Allahabad High Court
State Of U.P. & Others vs Raj Kumar Srivastava & Others on 5 October, 2017
Bench: Arun Tandon, Sunita Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Reserved on:15.09.2017
Delivered on: 05.10.2017
Case :- SPECIAL APPEAL No. - 767 of 2004
Appellant :- State Of U.P. & Others
Respondent :- Raj Kumar Srivastava & Others
Counsel for Appellant :- C.S.C.
Counsel for Respondent :- A.K. Upadhyay,A.K. Dubey,Amit Kumar Singh,Anil Kumar Prajapati,Arvind Kumar Shukla,B.S. Pandey,Chandra Prakash Pal,J.K. Srivastava,Vinod Sinha
Alongwith
SPLA- 768/2004, SPLA- 769/2004, SPLA- 770/2004, SPLA- 771/2004, SPLA- 772/2004, SPLA- 783/2004, SPLA- 787/2004, SPLA- 788/2004, SPLA- 789/2004, SPLA- 793/2004, SPLA- 794/2004, SPLA- 795/2004, SPLA- 796/2004, SPLA- 799/2004, SPLA- 800/2004, SPLA- 803/2004, SPLA- 804/2004, SPLA- 805/2004, SPLA- 806/2004, SPLA- 809/2004, SPLA- 812/2004, SPLA- 1096/2004, SPLA- 1106/2004, SPLA- 503/2004, SPLA- 90/1999, SPLA- 119/1999, SPLA- 140/1999, SPLA- 385/2005, SPLA- 379/2005, SPLA- 381/2005, SPLA- 383/2005, SPLA- 384/2005, SPLA- 386/2005, SPLA- 389/2005, SPLA- 391/2005, SPLA- 392/2005, SPLA- 393/2005, SPLA- 394/2005, SPLA- 395/2005, SPLA- 396/2005, SPLA- 397/2005, SPLA- 1531/2006, SPLA- 1360/2008, SPLA- 1051/2009, SPLA-1081/2002, SPLA- 1301/2002, SPLA- 331/1998, SPLA- 151/1999, SPLA- 1286/1999, SPLA- 1289/1999, SPLA- 76/1999, SPLA- 96/1999, SPLA- 147/1999, SPLA- 1110/2004, SPLA- 807/2004, SPLA- 328/2005, SPLA- 390/2005, SPLA- 2055/2011, SPLA- 2056/2011, SPLA- 126/1999, SPLA- 152/1999, SPLA- 127/1999, SPLA- 150/1999, SPLA- 573/2012, SPLA- 1188/2001, SPLA- 883/2012, WRIA- 40436/1998, SPLA- 1525/2012, SPLA- 1526/2012, SPLA- 1527/2012, SPLA- 1528/2012, SPLA- 1529/2012, SPLA- 1530/2012, SPLA- 1531/2012, SPLA- 1532/2012, SPLA- 1533/2012, SPLA- 1534/2012, SPLA- 1535/2012, SPLAD-49/1999, SPLA- 1799/2013, SPLAD-123/1999, SPLAD-124/1999, SPLAD-127/1999, SPLAD-140/1999, SPLAD-144/1999, SPLAD-146/1999, SPLAD-150/1999, SPLAD-156/1999, SPLAD-182/1999, SPLAD-263/1999, SPLAD-264/1999, SPLAD- 45/1999, SPLAD-978/2012, SPLA- 405/2013, SPLA- 1102/2004, SPLA- 1032/2005, SPLA- 108/2004, SPLAD-945/2004, SPLA- 74/2016
Hon'ble Arun Tandon,J.
Hon'ble Mrs. Sunita Agarwal,J.
Delivered by Mrs. Sunita Agarwal, J.
This bunch of nearly 100 special appeals and writ petitions raises common questions of fact and law with regard to the right of regularization of persons, who were appointed as daily wage Registration Clerks in the Registration department of the State of U.P. The appointment of Registration Clerks is regulated under the U.P. Registration Manual, (Para 94-A and Para 95) (herein after referred to as the 'Registration Manual').
Introduction:-
The litigation which commenced in the year 1991 spilled over two and a half decades and after several rounds of litigation came up before us in this bunch, categorized as 'Registration Clerks Bunch'. The daily wage Registration Clerks who were appointed some time in the year 1983-84 for a period of three months in a financial year with the sanction of the Governor, for the purpose of disposal of arrears of copying work in the registration offices in the State of U.P., continued to work under the orders/directions of this Court.
First round of litigation commenced in the year 1991 on advertisement being made for regular appointment on the post of Registration Clerks in the district level Registration offices under the Stamp and Registration Department, State of U.P., and culminated with the pronouncement of the Apex Court in the case of Khagesh Kumar and others Vs. Inspector General of Registration and others reported in 1995 SCC Supl. (4) 182, decided on 27.09.1995. The matters before us are off-shoots of the aforesaid judgement.
This bunch of appeals and the writ petitions can be classified in three broad groups:-
(a) intra Court appeals filed by daily wage Registration Clerks, whose claim for regularization had been rejected by the Inspector General of Registration State of U.P. by reasoned orders and the writ petitions filed against the same were dismissed by the learned Single Judge vide judgement and order dated November 27, 1998 ( in total 120 writ petitions) and special appeals against similar orders of the Writ Courts, whereby the decision of the State authorities to the effect that the writ petitioners were not entitled for regularization has been upheld;
(b) intra court appeals filed by the State of U.P. and the Inspector General of Registration against the judgement and order of the learned Single Judge dated May 11, 2004 ( in total 79 writ petitions), whereby directions have been issued for regularization of daily wage Registration Clerks and the special appeals against the orders of the like nature passed by other Writ Courts;
(c) writ petition filed by certain daily wager Registration Clerks contending therein that their claim for regularization has not been considered in accordance with the directions issued by the Apex Court in the case of Khagesh Kumar (supra).
We have heard learned counsels for the parties.
History of Litigation:-
Before adverting to the case set up by the parties, it would be worthwhile to narrate the history of litigation leading to the present controversy, in short:-
The persons appointed as daily wage Registration Clerks in the registration department of the State of U.P. filed writ petitions claiming regularization. They also prayed for quashing of the advertisement calling for applications for regular appointment on the post of registration clerk with the prayer to allot them the work of registration clerk daily and not to interfere in their working. Some of the writ petitions were disposed of by the Single Judge benches with the direction to the Inspector General of Registration to consider the claim of the petitioners therein under the relevant rules for regularization. In some matters, interim orders were granted, on the strength of which,the petitioners continued to work in the registration departments at District level.
Special Appeals filed against the orders of the Single Judge referred to above alongwith the pending writ petitions before the Court at Allahabad and Lucknow bench were heard together in a bunch and were decided by the Division Bench of this Court on February 8, 1995, the leading case being Husnain Ahmad etc. etc. Vs. State of U.P. & others reported in 1995 (1) UPLBEC 507.
The Division Bench rejected the claim of the daily wage Registration Clerks for regularization on the ground that they were not employed as Adhoc Registration Clerks. They were appointed on daily wage only for few weeks or months, their claim of regularization was not covered by any rule or law, inforce. Another ground of rejection of their claim was that in view of the amendments made in the Registration Act, 1908, there was no further need to engage Registration Clerks for copying of the documents by hand as photo copies of the documents were to be supplied to the persons applying for.
So far as challenge to the advertisement was concerned, the Division Bench observed that since the State had come up with the case that there was no need of regular registration clerks in the department and that it did not propose to proceed with the said advertisement any further, there was no need to enter into the controversy.
The judgement and order dated 08.02.1995 of the Division Bench in the leading case of Hussain Ahmad (supra) was challenged before the Apex Court by means of Special Leave Petitions which were decided on September 27, 1995 in the reported case of Khagesh Kumar (supra) as noted above.
In the above referred case, considering the claim of the daily wage Registration Clerks, the Apex Court framed primarily two questions;- (I) Whether the appointment of the petitioners to the post of Registration clerk was in the nature of regular appointment under the relevant rules governing appointment on the said post; (ii) Whether the petitioners were entitled to regularization on the vacant posts of registration clerk in the Registration department.
With reference to the first question, the Apex Court held that the appointment of the petitioners as registration clerk on daily wage basis could not be regarded as appointment made under Paragraph no.94-A to 97 of the Registration Manual as the said appointment was not made on the post available in the sanctioned permanent or temporary strength of the establishment. Rather the appointment of daily wage Registration Clerks was made on the basis of sanction given by the Governor each year with the express condition that no such appointment shall exceed three months during the course of a financial year.
On the question of regularization, the provision in vogue in the State of U.P. with regard to regularization namely Uttar Pradesh Regularisation of ad hoc Appointments ((On Posts Outside the Purview of the Public Service Commission) Rules, 1979, (herein after referred as Rules' 1979) as amended vide notification dated August 7, 1989, was considered.
