Allahabad High Court
Imtiaz Ahmad Son Of Late Faiyaz Ahmad vs The Regional Deputy Director Of Census ... on 12 January, 2007
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
JUDGMENT Sudhir Agarwal, J.
1. As requested by learned Counsel for the parties, the matter is taken for hearing at the admission stage and is being disposed of accordingly.
2. The petitioner Imtiaz Ahmad has approached this Court by filing this writ petition under Article 226 of the Constitution of India against the order dated 25.6.1998 passed by District Magistrate, Sant Ravidas Nagar rejecting his application for absorption in the Collectorate on the ground that being an employee engaged on contract basis in census department, he cannot be absorbed and there is no justification for his absorption.
3. Briefly stated the relevant facts of the case are that the petitioner was engaged as Checker from 1.4.1981 to 21.9.1981, as Supervisor from 22.10.1981 to 21.3.1982, and again as Checker since 30.6.1982 to 1.7.1982 in Regional Census Office, Varanasi. Again when the next census proceedings commenced, by order dated 31.1.1990, he was appointed on purely temporary basis till 29.2.1990 but the said arrangement however continued till 31th May 1991. Then he was appointed for the period of 13.6.1991 to 31.10.1991 but here again he continued upto 31.12.1991 whereafter he was terminated on account of reduction of staff in the establishment/winding up of the Regional Census Office. The petitioner claimed that being a retrenched employees he was entitled for regularization and made representation on 6.8.1994 to the Commissioner, Varanasi Division, Varanasi requesting for absorption under the U.P. Government (Absorption of Retrenched Employees of Government Companies Employees Service) Rules, 1991 (hereinafter referred to as `1991 Rules'). It is said that the District Magistrate issued letter dated 31.8.1996 recommending absorption of a few other retrenched employees and the petitioner therefore also claim for the same treatment. However, his request was not considered despite several reminders whereafter he approached this Court in writ petition 16136 of 1998 which was finally disposed of on 12.5.1998 directing the District Magistrate, Sant Ravidas Nagar to consider petitioner's representation and dispose of by a speaking order within two months pursuant whereto, the District Magistrate has rejected his representation by the order impugned in this writ petition.
4. The respondents have filed counter affidavit stating that the employees of census department were only allowed certain relaxations in age etc. but there was no provision made for their regular employment in any other department of the State Government and, therefore, the petitioner was not entitled for his absorption in class-Ill post of Collectorate, Sant Ravidas Nagar and his application has rightly been rejected.
5. The petitioner in the rejoinder affidavit has annexed a copy of the Government Order dated 22.4.1987 issued in respect to employment of retrenched employees of census department in class-Ill and class-IV posts of the State Government and claimed that pursuant to the aforesaid Government order, he was entitled for absorption in the class-Ill post.
6. Learned Counsel for the petitioner vehemently contended that he was a retrenched employee of the census department and, therefore, entitled for regular employment in class-Ill service and the District Magistrate has failed to consider his claim correctly and in accordance with law though in the similar circumstances, some other persons have been absorbed but the petitioner has been discriminated which is illegal, arbitrary and violative of Article 14 and 16 of the Constitution of India.
