Allahabad High Court
Mewa Lal And Others vs State Of U.P. Through Principal ... on 5 January, 2012
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Court No. - 4 Case :- SERVICE SINGLE No. - 7180 of 2010 Petitioner :- Mewa Lal And Others Respondent :- State Of U.P. Through Principal Secy. Administration Dept.Lko Petitioner Counsel :- A.M.Tripathi Respondent Counsel :- C.S.C. Hon'ble Sudhir Agarwal,J.
1. The petitioners were employed for certain period in 1991-92 Census Department for the purpose of census and on the basis of said work for certain period they are claiming absorption/adjustment in the suitable Government Department after relaxation of age and have sought a writ of certiorari for quashing the orders dated 08.12.2009 and 29.12.2009 whereby the said request of the petitioners has been declined.
2. It is contended that in similar circumstances some other persons have been regularised/absorbed and certain provisions have been made by the State Government for absorption of retrenched employees which would apply to the petitioners also hence they are entitled for the said benefit.
3. The claim and submission is thoroughly misconceived. In my view the petitioners cannot succeed and this writ petition has to fail.
4. Admittedly, recruitment in Class-III post in U.P. is governed by statutory rules framed under proviso to Article 309 of the Constitution. In respect to retrenched employees of Government, some concession in the matter of selection is provided therein but no rule has been framed entitling any retrenched employee to seek automatic absorption against any vacant Class-III post. Counsel for petitioners also placed none before this Court.
5. The right of absorption, in the context of employees of Census department, has been considered in detail by this Court in Imtiaz Ahmad Vs. Regional Deputy Director of Census Operation and others, 2007(3) ADJ 138 and referring to various Government Orders dealing with the question of "retrenched employee", in para 7, the Court held:
"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-III 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 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-III 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, 1985which 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 educational 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 is 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."
6. In respect to recruitment/concession for retrenched employees of the Government there are different sets of rules framed from time to time and it may be useful to have a bird eye view of such provisions which have been framed under proviso to Article 309 of the Constitution.
7. The U.P. Retrenched Employees Rules, 1967 (for short the 1967 Rules) was promulgated, which defines "Retrenched Employee" under Rule-2(b) as under:
"(b) "retrenched employee" with the grammatical variation and cognate expressions, means a person who was employed in any service or on any post under the rule-making control of the Governor, whether in a substantive, officiating or temporary capacity, and had served continuously for a period of not less than one year, and whose services are, whether before or after the commencement of these rules, terminated, or are certified as liable to termination but does not include a person who was appointed on an ad hoc basis."
8. The definition of "retrenched employee" contained in 1967 Rules clearly refers to a person, who was employed in any service on the post under the rule-making control of the Governor and whose services were terminated, or are certified, as liable to termination after working for a period of not less than one year in substantive, officiating or temporary capacity except on ad hoc basis. The rule making authority also explained "ad hoc appointment". Explanation 1 to Rule 2(b) of 1967 Rules provides that a person not appointed in accordance with the procedure prescribed in the recruitment rules or orders applicable to the service or post concerned shall be deemed to have been appointed on ad hoc basis. Rule-3 of 1967 Rules, however, provides that the said rules shall remain in force for a period of three years and thereafter for such period as notified by the Governor in consultation with the Commission. The said rules were applicable to all services and posts under the rule making control of the Governor, which were to be filled in wholly, or partly by direct recruitment. The aforesaid rules continued to remain in force upto October, 1971. In 1975, for recruitment in Ministerial Cadre in the Subordinate Offices, statutory rules under proviso to Article 309 of the Constitution of India were framed, namely, "The Subordinate Offices Ministerial Staff (Direct Recruitment) Rules, 1975" (hereinafter referred to as "1975 Rules") published in the Gazette dated 29.7.1975. The rule-making authority declares that the said rules are being enacted in supersession of all existing rules and orders on the subject and for recruitment of ministerial staff in the subordinate Government offices in the State. The preface of 1975 Rules reads as under:
"In exercise of powers conferred by the proviso to Article 309 of the Constitution, and in supersession of all existing rules and orders on the subject, the Governor is pleased to make the following rules for recruitment of ministerial staff in the subordinate Government offices in the State."
9. Rule 3 of 1975 Rules, which give it overriding effect, reads as under:
"3. Effect of inconsistency with other rules.- In the event of any inconsistency between these rules and any specific service rules:
(1) the provisions contained in these rules prevail to the extent of the inconsistency in case the specific rules were made prior to the commencement of these rules; and (2) the provisions contained in the specific rules shall prevail in case they are made after the commencement of these rules."
10. Rule 4(gg) of 1975 Rules provides definition of "Retrenched Employee" and reads as under:
"(gg) "Retrenched Employee" means a person who was employed on a post under this rule making power of the Governor-
(i) in permanent, temporary or officiating capacity;
(ii) for a total minimum period of one year, out which at least 3 months service must have been continuous service.
(iii) whose services were or may be dispensed with due to reduction in or winding up of the establishment; and
(iv) in respect of whom a certificate of being a retrenched employee has been issued by the Appointing Authority but does not include a person employed on ad hoc basis only."