In paragraph no.17 of the aforesaid judgement, the Apex Court directed as under;-
"The petitioners can claim regularisation only if they satisfy the requirements of the said provisions. They should have been directly appointed on adhoc basis before October 1, 1986, they should have possessed the requisite qualifications prescribed for regular appointment at the time of such adhoc appointment and they should have completed three years continuous service. It has been urged on behalf of the petitioners that some of the petitioners had been working as Registration Clerks on daily wage basis since much before October 1, 1986 and they would be entitled to be considered for regularisation under the Regularisation Rules. These provisions are applicable only to an appointment made on adhoc basis. Though the High Court has held that the appointment of the petitioners on daily wage basis was not an adhoc appointment, we are not inclined to take that view and we will proceed on the basis that the appointment of the petitioners was such an appointment. The question which survives is whether any of the petitioners who had been appointed as Registration Clerk on daily wage basis prior to October 1, 1986 can be regarded as having completed three years continuous service. Since the order of the Governor sanctioning appointment on the posts of Registration Clerks on daily wage basis imposes a limitation that such appointment shall in no case exceed three months during the course of a financial year, there are long breaks between the various periods during which the petitioners were employed as Registration Clerks on daily wage basis. In Bhagwati Prasad v. Delhi State Mineral Development Corporation, 1990 (1) SCC 361, this Court has laid down that for the purpose of counting three years' continuous service for the purpose of regularisation artificial break in service for short period/periods created by the employer could be ignored but "if there is a gap of more than three months between the period of termination and re-appointment that period may be excluded in the computation of the three years period". (at p. 364). In view of the said decision for computing three year period of continuous service for the purpose of Rule 4(1)(iii) of the Regularisation Rules, the period of break in service which was longer than three months has to be excluded and only the period during which the petitioners actually worked can be counted. In case any of the petitioners was employed as a Registration Clerk on daily wage basis prior to October 1, 1986 and, after excluding periods of breaks in service which are longer than three months, he has put in three years service, he would be entitled to seek regularisation under Rule 4(1) of the Regularisation Rules provided he fulfils the requirement of clause (ii) of the said rule. He can move the appropriate authority for such regularisation and the said authority will pass appropriate orders after verifying the correctness of the claim of such a petitioner. The petitioners who do not fulfil the said condition of three years service contained in Rule 4(1)(ii) cannot claim regularisation on the basis of the Regularisation Rules."
It was further clarified in paragraph no.19 of the judgement in Khagesh Kumar (supra) by the Apex Court that the requirement of the Rules' 1979, of completion of three year continuous service, for regularization could not be said to be unreasonable. Thus, It was held that;-
"Regularisation in service in the State of U.P. is governed by the Regularisation Rules which prescribes a period of three years continuous service. We cannot say that the said period of three years prescribed under the Regularisation Rules is unreasonable. In these circumstances, it must be held that unless the petitioners fulfil the requirement of the Re Regularisation Rules, they cannot be regularised."
For those Registration Clerks, who did not fall within the zone of regularization, the Apex Court had granted one opportunity for consideration for appointment on regular basis by providing that in the event of direct recruitment for regular appointment being made, the petitioners or other similarly situated daily wage clerks be given (i) relaxation in the age requirement prescribed under the statutory Rules; (ii) weightage for their work experience as daily wage Registration Clerks. A direction was simultaneously issued to frame suitable guidelines/modalities for the purpose, to the State Selection Commission.
The ultimate directions issued by the Apex Court in paragraph no.24 in Khagesh Kumar (supra) are;-
"For the reasons aforementioned, the impugned judgment of the High Court is upheld with the following directions :-
(1) The petitioners or other similarly placed persons who were employed as Registration Clerks on daily wage basis prior to October 1, 1986 shall be considered for regularisation under the provisions of rule 4 of the Regularisation Rules provided they fulfil the reguirements of rule 4(1)(ii) and they have completed three years continuous service. The said period of three years service shall be computed by taking into account the actual period during which the employee had worked as Registration Clerk on daily wage basis. The period during which such an employee has performed the duties of Registration Clerk under paragraph 101 of the Manual shall be counted as part of service for the purpose of such regularisation.
(2) In the event of appointment on regualr basis on the post of Registration Clerks, the petitioners or other similarly placed persons who had worked as Registration Clerks on daily wage basis may be given one opportunity of being considered for such appointment and they be given relaxation in the matter of age requirement prescribed for such appointment under the Rules.
(3) The Subordinate Services Selection Commission while making selection for regular appointment to the posts of Registration Clerks shall give weightage for their experience to the Registration Clerks who have worked on daily wage basis and shall frame suitable guidelines for that purpose.
(4) If any of the petitioners or other similarly placed person was required to perform the duties of Registration Clerk as an Apprentice under paragraph 101 of the Manual, he may submit a representation to the appropriate authority setting out the full particulars of such employment within three months and the concerned authority, after verifying the correctness of the said claim, shall pass the necessary order for payment of emoluments on daily wage basis for the period he is found to have so worked on the post of Registration Clerk. The said payment shall be made within a period of three months from the date of submission of the representation."
In the wake of the aforesaid pronouncement of the Apex Court, several writ petitions were filed before the High Court at Allahabad and Lucknow bench by such persons whose services were terminated or who were denied work on daily wage basis. The Writ Courts disposed of such petitions with the direction either to continue the petitioners therein till regular selection was made or to give them appointment on daily wage basis till regular selection, depending upon their prayers in the writ petitions and further directed to pay them the salary attached to the post.
Such orders were challenged before the Apex Court in Civil Appeal No. 7500 of 1996 connected with other appeals decided on April 12, 1996 Inspector General of Registration, U.P. & another Vs. Awdesh Kumar & others reported in (1996) 3 UPLBEC 1744 (SC). Allowing the appeals of the Department, it was observed by the Apex Court that the issue had been set at rest in the case of Khagesh Kumar (supra) and the directions given therein were to be followed.
Relevant paragraph nos.4, 5 & 6 of I.G. Registration Vs. Awdesh Kumar (supra) are quoted as under;-.
"4.Various orders have been passed by the High Court directing the State either to continue the respondents till the regular selections are made or to give them appointment till the regular selections are made and to pay them the salary attached to those posts. The respondents came to be appointed on daily wage basis in the Registration Department of the Office of the Sub-Registrars in the State of Uttar Pradesh. The controversy raised in these cases is no longer res integra. In Khagesh Kumar & Ors. vs. Inspector General of Regitration [1995 Supp.(4) SCC 182], a Bench of two Judges of this Court had gone into the controversy and given directions in paragraph 24 thus:...................
5. In some of these cases also, the respondents came to be appointed subsequent to October 1, 1986 and they are seeking the same directions. All the persons who were appointed either prior to or subsequent to that date would continue on ad hoc basis till regular selections were made in the light of the directions given by this Court and the same directions would operate for payment of daily wages as envisaged in the directions pending regular selections.
6.It is represented that some of the candidates have become over aged. If any of the candidates, who are now working on daily wages or who had worked on daily wages, would be barred by age by the date of selection, the Selection Committee would suitably relax the age and then consider their cases along with all eligible candidates and in case the candidate came to be selected on merit according to the rules in the light of the directions, he/they would be appointed."
On August, 10, 1998, an advertisement was published for regular selection of the Registration Clerks. Before the process of regular selection could commence, U.P. Regularization of Daily Wages Appointment on Group "C" Posts (Outside the Purview of the Uttar Pradesh Public Service Commission) Rules, 1998, came into force w.e.f. on July, 9, 1998, (herein after referred to as the Rules'1998).
The advertisement and examinations held for direct recruitment were challenged in several writ petitions before the High Court wherein interim orders of various nature were passed. As such, the result of the entrance examination could not be declared. The advertisement was later on cancelled vide notification dated 16.09.2010 issued from the Office of the Inspector General of Registration, U.P, Allahabad.
The Rules, 1998 provided for regularization of such persons who were directly appointed on daily wage basis on 'Group-C' posts in government service before June 29,1991 and were continuing as such on the date of commencement of the Rules i.e. 09.07.1998 on fulfillment of the prescribed conditions. The requirements of Rule 4 (1) of Rules 1998' are;-
(I) the incumbent was directly appointed before June 29, 1991 on daily wage basis and was continuing in service as such on the date of commencement of the rules;
(ii) He was possessed of requisite qualifications prescribed for regular appointment for the post at the time of such appointment under the relevant service rules;
(iii) the consideration for regular appointment would be made on group-'C' post against permanent or temporary vacancy, available on the date of commencement of the rules, subject to eligibility and suitability, before any regular appointment is made against the vacancy in accordance with the relevant service rules.
The procedure for regularization as provided in the Rule 4 (2) to (6) of Rules' 1998 is as under;
"4. (2) In making regular appointment under these rules, reservation for the candiates belonging to the Scheduled Castes. Scheduled Tribes, other Backward Classes and other categories shall be made in accordance with the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 and the Uttar Pradesh Public Services (Reservation for Physically Handicapped, Dependent of Freedom Fighters and Ex-Servicemen) Act, 1993, as amended from time to time and orders of the Government in force at the time to regularization under these rules (3) For the purpose of sub-rule (1) the appointing authority shall constitute a Selection Committee in accordance with the relevant provisions of Services Rules.
(4) The appointing authority shall having regard to the provisions of sub-rule (1) prepare an eligibility list of the candidates arranged in order of seniority as determined from the date of order of appointment and if two or more persons are 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 alongwith their character rolls and such other records pertaining to them as may be considered necessary to assess their suitability.
(5) The Selection Committee shall consider the case of the candidates on the basis of their records referred to in sub-rule (4) and if it considers necessary it shall interview the candidates also to assess their suitability.
(6) The selection Committee shall prepare a list of selected candidates arranging their names in order of seniority and forward the same to the appointing authority."
Rule 8 of the Rules' 1998 provides for the consequence of rejection of claim for regularization:-
"8. Termination of Services- The services of a person appointed on daily wage basis who is not found suitable after consideration under these rules shall be terminated forthwith and on such termination he shall be entitled to receive one month's pay."
By a notification dated December, 20, 2001, the Regularization Rules' 1979 relating to Adhoc employees in the State Department were amended and Third Amendment Rules known as The Uttar Pradesh Regularisation of Ad hoc Appointments (On Post Outside the Purview of the Public Service Commission) (Third Amendment) Rules, 2001 (herein after referred as Rules, 2001) came into force. Amended Rule 4 of Rules' 2001 relevant for our purpose reads as under;-.
"Amendment of Rule 4- In the Uttar Pradesh Regularisation of ad hoc Appointments ((On Posts Outside the Purview of the Public Service Commission) Rules, 1979 in Rule 4 for existing sub- rule (1) the following sub-rule be substituted, namely-
(2) Any person who-
(i) was directly appointed on ad hoc basis on or before June 30, 1998 and is continuing in service as such on the date of commencement of the Uttar Pradesh Regularisation of Ad hoc Appointments (On Posts Outside the Purview of the Public Service Commission) (Third Amendment) Rules, 2001;
(ii) possessed requisite qualifications prescribed for regular appointment as the time of such ad hoc appointment; and
(iii) has completed or, as the case may be, after he has completed three years service shall be considered for regular appointment 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 rules or orders."
