Allahabad High Court
Bhagwan Din And Another vs District Magistrate Kaushambi And ... on 13 April, 2020
Equivalent citations: AIRONLINE 2020 ALL 751
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 25.11.2019 (In Court No. 34) Delivered on 13.04.2020 (At Residence) At Residence Case :- WRIT - A No. - 25477 of 2003 Petitioner :- Bhagwan Din and another Respondent :- District Magistrate, Kaushambi and others Counsel for Petitioner :- Amar Nath Tripathi, Rajendra Kumar Dubey, Santosh Kumar Pandey, W.A. Siddiqui, K.J. Shukla Counsel for Respondent :- C.S.C. Hon'ble Sudhir Agarwal,J.
1. Two petitioners namely, Bhagwan Din and Dharm Raj Singh, have filed this writ petition under Article 226 of Constitution of India challenging recruitment sought to be made by respondents on the posts of Driver. They have also sought a mandamus commanding respondents to consider petitioners for regularization on the posts of Driver.
2. During pendency of this writ petition, petitioners have got writ petition amended by inserting two more prayers and, therefore, all prayers made by petitioners in the writ petition are reproduced as under:
"(i) a writ, order or direction in the nature of certiorari calling for the record and quash the impugned advertisement dated 6.6.2003 published by the District Magistrate, Kaushambi as contained in Annexure-10 to the writ petition as it relates to the recruitment of two posts of drivers in the officer of the District Magistrate, Kaushambi of which one post is reserved for Scheduled Casts/Scheduled Tribes and the other post is reserved for OBC category.
(i-A) a suitable writ, order or direction in the nature of certiorari quashing the advertisement dated 19.07.2007 issued by District Magistrate, Kaushambi (Annexure-1 to supplementary affidavit to be treated as Annexure-11 to the main writ petition).
(ii) a writ, order or direction in the nature of mandamus commanding the respondent authorities to regularise the services of the petitioners as drivers attached with two ambassador cars being registration No. UP70-L 4444 and UP70-L 3333 in the official use of the District Magistrate, Kaushambi in terms of the Rule 4 of the Uttar Pradesh Regularisation of Daily Wags Appointment on Group D Posts Rules, 2001 with effect from 21.12.2001 and to give all consequential benefits and pay other allowances to the petitioners admissible under the relevant service rules.
(ii-A) since both the petitioners were working as driver of two Ambassador Car sanctioned as per G.O. dated 11.6.1997 ever since creation of new District Kaushambi continuously till date the said two post of Drivers are still vacant and not filled, as such without prejudice to other grounds in writ petition the petitioners are entitled for declaration that they be treated as regularized as drivers, w.e.f. 11.6.1997 with pay scale of post of driver and all benefit and increments in terms of U.P. Daily Wages Regularization Rules, 2001 w.e.f. 21.12.2001 and to pay all arrears of pay increments allowance and benefits till date and in future too.
(iii) a writ, order or direction in the nature of mandamus/ declaration declaring the cut-off date 29.6.1991 as arbitrary, unconstitutional and illegal inasmuch as two ambassador cars which both the petitioners are driving and which posts of driver was sanctioned by the government order dated 11.6.1997 and as such the cut-off date "instead of 29.6.1991" be read as "on or after 11.6.1997" in the Daily Wages Rules of 2001.
(iv) a writ, order or direction in the nature of mandamus commanding the respondents restraining the respondents not to take any step in respect of the recruitment proceedings in terms of the impugned advertisement dated 6.6.2003 (Annexure-10 to the writ petition. "
3. Facts in brief giving rise to present writ petition are that District Kaushambi was newly created as a Revenue District vide Government Order dated 04.04.1997. For the New District, vide Government order dated 11.06.1997 posts of District Magistrate was created. The aforesaid Government Order also created attached posts with the Office of District Magistrate temporarily upto 28.02.1998. It included two posts of Drivers in the pay scale of Rs. 950-1500/-. It also permitted to purchase two Ambassador Cars besides other vehicles. Petitioner-1 was required to work as Driver with effect from 05.09.1997 on a fixed pay of Rs. 1200/- per month. Petitioner-2 was already working as Driver with Sub-Divisional Magistrate, Manjhanpur in District Allahabad with effect from 02.08.1995. After creation of new District he was attached and appointed to work as Driver to run second Ambassador Car purchased for District Kaushambi.