11. 1975 Rules initially, as enacted, did not specifically contain provision giving relaxation to "Retrenched Employee" but Rule 13-A was inserted by Notification dated 6.7.1977 for a period of three years from the date of its commencement and it reads as under:
"13 A. Relaxation for retrenched employees.-(1) A retrenched employee shall be given exemption from the upper age-limit to the extent of the period of service rendered by him to the State Government together with the period spent without a Government job as a result of the retrenchment.
(2) A retrenched employee, who on the date of his first appointment in the service of the State Government possessed the academic qualifications prescribed on such date for the post now being applied for, shall be deemed to satisfy the requirement of academic qualifications for such post.
(3) For the purposes of this rule, the expression "retrenched employee" means a person who was employed in any service or on any post under the rule-making control of the Governor whether in a substantive, officiating or temporary capacity, and had served continuously for a period of not less than one year, and whose services are, whether before or after the commencement of these rules, terminated or liable to termination, on account of reduction of establishment, and in respect of whom a certificate of being a retrenched employee has been issued by the appointing authority concerned, but does not include a person who was appointed on an ad hoc basis.
Explanation- A person appointed in accordance with the procedure prescribed in the recruitment rules or orders applicable to the service or post concerned shall be deemed to have been appointed on an ad hoc basis."
12. Consistent with 1975 Rules a Government Order No. 27/2/1974- Karmik-2 dated 6.7.1977 was published containing definition of "retrenched employee" and on the same date, another Government Order No. 41/2/1967- Karmik-2 dated 6.7.1977 was published for giving effect to the provisions of 1975 Rules and for guidance and clarification of the concerned officials. The aforesaid later Government Order, relevant for the present purpose is reproduced as under:
^^'kkŒ laŒ&41@2@67&dkfeZd&2] fnukad tqykbZ 6] 1977 fo"k;% jkT;k/khu lsokvksa esa oxZ&3 o 4 ds NaVuh'kqnk deZpkfj;ksa dks [kikus dh O;oLFkkA jkT;k/khu dk;kZy;ksa ds NaVuh'kqnk deZpkfj;ksa dks Hkkoh fjfDr;ksa esa [kikus ds fy, o"kZ 1967 esa ,d fu;ekoyh cukbZ xbZ Fkh] tks vDVqcj] 1971 rd izHkkoh jghA mlds i'pkr ferO;f;rk ds vk/kkj ij vf/k"Bkuksa esa deh fd;s tkus vFkok vU; iz'kklfud dkj.kksa ls jkT; ds fofHkUu dk;kZy;ksa esa oxZ 3 rFkk 4 ds deZpkfj;ksa dh NaVuh djuk vfuok;Z gks x;k rFkk NVuh'kqnk deZpkfj;ksa dks [kikus dk iz'u 'kklu ds le{k iqu% mifLFkr gks x;kA 2- bl lEcU/k esa eq>s ;g dhus dk funsZ'k gqvk gS fd bl leL;k ij lE;d~ fopkj djus ds mijkUr NaVuh'kqnk deZpkfj;ksa dks jkT;k/khu dk;kZy;ksa ¼vizkfof/kd rFkk yksd lsok vk;ksx dh ifjf/k ds ckgj ds inksa½ esa gksus okyh fjfDr;ksa es [kikus ds fy, 'kklu us vc fuEufyf[kr fu.kZ; fy;s gSa% ¼d½ vk;q lhek ds NwV& ,sls deZpkfj;ksa us ftrus o"kZ dh lsok viuh Nvuh ds iwoZ dh gks rFkk ftruh vof/k ds fy, og Nvuh ds dkj.k lsok ls ckgj jgs gksa mrus o"kZ dh vk;q lhek ls mUgsa NwV iznku dj nh tk;A ¼[k½ 'kSf{kd ;ksX;rk ds NwV& ;fn ,sls deZpkjh viuh iwoZ fu;qfDr ds le;] ftl in ds fy, og vc vH;FkhZ gSa ml le; ml in dh fu/kkZfjr 'kSf{kd vgZrk iwjh djrs gSaA ¼x½ lqfo/kkvksa dh vof/k& mi;qZDr lqfo/kk;sa bl 'kklukns'k ds tkjh gksus ds fnukad ls 3 o"kZ ds fy, gh ekU; jgsaxhA ¼?k½ NVuh'kqnk deZpkfj;ksa dh ifjHkk"kk& NVuh'kqnk deZpkjh dh ifjHkk"kk ogh gksxh tks dkfeZd vuqHkkx&2 dh vf/klwpuk la[;k 27@2@1974 &dkfeZd ¼2½ fnukad 6 tqykbZ] 1977 esa nh gqbZ gS vkSj tks lqyHk lnHkZ gsrq uhps m)`r dh tkrh gSA ^^NVuh fd;k x;k deZpkjh** dk rkRi;Z ml O;fDr ls gS tks jkT;iky ds fu;e cukus ds fu;U=.k esa fdlh lsok esa ;k fdlh in ij ekSfyd lhukiUu] ;k vLFkk;h :Ik ls fu;ksftr Fkk vkSj ftlus de ls de ,d o"kZ dh vof/k rd yxkrkj lsok dh