Allahabad High Court
State Of U.P. & Another vs Rajmani Mishra on 26 November, 2010
Bench: Sunil Ambwani, Kashi Nath Pandey
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Judgment reserved on 05.10.2010 Judgment delivered on 26.11.2010 Special Appeal No.1476 of 2006 State of U.P. & Anr. Vs. Rajmani Mishra Hon. Sunil Ambwani, J.
Hon. Kashi Nath Pandey, J.
1. We have heard Shri J.K. Tiwari, learned Standing Counsel appearing for the State-appellants. Shri H.S.N. Tripathi appears for the respondent.
2. This intra court special appeal under Chapter VIII Rule 5 of the Rules of the Court arise out of judgment of learned Single Judge dated 16th August, 2002 by which the writ petition was allowed, and while setting aside the order dated 2nd July, 2001 passed by the Inspector general, Registration, U.P. at Allahabad a direction was issued to consider the case of the petitioner for regularisation as a clerk in the Registration Department in accordance with the Rules of 1998. Learned Single Judge further directed that since the petitioner was allowed to continue from 1st May, 1991 to 31st October, 1991, he will be entitled to emoluments upto 31st October, 1991. The prayer for emoluments upto January 1993 was not accepted.
3. Briefly stated the facts giving rise to the writ petition are that the petitioner was appointed as daily wage clerk in the Department of Registration by the Inspector General (Registration) U.P. Allahabad on 2nd January, 1991 on temporary basis, for a limited period upto 28.2.1991, or until regular selections. The period of his appointment along with three other daily wage clerks was extended by order dated 13th March, 1991 from 4.3.1991 to 4.5.1991, and thereafter by order dated 29.4.1991 from 1.5.1991 to 31st October, 1991 on consolidated wages of Rs.1000/- per month. The petitioner submitted a representation on 18th December, 1991 to the Inspector General (Registration) for payment of his salary from 9.4.1991 to 1.11.1991, with a complaint that the other three daily wage clerks were regularised. The petitioner, thereafter, file Writ Petition No.21077 of 1992 for regularisation and for payment of salary w.e.f. April 1991 on 6.6.1992. The Court directed that until further orders the respondents are directed to allow the petitioner to continue as clerk in the office of the respondents and to pay salary to the petitioner. The petitioner was allowed to join in pursuance to the aforesaid order on 21.1.1993. The writ petition was pending for about 3 years. On 25.4.1996 the Division Bench disposed of the writ petition on the basis of the orders passed in Writ Petition No.31615 of 1990, Vijay Kumar Kanshik Vs. State of U.P. & Ors. along with several other connected writ petitions.
4. In Vijay Kumar Kanshik's case a Division Bench of this Court relied upon Khagesh Kumar & Ors. Vs. Inspector General of Registration & Ors., 1996 (1) UPLBEC 23 (SC).
5. In Khagesh Kumar's case the Supreme Court had issued directions that the petitioner in that case and other similarly situate persons employed as Registration Clerk on daily wage basis prior to 1.10.1986, shall be considered for regularisation in accordance with the provisions of U.P. Regularization of Daily wage Appointment on Group-C Posts (Outside the Purview of the U.P. Public Service Commission), 1998, which provide in sub-rule (1) of Rule 4 that any person, who was directly appointed on adhoc basis before January 1, 1997, and is continuing in service as such, on the date of commencement of the Rules; possesses requisite qualification prescribed for regular appointment at any time of such adhoc appointment and has completed, or as the case may be after he has completed 3 years of service as such, shall be considered for regularisation 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, in accordance with the relevant service rules or orders. In Khagesh Kumar's case the Supreme Court further directed that in the event appointment on regular basis on the post of Registration Clerks, the petitioners or other persons, who had worked on such posts on daily wage basis may be given opportunity of being considered for such employment and they may be given relaxation in the manner prescribed in the Rules. They were also required to be given weightage of their experience for which suitable guidelines were to be framed by the State Government. The directions were given to submit applications within three months.