4. Having worked for sometimes, petitioners made a representation dated 10.04.2002 requesting District Magistrate, Kaushambi to regularize them. Additional District Magistrate, Kaushambi vide letter dated 09.07.2002 made recommendation for consideration of petitioners to be appointed as Driver on regular basis referring to U.P. Commissioners and District Officers Motor Vehicle Driver Service Rules, 1978 (hereinafter referred to as "Driver Rules, 1978"). By letter dated 17.07.2002 District Magistrate requested Secretary, Board of Revenue, U.P., Lucknow, to allow relaxation in the matter of appointment of Drivers who were already working to run two Ambassador Cars purchased in District Kaushambi. Secretary, Board of Revenue by letter dated 31.07.2002 directed all the District Magistrates in State of U.P. to fill up backlog vacancies in Group-C and D, in reserved category. Consequently, District Magistrate, Kaushambi published advertisement dated 06.06.2003 for recruitment on the post of Drivers in Category D in the Office of District Magistrate, Kaushambi in accordance with Driver Rules, 1978 wherein one post was reserved for Scheduled Caste and another for OBC. This advertisement was challenged by petitioners in the present writ petition seeking a further mandamus to consider them for regularization.
5. While entertaining the writ petition, this Court passed following interim order on 12.06.2003:
"Learned standing counsel has accepted notices on behalf of respondent nos. 1 to 3. He prays for and is granted three weeks time to file counter affidavit. The learned counsel for the petitioner shall have one week thereafter for filing rejoinder affidavit.
List in the week commencing 14th July, 2003.
The contention of the petitioner is that in the newly created District of Kaushambi, there were only two sanctioned posts of Driver and the petitioners have been working on the said posts since 1997. The petitioner has challenged the advertisement issued for recruitment of two Drivers on several grounds including that both the posts could not have been reserved, in view of the decision of the Apex Court. The further contention is that after promulgation of the regularization rules of 2001, no direct selection could be made without first considering the case of the petitioner.
The selection in pursuance of the impugned advertisement may go on but the result shall not be declared till 14th July, 2003." (emphasis added)
6. However, during pendency of writ petition, another advertisement dated 19.07.2007 was published by District Magistrate, Kaushambi for recruitment of one Driver on one of two posts already sought to be filled in. Hence, challenging the aforesaid advertisement dated 19.07.2007, amendment was made and aforesaid advertisement has also been challenged.
7. Heard Sri Amar Nath Tripathi, learned Senior Advocate, assisted by Sri K.J. Shukla, Advocate, for petitioner and learned Additional Chief Standing Counsel for respondents.
8. Sri Tripathi, learned Senior Advocate, contended that petitioners are working for a long time and, therefore, entitled to be considered for regularization under U. P. Regularization of Daily Wages Appointments on Group 'D' Posts Rules, 2001 (hereinafter referred to as the "Rules, 2001"). He further contended that since petitioners are discharging duties as Driver but are being paid only fixed salary, hence they should be given salary in minimum of pay scale of Driver. He also contended that for the purpose of District Kaushambi, since it was created on 04.04.1997 therefore, the said date should be treated as cut-off date and right of petitioners should be considered accordingly.
9. Petitioners filed a Misc. Application No. 174996 of 2004 seeking a direction to the respondents to pay salary to petitioners since July, 2003 and onwards since they are working to discharge duties as Driver, but salary was not paid to petitioners after filing writ petition.
10. On the said application, this Court passed order dated 22.11.2004, corrected on 07.12.2004, which reads as under:
"Vide order dated 12-6-03 the learned Standing Counsel was granted time to file counter affidavit and certain other conditions were also imposed by the aforesaid order, and the interim order has also been granted unless it is vacated or modified earlier.
It has been stated by the counsel for the petitioners that a short counter affidavit has been filed though in view of the order dated 12-6-03 a detailed counter affidavit stating the fact regarding sanctioned posts had to be clarified by the respondents.
Learned Standing Counsel prays for and is granted a month's time to file counter affidavit.
In view of the direction issued by this Court dated 12-6.03 the petitioners have filed an application no. 174996 of 2004 in which the petitioner have submitted that in spite of the order of this Court salary of the petitioners from July 2003 which was being paid to the petitioners has not yet been paid, and the petitioners are still working.