gks vkSj ftldh lsok;sa bl fu;ekoyh ds izkjEHk gksus ds iwoZ ;k i'pkr vf/k"Bku esa deh fd;s tkus ds dkj.k lekIr dh tk lds vkSj ftuds lEcU/k esa lEc) fu;qfDr izkf/kdkjh }kjk NVuh fd;k x;k deZpkjh gksus dk izek.k&i= tkjh fd;k x;k gks] fdUrq blesa ,slk O;fDr lfEefyr ugha gS ftls rnFkZ vk/kkj ij fu;qDr fd;k x;k gksA Li"Vhdj.k& lEc) lsok ;k ij ij iz;ksx HkrhZ fu;ekoyh ;k vkns'kksa esa fofgr izfdz;k ds vuqlkj fu;qDr O;fDr dks rnFkZ vk/kkj ij fu;qDr fd;k x;k ugha le>k tk;sxkA 3- ,sls NVuh'kqnk deZpkjh tks oxZ 3 ¼Vice csancellor lewg x½ ds fyfid oxhZ; inksa] ftudk U;wure osrueku 200&320 :i;s gSa rFkk prqFkZ oxZ ¼vc lewg ?k½ ds os in ftudk osrueku 165&215 :i;s gSa vkSj ftl ij HkrhZ ftyk Lrjh; p;u lfefr;ksa ds ek/;e ls dh tkrh gS] esa HkrhZ ds bPNqd gksa mudks mi;qZDr lqfo/kk ds vUrxZr dsoy fu;fer p;uksa esa vgZrk nsus ds fy, NwV nh tk;sxh ijUrq mUgsa p;u esa dksbZ izkFkfedrk iznku ugha gksxhA 'kklukns'k la[;k 8@dkfeZd&1975 fnukad 22 uoEcj] 1975 esa tkjh fd;s x;s vkj{k.k lEcU/kh vkns'kksa ij dksbZ izHkko ugha iM+sxk vkSj iwoZ dh Hkkafr gh mudks dk;kZfUor fd;k tk;sxkA rn~uqlkj ^^v/khuLFk dk;kZy; fyfid oxZ ¼lh/kh HkrhZ½ fu;ekoyh] 1975** rFkk ^^prqFkZ oxZ deZpkjh lsok fu;ekoyh] 1975** esa vko';d la'kks/ku dj fn;s x;s gSaA^^
13. Rule 13-A expired after three years and so the Government Order dated 6.7.1977. In order to continue with the relaxation in age, educational qualification and other GO No. 41/2/67-Karmik-2 dated 23.5.1981 was issued which was to continue for a period of three years. Therein definition of "retrenched employee" as notified on 6.7.1977 and modified on 18.10.1979 was reiterated. For ready reference the aforesaid is being re-produced as under:
^^'kk-la- 41@2@67&dkfeZd&2] fnukad 23 ebZ] 1981 fo"k;% jkT;k/khu lsokvksa esa oxZ 3 o 4 ds NaVuh'kqnk deZpkfj;ksa dks [kikus dh O;oLFkkA mi;qZDr fo"k;d lela[;d 'kklukns'k fnukad 6 tqykbZ] 1977 esa iznRr lqfo/kkvksa dh ekU; vof/k 5 tqykbZ] 1980 dks lekIr gks xbZ gSA 'kklu dh tkudkjh esa ;g ckr vkbZ gS fd NVuh 'kqnk deZpkfj;ksa dh leL;k dk funku iw.kZ :i ls ugha gks ldk gS vr% bl fo"k; ij iqu% fopkj fd;k x;kA 2- eq>s ;g dgus dk funsZ'k gqvk gS fd bl leL;k ij leqfpr fopkjksijkUr NaVuh'kqnk deZpkfj;ksa dks jkT;k/khu dk;kZy;ksa esa gksus okyh Hkkoh fjfDrksa ¼vizkfof/kd rFkk yksd lsok vk;ksx dh ifjf/k ls ckgj ds inksa½ esa [kikus ds fy;s 'kklu us fuEufyf[kr fu.kZ; fy;s gS% ¼d½ vf/kdre vk;q lhek ls NwV% ,sls deZpkfj;ksa us ftrus o"kZ viuh NaVuh ls iwoZ dh gks rFkk ftruh vof/k ds fy;s og NaVuh ds dkj.k lsok ls ckgj jgs gksa mrus o"kZ dh vf/kdre vk;q lhek ls mUgsa NwV iznku dj nh tk; ijUrq izfrcU/k ;g gS fd ;g vof/k fdlh Hkh n'kk esa 10 o"kZ ls vf/kd ugha gksxhA ¼[k½ 'kSf{kd ;ksX;rk ls NwV% ;fn ,sls deZpkjh viuh iwoZ fu;qfDr ds le;] ftl in ds fy;s og vc vH;FkhZ gSa] ml in dh fu/kkZfjr 'kSf{kd vgZrk j[krs Fks] rks ;g le>k tk;sxk fd os orZeku in ds fy;s fu/kkZfjr 'kSf{kd vgZrk iwjh djrs gSaA ¼x½ lqfo/kkvksa dh vof/k% mi;qZDr lqfo/kk;s bl 'kklukns'k ds tkjh gksus dh frfFk ls rhu o"kZ ds fy;s ekU; jgsxhA ¼?k½ ifjHkk"kk% NVuh'kqnk deZpkjh dh ogh ifjHkk"kk gksxh tks 'kklukns'k la[;k41@2@67&dkfeZd&2 fnukad 6 tqykbZ] 1977 esa nh gqbZ gS vkSj lela[;d 'kklukns'k fnukad 18 vDVwcj] 1979 }kjk ;Fkk la'kksf/kr gS vkSj tks lqyHk lUnHkZ gsrq uhps m)`r dh tkrh gS% ^^NaVuh fd;k x;k deZpkjh** dk rkRi;Z ml O;fDr ls gS tks jkT;iky ds fu;e cukus ds fu;a=.k esa fdlh lsok esa ;k in ij ekSfyd] LfkkukiUu vFkok vLFkk;h :Ik ls fu;ksftr Fkk vkSj ftlus de ls de 3 ekl dh fujUrj lsok dh gks ijUrq dqy feykdj ;g QqVdj [kf.Mr lsok Hkh ,d o"kZ dh iwjh gks xbZ gks vkSj ftldh lsok;sa v/khuLFk dk;kZy; fyfid oxZ ¼lh/kh HkrhZ½ ¼prqFkZ la'kksa/ku½ fu;ekoyh] 1979 rFkk prqFkZ oxZ deZpkjh lsok ¼r`rh; la'kks/ku½ fu;ekoyh 1979 ds izHkkoh gksus ds iwoZ ;k i'pkr vf/k"Bku esa deh ds dkj.k lekIr dj nh xbZ gks ;k lekIr dj nh tk;s vkSj ftlds lEcU/k esa lEc) fu;qfDr izkf/kdkjh }kjk NVuh fd;k x;k deZpkjh gksus dk izek.k&i= tkjh fd;k x;k gks fdUrq mlesa ,slk O;fDr lfEefyr ugha gksxk ftls rnFkZ vk/kkj ij fu;qDr fd;k x;k gksA Li"Vhdj.k & lEc) lsok ;k in ij iz;ksT; HkrhZ fu;ekoyh ;k vkns'kksa esa fofgr izfdz;k ds vuqlkj fu;qDr O;fDr dks rnFkZ vk/kkj ij fu;qDr fd;k x;k ugha le>k tk;sxkA 3- ,sls NVuh'kqnk deZpkfj;ksa dks mi;qZDr lqfo/kk ds vUrxZr dsoy fu;fer p;uksa esa vgZrk nsus ds fy;s NwV nh tk;sxh ijUrq mUgsa p;u esa dksbZ izkFkfedrk iznku ugha gksxhA Lkfpo^^