6. The petitioner filed a representation for regularisation, which according the petitioner remained pending. His services were terminated on 28th March, 2001 on the ground that the interim order in Writ Petition No.21077 of 1992 had come to an end with disposal of the writ petition on 25.4.1996. The petitioner filed a second Writ Petition NO.15295 of 2001 challenging the order. The writ petition was disposed of on 23.4.2001 directing consideration of his claim for regularisation. A special appeal filed by the petitioner was also dismissed. The petitioner submitted a detailed representation on 2nd June, 2001, which was decided by the impugned order dated 2nd July, 2001, giving rise to this writ petition.
7. In the impugned order dated 2nd July, 2001, singed by the Inspector General (Registration), Allahabad on 30.6.2001, the petitioner was not found entitled to the benefit of consideration under Regularisation Rules, 1998 on the ground that the Rules provided that person for regularisation should have been appointed on daily wages on or before 29th June, 1991 and was working continuously as such on the date of notification of the Rules on 9.7.1998. The petitioner was appointed in between the aforesaid period only upto 31.10.1991. He was out of employment from 1.11.1991 to 21.11.1993, and thereafter his services were under the interim orders passed in writ Petition No.21077 of 1992. The petitioner, therefore, cannot be considered for regularisation on the basis of his 10 month's service in between which there was break of 15 months. Learned Single Judge gave following reasons to accept the submission of learned counsel for the petitioner:-
a. The petitioner was allowed to work upto 31st October, 1991, and thereafter he was not allowed to continue inspite of making repeated representations;
b. Shri Vijay Shankar Srivastava and Shri Abhinandan Mishra appointed on daily wage basis are still continuing in service and were granted benefit of regular pay scale.
c. The petitioner was allowed to continue in pursuance to interim order of this Court dated 16th June, 1992 in Writ Petition No.21077 of 1992. It is thus not open to the respondents to say that there was any break in his service.
d. The break in the daily wage services of the petitioner can be teated only from 1st November, 1991 to 16th June, 1992. The words 'continuing in service' under Rule 4 (1) of the Rules of 1998 will not dis-entitle the petitioner to be considered for regularisation as he was serving on 9th July, 1998, when the Rules of 1998 were enforced. His services were terminated on 28th March, 2001, much after the enforcement of the Rules.
e. The observations in para 17 of the judgment of Khagesh Kumar's case it was stated that long breaks between various periods of service during which the petitioner was employed and which are no longer than three months will not dis-entitle him for being considered for regularisation, if he has put in three years of service, to fulfill the requirement of Clause 4 (1) (iii).
f. The only difference between Rule 4 of 1979 Rules and Rule 4 of 1998 Rules is to the effect that under 1979 Rules there was requirement of having completed three years continuous service, whereas under Rule 4 of 1998 Rules does not talk of completion of 3 years period.
8. In Banaras Hindu University, Varanasi Vs. Dr. Indra Pratap Singh, 1992 Supp (2) SCC 2 the Supreme Court considering the words "8 years of continuous service" and held that there is bound to be some interval, may be of a day, week or a month but what is relevant is not the length of interval or break, one must take into consideration the reasons for break or circumstances in which such break has occurred. If the break is not unreasonable, wrong, it should be ignored for treating him in continuous service.
9. For the payment of salary learned Single Judge held that admittedly the petitioner's services were not dispensed with by the department, even after dismissal of Writ Petition No.21077 of 1992 on 25th April, 1996. He was allowed to function upto 28th March, 2001. The interim order merged in the final order and thus it cannot be said that the petitioner was continuing only on the strength of interim orders. The Rules of 1998 conferred right of consideration of any person for regularisation, who was continuing on 9th July, 1998. Learned Single Judge found that the ratio of the judgment of the Apex Court in Committee of Management Arya Nagar Inter College Vs. Sri Amar Tiwari & Anr., (1997) 4 SCC 388 cited by learned Standing Counsel was not attracted on the ground that writ petition in that case was dismissed on merits. He held that where a person was continuing during the period of pendency of writ petition, said period cannot be ignored. The period during which the petitioner had worked during the pendency of writ petition, therefore, had to be counted for giving him salary.