In view of the aforesaid facts the respondent no. 1-District Magistrate, Kaushambi is directed to pay the salary of the petitioners for which they are entitled or to show cause."
11. Supplementary Counter Affidavit sworn by Sri Dhirendra Kumar, Tehsildar, Manjhanpur has been filed stating that there was ban on appointment of Drivers, and, in any case, District Kaushambi was dismantled on 13.01.2004, therefore, petitioners have no cause of action surviving. He also stated that petitioners were not appointed as 'Driver' but were engaged as Seasonal Collection Peon and allowed to drive the Vehicles. With respect to advertisement, it is said that same was published for filling in backlog vacancies of reserved category candidates.
12. The period of engagement of petitioners as Seasonal Collection Peon was given in the form of chart as SCA-1 and SCA-2 which reads as under:
Periods of engagement of petitioner-1 Periods of engagement of petitioner-2 From 11.08.1998 to 31.08.1998 From 15.02.1996 to 29.02.1996 From 23.11.1998 to 31.12.1998 From 01.03.1996 to 31.03.1996 From 01.09.1998 to 30.09.1998 From 01.05.1996 to 30.06.1996 From 01.01.1999 to 31.01.1999 From 05.08.1996 to 31.08.1996 From 13.02.1999 to 31.03.1999 From 01.09.1996 to 30.09.1996 From 09.04.1999 to 29.04.1999 From 14.11.1996 to 31.12.1996 From 07.08.1999 to 30.09.1999 From 16.12.1997 to 31.01.1998 From 11.02.2000 to 31.03.2000 From 10.02.1998 to 28.02.1998 From 12.07.2000 to 30.09.2000 From 08.03.1998 to 31.03.1998 From 24.10.2000 to 30.12.2000 From 11.08.1998 to 31.08.1998 From 10.01.2001 to 31.03.2001 From 23.11.1998 to 31.12.1998 From 01.05.2001 to 30.06.2001 From 01.01.1999 to 31.01.1999 From 01.08.2001 to 31.08.2001 From 13.02.1999 to 31.03.1999 From 01.09.2001 to 29.09.2001 From 09.04.1999 to 29.04.1999 From 07.11.2001 to 31.01.2002 From 07.08.1999 to 30.09.2000 From 13.06.2003 to 30.06.2003 From 11.02.2000 to 31.03.2000 From 01.07.2003 to 31.07.2003 From 12.07.2000 to 30.09.2000
-
From 24.10.200 to 30.12.2000
-
From 10.01.2001 to 31.03.2001
-
From 01.05.2001 to 30.06.2001
-
From 01.08.2001 to 31.08.2001
-
From 01.09.2001 to 29.09.2001
-
From 07.11.2001 to 31.01.2002
-
From 13.06.2003 to 30.06.2003
-
From 01.07.2003 to 31.07.2003
13. During the pendency of Writ Petition, on 06.02.2018 a further interim order was passed as under:
"An interim order was passed on 12.6.2003, whereby this Court permitted selection in pursuance of impugned advertisement to go on, but it was provided that the result would not be declared. Sri A. N. Tripathi, learned senior counsel appearing on behalf of the petitioners submitted that the petitioners have been continuously working as driver since 1997 and are entitled for their services being regularised under the Regularisation Rules.
Sri Amit Manohar, learned Addl. Chief Standing Counsel is not in a position to dispute that in case petitioners have been working since 1997, they are at least entitled for being considered for regularisation of their services under the Regularisation Rules, 2001.
Accordingly, the respondents are directed to consider the petitioners for regularisation under the U.P. Daily wages Regularisation Rules, 2001, within a period of three months from the date of production of a certified copy of this order before the first respondent.
List the matter after three months." (emphasis added)
14. Since petitioners also initiated contempt proceedings for non compliance of aforesaid interim order, an order was passed by District Magistrate, Kaushambi on 19.04.2018 rejecting claim of regularization. Copy of this order has been filed as Annexure-1 to affidavit of compliance filed by Sri Jitendra Kumar Srivastava, Deputy Collector, Kaushambi.