14. The aforesaid government order was extended for a further period of three years vide Government Order No. 41/2/1967-Karmik-2 dated 12.4.1983, which reads as under:
^^'kkΠla[;k42@2@1967&dkfeZd&2] fnukad 12 vizSy] 1983 fo"k;%& tux.kuk foHkkx ds NVuh fd;s tkus okys deZpkfj;ksa dks jkT;k/khu lsokvksa @inksa esa fu;qfDr gsrq fj;k;rA mi;qZDr fo"k;d lela[;d 'kklukns'k fnukad 12 Qjojh] 1982 ds dze esa eq>s ;g Li"V djus dk funs'k gqvk gS fd mijksDr 'kklukns'k esa nh xbZ lqfo/kk;s jkT; ljdkj ds v/khu dsoy mu lsokvksa@inksa ij fu;qfDr gsrq vuqeU; gksaxh ftu ij lh/kh HkrhZ yksd lsok ds ek/;e ls ugha gksrh gSA mi lfpoA^^
15. Vide Notification dated 16.3.1985 the Governor promulgated a new set of Rules, namely, The U.P. Subordinate Offices Ministerial Staff (Direct Recruitment) Rules, 1985 (in short '1985 Rules'), in supersession of existing rules and orders on the subject as is apparent from the following:
"In pursuance of the provisions of Clause (3) of Article 348 of the Constitution, the U.P. Governor is pleased to order the publication of the following English translation of Notification No. 20/3-82-Personnel-2-85, dated March 16, 1985.
In exercise of the powers conferred by the proviso to Article 309 of the Constitution, and in supersession of all existing rules and orders on the subject, the Governor is pleased to make the following rules regulating recruitment of ministerial staff in the Subordinate Government Offices in the State."
16. Rule-3 of 1985 Rules also gives it overriding effect over any inconsistent existing rule and Rule-4(i) defines "retrenched employee" which reads as under:
"Retrenched employee" means a person-
(i) who was employed on a post under the rule making power of the Governor, in permanent, temporary or officiating capacity for a total minimum period of one year, out of which at least three months' service must have been continuous service;
(ii)whose services were or may be dispensed with due to reduction in or winding up of the establishment; and
(iii) in respect of whom a certificate of being retrenched employee has been issued by the appointing authority;
but does not include a person employed on ad hoc basis only."
17. In 1991, "The Uttar Pradesh Absorption of Retrenched Employees of Government or Public Corporation in Government Service Rules, 1991" (for short the '1991 Rules') were framed and published in the Gazette dated 19th August, 1991. The aforesaid rule provides for absorption of 'Retrenched Employee" of Government or Public Corporation. Rule-2-(b) defines Public Corporation, Rule 2-(c) defines "Retrenched Employee" and Rule-3 is a charging provision, which are reproduced as under:
"2(b) "Public Corporation" means a body corporate established or constituted by or under any Uttar Pradesh Act except a University of Local Authority constituted for the purpose of Local Self Government and includes a Government CompOnay within the meaning of Section 617 of the Companies Act, 1956 in which the State Government has prepondering interest;
(c) "retrenched employee" means a person who was appointed on a post under the Government or a public corporation on or before October 1, 1986 in accordance with the procedure laid down for recruitment to the post and was continuously working in any post under the Government or such corporation upto the date of his retrenchment due to reduction in, or winding up of, any establishment of the Government or the public corporation, as the case may be and in respect of whom a certificate of being a retrenched employee has been issued by his appointing authority.