10. Shri J.K. Tiwari, learned Standing Counsel submits that the legal position with regard to regularisation of the employees working on adhoc basis or daily wage has undergone complete change after the judgment of Constitution Bench of the Supreme Court in State of Karnataka Vs. Uma Devi, (2006) 4 SCC 1. The Supreme Court disapproved the appointment through side door as violative of constitutional scheme of equality shown in Art.14 and 16 of the Constitution of India. If person has not been appointed after following regular procedure, he was not held entitled to regular appointment.
11. Shri J.K. Tiwari, learned Standing Counsel submits that in Uttaranchal Jal Sansthan Vs. Laxmi Devi, (2009) 7 SCC 205 the Supreme Court held that Khagesh Kumar's case must be held to have been overruled in Uma Devi (3). In para 30 of this judgment the Supreme Court held:-
"30. Reliance placed on Khagesh Kumar Vs. Inspector General or Registration, (1995) Suppl. 4 SCC 182 for the proposition that adhoc appointees working for several years without break should be considered for regularisation in accordance with the Rules, in our opinion, is clearly inapplicable. In any event all such decisions must be held to have been overruled in Uma Devi (3)."
12. Shri Tiwari submits that the petitioner had worked on daily wages from 2nd January 1991 to 31st October, 1991 for a period of 10 months. In Writ Petition No.21077 of 1992 by an interim order he was directed to be allowed to continue and to be paid salary and was consequently allowed to join in terms of the interim order dated 21st January, 1993. The writ petition was disposed of on 25th April, 1996 in terms of the judgment of the Division Bench of this Court following Khagesh Kumar's case. Though the writ petition was disposed of, but the judgment was not noticed by the Department, and that the petitioner continued by way of default upto 28th March, 2001. It was not a break in service but that he was allowed to continue under interim orders of the Court, after a long break from 1.11.1991 to 21.1.1993 and thereafter inspite of disposal of the writ petition on 25.4.1996 he continued upto 28th March, 2001. Learned Single Judge committed an error in law in giving benefit of litigous service to the petitioner for considering him for regularisation.
13. Shri H.S.N. Tripathi on the other hand submits that the break was entirely artificial. The interim order was passed on 6.6.1992 accepting the petitioner's right to continue until he was considered for regularisation under the Rules of 1979. The petitioner was allowed to join on 21.1.1993 and continued upto 28th March, 2001. Whatever be the circumstances, since his appointment was continuous, he is entitled for consideration for regularisation under the statutory Rules of 1998. Shri Tripathi submits that even in Uma Devi's case (Supra) the Supreme Court has not found any illegality in regularisation under the statutory regularisation Rules. The appointment in terms of the interim orders of the Court, where the writ petition was not dismissed cannot be treated to be a break in service. The petitioner was entitled for reglarisation under the statutory Rules of 1998.
14. We have carefully considered the submissions of the parties. The judgment in Uma Devi's case delivered by the Apex Court on April 10th, 2006. The judgment has not been given prospective effect. The view taken by the Supreme Court on the interpretation of the Constitution, is applicable to all the cases, even if they were pending on the date, when the judgment was pronounced. A judgment has explained the constitution scheme and has laid down the law with retrospective effect. The substance of the judgment in Uma Devi's case is given in para 43 as follows:-
"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. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. 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. High Courts acting under Article 226 of the Constitution of India, 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. Merely because, an employee had continued under cover of an order of 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. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates."
15. In General Manager, Uttaranchal Jal Sansthan Vs. Laxmi Devi (Supra) the Supreme Court had an occasion to explain the judgment in Uma Devi (3) (Supra) and was of the opinion that where continuation in service of the daily wage/ adhoc is litigious in nature in as much as the petitioner continue under interim orders of the Court, the benefit of such period cannot be claimed, or can be tagged on to treat it as continuous employment.