15. In short, the issues up for consideration in this writ petition are; (1) whether petitioners were ever appointed as Driver in District Kaushambi or at any other place; (2) whether appointment of petitioners was made in accordance with Rules; (3) whether petitioners were entitled to be considered for regularization under Rules, 2001; (4) whether petitioners were entitled for payment of salary on the post of Driver; and (5) whether respondents are justified initially by making direct recruitment on the two posts of Drivers treating the same to be backlog reserved vacancies and in the subsequent advertisement by direct recruitment.
16. The first question relates to appointment of petitioners as Driver and right to claim salary of Driver. No letter of appointment has been placed on record by petitioners appointing them as Driver. Respondents claim that petitioners were engaged as Seasonal Collection Peon and since they knew driving, therefore, they were allowed to drive official vehicles but at no point of time, they were ever appointed as Driver. In the absence of any letter of appointment showing that petitioners were ever appointed on the post of Driver, I have no hesitation in holding that petitioners were not appointed as "Driver".
17. If the petitioners were not appointed as "Driver", whether they can claim salary on the post of Driver? Similar issue has been considered by this Court in Smt. Vijay Rani Vs. Regional Inspectress of Girls Schools 2007 (2)ESC 987, and it has been held:
" ... the Petitioner-Appellant was only required to look after and discharge the duties of the officiating Principal but was never promoted/appointed on the said post. In other words, it can be said that the Petitioner-Appellant was given only current duty charge in addition to her substantive post and this arrangement did not result in promotion to the post of which, the current duty charge was handed over. In State of Haryana Vs. S.M. Sharma AIR 1993 SC 2273, the Chief Administrator of the Board entrusted Sri S.M. Sharma, with the current duty charge of the post of Executive Engineer, which was subsequently withdrawn as a result of his transfer to other post. He challenged the said order stating that it amounts to reversion. The Apex Court held that Sri Sharma was only having current duty charge of the Executive Engineer and was never promoted or appointed to the aforesaid post and therefore, on transfer to some other post, it did not result in reversion from the post of Executive Engineer.
A somewhat similar situation occurred in Ramakant Shripad Sinai Advalpalkar Vs. Union of India and others, 1991 Supple (2) SCC 733 and the Apex Court observed as under:-
"The distinction between a situation where a government servant is promoted to a higher post and one where he is merely asked to discharge the duties of the higher post is too clear to require any reiteration. Asking an officer who substantively holds a lower post merely to discharge the duties of a higher post cannot be treated as a promotion." (emphasis added)
18. It was further held that such situations are contemplated where exigencies of public service necessitate such arrangements and even consideration of seniority do not enter into it sometimes. However the person continues to hold substantive lower post and only discharges duties of the higher post essentially as a spot-gap arrangement. A further contention was raised that if such an arrangement continued for a very long period it would give some kind of right to continue on the post but negativing such contention, it was held that an in-charge arrangement is neither recognition nor is necessarily based on seniority and therefore, no rights, equities and expectations can be built upon it.
19. Questions-(1) and (4), therefore, are answered against petitioners.
20. Now coming to question-(3), contention of petitioners' counsel is that engagement of petitioners should be treated as daily wage Driver and, therefore, petitioners are entitled to be considered for regularization under Rules, 2001; I find that apparently aforesaid Rules have no application to petitioners' case. Rule 4(1) of Rules, 2001 reads as under:
"4. Regularisation of daily wages appointments on Group ''D' posts.- (1) Any person who-
(a)was directly appointed on daily wage basis on a Group ''D' post in the Government service before June 29, 1991 and is continuing in service as such on the date of commencement of these rules; and
(b)possessed requisite qualification prescribed for regular appointment for that post at the time of such appointment on daily wage basis under the relevant service rules, shall be considered for regular appointment in permanent or temporary vacancy, as may be available in Group ''D' post, on the date of commencement of these rules on the basis of his record and suitability before any regular appointment is made in such vacancy in accordance with the relevant service rules or orders."
(2) In making regular appointments under these rules, reservations for the candidates belonging to the Scheduled Castes, Scheduled Tribes, Other Backward Classes of citizens and other categories shall be made in accordance with the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994, and the Uttar Pradesh Public Services (Reservation for Physically Handicapped, Dependents of Freedom Fighters and Ex-servicemen Act, 1993 as amended from time to time and the orders of the Government in force at the time of regularisation under these rules.