Thus, by amendment only the cut off date under Rule 4(i) of the Rules' 1979, of the Ad-hoc appointment was amended/extended upto June 30, 1998.
It emerges from the record that some of the claimants whose claims for regularization after the pronouncement of Khagesh Kumar (supra) had been considered and rejected, approached the Writ Courts. A learned Single Judge in a bunch of 120 writ petitions decided on 27.11.1998, leading being Writ petition no.4262 of 1997 (Sri A.K. Misra Vs. The Secretary of Institutional Finance U.P. Shashan Lucknow) had rejected the claims of the petitioners, daily wage Registration Clerks therein and held as under;-
"3. the learned counsel, appearing for the petitioners canvassed that the order passed by the Inspector General, Registration proceed upon misconstruction of the directions given by the Apex Court in Khagesh Kumar (supra). The learned counsel urged that the observations "period of break in service which was longer than three months has to be excluded' made by the Supreme Court in Khagesh Kumar (supra) is intended to mean that even if the break in service was more than three months it will not result in discontinuity in service for such break in service is to be ignored for the purposes of computing three years period of service. I am afraid, the submissions made by the learned counsel has no substance. In my opinion what is meant by the observations "period of break of service which was longer than three months, has to be excluded" made by Supreme Court in Khagesh Kumar (supra) is that any break in service for a period less than three months at a time between termination and re-employment will not result in discontinuity in service but break in service for a period longer than three months will result in discontinuity and appointment after break in service for a period longer than three months would be treated to be a fresh appointment and the appointee would not be entitled to get benefit of previous service rendered by him for the purpose of computing three years period of continuous service referred to in rule 4(1) (iii) of the Rules. In my opinion, therefore, it cannot be countenanced that the I.G. Registration has misconstrued and misapplied the law laid down by the Supreme Court in Khagesh Kumar (supra) and I am of the considered view that on the findings of fact recorded by the I.G. Registration in the orders impugned in respect of the total period of service rendered by the petitioners, case for regularization under rule 4(1)(iii) of the Rules is not made out. 4. The learned counsel for the petitioners then submitted that the petitioners are entitled to be regularized in view of the latest notification dated July 9, 1998 issued by the Governor making Rules known as the Uttar Pradesh Regularization of Daily wage appointments on Gropu 'C' posts (outside the purview of Uttar Pradesh Public Service Commission) Rule 1998 in exercise of power under Article 309 of the Constitution....................... 5. It is evident from the provisions aforestated that in order to get benefit of the regularization Rules, a daily rated employee must have been directly appointed on Group 'C' 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 must also possess the requisite qualification prescribed for regular appointment for the post at the time of such appointment under the relevant Service Rules on daily wage basis. Rules were notified on July 9, 1998 i.e. during the pendency of the writ petition. The petitioners were no-doubt appointed before June 29, 1991, and in view of the findings of fact recorded by I.G. Registration, it is evident that the petitioner Bhupendra Singh Bhadauria worked from May 1991 to 16.04.94 and Maya Shanker Vishvakarma from May 1991 to 6.12.94 on the basis of interim orders passed by the Court, but prima facie, nothing has been brought on record showing that the petitioners were continuing in service as daily rated Registration clerk on the date of commencement of the Regularization Rules 1998 i.e. July 9, 1998. However, since rules aforestated were made during the pendency of the writ petition, I consider it appropriate to leave it open to the petitioners to stake their claims for regularization, if so advised, on the basis of the Uttar Pradesh Regularziation of Daily wages appointment on Group 'C' posts (outside the purview of the Uttar Pradesh public Service Commission) Rules, 1998. In case, any claim is made, the I.G. Registration shall take appropriate decision in the matter in accordance with law......................... 6. Learned Counsel appearing for the petitioners failed to make out a case for continuance on daily wage basis till regular selections are made in asmuch as it could not be established that the petitioners were, in fact, working as on 12.41996. 7. In the result, the petition fails and is dismissed subject of course, to the observation aforestated."
Special appeals challenging the aforesaid judgement and order dated 27.11.1998 are tagged with this bunch of matters. (covered by the Ist group) Another set of 79 writ petitions pending before this Court, preferred by similarly placed daily wagers whose services had been terminated, came up for consideration before another learned Single Judge in the year 2004. This bunch of Writ petitions leading being Writ petition no.27230 of 2003 (Ramveer Singh Vs. State of U.P. & others) was decided on May 11, 2004. The learned Single Judge has held that the department had not complied with the orders of High Court in various writ petitions which were disposed of with the direction to enforce the judgement of the Apex Court in Khagesh Kumar (supra). As such directions were issued to the department to comply with the judgement of Khagesh Kumar (supra), in its letter and spirit. The Court, amongst other, issued the following directions;-
"23. The petitioners are further directed to give training in computer to daily wage Registration Clerks so that they can work in the registration department. It may not be forgotten that in similar circumstances, the banks and other such offices have provided training to their staffs and officers to make them computer compatible. It it is not possible for the department to give them training, the petitioners shall be adjusted in the vacancies of Clerks already existing and in future vacancies till all the persons working vacancies till all the persons working in the registration department on daily wagers as Registration Clerks, etc. are absorbed in the following manner.
(I) A seniority list will be prepared by the department according to the date of initial appointment of the daily wage employee working on the post of Junior Clerk/Registration Clerk.
(ii) All these employees who have worked for three years according to the norms laid down by the Hon'ble Supreme Court shall be appointed according to their seniority against existing vacancies.
(iii) After filling up the existing vacancies these employees shall be given appointment on temporary vacancies.
(iv) Rest of the Junior Clerks/Registration Clerks working on daily wages will be given appointment for at least three months in every necessary sanction shall be taken from competent authorities.
(v) Vacancies accruing every year shall be first filled up from Junior Clerks/Registration Clerks who have been given temporary appointments as per direction No. II given above.
(vi) The temporary vacancies shall again be filled from the Junior Clerks/Registration Clerks according to the seniority list prepared as per directions No.1."
The State of U.P. And the Inspector General of Registration are in appeal before us in such matters. (covered by the 2nd group) In the 3rd group, there is one writ petition filed by four persons praying for a writ of mandamus commanding the respondents to permit them to work. An interim mandamus dated 13.01.1999 had been issued therein to the effect that in case, the petitioners had been continuously working since 12.01.1988 till 27.11.1988, on daily wage, they shall be allowed to continue till 30.04.1999 or till the decision in Special Appeal no.3 of 1999. From the record it transpires that Special Appeal no.3 of 1999 had been dismissed as infructuous on 09.09.2011.
Intervening facts:-
It is noteworthy at this stage, that in all the special appeals and writ petitions, the State/I.G. Registration had taken a consistent stand that none of the incumbents who were working as daily wage Registration Clerks in the Registration department were found covered under the Regularization Rules, 1979, in the exercise for regularization undertaken in compliance of the directions of Apex Court in Khagesh Kumar (supra). The services of all daily wagers were, therefore, terminated. Further that there was no requirement of Registration Clerks in the department as the copying work by hand was discontinued and therefore the process of direct recruitment initiated earlier was dropped.
The daily wage Registration Clerks, before us, however, during the course of hearing brought on record that the exercise for regularization was undertaken by the State Government. Several daily wage Registration Clerks had been regularized in the year 2011 and since thereafter. They are working in the department as such. The daily wagers before us claimed consideration on the same principle, the contention being that their valid claims were denied whereas even those who were not in service for years together had been regularized in the year 2011 and thereafter.
In view of the apparent conflict, we asked the State Government to clarify their stand. In the affidavits filed on behalf of the State Government and I.G. Registration, it is disclosed that out of 191 daily wagers who are party in this bunch, 42 persons have already been regularized. In total, 392 daily wagers have been regularized in the year 2011 and are working in the department. It is stated that a proposal was submitted before the Council of Ministers of State for regularization of daily wage Registration Clerks in the Stamp and Registration Department who were working under the interim orders passed by this Court in various writ petitions and special appeals.
On the said proposal, a decision was taken by the Council of Ministers of State to regularize the services of all such daily wage clerks who were working in the department of the State Government and Local Bodies since prior to 29.06.1991, under the interim order of the High Court, by creating required number of supernumerary posts. Accordingly, a notification dated 08.09.2010 was issued by the Special Secretary Finance, Government of U.P. Another Government order dated 4.10.2010 was issued permitting creation of supernumerary posts for the purpose of regularization of daily wage employees.
In continuation of the same, another Government order dated 13.12.2010 was issued specially with regard to the Stamp and Registration Department. It was directed that the daily wage employees working in the said department at that time, under the interim orders passed by the High Court would be treated to be "in continuous service" since prior to 29.06.1991 and be regularized. Such regularization would be made against the vacant 325 posts as also the supernumerary posts to be created under the Government order dated 04.10.2010, of the Registration Clerks in the Stamp and Registration Department. It was further directed that the exercise of regularization would be undertaken in accordance with the provisions of Regularization Rules, 1998 read with the Government order dated 08.09.2010 issued by the Finance Department.
A corrigendum was issued on 23.12.2010 to modify the Government order dated 13.12.2010 to the extent that in paragraph no. '2' thereof, after the words '29.6.1991 से पूर्व" be read as "29.6.1991 के पूर्व से" in order to bring it in line with the direction in paragraph 4 of the said Government order.
It appears that some clarification was sought with regard to the Government order dated 13.12.2010 by the Inspector General Registration, which was provided vide Government order dated February 8, 2011. Point wise directions issued therein are extracted here under:-
(1). The regular selection process undertaken by the registration department had been cancelled by the then Inspector General registration and the said factual position be brought to the notice of the Court in the pending petitions.