16. The petitioner was not appointed after following any procedure for appointment. He was appointed on daily wages for specific period, which was extended upto maximum period of 10 months. The petitioner filed writ petition in June, 1992 to allow him to continue after he was ceased to work on 31st October, 1991. The order was complied with on 21st January, 1993, after a period of 14 months and 21 days. He was allowed to continue inspite of final orders passed in the writ petition on 25.4.1996 in terms of Khagesh Kumar's case to consider him for regularisation. His services were terminated on 28th March, 2001, on the ground that interim order had come to an end, and his claim for regularisation was rejected on 2nd July, 2001 on the ground that he was not in continuous employment of 3 years upto date of enforcement of the Rules of 1998 to consider him for regularisation. The judgment in Uma Devi (3) is not prospective in nature. In Uttaranchal Jal Sansthan vs. Laxmi Devi (Supra) the Supreme Court held in para 29 as follows:-
"29. Submission of the learned counsel for the respondents is that the said decision in Umadevi (3) case is not applicable:-
(a) as it was rendered in 2006, whereas the cause of action for filing the writ petition arose in 2002; and
(b) a distinction must be made between the appointment on ad hoc basis and appointment on compassionate ground.
As to the first submission above, it is worth mentioning that judicial decisions unless otherwise specified are retrospective. They would only be prospective in nature if it has been provided therein. Such is clearly not the case in Umadevi (3). Accordingly, even though the cause of action would have arisen in 2002 but the decision of Umadevi (3) would squarely be applicable to the facts and circumstances of the case. Secondly, before a person can claim a status of a government servant not only his appointment must be made in terms of the recruitment rules, he must otherwise fulfil the criterion therefor. Appointment made in violation of the constitutional scheme is a nullity. Rendition of service for a long time, it is well known, does not confer permanency. It is furthermore not a mode of appointment."
17. The theory of legitimate expectation and the principle of equal wages for equal work, were not accepted in Uma Devi (3) for giving benefit of regularisation to employees, who were appointed dehorse the rules and have worked for short periods, and are claiming benefit of service, which was litigious in nature. We also do not find substance in the submission that some of the similarly situate employees have been regularised. In Uttaranchal Jal Sansthan Vs. Laxmi Devi (Supra) the Supreme Court reiterated the settled position in law that Art.14 of the Constitution of India carries with it a positive effect. The equality cannot apply in a case, where it arise out of illegality. Unless all the facts of case of other persons, who are claimed to be similarly situate and were regularised are brought on record, we cannot compare them for giving benefit to the petitioner.
18. In Official Liquidator Vs. Dayanand & Ors., (2008) 10 SCC 1 the Supreme Court frowned upon the High Courts refusing to follow and accept the verdict of the coordinate and even larger benches and did not approve of the High Court giving benefit of adhoc/ temporary/ daily wage/ casual employees after the judgment in Uma Devi (3) (Supra). The Supreme Court also did not approve the judgment in Pooran Chandra Pandey, (2007) 11 SCC 92 of two Judges' Bench of Supreme Court to violate the Constitution Bench judgment in Uma Devi (3). It was held that the clarion call given by the Supreme Court in Uma Devi (3), has to be heard by all the High Courts and also executive authorities. It is no longer open to the High Courts to give benefit of temporary/ adhoc/ daily wage employment for directing regularisation. The appointment has to be and must be made in accordance with the procedure prescribed for direct appointment in public employment fulfilling the Constitutional obligation of equality under Art.14 and 16 of the Constitution of India. The Supreme Court has also criticized the directions issued by the state instrumentalities and agencies to frame scheme for regularisation of such employees appointed through the side door. In para 71 of the judgment the Supreme Court reiterated that in Uma Devi (3) (Supra) the Constitution bench has also held that even the State cannot frame scheme for regularisation of such employees in violation of doctrine of equality, with a clear stipulation that such appointment will not confer any right on the appointee to seek regularisation or absorption in the regular cadre. The theme of the constitutionalism, it was held, in a system established on the rule of law, and the expanded meaning given to the doctrine of the equality in general and equality in the matter of employment, multifaceted problems including one relating to unwarranted financial burden on public exchequer created on account of the directions given by the High Court was considered and it was held as follows:-
"47. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in concerned cases, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.