(3) For the purpose of sub-rule (1) the Appointing Authority shall constitute a Selection Committee in accordance with therules, 2001 relevant provisions of the service rules.
(4) The Appointing Authority shall, having regard to the provisions of sub-rule (1), prepare an eligibility list of the candidates, arrange in order of seniority as determined from the date of order of appointment on daily wage basis and if two or more persons were appointed together, from the order in which their names are arranged in the said appointment order. The list shall be placed before the Selection Committee along with such relevant records pertaining to the candidates, as may be considered necessary, to assess their suitability.
(5) The Selection Committee shall consider the cases of the candidates on the basis of their records referred to in sub-rule (4), and if it considers necessary, it may interview the candidates also.
(6) The Selection Committee shall prepare a list of selected candidates in order of seniority, and forward the same to the Appointing Authority." (emphasis added)
21. A bare perusal thereof shows that in order to attract and consider an incumbent for regularisation, three things are necessary:
(i) The incumbent was directly appointed on daily wage basis on a Group 'D' Post in a Government Service before 29.6.1991;
(ii) is continuing in service as such on the date of commencement of the said Rules; i.e., 21.12.2001; and,
(iii) vacancies were available on the date of commencement of Rules against which such incumbent could have been considered for regularisation.
22. In the present case, it is not the case of petitioners that they were ever engaged as daily wage Driver on or before 29.06.1991 and that being so the very first condition provided in Rule 4 of Rules, 2001 remained unsatisfied. Hence, Rules, 2001 has no applicability to petitioners. The petitioners, therefore, cannot not claim regularization under Rule, 2001. A Constitution Bench in Secretary, State of Karnataka Vs. Uma Devi 2006 (4) SCC 1 has clearly held that unless Rules for regularization are specifically applicable, no person can claim regularization when he is not appointed after following procedure prescribed in law. It is also not in dispute that recruitment to the post of Driver is governed by statutory rules framed under proviso to Article 309 of the Constitution, i.e., Rules, 1978. The procedure prescribed in the said Rules includes determination of vacancies and procedure for recruitment; as under:
"14. Determination and communication of the number of vacancies.- The appointing authority shall determine and intimate to the local or the concerned Employment Exchange in accordance with the rules and orders for the time being in force the number of vacancies to be filled during the course of the year, as also the number of vacancies to be reserved for candidates belonging to the Scheduled Castes/Schedules Tribes and other categories under rule 6.
15. Procedure of recruitment.- (1) For the purpose of recruitment, there shall be constituted a Selection Committee comprising.-
(i) the appointing authority or an officer not below the rank of A.D.M. Nominated by it;
(ii) an officer not below the rank of Deputy Collector nominated by the appointing authority; and
(iii) the District Employment Officer.
(2) The Selection Committee shall scrutinise the applications received and require all the eligible candidates to appear for interview before it.
(3) The Selection Committee shall prepare a list of candidates in order of merit as disclosed by the marks obtained in the interview. If two or more candidates have obtained equal marks the Selection Committee shall arrange their names in order of merit on the basis of their general suitability for the post. The number of candidates in the list shall be a little larger but not larger by more than 25 per cent than the number of vacancies."
23. Admittedly, the aforesaid procedure has not been followed with regard to appointment of petitioners. Therefore, it cannot be said that petitioners were ever appointed after following the statutory rules. Hence, also petitioners have no claim on the post of Driver, as held by Constitution Bench in Secretary, State of Karnataka Vs. Uma Devi (supra) observing:
"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."
24. The above issue in the light of decision in Uma Devi (supra) has been considered in a catena of decisions and following Uma Devi (supra), Court has held that regularisation is not a source of recruitment and if initial appointment was made without complying with the requirement of Article 16 (1) of the Constitution, regularisation is not permissible particularly in absence of any statutory provision. I do not propose to give an exhaustive list of all such precedents, but it would be appropriate to place on record, in brief, as to how the matter, of late, has been treated by Supreme Court in the light of the law laid down by the Constitution Bench in Uma Devi (supra).
25. Following Uma Devi (supra), in Surinder Prasad Tiwari Vs. U.P. Rajya Krishi Utpadan Mandi Parishad & others, 2006 (7) SCC 684, it was held:
"Equal opportunity is the basic feature of our Constitution. ...Our constitutional scheme clearly envisages equality of opportunity in public employment. .... 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.