7. I have heard learned Counsel for the petitioner and perused the record. It is not disputed that in certain broken spells as and when census operations were undertaken by the Government of India, the petitioner was engaged in the census department from time to time. The aforesaid appointment was purely temporary and therefore after completion of the work or due to reduction in the establishment of census department, he was terminated or discontinued whereagainst no grievance was raised by the petitioner at any point of time. His claim is now confined to regular appointment under the State Government considering his status as a "retrenched employee". For the purpose of the present case, even if the petitioner is treated to be a retrenched employee, learned Counsel for the petitioner failed to point out any statutory provision or executive order having force of law entitling the petitioner for regular appointment in a class-Ill or class IV post under the State Government. The government order dated 22.4.1987 placed on record as Annexure-1 to the rejoinder affidavit shows that the Census Directorate, Government of India communicated to all the Head of Departments, District Magistrates and other employment officers in the State of U.P. that the employees who have worked in the Census Department for about three and half years in 1981 census operations and some of them have crossed maximum age required for employment in the Government service and, therefore, they were allowed relaxation of three years in the age vide Government Order No. 41/2/1967-Karmik-2 dated 13.2.1985 was extended upto 12.2.1988, and therefore the said persons may be considered in the service of the State Government extending the said relaxation in age. The aforesaid order, therefore, only provides relaxation in maximum age but nowhere shows that the process of recruitment applicable to class-III and class-IV posts in the state of U.P. shall not be followed for appointment of the said retrenched employees of the census department. Moreover, a bare reading of the aforesaid government order shows that it is applicable to such employees who continuously worked for three and half years pursuant to 1981 census and were retrenched on 30.6.1984. On the contrary, the petitioner was engaged for short periods in 1981 and 1982 only, but there is no continuous service of three and half years as contemplated in the aforesaid government order. Hence, in no circumstance the said government order help the petitioner in any manner. In the state of U.P., recruitment to class-Ill posts prior to 1989 was being governed by the Subordinate Offices Ministerial Staff (Direct Recruitment) Rules, 1975 which were substituted by another set of rules on 16.3.1985, i.e., U.P. Subordinate Offices Ministerial Staff (Direct Recruitment) Rules, 1985 which continued to hold field until substituted in their entirety by U.P. Procedure for Direct Recruitment for Group "C" Posts (Outside the Purview of The U.P. Public Service Commission) Rules 2001. In all the aforesaid Rules, there is no provision for appointment of a retrenched employee without undergoing the process of recruitment.) Only certain concessions in the matter of age and education & qualifications etc. have been provided but otherwise a retrenched employee has to participate in the process of recruitment with other eligible candidates as and when the recruitment process is initiated. In the matter of selection and assessment of merit under 2001 Rules, certain weightage provided but there is no provision for regularization of such employees to the exclusion of regular process of recruitment. In view of the statutory rules, no relief can be granted to the petitioner contrary thereto.
8. The claim of the petitioner for absorption under 1991 Rules also lacks substance for the reason that Rule 3 of the said Rules provides as under:
(3) Notwithstanding anything to the contrary contained in any other service rules for the time being in force, the State Government may by notified order require the absorption of the retrenched employee in any post or service under the government and may prescribed the procedure for such absorption including relaxation in various terms and conditions of recruitment in respect of such retrenched employees.
9. A perusal of the aforesaid provision shows that the State Government is required to notify an order providing for absorption of retrenched employee in any post or service under the Government and also prescribe the procedure for such employment including relaxation in various terms and conditions of recruitment in respect of such retrenched employees. The learned Counsel for the petitioner could not place before the Court any notified order issued under Rule 3 of 1991 rules in respect to the retrenched employees of census department providing absorption in any post or service under the Government or any procedure therefore. In the absence of any such notified order, no benefit can be accorded under 1991 and recourse thereto is totally misplaced.
10. Now, it is a settled exposition of law that regularization is not a mode of recruitment but can be claimed only if it is so provided by the statutory provision and not otherwise. The matter has recently been considered by a Constitution Bench of the Apex Court in Secretary, State of Karnataka v. Uma Devi 2006(4) 1 SCC and after review of the entire law on the subject and discussing the matter at length, the Apex Court has held that a sovereign government or its instrumentality, considering economic situation in the Country and the work got to be done is not precluded from making temporary appointments or engaging workers on daily wages, but whenever a regular vacancy occur, it has to be filled in as per the Constitutional scheme by giving equal opportunity of employment to all concerned persons. The Court has rejected the approach of taking a lenient view and term it as a misplaced equity and sympathy to the handful people, who have approached the Court with a claim of equity ignoring the equity of teeming millions of the country seeking employment and a fair opportunity of competing for employment. The Court, categorically held that adherence to Article 14 and 16 of the Constitution is a must in the process of public employment and also stressed that adherence to the rule of equality in public employment is a basic feature of our constitution. It held:
43. Thus it is clear that adherence to the rule of equality in public employment is a basic feature of our constitution and since the rule of law is the core of our constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution....
11. It further held that the High Courts, acting under Article 226 of the Constitution should not ordinarily issue directions for absorption/regularization or permanence unless the recruitment itself was made in a regular manner consistent with the Constitutional scheme. The Apex Court very categorically 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."
12. The Apex Court also cautioned the Courts that they must be careful in ensuring that they do not interfere unduly with the economic arrangement of the affairs of the State or its instrumentalities or lend themselves as instrument to facilitate the bypassing of the constitutional and statutory mandates.
13. Following Uma Devi (supra), in Surinder Prasad Tiwari v. U.P. Rajya Krishi Utpadan Mandi Parishad and Ors. , in para-35, 37 and 38, it was held:
35. Equal opportunity is the basic feature of our Constitution. Public employment is repository of the State power. Certain status and powers emanate from public employment.