(2). No clarification was required so for as the direction issued under paragraph no.2 of the Government order dated 13.12.2010 to regularize daily wage clerks working since prior to 29.06.1991. However, only those daily wage clerks who were appointed prior to 29.06.1991 and were working under the interim order passed by High Court on the date of consideration would be considered for the purpose of regularization.
Pursuant thereto, three members Committee was constituted by the Inspector General of Registration, U.P., vide Office Order dated 16.12.2010 and 392 daily wage Registration Clerks were regularized, on the recommendation dated 25.02.2011 of the said Committee, vide separate orders issued by the Department. The Writ petitions and the Special appeals in such matters have been withdrawn from time to time as having rendered infructuous.
According to the list provided by the Stamp and Registration Department along with the affidavit dated 05.10.2016, 392 regularized Registration Clerks are working in various offices of the Registration Department in the State of U.P., as on date.
It was contended on behalf of the daily wagers before us that the entire exercise of regularization was dehors the rules and they had been discriminated as those who got interim orders have been regularized while those who were not fortunate to get a favourable order but were similarly situated have been left out.
The daily wagers (42 in number) (party in this bunch) as well as other daily wage registration clerks who had already been regularized, as per the disclosure made by the Principal Secretary, Stamp and Registration, Government of U.P., Lucknow in his affidavit dated 15.12.2016, were not represented before us.
We, therefore, required the I.G. Registration to serve a notice upon all such Registration Clerks whose services had since been regularized so that they may put in appearance and have an opportunity to respond to challenge to their regularization as well as to plead its legality. Pursuant to the said notice, some of the regularized Registration Clerks have appeared through their counsels and have filed intervenor/impleadment applications to justify their regularization.
Having taken note of the fact that the exercise of regularization was undertaken post State of Karnataka Vs. Uma Devi (3) reported in 2006 (4) SCC 1 [in short "Uma Devi (3) regime"], we also issued directions to the Principal Secretary, Institution and Finance, Government of U.P. Lucknow to examine the original record and to inform the Court as to whether the regularization of 392 daily wage Registration Clerks working in the registration department was in conformity with law and further to cancel the illegal order of regularization, if any.
Pursuant thereto, affidavits were filed by Sri N.K.S. Chauhan, Special Secretary, Stamp and Registration and Sri Anil Kumar, Principal Secretary, Institution and Finance, Government of U.P., Lucknow. In both the affidavits, stand taken by these officers is that, in fact, no-one was regularized in pursuance to the directions of the Apex Court in the case of Khagesh Kumar (supra) as they were not covered by the said directions. The regularization of 392 Registration Clerks working in the department had been done in accordance with the decision of the Government vide Government orders dated 08.09.2010, 13.12.2010 and 08.02.2011 and the corrigendum dated 23.12.2010, in relation to the Stamp and Registration department. It is further stated that the said Government orders do not amend or supersede the Regularization Rules, 1998 rather were issued to resolve the situation. There was enormous pressure of pending litigations relating to regularization of daily wagers of the department. Since these daily wagers were getting payment from the department under the interim orders of the High Court and there was no chance of regular selection immediately, it was thought proper in public interest to regularize their services so that the work of the department may not suffer and the public atlarge may not suffer due to lack of man power. This apart, these daily wagers had acquired experience of working and developed efficiency and possessed requisite qualification for the post. According to the respondents, there was no irregularity in the matter of regularization of these daily wagers and as such no-one had been held responsible for any alleged illegality in the process.
It is stated that out of 392 daily wagers, 357 were those who were appointed in the department prior to 29.06.1991 and were working as such on the date of commencement of Regularization Rules, 1998 i.e. on 09.07.1998 under the interim orders passed by this Court. They were, therefore, treated to be in continuous service of the department pursuant to the Government order dated 08.09.2010 and were regularized. The remaining 35 incumbents were those who were appointed and worked in the department prior to 29.06.1991 but were not in service on the date of commencement of the Regularization Rules, 1998 i.e. on 09.07.1998. These employees were engaged again after 09.07.1998 pursuant to the interim orders passed by this Court in their writ petitions. Their services were also regularized treating them in continuous service since 29.06.1991 as per the Government order dated 08.09.2010.
Regularization, a Legal perspective:-
The legal position in the matter of regularization after 10.04.2006 [the date of decision of the Constitution bench of the Apex Court in Uma Devi (3) (supra)] is fairly well settled. Time and again, in the matter of public appointment, the courts have held that the most important requirement in such appointments is that of fairness and transparency. Every appointment on a public post has to be made strictly in accordance with Article 14 and 16 of the Constitution of India and the service rules which hold the field of recruitment and selection. Regularization is not a mode of recruitment. It can at best be a one time exercise in confirmity with the principles laid down in the case of Uma Devi (supra)(3) by framing rules/scheme by the concerned department/Government in order to regularize irregular appointment. Any appointment which is illegal cannot be regularize so as to perpetuate or legalize any illegality.
The Principles laid down in Uma Devi (3) (supra) in paragraph no.53 are;
"One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. NARAYANAPPA (supra), R.N. NANJUNDAPPA (supra), and B.N. NAGARAJAN (supra), and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme."
In State of Karnataka Vs. M.L. Keshari, 2010 (9) SCC 247, the principles of regularization enunciated in Uma Devi (supra) have been elucidated, paragraph nos.7 and 11 of the said pronouncement are relevant to be reproduced hereunder:-
"7. It is evident from the above that there is an exception to the general principles against `regularization' enunciated in Umadevi, if the following conditions are fulfilled :
(i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years.
(ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular."
"11. The object behind the said direction in para 53 of Umadevi is two- fold. First is to ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of courts or tribunals, before the date of decision in Umadevi was rendered, are considered for regularization in view of their long service. Second is to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on daily-wage/ad-hoc/casual for long periods and then periodically regularize them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. The true effect of the direction is that all persons who have worked for more than ten years as on 10.4.2006 (the date of decision in Umadevi) without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularization. The fact that the employer has not undertaken such exercise of regularization within six months of the decision in Umadevi or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularization in terms of the above directions in Umadevi as a one-time measure."
The position in law has been reaffirmed in a recent judgement of the Apex Court in State of Jammu & Kashmir & others Vs. District Bar Association, Bandipora reported in 2017 (3) SCC 410. The Apex Court has observed that Uma Devi (3) (supra) cleared the cloud in respect of an irregular and illegal appointment. Any appointment which is illegal as per the test laid down in Uma Devi (supra) (3) cannot be regularized. It was further held that the scheme of regularization should be such as would require an exercise in the exigencies of the situation, with the view to bring those employees whose employment were irregular within the protective umbrella of regular service but without the intervention or command of a Court's direction.
Considering the observations of the Apex Court in the matter of regularization of irregular appointment in Uma Devi(3) (supra and M.L. Keshari & others (supra), as also in Amarendra Kumar Mohapatra Vs. State of Orrissa & others 2014 (4) SCC 583 (emphasis paragraph no.43), the Apex Court in State of Jammu & Kashmir & others (supra) observed in paragraph no.26 as follows:-
"26.The principles will have to be formulated bearing in mind the position set out in the above judgments. Regularisation is not a source of recruitment nor is it intended to confer permanency upon appointments which have been made without following the due process envisaged by Articles 14 and 16 of the Constitution. Essentially a scheme for regularisation, in order to be held to be legally valid, must be one which is aimed at validating certain irregular appointments which may have come to be made in genuine and legitimate administrative exigencies. In all such cases it may be left open to Courts to lift the veil to enquire whether the scheme is aimed at achieving the above objective and is a genuine attempt at validating irregular appointments. The State and its instrumentalities cannot be permitted to use this window to validate illegal appointments. The second rider which must necessarily be placed is that the principle as formulated above is not meant to create or invest in a temporary or ad hoc employee the right to seek a writ commanding the State to frame a scheme for regularisation. Otherwise, this would simply reinvigorate a class of claims which has been shut out permanently by Uma Devi. Ultimately, it would have to be left to the State and its instrumentalities to consider whether the circumstances warrant such a scheme being formulated. The formulation of such a scheme cannot be accorded the status of an enforceable right. It would perhaps be prudent to leave it to a claimant to establish whether he or she falls within the exceptions carved out in paragraph 53 and falls within the ambit of a scheme that may be formulated by the State. Subject to the riders referred to above, a scheme of regularisation could fall within the permissible limits of Uma Devi and be upheld."
The principles, thus, formulated by the Apex Court emerging from the decisions noted above are ;-
1. Regularization is not a source of recruitment.
2. Regular status can be granted only to those appointments which are irregular and not illegal.
3. The appointment would be illegal if it is found that the exercise undertaken; (a) was not in the exigencies of administration; (b) where the process adopted was violative of Article 14 and 16 of the Constitution of India; and /or (c) where the recruitment process was overridden by the vice of nepotism, bias or malafide. In all such cases, the appointment itself would be illegal and cannot be regularized.
4. The employer i.e. the executive or legislature could frame a scheme for regularization as a one time measure for those employees who have worked for more than ten years as on 10.04.2006 [the date of decision in Uma Devi (3)] without the protection of any interim order of any Court or tribunal in vacant posts. The scheme must be such which is aimed at validating certain irregular appointments which may have been made in genuine and legitimate administrative exigencies.
5. In all such cases, it is open to the Courts to lift the veil to inquire as to whether the scheme is aimed at achieving the above objective and is genuine attempt on validating irregular appointments or a camouflage to legalize back door entries.
6. Persons claiming regularization have to establish that they fall within the ambit of the scheme/rules framed by the State and the said scheme/rules of regularization is within the permissible limit of dictum of Uma Devi (supra) and can be upheld.
7. The regularization can be made only of a duly qualified person on a duly sanctioned post whether permanent or temporary, who has continued in service for the period mentioned in the scheme/rules, in the exigencies of service, without intervention of the Courts or Tribunal after following the procedure prescribed under the Schemes/Rules.
In the light of the above noted facts of the case and the legal position, legislation governing the area; we can broadly overview the litigation before us falling in two regimes:- Pre and Post-Uma Devi(3) regime.