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 regularization 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."
26. Elaborating the procedure of regular appointment, in Union Public Service Commission Vs. Girish Jayanti Lal Vaghela 2006 (2) SCC 482, 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 the 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.
27. Deprecating the practice of the State to make appointment in ad hoc manner without caring to the recruitment in accordance with rules, Supreme Court in State of Karnataka & others Vs. G.V. Chandrashekhar JT 2009 (4) SC 367 said that the State Government should not allow to depart from the normal rule and indulge in temporary employment in permanent posts. Court is bound to insist upon the State to make regular and proper recruitments. The Court is also bound not to encourage or shut its eyes to the persistence transgression of the rules of regular recruitment. Any direction to the State to consider the persons for regularisation even though they have not been recruited in accordance with rules would only encourage the State to flout its rules and to confer undue benefits on a selected few at the cost of many waiting to complete. 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 of law and even a Court of equity would certainly be disabled to pass an order upholding violation of Article 14 or directing the State to overlook the need of compliance of Article 14 read with 16 of Constitution of India and thereby give certain advantage to a person who is beneficiary of such violation. Considering the scheme of public employment in the context of fundamental rights and in particular the right of equal opportunity of employment, this Court would insist upon appointment to be made in terms of the relevant rules and after a proper competition amongst qualified persons instead of conferring a right on non selected appointees who have come from a channel not recognised in law. Such appointees cannot be conferred a valid entry being in breach of Article 14 and 16 of the Constitution. In G.V. Chandrashekhar (supra), Court also said:
"If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularisation, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because an employee had continued under cover of an order of the court, which we have described as "litigious employment" in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service."
28. The same view has been reiterated in Man Singh Vs. Commissioner, Garhwal Mandal, Pauri & others JT 2009 (3) SC 289.
29. In State of Bihar Vs. Upendra Narayan Singh & others (2009) 5 SCC 65, Court held that 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 persons get a fair chance to complete is in violation of guarantee enshrined under Article 226 of the Constitution. Ad hoc/ temporary/ daily wage employees are not entitled to claim regularisation in service as a matter of right. If an illegality or irregularity has been committed in favour of any individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher of superior Court for repeating or multiplying the same irregularity or illegality or for passing wrong order.
30. In Pinaki Chatterjee & others Vs. Union of India & others 2009 (5) SCC 193, Court observed that it is no doubt true that the respondents under certain circumstances had been appointed directly as casual mates and they continued as such and further by virtue of their continuance they acquired temporary status but that by itself does not entitle them to be regularised as mates since that would be contrary to the rules in force. The Court further held that the respondents did not acquire a right for regularisation as mates from the mere fact of their continuance as casual mates for a considerable period.
31. In State of Rajasthan and others Vs. Daya Lal & others, 2011(2) SCC 429, Court following the decision in Uma Devi (supra) held as under:
"The High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularization, absorption or permanent continuance, unless the employees claiming regularization had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and Courts should not issue a direction for regularization of services of an employee which would be violative of constitutional scheme."
32. In State of U. P. and others vs. Rekha Rani, JT 2011 (4) SC 6, Court referring to its decision in Daya Lal (supra), in para 12 of the judgment, said :
"12. It has been held in a recent decision of this Court in State of Rajasthan vs. Daya Lal, 2011 (2) SCC 429 following the Constitution Bench decision of this Court in State of Karnataka vs. Umadevi (2006) 4 SCC 1 that the High Court in exercise of its power under Article 226 cannot regularize an employee."
33. In Brij Mohan Lal vs. Union of India (2012) 6 SCC 502, referring to Uma Devi (supra), Court said :
"A Constitution Bench of this Court has clearly stated the principle that in matters of public employment, absorption, regularization or permanent continuance of temporary, contractual or casual daily wage or ad hoc employees appointed and continued for long in such public employment would be de hors the constitutional scheme of public employment and would be improper. It would also not be proper to stay the regular recruitment process for the concerned posts."