37. Our constitutional scheme clearly envisages equality of opportunity in public employment. The Founding Fathers of the Constitution intended that no one should be denied opportunity of being considered for public employment on the ground of sex, caste, place of birth, residence and religion. 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.
38. 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 regularisation 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. In our constitutional scheme, there is no room for back door entry in the matter of public employment.
14. Elaborating the procedure of regular appointment, in Union Public Service Commission v. Girish Jayanti Lal Vaghela , 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 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. This view has been referred and approved in Uma Devi (supra) and reiterated in National Fertilizers Ltd. v. Somvir Singh observing that the "State" within the meaning of Article 12 of the Constitution is bound to comply with the constitutional mandate under Article 14 and 16.
15. Again a question cropped up as to whether by issuing executive order, or certain guidelines, a regularization is permissible where recruitment is not consistent with Article 16, and, replying the same in Accounts Officer (A&I) APSRTC and Ors. v. P. Chandra Sekhara Rao and Ors. 2006(7) SCC 488, it was held that no regularization is permissible even in exercise of powers conferred under Article 162 of the Constitution if the appointment has been made in contravention of the statutory rules or Article 16 of the Constitution. Earlier even in State of Haryana and Ors. v. Piara Singh and Ors. , the Apex Court declining to accept the contention that general directions can be issued by the Court for regularization observed as under:
The court cannot obviously help those who cannot get regularized under these details, for their failure to satisfy the conditions prescribed therein. Issuing general declaration of indulgence is no part of our jurisdiction. In case of such persons we can only observe that it is for the respective Governments to consider the feasibility of giving them appropriate relief, particularly in cases where persons have been continuing over a long number of years, and were eligible and qualified on the date of their ad hoc appointment and further whose record of service is satisfactory.
16. In view of the above discussed authoritative pronouncements, it is too late in the day to uphold the general direction of framing a scheme for regularization and to regularize the employees engaged on daily basis or on contract or temporary but without complying the requirement of Article 16 of the Constitution and the procedure for regular appointment.
17. In the case in hand, though the learned Counsel for the petitioner sought to claim advantage of the Government Order dated 22.4.1989 but as stated above, the same does not provide for absorption or regularization of retrenched employees of the census department and is restricted only to relaxation in age to such employees. That too would not be helpful to the petitioner for the reason that recruitment on class-Ill posts in the State of U. P. is governed by the statutory rules and, therefore, an executive order cannot help the petitioner which is inconsistent with the statutory rules and unless it is shown that under some statutory provision the petitioner is entitled for absorption/regular appointment in class-Ill post under the service or post in the State of U. P, his claim is untenable in law and no relief can be granted.
18. Lastly, learned Counsel for the petitioner vehemently contended that some other persons have been regularized/absorbed in class-Ill service in District Sant Ravidas Nagar and, therefore, he is also entitled for similar treatment. I do not find any substance in the aforesaid submission for the reason more than one. Firstly, proper pleadings in respect to such persons giving details is not available on record in order to analyze as to why and under what circumstances such persons have been given regular appointment and whether they are similarly situated with the petitioner. Secondly, in the absence of any statutory provision entitling the petitioner to claim regularization, if the authorities on their own have acted contrary to the statutory provisions and have regularized some persons, that would not entitle the petitioner for a mandamus from this Court directing the authorities to repeat the same mistake since two wrongs will not make one right. Article 14 does not confer right of equality for perpetuating illegality. It has been deprecated by the Hon'ble Apex Court in a catena of cases and instead of burdening this judgment, it would be useful to refer a few such decisions holding that such a direction is impermissible in law, namely, Anand Buttons Ltd. etc. v. State of Haryana and Ors. (Para-12) and Kastha Niwarak G.S.S. Maryadit, Indore v. President, Indore Development Authority (Para-8). The same view has been expressed by a Division Bench of this Court in which I was also member) in Special Appeal No. 1317 of 2003 M.D./Chief Engineer U. P. Jal Nigam and Ors. v. Sri Nath Singh and Ors. and other connected matters decided on 22.12.2006.
19. In view of the aforesaid discussion, there is no error apparent on the fact of record committed by respondent No. 2 in rejecting the representation of the petitioner claiming absorption in class-Ill post in his office and the writ petition, therefore, lacks merit and is, accordingly, dismissed.