Two judgements of the learned Single Judges dated 27.11.1998 and 11.05.2004 under challenge in this bunch have been rendered in Pre-Uma Devi(3) regime, whereas all other judgements under challenge have been rendered in Post Uma-Devi3 period/regime.
There are three sets of litigants before us:-
(1). The appellant daily wagers who are challenging the judgement and order dated 27.11.1998 of the learned Single Judge rejecting their claim for regularization on the post of Registration Clerk in the Stamp and Registration Department and the respondents in State Appeal seeking enforcement of the directions of the Apex Court in Khagesh Kumar (supra).
(2) The appellant/State/I.G. Registration, assailing the directions of the learned Single Judge in the judgement and order dated 11.05.2004 and other judgements of the like nature, with the contention that no-one can be conferred benefit of 'continuous service' under the interim orders of the Court.
(3) The daily-wagers who have since been regularized as Registration Clerks pending their appeals and writ petitions tagged in the present bunch including those who are working as regular Registration Clerks in the department and have filed their intervenors/impleadment pursuant to the notices issued to them.
We have heard learned counsels appearing for the appellant daily wagers and respondents in State Appeals, who are seeking regularization as Registration clerk, Sri C.S. Singh learned Additional Chief Standing Counsel for the appellant State/I.G. Registration as also the Counsels appearing for the regularized Registration Clerks/intervenors.
Submissions:-
We now summarize the submissions of the learned counsels for three sets of litigants in the above sub-categories:-;-
A. On behalf of the appellants daily wagers who are challenging the judgement and order dated 27.11.1998 of the learned Single Judge and the respondents daily wagers in the State Appeal (1st set of litigation), following submissions have been urged:-
(I) The learned Single Judge had misread and misinterpreted the directions in paragraph no.17 of Khagesh Kumar (supra), in holding that breaks in services for a period longer than three months, would result in discontinuity and the benefit of the previous services rendered by such appointees would not be given for the purpose of computing three years period of "continuous service" referred to in Rule 4(1) (iii) of 1979' Rules. The directions, therein, would necessarily mean that whatever may be the period of break in service, even longer than three months, would be excluded and the total period of actual working of the daily wagers would be counted to compute three years service, to satisfy the requirement of the said Rules.
(ii) They vehemently urged that infact it was one time exercise for regularization as was directed to be undertaken by the Apex Court in terms of the Regularization Rules, 1979, in vogue, in order to give permanency to all such daily wagers who worked in the registration department for sufficient long time.
(iii) The alternative submission of the appellants is that even if, the daily wage Registration Clerks were not found eligible for regularization, they were, at least, entitled to continue till the regular selections were/are made, as per the directions in Awdhesh Kumar (supra). In any case, their services could not have been terminated.
(iv). As they had a right to continue in service till regular selection and no such selection had taken place, a further right of consideration for regularization had accrued to them, under the Rules' 1998 which came into force on 9.7.1998. As a result of termination of their services, their right of consideration has been hampered whereas similarly situated persons, who continued under the interim orders of this Court had been regularized and are working on the post of registration clerk.
(v) It is urged that the regularization of selected few similarly situated daily wage registration clerks was discriminatory. All the daily wages are entitled for consideration under the scheme framed by the State Government in the year 2010 in the light of the Rules' 1998, so as to accord similar benefit to all.
B. The State-Appellant challenging the judgement and order dated 11.04.2004 of the learned Single Judge inter-alia would submit:-
(i). The learned Single Judge had erred in ignoring that termination of services of the daily wagers was a necessary corollary to the rejection of their claim for regularization. The consequence of Rule 8 of Rule' 1979 would automatically follow and no daily wager could claim continuance, thereafter. The merits of the termination orders was not seen nor the said orders were set aside. The direction to prepare a seniority list of daily wagers and to appoint them in existing permanent and temporary vacancies and in future vacancies as and when arises, till the entire list is exhausted, was, therefore, wholly illegal and unwarranted.
(ii) It was pleaded before the learned Single Judge that 400 daily wage Registration Clerks were employed in the registration offices, on the strength of the interim orders of this Court, without any work. This apart, there were 950 regular working staff in the various registration offices of U.P. at District level. There was no further requirement of registration clerks in view of the amended procedure of copying of the documents. Ignoring these facts, a direction was illegally given to absorb all such daily wagers in regular vacancies not only existing but those which would arise in future, till all of them were adjusted.
(iii) The learned Single Judge had erred in holding that the daily wage registration clerks were wrongly denied their rightful claim as regular selection had not been held in contradiction of the direction of the Apex Court in Khagesh Kumar (supra) and Awdhesh Kumar (supra) though large number of vacancies had arisen over the period of 13 years from the date of first advertisement i.e. 24.03.1991. On the aforesaid reasoning, the direction given by the learned Single Judge to consider the claim of daily wage employees under Regularization Rules' 1998 is nothing but misreading and misconstruction of the directions of the Apex Court.
C. On behalf of the daily wage Registration Clerks (including 42 daily wagers party in the present bunch) who had been regularized between the year 2011 to 2014 in the exercise undertaken by the State/ I.G. Registration (pending litigation) the following submissions have been made:-
(i) Their regularization was made under the one time scheme framed by the State Government pursuant to the Regularization Rules, 1998. The benefit of "continuance in service" was granted to the daily wagers working under the interim orders of this Court, after a conscious decision was taken by the State Government. Moreover, the exercise of regularization in compliance of the directions in Khagesh Kumar (supra), was not completed and the direction therein to hold regular selection was not complied with. The regularization was made against the vacant substantive posts and they are working since thereafter, without any complaint. Their regularization being covered by the Rules, 1998 cannot be interfered with.
Analysis Having put together the submissions of the learned counsel for the parties, the material on record, the legal provisions and the judicial pronouncements in the field of regularization, we proceed to analyse the same and record our opinion as under:-
(A). We may proceed to deal first with the set of special appeals filed against the judgment and order dated 27.11.1998 passed by the learned Single Judge in 120 connected writ petitions. The writ petitioners therein claimed regularization and continuance till regular selection (in case of rejection of their claim for regularization) under the directions of Apex Court in the case of Khagesh Kumar (supra) and Awdhesh Kumar (supra).
The learned Single Judge had categorically held that in view of the findings of fact recorded by I.G. Registration in the termination orders under challenge, in respect of the total period of service rendered by the petitioners therein, no case for regularization under Rule 4 (1) (iii) of the Rules, 1979 was made out. Simultaneously, it was recorded that none of the petitioners were entitled to continue on daily wage basis till regular selection were made as they failed to establish that they were, in fact, working as on 12.04.1996 [i.e. on the date of pronouncement of the judgement in the case of Awdhesh Kumar (supra)]. So far as their claim under Regularization Rules, 1998 was concerned, it was left open to the petitioners therein to ventilate their grievances and a direction was given to the I.G. Registration to take apporpirate decision in accordance with law.
Sri H.N. Singh, learned Senior Advocate and Sri Arvind Srivastava, learned Advocates appearing on behalf of the writ petitioners vehemently contended that daily wagers before this Court were entitled to regularization under the directions of Khagesh Kumar (supra) inasmuch as they had worked continuously in the registration department from the date of their initial appointment till the date of consideration under Rules' 1979. Their claims were illegally rejected on the wrong premise that there were gaps in between their working.
It is contended that as per Rule 4 (iii), Rules' 1979 an incumbent ought to have completed three years of 'continuous service' for claiming regular appointment. The working method for computation of three years of servie as per Rule 4 (iii) has to be in line with the principle laid down by the Apex Court in paragraph-17 of the judgment in Khagesh Kumar (supra). The observation made in paragraph-17 were read and re-read by the counsels in support of their submissions. Special emphasis was laid on the following observations:-
"Since the order of the Governor sanctioning appointment on the posts of Registration Clerks on daily wage basis imposes a limitation that such appointment shall in no case exceed three months during the course of a financial year, there are long breaks between the various periods during which the petitioners were employed as Registration Clerks on daily wage basis. In Bhagwati Prasad v. Delhi State Mineral Development Corporation 1990(I) SCC 361 , this Court has laid down that for the purpose of counting three years' continuous service for the purpose of regularisation artificial break in service for short period/periods created by the employer could be ignored but "if there is a gap of more than three months between the period of termination and re-appointment that period may be excluded in the computation of the three years period" (at p.364). In view of the said decision for computing three years period of continuous service for the purpose of Rule 4(1)(iii) of the Regularisation Rules, the period of break in service which was longer than three months has to be excluded and only the period during which the petitioners actually worked can be counted. In case any of the petitioners was employed as a Registration Clerk on daily wage basis prior to October 1, 1986 and, after excluding periods of breaks in service which are longer than three months, he has put in three years service, he would be entitled to seek regularisation under Rule 4(1) of the Regularisation Rules provided he fulfils the requirement of Clause (ii) of the said rule.
It is urged that the Apex Court had specifically directed exclusion of breaks of more than three months for the purpose of computation of three years period and after excluding such breaks, the period during which the daily wagers had actually worked had to be counted and on the total period of working being 3 years or more, the claim of regularization was to be considered. This direction had been issued noticing the fact that the Governor while sanctioning appointment of daily wage Registration Clerks had imposed a condition that such appointment should not exceed three months during the course of a financial year. As a result of it, there were bound to be long breaks between various periods during which the appellants/petitioners were employed on daily wage basis. To elucidate, counsel for the daily wagers would contend (a) break in service of less than 3 months were to be taken as period of working for computing three years of service (b), breaks of more than 3 months period in service were to be excluded for the purpose of determination of 3 years of continuous service.
He would suggest that the period of break is relevant for the purpose of counting of the period of working of 3 years and not for judging as to whether the daily wage registration clerks was in "continuous service" as per Rule '4 of the Regularization Rules' 1979.