34. In University of Rajasthan and others vs. Prem Lata Agarwal and others, (2013) 3 SCC 705 referring to Constitution Bench judgment in Uma Devi (supra), Court said :
".....the Constitution Bench, after survey of all the decisions in the field relating to recruitment process and the claim for regularization, in paragraph 43, has held that consistent with the scheme for public employment, it is the duty of the court to necessarily hold that unless the appointment is in terms of the relevant rules, the same would not confer any right on the appointee. The Bench further proceeded to state that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules."
35. In Secretary to Government, School Education Department, Chennai and others Vs. Thiru R. Govindaswamy and others (2014) 4 SCC 769, referring to Uma Devi (supra) Court said that there is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution.
36. In Upendra Singh Vs. State of Bihar and others, (2018) 3 SCC 680 referring to Uma Devi (supra), Court said :
"Law pertaining to regularisation has now been authoritatively determined by a Constitution Bench judgment of this Court in Secretary, State of Karnataka and Ors. vs. Umadevi and Ors. (2006) 4 SCC 1. On the application of law laid down in that case, it is clear that the question of regularisation of daily wager appointed contrary to law does not arise. This ration of the judgment could not be disputed by the learned Counsel for the Appellant as well."
37. In view of above authorities and binding precedent of Supreme Court, prayer for regularization de hors the rules, cannot be considered and any direction issued by this Court otherwise, which is contrary to the Statute, would be impermissible.
38. So far as second question, whether appointment of petitioner on the post of Driver was made in accordance with Rules, is concerned, neither it has been claimed nor pleaded nor demonstrated by petitioners that they were appointed as Driver after following the procedure prescribed in Rules, 1978. Hence, this question is also answered against petitioners.
39. Now coming to advertisement dated 06.06.2003, I find that only two posts of Driver were advertised and both were kept reserved, one for Scheduled Caste and one for Other Backward Caste. Therefore, it is a case where all advertised vacancies have been kept reserved, i.e., 100 per cent reservation. Respondents tried to justify this reservation on the ground that it was to fill in backlog vacancies but it is not stated as to when these vacancies were advertised earlier and remained unfilled in the earlier selection and, therefore, became backlog vacancies. In fact, it was a new and fresh advertisement for filling these vacancies which were created in 1997. These cannot be said to be backlog vacancies. When a vacancy can be treated to be a "backlog vacancy", has been considered in State of U.P. and Ors. Vs. Sangam Nath Pandey and Ors (2011) 2 SCC 105 and Court in para 33 has said :
"... that only those vacancies can be declared backlog vacancies, within the reserved category, which were subject- matter of advertisement but remained unfilled because of non-availability of suitable candidates, within the reserved category, after selection. It is only in respect of such vacancy that the procedure qua backlog vacancy can be adopted. Any vacancy, which has not been subjected to a complete process of selection, even though vacant, cannot be treated as a backlog vacancy." (emphasis added)
40. This has been followed by another Division Bench of this Court in Dr. Narendra Singh & Ors. Vs. State of U.P. & Ors. 2014 (4) ADJ 356 and by a learned Single Judge in Suresh Kumar & Ors. Vs. State of U.P. and Another 2016 (10) ADJ 391.
41. When a vacancy is not a part of backlog vacancy, then in a recruitment 100 per cent vacancies cannot be reserved since it is well settled that in one selection more that 50 per cent vacancies cannot be kept reserved except the cases where recruitment is in respect of backlog vacancies. This is clearly provided in Section 3 second proviso of U.P. Public Services (Reservation For Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 (hereinafter referred to as "Act, 1994" ) which read as under :
"Provided further that reservation of vacancies for all categories of persons shall not exceed in any year of recruitment fifty per cent of the total vacancies of that year as also fifty per cent of the cadre strength of the service to which the recruitment is to be made."
42. This is also settled law by a Constitution Bench in Indra Sawhney Vs. Union of India, 1992 Supp. (3) SCC 217.
43. In view of above, advertisement, in my view, with regard to two vacancies of Driver is patently illegal and liable to be quashed.
44. In the result, writ petition is partly allowed to the extent that advertisement dated 06.06.2003 is quashed. In respect of second advertisement, I find that nothing has been proceeded further, therefore, it would be appropriate for the respondents to advertise vacancies afresh and fill in the same in accordance with Rules.
45. With respect to other reliefs, since petitioners are not entitled for the same, writ petition is dismissed.
Order Date :- 13.04.2020 PS