Allahabad High Court
The Food Commissioner, U.P., Jawahar & ... vs Om Pal Singh & Others on 5 January, 2018
Bench: Sudhir Agarwal, Irshad Ali
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 34 Case :- SPECIAL APPEAL No. - 1960 of 2011 Appellant :- The Food Commissioner, U.P. & Others Respondent :- Om Pal Singh & Others Counsel for Appellant :- S.C.,G.C.Upadhyaya Counsel for Respondent :- R.B. Singhal,Fasiha Fatma,Mohammad Najam Siddiqui Hon'ble Sudhir Agarwal,J.
Hon'ble Irshad Ali,J.
1. Writ Petition No. 39343 of 1993 was filed by Om Pal Singh and Dharam Bir Singh (along with two others i.e. Uday Bir Singh and Babu Ram but after their death, appeal has already abated) challenging order dated 25.09.1993 passed by Food Commissioner, U.P., Lucknow terminating petitioners from service.
2. Petitioners Om Pal Singh and Dharam Bir Singh i.e. respondents-1 and 2 were working as Accounts Clerk and terminated from the said post. The facts as pleaded by respondents-1 and 2 in the writ petition are that they were appointed/employed as Accounts Clerk on seasonal basis in the Department of Food and Civil Supplies in 1972. Respondent-1 was so employed on 30.04.1972 and respondent-2 on 22.04.1972. Their qualification was B.Sc. and B.Sc. (Ag) respectively. Respondent-1 filed Writ Petition No. 13155 of 1987 while respondent-2 filed Writ Petition No. 13173 of 1987 with a prayer that appellants before this Court be directed to regularize respondents-petitioners considering their long and continuous service in ministerial post i.e. Accounts Clerk. This Court passed interim orders in the aforesaid writ petitions pursuant whereto, respondents-petitioners were permitted to continue to work as Accounts Clerk.
3. Aforesaid writ petitions along with others came to be decided by judgment dated 16.10.1992 by learned Single Judge. He relied on Supreme Court judgment in 'State of Haryana and others Vs. Piara Singh and others' 1992 (5) JT 179 (SC) and operative part of the judgment reads as under :
"Accordingly I direct the opposite parties to regularise petitioners' services for the posts for which requisite qualification as and when a substantive vacancy arises. Out of total number of vacancies, 50 % will go to other categories. They will be entitled to be regularized only against 50% of the total number of vacancies every year, as per concession made by the learned counsel for the petitioners. The process will continue until all the petitioners are absorbed. With these observations, the writ petition succeed and are allowed without any order as to costs."
4. Pursuant to the judgment dated 16.10.1992, some persons in different writ petitions were absorbed in clerical posts. The details of such persons, date of the orders, writ petition number and post on which they were absorbed are as under:
Sl. No. Name Writ Petition Number Educational Qualification Post on which absorbed Date of order of absorption 1 Ashok Kumar Sharma 11883 of 1987 and 19487 of 1987 B.Com Assistant Accountant 07/07/93 2 Prem Prakash Sharma 13052 of 1987 B.Com Assistant Accountant 07/07/93 3 Balu Ram 19318 of 1987 Inter (Commerce) and B.A. Typist cum Junior Accounts Clerk 04/06/93 4 Rajeev Kumar Sharma 12859 of 1987 B.Com Typist cum Junior Accounts Clerk 04/06/93 5 Raj Kumar Sharma 18198 of 1987 B.Com Assistant Accountant 04/06/93 6 Amar Pal Singh 13173 of 1987 M.Com Assistant Accountant 04/06/93 7 Devendra Singh 13098 of 1987 IXth Pass Chaprasi 04/06/93
5. Claim of respondents-1 and 2 was rejected by Food Commissioner after considering their claim for realization/absorption in light of judgment dated 16.10.1992 and by order dated 25.09.1993, held that respondents did not possess requisite qualification as prescribed under Rules for post of Accounts Clerk. This order was challenged by respondents-1 and 2 in Writ Petition No. 39343 of 1993 and learned Single Judge has allowed writ petition.
6. Learned Standing Counsel submitted that when Rules specifically provides certain qualifications, same could not have been ignored for any purpose whatsoever and no person could have been regularized or absorbed on a post for which he or she does not possess requisite qualification as per Rules. He further submitted that learned Single Judge, relying upon Rule 29 of Rules has erroneously held that requirement of qualification could have been relaxed though aforesaid power of relaxation was only with respect to rules pertaining to conditions of service and not in respect of rules relating to recruitment.
7. With regard to qualifications possessed by respondents-1 and 2, learned counsel for respondents did not raise any objection that both the respondents are graduate in Science and Agriculture and did not possess educational qualifications prescribed under the Rules for post of Accounts Clerk.
8. The engagement of petitioners on 30.04.1972, 22.04.1972 and 21.05.1973 was on seasonal basis meaning thereby they were not appointed on any sanctioned post and the engagement was purely seasonal. They continued to work in said capacity and in the meantime when recommendations of the 2nd Pay Commission in U.P. were implemented by G.O. dated 20.06.1982, it was provided that under the aforesaid recommendations, cadre of accountant would be filled in 50 % by promotion of accounts clerk having seven years of experience and 50 % by appointing by recruitment of persons possessing qualification of graduate in Accountancy. Cadre of Accountants was at headquarter level and regional level. The accounts clerk were kept in two categories i.e. senior accounts clerk and junior accounts clerk. The post of Senior Accounts Clerk was 100% promotion from Junior Accounts Clerk having five years of experience while for post of Junior Accounts Clerk, qualification of Intermediate (Commerce) with Accountancy was provided. Thereafter, Rules, 1984 by notification dated 25.09.1984 came into force wherein posts in the Accounts Section were in the cadre of Typist cum Junior Accounts Clerk, Accounts Clerk, Assistant Accountant, Auditor, Accountant and Senior Auditor. Source of recruitment under Rule 5 was prescribed as under:
"5. Recruitment to the various categories of posts in the service shall be made from the following sources :-
Name of post Mode of Recruitment
(a) Typist-cum-Junior By direct recruitment.