(3) Notwithstanding anything to the contrary contained in any other service rules for the time being in force, the State Government may be 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."
(emphasis added)
18. Thereafter U.P. Regularization of Daily Wages Appointment of Group-C Posts Rules, 1998 (hereinafter referred to as "1998 Rules") were promulgated on 9.6.1998. It would be appropriate to refer the declaration made under the aforesaid rules which was not in the same terms as it was in 1975 Rules and 1985 Rules that the same are being enacted in supersession of all the existing provisions and on the contrary, 1998 Rules only makes a declaration of making of the rules by the Hon'ble Governor and reads as under:
"In exercise of the powers conferred by the proviso to Article 309 of the Constitution, the Governor is pleased to make the following rules:"
19. Rule-2 of 1998 Rules gives these rules overriding effect over inconsistent existing rules. Rule 5(3)(c) provides weightage which is admissible to a "retrenched employee" for recruitment in 1998 Rules. Admittedly, 1998 Rules did not contain any definition of "retrenched employee". The subsequent enactment came into force on 20.8.2001. The Hon'ble Governor promulgated another set of rules in 2001, namely, The Uttar Pradesh Procedure for Direct Recruitment for Group "C" posts (Outside the Purview of the Uttar Pradesh Public Service Commission) Rules, 2001 (in short the "2001 Rules"). The aforesaid rules have been framed in supersession of all the existing rules and orders on the subject as is apparent from the following declaration made under the Rules:
"In exercise of the powers conferred by the proviso to Article 309 of the Constitution and in suppression existing rules and other on the subject, the Governor is pleased to make the following rules."
20. 2001 Rules, admittedly does not contain any definition of 'retrenched employee' but provides certain concessions in recruitment to a 'retrenched employee' vide Rule 6(6)(b) etc.
21. If this Court go through the aforesaid provisions, the petitioners, an ex-employee of Census department would not qualify by the term '"retrenched employee" as defined in the Rules.
22. I do not propose to deal with this aspect of the matter in detail since it has already been considered by a Division Bench of this Court in Sayed Mohammad Mahfooz Vs. State of U.P. and others, 2007(3) ADJ 46 and therein this Court has held:
". . . .we find that contrary to the language of 1975 and 1985 Rules, which were promulgated in supersession of all existing rules and orders on the subject, 1998 Rules did not make such a declaration. Admittedly, Rule-2 of 1998 Rules gives overriding effect to the said rules over the inconsistent provisions under the existing rules but so long as the provision is not inconsistent, Rule 2 of 1998 Rules has no application. The declaration of 1998 Rules, thus, makes it clear that 1985 Rules were not superseded in their entirety but to the extent the rules were framed in 1998 containing different subjects, to that extent only 1985 Rules would stand superseded by 1998 Rules but in all other respect the same would continue to operate. To elaborate it may be pointed out that there are 37 Rules in 1985 but 1998 Rules contain only nine Rules. Rules 1 and 2 of 1985 Rules provide short title, commencement and application while all the three subjects have been dealt with in Rule 1 of 1991 Rules. Rule-3 of 1985 Rules and Rule 2 of 1998 Rules gives them overriding effect and, therefore, operates in the same filed. Rule-4 of 1985 Rules and Rule-3 of 1998 Rules contain definitions. In both the Rules the definitions of "appointing authority". "Constitution", "Governor", and "Government" are common and same. However, 1985 Rules have other definitions like "Head Office", "High Court", "Ministerial Staff, "Subordinate offices", "Retrenched employee" and "Year of recruitment" which do not find place in 1998 Rules. The 1991 Rules have one definition of "Other Backward Classes". Rule-4 of 1998 Rules provides the manner of determination of vacancies though no similar provisions exist in 1985 Rules. Rule 5 of 1985 Rules provides for strength of service. Rule 6 provides source of recruitment. Rule 7 provides for reservation and Rule-8 provides nationality, Rule 9 provides for academic qualification, Rule 10 provides for preferential qualification, Rule 11 provides for age, Rule 12 provides for relaxation for ex-servicemen and certain other categories,Rule-13 provides for character, Rule-14 provides for marital status and salary status and Rule 15 provides for physical fitness but the corresponding provision thereof are not existing in 1998 Rules. Procedure for recruitment is provided in part-4 of 1985 Rules, which has Rules 17, 18, 21, 22, 23 and 24 but the procedure for recruitment has been prescribed in Rules 5, 6, 7 and 8 of 1998 Rules. Therefore, in our view, the procedure prescribed for recruitment in Part-4 of the 1985 Rules stands superseded by 1998 Rules. Rule 9 of 1998 Rules gives an opportunity to the candidates for inspection of the record relating to selection though no such provision existed in 1985 Rules. Rule 26 to 36 of 1985 Rules contains provisions regarding appointment, probation, confirmation, seniority and scale of pay, criterion for crossing E.B., Canvassing, Regulation of other matters and relaxation from the conditions of service, which do not exist in 1998 Rules. Therefore, all the provisions of 1985 Rules, which are not inconsistent with 1998 Rules will continue to operate and this also include the definition of "retrenched employee". We have been informed that regarding confirmation, seniority etc. separate set of rules have been framed in 1991 by the Hon'ble Governor in exercise of power under Article 309 of the Constitution of India, which also have overriding effects, and to that extent, the provision of 1985 Rules also stood superseded by those rules, but it will not change the position. To the extent, provisions have not been made in 1998 Rules, there, the rules of 1985 will continue to operate and govern the field.