48. It was then contended that the rights of the employees thus appointed, under Articles 14 and 16 of the Constitution, are violated. It is stated that the State has treated the employees unfairly by employing them on less than minimum wages and extracting work from them for a pretty long period in comparison with those directly recruited who are getting more wages or salaries for doing similar work. The employees before us were engaged on daily wages in the concerned department on a wage that was made known to them. There is no case that the wage agreed upon was not being paid. Those who are working on daily wages formed a class by themselves, they cannot claim that they are discriminated as against those who have been regularly recruited on the basis of the relevant rules. No right can be founded on an employment on daily wages to claim that such employee should be treated on a par with a regularly recruited candidate, and made permanent in employment, even assuming that the principle could be invoked for claiming equal wages for equal work. 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. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules. The arguments based on Articles 14 and 16 of the Constitution are therefore overruled.
49. It is contended that the State action in not regularizing the employees was not fair within the framework of the rule of law. The rule of law compels the State to make appointments as envisaged by the Constitution and in the manner we have indicated earlier. In most of these cases, no doubt, the employees had worked for some length of time but this has also been brought about by the pendency of proceedings in Tribunals and courts initiated at the instance of the employees. Moreover, accepting an argument of this nature would mean that the State would be permitted to perpetuate an illegality in the matter of public employment and that would be a negation of the constitutional scheme adopted by us, the people of India. It is therefore not possible to accept the argument that there must be a direction to make permanent all the persons employed on daily wages. When the court is approached for relief by way of a writ, the court has necessarily to ask itself whether the person before it had any legal right to be enforced. Considered in the light of the very clear constitutional scheme, it cannot be said that the employees have been able to establish a legal right to be made permanent even though they have never been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution."
19. In Suraj Prasad Tiwari Vs. U.P. Krishi Utpadan Mandi Parishad & Ors., (2006) 7 SCC 784 and Union of India Vs. Kartik Chandra Mandal, (2010) 2 SCC 422, the Supreme Court did not approve of the schemes of regularisation only on the basis of long-continuance in service. It was held that where contractual employee was appointed dehorse the constitutional scheme of public employment, he was not entitled to be absorbed or made permanent in service and that regularisation of similarly placed workers, will not give a right to the petitioner for regularisation on the ground of sympathy.
20. In the present case the reasons given by learned Single Judge have not been approved in the judgment of Uma Devi (3) and subsequent judgments. The petitioner was appointed on daily wages initially for one month and was allowed to continue upto 10 months. Thereafter there was break of about 15 months, before he was allowed to join in terms of the interim orders of the Court. The petitioner's appointment even if it is taken to be continuous with a break of 15 months in between was a litigious appointment of which the benefit cannot be extended to the petitioner under the Regularisation Rules of 1998. He was not the appointee of the department after 31st October, 1991. He was allowed to join on 21.1.1993, in terms of interim orders by the High Court in the writ petition, which was disposed of on 25.4.1996 in terms of Khagesh Kumar's case. Now since the Khagesh Kumar's case has been overruled, the petitioner is not entitled to the benefit of his litigious appointment.
21. The special appeal is partly allowed. The judgment of learned Single Judge dated August 16th, 2002 is set aside. The writ petition stand dismissed, so far as regularisation is concerned.
22. We, however, do not propose to interfere with the directions of learned Single Judge with regard to payment of salary to the petitioner for the period from 9.4.1991 to 31st October, 1991 for which he had worked as daily waged Registration Clerk. The petitioner will not be entitled to claim regularisation under the Rules of 1998, in terms of the judgment of learned Single Judge.
Dt.26.11.2010 SP/