaking given before the Supreme Court. While the said writ petitions were pending, the appellant and other persons filed Contempt Application No.2782 of 2009 before this Court. During the pendency of the contempt application, the Board issued an advertisement dated 13.01.2011 prescribing typing test as an essential qualification. The appellants and other persons appeared in the typing test held on 14.01.2011but they were declared unsuccessful in the typing test. It also appears that before the Contempt Court the respondents took the stand that they had considered the case of the appellants and other persons for their selection and appointment against regular vacancies but since the appellants could not pass the typing test which was an essential qualification and therefore, they were not given appointment. The consideration of the appellants for selection against the regular vacancies amounted to full compliance of the undertaking given to the Supreme Court. On the other hand, the case of the appellant was that the typing test was prescribed by an amendment in the Service Rules much after the engagement of the appellants in the year 1986 and therefore, the said provision would not be applicable to them. The contempt court however, did not decide the said issue and left the same open for being decided by the writ court. The contempt application was disposed of with liberty to applicants that in case they succeed in pending writ petition and still the Board does not comply with the order it would be open to them to initiate fresh proceedings.

5. Thereafter by the order impugned herein the writ petitions filed by the appellants and other persons have been dismissed holding that the appellants and other similarly situated persons having failed in typing test, their claim for regularisation is unsustainable.

6. The sole submission of the learned counsel for the appellants is that the respondents could not apply the amended provision prescribing typing test to the appellants whose services commenced in the year 1986 when there was no such requirement. It is also urged that the respondents have conceded before the Supreme Court that the case of the appellants would be considered against future vacancies after giving them various relaxations and they have not complied with the said undertaking.

7. On the other hand, it is contended by learned counsel for the State that learned Single Judge has rightly held that the appellants having failed in the typing test, their claim is unsustainable. It is urged that there was no direction by the Supreme Court nor any undertaking given to the effect that irrespective of the eligibility of the appellants they would be appointed against regular posts. The State was well within its right to consider the case of the appellants for regular selection applying the service rules which were applicable at the relevant time.

8. The main issue which arises for consideration in the instant appeal is whether the service rules which were applicable at the time of engagement of the appellants i.e., year 1986 would apply while considering their case for regular selection or the rules which were in force at the time of consideration of their case.

9. The position that the applicants were engaged as daily wagers/casual workers in the year 1986 and they continued as such is not in dispute.

10. The Supreme Court in paragraph 6 of the order has specifically noted the stand taken by the respondents before the Supreme Court. According to it (i) the respondents offered to consider the case of 27 persons for recruitment to the post of Lower Division Clerks as and when vacancy arises (ii) the appellants and other persons should make appropriate application at appropriate time for participation in the selection process; (iii) they would be selected if they possess the requisite qualification for the post after relaxing the maximum age limit and considering the age at the time of commencement of their services in the year 1986, subject to other conditions being equal and also subject to reservation policy.

11. The concession given by the respondents was therefore, only in respect of the relaxation in the age limit under the service rules whereas all other eligibility requirements as prescribed in respect of fresh appointments were to apply.

12. The services of a Lower Division Clerk is admittedly governed by the Subordinate Offices Ministerial Staff (Direct Recruitment) Rules, 1985. The procedure for selection is provided under Rule 25 and it inter-alia stipulates certain percentage of marks for academic qualifications and certain percentage of marks for interview.

13. By a notification dated 20.06.1992, sub-rule (5) was added in the Service Rules providing that in the case of candidate to be selected for the post of clerk/typist as also any other post for which typing has been prescribed as an essential qualification only those candidates who know typing will be considered. The specific case of the respondents is that in respect of the vacancies advertised the knowledge of typing was an essential qualification and the said stipulation in the advertisement was also not challenged by the appellants. The appellants have appeared in the typing test but have failed.

14. The engagement of the appellants was as daily wager/casual employees and not against any regular vacancy. Such an appointment would not confer right in favour of the appellants to be considered for selection applying the rules at the time of their engagement in service as daily wager/causal employees. As per undertaking given before the Supreme Court, the only right that flows in favour of the appellants was for consideration of their candidature for regular selection against regular vacancies after giving them age relaxation all other parameters remaining the same as in case of other candidates who applied for selection under the advertisement. Therefore, we find no error in the order of learned Single Judge.

15. The appeal consequently lacks merit and is dismissed.

( Donadi Ramesh, J.) (Manoj Kumar Gupta,J.) Order Date :- 9.10.2023 VS

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Allahabad High Court