In this view of the matter, since the definition of "retrenched employee" contained in 1985 Rules would continue for recruitment under 1998 Rules, we are of the view that the authorities were right in applying the definition of "retrenched employee" as contained in 1985 Rules and since the petitioner-appellant did not qualify to be a "retrenched employee" under the said definition, he was not entitled for any relaxation under the category of "retrenched employee" and, therefore, his selection and appointment treating him as "retrenched employee" was ex-facie illegal. . . ."
23. The petitioners' engagement was for a fixed tenure. The appointment was on contractual basis and came to end by efflux of time. Such an appointment in fact does not satisfy the term 'retrenched employee' as defined in the relevant rules.
24. An attempt was made time and again by certain Census employees, similarly placed with petitioners, sometimes relying on 1991 Rules and sometimes on the Apex Court's decisions in Union of India and others Vs. Dinesh Kumar Saxena and others, 1995 All. L.J. 1346 but in vein.
25. The petitioners however have relied on the judgment in Writ Petition No. 12171 of 2002 (Subodh Kumar Kaushik Vs. State of U.P. and others), decided on 07.10.2005. Therein Subodh Kumar Kaushik was an employee engaged in 2001 Census in District Jhansi. He was appointed by letter dated 05.10.2000 as Junior Clerk in the pay scale of Rs. 3050-4590 on temporary basis up to 31.05.2001. This Court having considered various submissions, said:
"From a perusal of the counter affidavit, it is clear, that the Absorption Rules of 1991 has been rescinded on 8.4.2003. In any case, the State Government by G.O. dated 20.8.2001 made it clear, that a person who was appointed on a temporary post, on a temporary basis, for the census work, would not fall under the definition of a retrenched employee and would not be given the benefit of any absorption in the service of the Government.
In Union of India and others vs. Dinesh Kumar Saxena and others, 1995 ALJ 1346, the Supreme Court held that the employees working in the Census department had been engaged on a contract basis for a limited duration and, therefore, cannot be absorbed in any other department of the Government. The Supreme Court, however, directed the Director of Census Operation, U.P. to consider those employees for an appointment in a regular vacancy which may arise in the Directorate of Census Operation.
Subsequently the Supreme Court in the case of Government of Tamil Nadu and another vs. G. Ammeenudeen and others, 1999(7)SCC 499, issued directions to the State Government of Tamil Nadu to frame a scheme in order to absorb the employees working in the Census department. The said direction was passed because the Supreme Court felt that on the commencement of Census operations persons who were registered in the Employment Exchange got a job in the Census department and their employment came to an end when the project came to an end thereby loosing both the employment and their position in the queue in the Employment Exchange and, therefore, in view of the peculiar circumstances, the Supreme Court directed the State Government to work out a proper scheme.
In Rajesh Kumar Gaur and others vs. Union of India (Writ Petition No.12537 of 2002), decided on 11.7.2005 a Single Judge of this Court held, that there was no conflict between the judgment of the Supreme Court in the case of Union of India vs. D.K.Saxena (S.C.) and in the case of Government of Tamil Nadu and another vs. G. Ammeenudeen and others (supra). The Court further held that the employees engaged as compliers in the Census operations were not entitled to be absorbed under the Absorption Rules of 1991.
In view of the aforesaid, it is clear that the petitioner having been given a fixed term appointment was not entitled to be absorbed under the Absorption Rules of 1991. In any case, the said Rules has been rescinded and therefore, the benefit of those Rules is no longer available to the petitioner. In view of the clear dictum laid down by the Supreme Court in the aforesaid two judgments, the petitioner is not entitled to be absorbed as an employee in the Government service. However, since the Supreme Court directed the State Government of Tamil Nadu to frame a scheme for absorption of the Census employees, in my opinion, similar direction should also be given to the State Government of U.P. In view of the aforesaid, the impugned order does not suffer from any error of law. At the present moment, no mandamus can be issued to the respondents to absorb the petitioner in the Government employment. However, a direction is issued to the State Government to frame a scheme to absorb the employees appointed in the Census operations within six months and consider the case of the petitioner and other similarly situated persons.
Writ petition is disposed of with the aforesaid directions."
26. In Writ Petition No. 12537 of 2002 (Rajesh Kumar Gaur and five others Vs. Union of India and others), decided on 11.07.2005, came to be considered, a similar claim of Clerical employee of 1991 Census. This Court dismissed the writ petition holding:
"In the counter affidavit filed on behalf of Director of Census, the right for absorption has been denied. In Subodh Kumar's case the Court had relied upon the rules of absorption of the Rules of 1991 which gave this benefit to the retrenched employment of Public Sector and Corporations. These rules have since been rescinded. In the counter affidavit of Sri Basant Lal Gupta, Additional Tehsildar, Azamgarh it is stated that in the recruitment of Group C employees, made in the year 2001, the retrenched employees were given weightage by providing them 10% additional marks. The petitioners, however, did not apply to take the benefit of the weightage. Further I find that none of the petitioners applied for the vacancies advertised by State Government. They have just made a general application to the District Magistrate for absorbing them in any available vacancies or the vacancies which arise in future.