The contention is that if the interpretation given by the learned Single Judge is accepted, all of the respondents would become ineligible as none of them had worked for more than three months in one financial year because of the outer limit fixed by the Governor while permitting daily wage appointments. This was a one time exercise which was directed to be undertaken by the Apex Court in terms of the Regularization rules, 1979 in order to give permanency to all such daily wagers who worked in the registration department for sufficient long time.
We are unable to persuade ourselves to accept the contention of the learned Advocates for daily wage registration clerks rather we fully subscribe to the view taken by the learned Single Judge which is based on careful reading of the paragraphs nos. 14, 15, 16 and 17 of Khagesh Kumar (supra).
In paragraph no.14, the Apex Court had rejected the claim of the petitioners that their appointment were in the nature of regular appointments and held that these appointments were made in the exigencies of service with the express condition to continue as daily wagers for three months only in one financial year.
The petitioners therein claimed that they had been working on daily wage basis for a number of years regularly, there were artificial breaks in their working as during the period of break i.e. during the intervening period they were engaged as Apprentice under Para-101 of the Registration Manual and performed the duties of the registration clerk. Even their emolument for the said period had not been paid. The I.G. Registration, however, took the stand that paragraph no.101 of the Manual had been superceded and instructions had been issued by him not to engage any person as unpaid Apprentice. Thus the claim of the petitioners therein of being in continuous service as required under Rule 4 was disputed being false. Considering these facts, the Apex Court directed that for the purpose of computing the actual period of working of the daily wagers, the period during which they had performed the duties of Registration Clerks though engaged as Apprentice under Para-101 of the Manual shall be counted as part of the service for the purpose of regularization.
The view taken by the High Court to reject their claim on the ground that it was not an Ad- hoc appointment though repelled, but while considering the requirement of three years continuous service, it was observed that only artificial breaks in service for short period created by the employer could be ignored considering the judgment of Apex Court in the case of Bhagwati Prasad v. Delhi State Mineral Development Corporation reported in 1990 AIR 371.
The words "period of break in service which was longer than three months has to be excluded" when read with the quoted observations of Bhagwati Prasad (supra), it is intended to mean that for the purpose of determination of the issue as to whether a daily wage registration clerks was in "continuous service" as per Rule 4 of 1979 Rules (iii) between the cut off dates i.e. the date of actual appointment which had to be on or before 01.10.1986 and the date of judgement in Khagesh Kumar (supra) dated 12.04.1996; breaks of less than 3 months were not to be taken as having caused a break in the continuous service of the employee. It is only the breaks of a period more than 3 months which will result in the continuity of the employment being broken. The above phrase is with respect to determination of the issue of "continuity in service" and not with reference to any method of counting the period of 3 years.
In case the interpretation given by the learned Advocates is accepted, then even a gap of nine months between the termination and re-appointments, has to be ignored for examing the case of "continuous service". Learned Advocates though agreed to the view of the Court that such period of gap can in no circumstance could lead to hold "continuous service" but they insisted and urged that whatever may be the breaks in service, the same be ignored and only the actual period of the working as the daily wagers be taken into account for the purpose of computation of the period of three years, on whichever day, this period of working adds to became 3 years and their regularization is to be directed.
If this argument is accepted, there may be a situation where a person had continued for only three months in one financial year and did not work in between, he would then take about 12 years to complete 36 months (three years) of service. This definitely cannot be the spirit of the Regularization Rules, 1979 as interpreted by the Apex Court in the case of Khagesh Kumar (supra). The direction therein was to consider only those who fulfilled the conditions of three years continuous service contained in Rule 4(1)(iii) of the Rules, 1979. Last three lines in paragraph 17 of the aforesaid judgement are relevant to be reiterated here:-
"The petitioners who do not fulfill the said condition of three years service contained in Rules 4(1)(ii) cannot claim regularisation on the basis of the Regularisation Rules".
The observations in Paragraph-19 further approves the view taken by us and are reiterated as under:-
"Regularisation in service in the State of U.P. is governed by the Regularisation Rules which prescribes a period of three years continuous service. We cannot say that the said period of three years prescribed under the Regularisation Rules is unreasonable. In these circumstances, it must be held that unless the petitioners fulfil the requirement of the Regularisation Rules, they cannot be regularised."
Thus, for examining the issue of "continuous service" under Rules' 1979, short breaks or artificial breaks, upto three months between two engagements, created by the employer could be ignored. Where there were gaps of more than three months, it would be a fresh appointment after termination of services of daily wagers and such daily wagers could not be said to be in "continuous service" as required under the Regularization rules, 1979. The conclusion drawn by the learned Single Judge is hereby affirmed.
As far as the facts pertaining to break in service of the appellants as noticed by the learned Single Judge are concerned, no arguments were advanced by the learned counsel for the appellants nor any material was brought before the Court. The findings of fact returned by the learned Single Judge regarding the period of breaks and the period of working of the appellants, therefore, do not need any deliberation and are affirmed.
The last contention of the learned counsel for the appellants is that such persons who were not found eligible for regularization, at least, were entitled to continue till regular selections were/are made as per the directions of Apex Court in Awadhesh Kumar (Supra). Their services could not have been terminated. As a result of the termination of their services, their right for further consideration under the Regularization Rules, 1998 has been hampered. Whereas similarly situated persons who were allowed to continue under the interim orders of this Court have been regularized and are working on the post of Registration Clerk.
Dealing with this submission of the appellants, it would be relevant to go through the termination orders passed by I.G. Registration. A perusal thereof indicates that the services of the appellants were terminated on two grounds:-(1) they were not eligible for regularization as they did not render three years continuous service and; (2) they had no right for appointment against a regular vacancy on adhoc basis.
Further the Apex Court in Khagesh Kumar had directed to consider the claim of regularization of the petitioners therein strictly in accordance with the provisions of Rule 4(1) of Rules 1979. The prayer of the petitioners therein that in case they were not entitled to seek regularization, they should be given preference in the matter of regular appointment on the post of Registration Clerk, if made, had been refused. Relevant observation in 'paragraph-22' by the Apex Court are reproduced as under:-
"We find it difficult to appreciate how the petitioners can claim preference in the matter of regular appointment on the post of Registration Clerk on the basis of this decision. It cannot be said that the petitioners had to undergo any risk when they joined as Registration Clerks on daily wage basis. They joined the posts of their own free will knowing fully well that the said appointment was for a very short duration and would not exceed three months during the course of a financial year. We are, therefore, unable to hold that the petitioners who had worked as Registration Clerks on daily wage basis form a separate class and are entitled to claim preferential treatment in the matter of appointment on the post of Registration Clerks as and when recruitment is made for the said post. "
However, in order to grant one opportunity to such persons for consideration, in the event of regular appointment, it was observed in 'paragraph-23' as under:-
"We are, however, of the view that in the event of the recruitment being made on the post of Registration Clerks on regular basis, the petitioners or other similarly placed persons should be given one opportunity of being considered for such appointment and they be given relaxation in age requirement provided for such appointment under the rules. During the process of selection weightage may be given for their experience to the Registration Clerks who have worked on daily wage basis and suitable guidelines may be framed for that"We are, however, of the view that in the event of the recruitment being made on the post of Registration Clerks on regular basis, the petitioners or other similarly placed persons should be given one opportunity of being considered for such appointment and they be given relaxation in age requirement provided for such appointment under the rules. During the process of selection weightage may be given for their experience to the Registration Clerks who have worked on daily wage bas purpose by the Subordinate Services Selection Commission. "
A careful reading of the above noted paragraphs shows that only direction issued was to provide age relaxation and weightage to the daily wage Registration Clerks at the stage of direct recruitment. These directions issued in view of the plea of the appellants before the Apex Court that they had crossed the outer age limit and had gained much experience because of their long period of working.
The I.G. Registration, had taken a categorical stand before the High Court as also the Apex Court that there was no more requirement of Registration Clerks in view of the amendments in the Registration Act, 1908. The State did not need any more Registration Clerks, as such no further steps were taken for recruitment on the basis of advertisement dated March, 24 1991. The High Court had also held that mere advertisement in a newspaper did not confer any right to the post even if vacant.
The Apex Court having noted all these facts, did not issue any direction to the State or I.G. Registration to hold regular selection. Rather it was held that in the event of regular selection, age relaxation and weightage should be given to such daily wagers, who were found not entitled to regularization. In other words, it was held that, in case, the State/IG Registration decided to hold regular selection for the remaining vacancies of Registration Clerks, such consideration should be made. There was no direction at all in "Khagesh Kumar" to continue those employees as daily wager who were found ineligible for regularization, till holding of the regular selections.
Some candidates whose services were terminated under the Rules' 1979 after consideration by the department, however, had approached the Apex Court and their cases were decided in "Awadhesh Kumar". The directions therein were issued to the effect that all such persons who were appointed either prior to or subsequent to 1.10.1986 would continue on ad hoc basis till regular selections were made in the light of the directions given in "Khagesh Kumar".
As is evident from the findings returned by the learned Single Judge, none of the petitioners therein could establish that they were, in fact, working as on 12.4.1996 i.e. (the date of pronouncement in Awadhesh Kumar).
It is also noteworthy that Rule 8 of Rules, 1979 categorically provided that services of such persons who were not found suitable or whose cases were not covered by Rule 4(1) of the said Rules, shall be terminated forthwith and they shall be entitled to receive only one month's pay upon such termination. The services of the appellants were terminated by operation of law under the Rules, 1979. The directions of the Apex Court have to be read in conformity with the Statute and cannot be read in contradiction thereof.
In the circumstances, we do not find any merit in the contention of the appellants daily wagers that they had right to continue on daily wage basis even after their claims for regularization were rejected or the State/I.G. Registration was under obligation to hold regular selection even when the services of the Registration Clerks were not required in the department.
Even otherwise, decision to fill the vacant posts as per the requirement of the concerned department, is within the domain of the executives and the courts are not supposed to interfere in their decision to keep the posts vacant. Moreso, in view of the consistent stand of the I.G. Registration was that there was no requirement of Registration Clerks in the department as the work of copying of the documents by hand was discontinued after the amendments in the Registration Act, 1908.