Accounts Clerk
(b) Accounts Clerk By promotion from amongst Typist- cum-Junior Accounts Clerk-who have put in a minimum of 5 years service as such. Provided that if suitable persons are not available for promotion from the aforesaid service, the posts may be filled by direct recruitment from the employees in other Department having at least five years experience as Typist-cum- Junior Accounts Clerk.
(c) Assistant Accountant (i) 50 per cent by direct recruitment.
(ii) 50 per cent by promotion from amongst Accounts Clerk who have put in a minimum of 7 years service as such.
(d) Auditor By direct recruitment through the Public Service Commission (e) Accountant By promotion from amongst Assistant Accountants. (f) Senior Auditor By promotion from amongst Auditors."
9. The academic qualifications were prescribed in Rule 8 and reads as under:
"8. A candidate for direct recruitment to the various categories of posts in the Service must possess good knowledge of Hindi written in Devanagri script and the following qualification : -
Name of Post Mode of Recruitment (1) Typist-cum-Junior Must have passed the Intermediate Accounts Clerk Examination of the Board of High School and Intermediate Education, Uttar Pradesh in Commerce with Accountancy as one of the subjects, or an Examination recognized by the Governor as equivalent thereto. (2) Auditor A bachelor's degree in Commerce with Accountancy /Audit as one of the papers from a recognized University or a degree recognized by the Governor as equivalent thereto. (3) Assistant Accountant A bachelor's degree in Commerce with Accountancy as one of the subjects from a recognized University or a degree recognized by the Governor as equivalent thereto."
10. There was no provision for making appointment on substantive basis on any post in the Accounts Section unless the person possess qualification prescribed in Rules, 1984. Admittedly, there was a provision for relaxation. Rule 29 talks of relaxation but it was only in respect to the rules regulating 'conditions of service' and not rules relating to 'recruitment'. Rule 29 reads as under:
"29. Where the Government is satisfied that the operation of any rule regulating the conditions of service of persons appointed to the service causes undue hardship in any particular case, it may be, notwithstanding anything contained in the rules applicable to the case by order dispense with or relax the requirements of the rule to such extent and subject to such conditions as it may consider necessary for dealing with the case in a just and equitable manner:
Provided that where a rule has been framed in consultation with the Commission that body shall be consulted before the requirement of the rule are dispensed with or relaxed."
11. The distinction between rules relating to 'recruitment' and 'conditions of service' has been considered time and again.
12. A perusal of 1984 Rules shows that the same has been promulgated under proviso to Article 309 of the Constitution prescribing rules relating to "recruitment" and "conditions of service".
13. The term "recruitment" and "conditions of service" are two different concepts. Article 309 under which such rules have been framed also empower the authorities concerned to make law relating to "recruitment" and "conditions of service".
14. The distinction between "recruitment" and "conditions of service" has been considered by a Division Bench of this Court in Dr. Rajeev Ranjan Mishra and others Vs. State of U.P. and others, 2008(1) ESC 595 wherein this Court observed:
"The distinction between rule of "recruitment" and "condition of service" is no more res integra having already been settled by the Apex Court in a catena of cases. In State of U.P. Vs. Shardul Singh 1970(1) SCC 108 the Apex Court held that the term "conditions of service" means all those conditions which regulate the holding of a post by a person right from the time of his appointment till retirement and even pension etc. It was reiterated in I.N. Subbareddy Vs. State of A.P. 1997(1) SCC 554. In Syed Khalid Rizvi Vs. Union of India 1993 Supp (3) SCC 575 the Apex Court held where a rule permits relaxation of provisions pertaining to "conditions of service", the same would be applicable to the condition after appointment to the service in accordance with rules. It also held that that "conditions of recruitment" and "conditions of service" are distinct and the latter is preceded by an appointment according to rules, the former cannot be relaxed."
15. Considering similar question, in Dr. Rajeev Ranjan Mishra (supra) this Court also said:
"Part 3, 4 and 5 contain rules of recruitment which includes rules pertaining to reservation, eligibility and other qualifications with respect to nationality, educational qualifications, age, character, marital status, physical fitness etc. and procedure for recruitment. The rules pertaining to 'recruitment' cannot be relaxed by exercising power under Rule 26 since such rules are not relaxable."
16. Therefore, Rule 29 do not confer power upon the Government to relax rules relating to "recruitment" i.e. those pertaining to source of recruitment, qualification, fee etc for the reason that the rules relating to "conditions of service" are those which operate and available after appointment and not before appointment. The rules relating to recruitment are the rules applicable till appointment. Therefore, Rule 29 could not have been taken into account for the purposes of granting any relief to petitioners in the matter of relaxation with regard to qualification.
17. The learned Single Judge therefore in relying on Rule 29, in our view, has clearly erred in law. Petitioners, if not qualified as per Rules, could not have been appointed and therefore, direction issued by learned Single Judge cannot be sustained.
18. Appeal is allowed. The judgment of learned Single Judge in question is set aside.
Order Dated: 05.01.2018 Madhurima