The employment in the State Government is regulated by the statutory rules. The petitioners cannot claim benefit for absorption in violation of these Rules. I do not find any conflict between the judgment in Union of India Vs. D.K. Saxena, 1995 ALJ 1346 and the judgment in Government of Tamil Nadu Vs. G. Mohamed Ameenudeen and others, JT 1999(9) SC 173. In the matter of census employees of the Government of U.P. the Supreme Court did not find it appropriate to either to State Government to frame a scheme or to provide them any such right of absorption. The judgment in D.K. Saxena's case is squarely applicable to this case.
The writ petition is consequently dismissed."
27. A similar argument which was advanced in this case, came to be considered by Apex Court in State of Orissa and others Vs. Prasana Kumar Sahoo, JT 2007(6) SC 182. While observing that State is bound by constitutional scheme to treat all persons equally in the matter of grant of public employment as envisaged under Article 14 and 16 of the Constitution, it further observed in paras 13, 14, 17, 18, 19 and 20 as under:
"13. Even a policy decision taken by the State in exercise of its jurisdiction under Article 162 of the Constitution of India would be subservient to the recruitment rules framed by the State either in terms of a legislative act or the proviso appended to Article 309 of the Constitution of India. A purported policy decision issued by way of an executive instruction cannot override the statute or statutory rules far less the constitutional provisions.
In A. Umarani v. Registrar, Cooperative Societies and Ors. (2004) III LLJ 780 SC, this Court has held:
45. No regularisation is, thus, permissible in exercise of the statutory power conferred under Article 162 of the Constitution if the appointments have been made in contravention of the statutory rules."
14. The circular letter dated 21.3.1995 even does not purport to lay a policy decision relating to regularisation or absorption of the census employees. It only provided for relaxation of age. Such relaxation was also subject to strict compliance of the recruitment rules. If by reason of some misconception or otherwise, the Tribunal had granted some relief in favour of some census employees, the same by itself, in our opinion, would not confer any legal right upon a person for being absorbed in State services without compliance of the mandatory provisions of the recruitment rules and the constitutional scheme adumberated under Article 16 of the Constitution of India.
17. Regularisation as is well known is not a mode of recruitment. A policy decision to absorb a person who is not in employment of the State without following the recruitment rules, would not confer any legal right on him. A Constitution Bench of this Court in Secretary, State of Karnataka and Ors. v. Umadevi and Ors. (2006) II LLJ 722 SC, categorically held that any appointment made in violation of the constitutional provisions would be a nullity. See also Gurbachan Lal v. Regional Engineering College, Kurukshetra and Ors. 2007 (4) SCALE 1.
18. We may notice that in a large number of decisions, Uma Devi (supra) has been followed by this Court. e.g. State of U.P. and Ors. v. Desh Raj 2006 Cri LJ 2108, Punjab Water Supply & Sewerage Board v. Ranjodh Singh and Ors. (2007) 2 LLJ 1052 SC and National Institute of Technology and Ors. v. Niraj Kumar Singh (2007) II LLJ 23 SC, Punjab State Warehousing Corporation Chandigarh v. Manmohan Singh and Anr. (2007) 2 LLJ 519 SC. Furthermore, a direction to grant relaxation in respect of the age must also receive strict compliance of other conditions specified therein. See Kendriya Vidyalaya Sangathan and Ors. v. Sajal Kumar Roy and Ors.
19. It may be that some other persons similarly situated have been appointed. But Article 14 as is well known contains a positive concept. A Writ of Mandamus can be issued by the High Court only when there exists a legal right in the Writ Petitioner and corresponding legal obligation in the State. Only because an illegality has been committed, the same cannot be directed to be perpetuated by a court of law.
20. It is also well settled that there cannot be equality in illegality. See Sushanta Tagore and Ors. v. Union of India and Ors. AIR 2005 SC 1975, State, CBI v. Sashi Balasubramanian and Anr. [2007] 289 ITR 8(SC) and U.P. State Sugar Corporation Ltd. and Anr. v. Sant Raj Singh and Ors. (2006) III LLJ 509 SC."
The Apex Court has set aside the judgment of High Court and Tribunal in the above case.
28. One thing is quite clear from what I have stated above that the State Government as a matter of policy has not decided anywhere and at any point of time to absorb ex-employees of Census department in other vacancies of Government. It has also not framed any statutory provision granting relaxation of rigour of procedure of recruitment for Class-III or Class-IV post governed by statutory rules framed under proviso to Article 309 of the Constitution. In the exigency, at some stage, relaxation in the matter of age has been given to the extent the incumbent has worked in Census department but for all other purposes the incumbent has to compete with others and to participate in the selection which is to be made according to relevant statutory rules.
29. It is also evident that regularisation is not a mode of recruitment. The exposition of law is almost settled. It can be claimed only if so provided by the statutory provision and not otherwise.
30. In Secretary, State of Karnataka Vs. Uma Devi 2006(4) SCC 1 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. ...................."
31. 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."
32. 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.