For all the above noted reasons, we fully agree with the view of the learned Single Judge and record our affirmance.
All the special appeals filed against the judgement and order dated 27.11.1998 passed by the learned Single Judge are to be dismissed, accordingly.
(B). We may now consider the special appeals filed by the State of U.P. against the judgement dated 11.05.2004 (group-b) (second sets of litigation) The learned Single Judge in the judgement and order dated 11.05.2004 had failed to take note of the earlier judgement of the Writ Court dated 27.11.1998 (group A appeals) wherein the Writ Court had negatged the claim of regularization of similarly situate daily wage registration clerks. The earlier judgement was binding upon the co-ordinate bench subject, however, to disagreement and in that regard matter being referred to the larger bench. But the subsequent Writ Court could not have ignored the earlier judgement.
We have already noticed that none of the daily wage registration clerks had been in "continuous service" as per Rule 4 (iii) of the Rules' 1979 and their claim for regularization had already been rejected by the Inspector General, Registration, which decision had not been found to be bad by the learned Single Judge in his judgement dated 11.05.2004, in any manner. The Writ Court was required to adjudicate upon the issue of entitlement of the daily wage Registration Clerks for regularization under the Rules' 1979 which has not been done. On the contrary, had held that since the State-appellant had, over a considerable period of time, failed to make regular selections as against the directions of the Apex Court, the daily wage Registration Clerks, therefore, must be regularized against the vacancies which had arisen over the period of time or would arise in future.
The stand taken by the State-appellant that the copying work by hand had been discontinued and there was no need for daily wage Registration Clerks, had been repelled by the learned Single Judge without recording any finding thereon. The observation made in the judgement that the State-appellant was avoiding implementation of the directions of Khagesh Kumar (supra) and Awadhesh Kumar (supra) is not supported by any material. As matter of fact the exercise for considering the regularization under Rule' 1979 was undertaken and completed. None was found eligible for regularization.
The direction to grant permanent appointment to the daily wagers by absorption of all of them against the existing and future vacancies is also in contravention of the statutory rules and the directions of the Apex Court.
The directions in Khagesh Kumar (supra) was referable to the substantive vacancies available in the Registration department as on the date of the judgment i.e. 27.9.1995. Whereas, under the scheme of regularization framed by the Regularization Rules, 1998, only the permanent or temporary vacancies available on the date of commencement of the Rules i.e. on 9.7.1998 could be considered for regularization. Future vacancies which arose over the period of time due to protracted litigation, in any case, could not be directed to be used for the purpose of regularization that too by appointment of such persons who had simply continued on the strength of the interim orders of this Court.
None of the appellants could demonstrate before us that there was any infirmity in their termination orders or any fresh appointment as daily wager was, thereafter, granted in the exigencies of service in the Registration department. After termination of their services, none of the daily wage Registration Clerks could establish any right to continue or for being considered again in a fresh exercise under the Regularization Rules'1998.
The said direction given by the learned Single Judge was nothing but an attempt to validate the illegal appointments. All judicial directions must be consistent with law. The learned Single Judge has simply failed to take note of the law applicable in respect of regularization. Regularization is not a source of recruitment nor it is intended to confer permanency to appointments which have been made without following the due process envisaged of Articles 14 and 16 of the Constitution of India.
Essentially a scheme for regularization must be such which is aimed at validating certain irregular appointments made in the administrative exigencies. Otherwise, the whole object of such scheme would be bad.
Moreover, after the pronouncement of Constitution Bench in Uma Devi (3),i.e. after 10.04.2006, no daily wage employee who had continued on the strength of interim orders of the Court can claim the benefit of "continuance of service" for regularization as per the scheme/rules framed in the light of the constitutional mandate.
For the above noted reasons, we are of the considered opinion that the learned Single Judge had erred in law while issuing the directions to regularize the daily wagers in the Registration department, after preparation of their seniority list, against the existing and future vacancies, until all of them were adjusted/absorbed as Registration Clerk.
In the result, the appeals filed by the State/I.G. Registration (covered by the 2nd group) against the judgment and order of the learned Single Judge dated 11.5.2004, have to be allowed.
(C). We shall now deal with the submissions of those daily wage Registration Clerks of 3rd sub-category, who have been regularized between the year 2011 to 2014 in the exercise undertaken by the State/Inspector General of Registration Department as under:-
Upto the year 2006, as the records reflects, no daily wager was regularized and claims of all daily wagers for regularization as Registration Clerks were considered and rejected being found not covered by the Regularization Rules' 1979. Their services stood terminated as a consequence thereof by operation of Rule 8 of 1979' Rules. Most of them filed repeated writ petitions. After dismissal of their writ petitions, they filed Special appeals and claimed regularization either under the directions of Khagesh Kumar (supra) or under the Rules' 1998, which intervened on 09.07.1998.
Their claims were being contested since the very beginning on the ground that they could not claim benefit of "continuance" on the strength of the interim orders of the Court.
To the contrary, an exercise for regularization was undertaken in the year 2011 under the purported decision of the Cabinet Ministers of the State of U.P. and the Government orders issued in the year 2010. We are of the considered opinion that such an exercise was a malafide exercise and cannot but be said to be undertaken on extraneous considerations.
We are constrained to hold this for the reasons as follows:-
(i) On 10.04.2006, the Constitution bench of the Supreme Court had rendered a judgement in State of Karnataka Vs. Uma Devi [reference as Uma Devi (3)]. With the said pronouncement, the clouds in the field of regularization were cleared and a clear picture was painted both for the Executives and the Courts. Some doubts were raised regarding the implementation/interpretation of the directions of the Uma Devi (3) which were removed in M.L. Keshri (supra) in the following paragraphs:-
"5.The decision in State of Karnataka v. Umadevi was rendered on 10.4.2006 (reported in 2006 (4) SCC 1). In that case, a Constitution Bench of this Court held that appointments made without following the due process or the rules relating to appointment did not confer any right on the appointees and courts cannot direct their absorption, regularization or re- engagement nor make their service permanent, and the High Court in exercise of jurisdiction under Article 226 of the Constitution should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment had been done in a regular manner, in terms of the constitutional scheme; and that 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, nor lend themselves to be instruments to facilitate the bypassing of the constitutional and statutory mandates.
6.This Court further held that a temporary, contractual, casual or a daily-wage employee does not have a legal right to be made permanent unless he had been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution. This Court however made one exception to the above position and the same is extracted below :
"53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa [1967 (1) SCR 128], R.N. Nanjundappa [1972 (1) SCC 409] and B.N. Nagarajan [1979 (4) SCC 507] and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. ...."
7. It is evident from the above that there is an exception to the general principles against `regularization' enunciated in Umadevi, if the following conditions are fulfilled :
(i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years.
(ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular. (emphasis supplied)
8. Umadevi (3) casts a duty upon the concerned Government or instrumentality, to take steps to regularize the services of those irregularly appointed employees who had served for more than ten years without the benefit or protection of any interim orders of courts or tribunals, as a one-time measure. (emphasis supplied) Umadevi, directed that such one-time measure must be set in motion within six months from the date of its decision (rendered on 10.4.2006). (emphasis supplied).
9. The term `one-time measure' has to be understood in its proper perspective. This would normally mean that after the decision in Umadevi, each department or each instrumentality should undertake a one-time exercise and prepare a list of all casual, daily-wage or ad hoc employees who have been working for more than ten years without the intervention of courts and tribunals and subject them to a process verification as to whether they are working against vacant posts and possess the requisite qualification for the post and if so, regularize their services.
11. The object behind the said direction in para 53 of Umadevi is two- fold. First is to ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of courts or tribunals, before the date of decision in Umadevi was rendered, (emphasis supplied) are considered for regularization in view of their long service. Second is to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on daily-wage/ad-hoc/casual for long periods and then periodically regularize them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. The true effect of the direction is that all persons who have worked for more than ten years as on 10.4.2006 (the date of decision in Umadevi) without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularization. The fact that the employer has not undertaken such exercise of regularization within six months of the decision in Umadevi or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularization in terms of the above directions in Umadevi as a one-time measure." (emphasis supplied) Thus as per the dictum of Uma Devi (3), one of the principles laid down for regularization was that those who had worked without protection of any interim orders of the Court or tribunal, in the exigencies of service of the department concerned, could be regularized subject to the fulfillment of qualifications under the service rules and availability of substantive post. "The "one time exercise" which could be undertaken by the department concerned, was for those who had worked for more than 10 years as on 10.04.2006 [the date of decision in Uma Devi (3)], provided they fulfill all other requirements. The State/Instrumentalities of the State were required to frame Rules/Schemes for such regularization.
In so far as the daily wage employees working in the different departments of the State of U.P. were concerned, field of regularization was occupied by the Rules' 1998 enforced on 09.07.1998. The exercise of regularization, if any, thereafter, could be undertaken strictly in accordance with the said rules.
As per the Regularization Rules' 1998, an incumbent was required to fulfill the following four conditions for consideration for regularization:-
(I) He must had directly been appointed on daily wage basis on a 'Group-C' post before 29.06.1991; and,
(ii) was continuing in service as such on the date of commencement of the rules i.e. on 09.07.1998; and,
(iii) must possess requisite qualification prescribed for regular appointment for the post, at the time of such appointment under the relevant service rules;
(iv) a permanent or temporary vacancy must be available on the date of commencement of the rules i.e. 09.07.1998.
As per the procedure under the Rules 1998, a seniority list of daily wage employees had to be prepared and appointment was to be offered in order of seniority, against the vacancy aforesaid.
The continuity in service "could be granted to only those daily wage Registration Clerks who had been appointed in the exigencies of service of the department". Admittedly, the daily wage Registration Clerks who had been regularized in the year 2011 and thereafter were simply continuing on the strength of the interim orders of the Court.