33. Following Uma Devi (supra), in Surinder Prasad Tiwari Vs. U.P. Rajya Krishi Utpadan Mandi Parishad & others, 2006 (7) SCC 684, 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."
34. 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 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. Vs. Somvir Singh 2006 (5) SCC 493 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.
35. 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 others Vs. P Chandra Sekhara Rao & others 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 others Vs. Piara Singh & others AIR 1992 SC 2130, 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."
36. This Court in Writ Petition No. 62806 of 2005 (Qazi Amaramullah Vs. District Magistrate, Deoria and others), decided on 01.03.2007 while considering almost similar arguments and also the law laid down by the Apex Court in Uma Devi (Supra) etc. said as under:
"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.
Thus in the absence of any statutory provision and also in view of the admitted factual position that the petitioner's initial recruitment was not in accordance with the constitutional scheme enshrined under Article 16 of the Constitution, it cannot be said that the petitioner is entitled for regularization/ absorption. Moreover, the letter dated 28.6.2004 issued by respondent no.2 would not be of any help to the petitioner inasmuch as the court of law cannot issue a mandamus commanding the respondents to do something which is illegal and unconstitutional. Therefore, no mandamus can be issue to the respondents as prayed for. The writ petition is, therefore, dismissed. No order as to costs."
37. In respect to the employees of Election Commission who had also worked in similar manner for certain period from time to time whenever the election work was undertaken, the matter came to be considered by a Division Bench in State of U.P. and others Vs. Sanjay Kumar Pandey and others, 2004(4) ESC 2470=2005 ALJ 1006. The Division Bench consisting of Hon'ble M. Katju (as His Lordship then was) and Hon'ble Umeshwar Pandey, J.J. held that no regularisation or absorption contrary to rules can be claimed. It followed an earlier Division Bench decision in State of U.P. Vs. Rajendra Prasad, 2004(54) ALR 85.
38. The two more decisions cited by learned counsel for the petitioners i.e. Smt. Sushila Chaurasiya & Anr. Vs. High Court of Judicature and others, Writ Petition No.77 of 2000, decided on 30.03.2000 and Devi Charan Saraswat Vs. State of U.P. and others, Writ Petition No.17064 of 1994 decided on 06.01.2003 have no application at all.
39. The case of Smt. Sushila Chaurasia (supra) was decided on 30.03.2000 by Hon'ble M.A. Khan, J. as under:
"Heard parties counsel and I have gone through the record.
The petitioners are retrenched employees of Census Department and by a Govt. Order the retrenched employees are to be accommodated and considered for appointment in some other department of Uttar Pradesh. The fact that the petitioner is a retrenched employee has not bee denied and rather it is established from the certificate attached to the rejoinder affidavit.
In this view of the matter, it is directed that the petitioners, retrenched employees of Census Department, shall be accommodated in service on priority basis in some Govt. Department. The Chief Secretary of U.P. Govt. will ensure that the petitioners are absorbed in the Govt. Service in some department within a period preferably six months. In view of the above discussions, the District Magistrate, Allahabad may also accommodate the petitioners in some existing vacancies under his Control within three months.
With this observation, the writ petition stands disposed of finally."
40. Neither any statutory provision has been referred to in the aforesaid judgment nor it shows that the Court considered whether for absorption of retrenched employees of the Government there is any provision entitling them for accommodation/ absorption in Government service and instead without any discussion, straightway a mandamus was issued to the Government for absorption of two petitioners, namely, Smt. Sushila Chaurasia and Indra Sharma in Government service. This decision, therefore, does not lay down any binding precedent.
41. In Devi Charan Saraswat (supra) again nothing has been discussed but the Court proceeds to observe that learned Standing Counsel has not disputed that petitioner is a "retrenched employee" of Census department and thereafter the Court has followed the direction in Smt. Sushila Chaurasia (supra). The judgment in Devi Charan Saraswat (supra) reads as under:
"Heard learned counsel for the petitioner and learned Standing Counsel.
The petitioner is a retrenched employee of the Census Department. The Government has issued order for absorption of the retrenched employee on some suitable post in the department of Uttar Pradesh. The petitioner has, therefore, come up with the prayer for direction upon the Respondents to accommodate the petitioner in some department of Government of Uttar Pradesh.
Learned Standing Counsel has not disputed that the petitioner is a retrenched employee of Census Department. The similar controversy came before this Court in writ petition no. 77 of 2000 Sheela Chaurasia and others Vs. High Court of Judicature at Allahabad and others. The Court disposed of the writ petition finally by order dated 30.03.2000. the copy of the judgment is placed on record. This writ petition is, accordingly, disposed of on the same terms and conditions and it is directed that the petitioner, who is a retrenched employee, shall be accommodated in service on priority basis in some Government Department. The Secretary of Uttar Pradesh Government will ensure that the petitioner is absorbed in the Government service in some department preferably within a period six months. The District Magistrate, Mathura is also required to look into the matter and accommodate the petitioner on some post in the district. The aforesaid exercise shall be completed within the aforesaid period from the date of production of a certified copy of this order.
No order as to costs."
42. The discussion made above clearly shows that the two judgments does not lay down any binding precedent deciding any issue and therefore would not help the petitioners in any manner.
43. In the overall facts and circumstances of the case I find no merit in this writ petition.
44. The writ petition lacks merit and is accordingly dismissed.
Order Date :- 5.1.2012 KA