(v) When rules framed under Article 309 of the Constitution of India were in force, the regularization was not permissible under an exercise of the executive power of the State Government under Article 162 thereof, in contravention of the Regularization Rules. Administrative orders/circulars cannot be issued contrary either to the Constitutional norms or Statutory schemes. Reference may be made to the judgement of Apex Court in B.N. Nagarajan & others Vs. State of Karnataka & others reported in (1979) 4 SCC 507; the judgement and order dated 06.07.2017 of the Supreme Court in Civil Appeal 8928 of 2015 Etc. Etc (Chairman & Managing Director FCI & others Vs. Jagdish Balaram Bahira & others and; of the Full Bench judgement of this Court in Vijay Singh & others Vs. State of Uttar Pradesh & others reported in 2005 2 AWC 1191 ALL (F.B).
(vi) Supernumerary posts were created in order to accommodate all such daily wagers working on the strength of the interim orders of the Court. As per the Regularization Rules' 1998, one of the precondition was that a permanent or temporary vacancy must be available on 09.07.1998 i.e. the date of commencement of the rules. Creation of supernumerary posts was, therefore, not permissible. As per the record, as many as 67 daily wagers had been regularized and adjusted against the supernumerary posts. They are working in the Registration Department as regular Registration Clerks.
(vii) From the facts noted in the forgoing paragraphs of this judgement, it is evident that almost all daily wagers who were claiming regularization as Registration Clerks were considered and their claims were rejected. Their services were also terminated as a consequence of rejection of their claims. None of the rejection/termination orders were set aside. They filed repeated Writ petition and Special Appeals. The State/ Inspector General of Registration was contesting the matter by filing Special Appeals and counter affidavits. None of the parties to this bunch could demonstrate before us that a single special appeal or writ petition was decided on the merits of the claim of the daily wage registration clerks. Pending adjudication of their claim for regularization in this Court, the issuance of Government orders and the exercise undertaken by the State/Inspector General of Registration by granting benefit of the interim orders of the Court was nothing but a fraud on the Executive powers of the State.
(viii) The procedure for regularization as prescribed under the Regularization Rules' 1998 for preparation of seniority list of the daily wagers employees with reference to the date of their first appointment, for consideration against the existing temporary/substantive vacancies on cadre posts, on the date of commencement of the Rules' 1998 i.e. 9.7.1998 has not been followed.
(ix) There can be no negative equality. The Apex Court in the case of Ghulam Rasool Lone Vs. State of Jammu & Kashmir, reported in JT 2009 (13) SC, 422 has held that there cannot be any negative equality and no mandamus could be issued by a writ court asking the State authorities to perpetuate the illegality.
The daily wagers, who are party in the present bunch and are, seeking their regularization, therefore, cannot claim parity to the registration clerks who have been regularized in an illegal exercise undertaken by the State Government/I.G. Registration.
Writ Petition No.40436 of 1998 (Devendra Nath Sharma and Ors. v. Secretary, Institutional Finance, U.P. Govt. Lucknow and Anr.).
The writ petition No.40436 of 1998 has been filed by four persons namely Devendra Nath Shama, Dinesh Kumar Sharma, Ram Pravesh Ram and Anil Kumar Pandey for the relief of mandamus commanding the respondents to permit them to work. On 13.1.1999, an interim mandamus was issued that, in case, the petitioners had been continuously working between 12.1.1988 and 27.11.1988 having been appointed on daily wage basis, they should be allowed to continue till 30.4.1999 or till disposal of Special Appeal No.3 of 1999 filed by other similarly situated persons. The Special Appeal No.3 of 1999 had been dismissed as infructuous. As per the claim of the petitioners, they were entitled to continue in view of the pronouncement of Apex Court in the case of Awadesh Kumar (supra). They represented before the Inspector General of Registration, U.P., Allahabad, their claim was rejected. However, these petitioners have neither filed the orders of rejection of their claim nor have challenged the same. In view thereof, no mandamus can be issued. The Writ Petition filed by the daily wagers (covered by the 3rd group) is accordingly, dismissed.
We now advert to the individual claim of the respondents daily wagers seeking regularization and in the Special Appeals of the State-appellant, in terms of the judgement and order dated 11.05.2004 of the learned Single Judge [rendered in Pre-Uma Devi (3) regime]:-
A. Special Appeal No.1106 of 2004 (I.G. Registration and Ors. v. Ashok Kumar Singh):-
The Special Appeal is directed against the judgement and order dated 11.05.2004 passed by the learned Single Judge.
Sri Anil Kumar Singh, learned Advocate appears for the respondent. As per averments in the short counter affidavit dated 17.04.2016, Ashok Kumar Singh claimed that he was engaged as Registration Clerk on daily wage basis on 9.11.1990 and had worked in the registration department with artificial breaks till the year 1991. He filed Writ Petition No.24680 of 1991 wherein an interim order dated 29.8.1991 was passed permitting him to continue. The respondent was not allowed to work and hence he filed a Contempt Petition No.687 of 1992 (Ashok Kumar Singh v. L.B. Pandey A.D.M. (F & R)/District Registrar Varanasi) wherein by the order dated 17.4.1992, notices were issued to the opposite parties.
Pursuant thereto, on 16.1.1993, the respondent was allowed to join. He worked upto 9.6.2003. On 24.7.2001, the said writ petition was dismissed as infructuous and interim order stood discharged. By the order dated 10.10.2003, on the recall application moved by the petitioner, the order dated 24.7.2001 was recalled and the interim order dated 29.8.1991 was restored. The respondent, thereafter, continued on the basis of the said interim order.
Meantime, the Regularization rules, 1998 came into force. The Writ Petition No.24680 of 1991 filed by him was disposed of vide judgment and order dated 30.9.2004 with the direction to consider his claim for regularization considering the period of continuance on the strength of the interim order.
During pendency of this appeal, the claim of the respondent was rejected on 23.3.2005, he filed a Writ Petition No.44346 of 2005 (Ashok Kumar Singh v. State of U.P. & Ors.) which was allowed vide judgment and order dated 13.5.2011 with the direction to reconsider his claim for regularization. No decision was taken and hence he filed a Contempt Petition No.4171 of 2011 (Ashok Kumar Singh v. Amit Kumar Ghosh) wherein by order dated 2.4.2012, notices were issued.
Against the judgment and order dated 13.5.2011, State filed Special Appeal No.572 of 2012 (State of U.P. & Ors.v. Ashok Kumar Singh) which was decided vide judgment and order dated 8.5.2012 with the direction to consider the claim of regularization in accordance with law. His claim was again rejected on 23.7.2012.
Being aggrieved, the respondent again filed a Writ Petition No.45721 of 2012 which was decided vide judgment and order dated 9.3.2016. While quashing the rejection order dated 23.7.2012, this Court had issued direction for fresh consideration in the light of the observation made therein. One of the observation made by the learned Single Judge was that three years of working of the petitioner was to be taken into account for the purpose of considering his claim for regularization and not the "continuous service".
It is contended by the learned counsel for the respondent that three years continuous service has to be counted considering the actual days of working of the respondent, irrespective of the period of gaps and, therefore, he was entitled for regularization. Non-consideration of the claim of the respondent for regularization after the directions of this Court in the judgment and order dated 9.3.2016 by the appellant, is illegal.
The actual period of working of the respondents without intervention of this Court is from 9.11.1990 till the year 1991. After 29.8.1991, he had continued only on the basis of the interim orders passed by this Court. The above narration of facts is an example of utter abuse of the process of the Court by the respondent. He filed repeated Writ petitions and Special appeals during pendency of the present appeal.
For the reasons indicated in the body of the judgement and for the above reasons, the special appeal is allowed. The impugned judgement and order of the learned Single Judge is set aside. No other submission is urged. In the circumstances, there shall be no order as to costs.
B. Special Appeal No.328 of 2005 (State of U.P. v. Km. Radha Rani & Ors.) The Special appeal is directed against the judgement and order dated 11.05.2004 passed by the learned Single Judge.
The chart of working of respondents 1, 3 & 4 has been given in paragraphs 23, 24 & 25 of the counter affidavit. The respondent No.2 has died and hence a request has been made therein to delete her name from the array of parties.
So far as the working of respondent No.1 and 3 is concerned, it is stated that they had worked from 5.2.1988 till 27.2.1988 on daily wage basis. For the period from 4.12.1990 till 20.2.1991 and from 15.4.1991 to 31.5.1991, it has not been mentioned in the chart as to in which capacity, the respondent No.1 & 3 had worked in the registration department. However, it is apparent from the counter affidavit that the Writ Petition No.17636 of 1991 was filed by them wherein an interim order dated 7.8.1991 was passed, pursuant thereto they worked from 19.8.1991 till 1.12.1994. Their claim was, thereafter, considered in the light of the directions of Khagesh Kumar (supra) and was rejected. They filed a Writ Petition No.11475 of 1997 wherein by interim order dated 4.4.1997 they were allowed to work. The said writ petition was decided on 2.1.2001 with the direction to consider their claim. Their representation was again rejected on 30.5.2003. In the aforesaid chart, the period of working of respondent No.1 & 3 from 5.7.1997 to 10.9.2002 was pursuant to the interim orders passed by this Court. For the period from 18.1.2003 till 1.6.2003 i.e. til the date of rejection of her claim, it is not clear as to how they continued to work.
Similarly respondent no.4 was also party in two writ petitions noted above filed in the year 1991 and 1997. He was also engaged on 05.02.1998 for the first time on daily wage basis, however, there is slight difference in the period of working of the respondent no.4 as in the aforesaid charge, he had stated to have worked from 05.02.1988 to 27.02.1988 and thereafter from February 1992 to 01.02.1994.
The order of rejection dated 30.5.2003 was, however, challenged by them in Writ Petition No.28684 of 2003 wherein interim order dated 11.7.2003 was passed. The said writ petition was allowed on 11.5.2004 to consider the claim of the respondents and further allowing them to work in case of vacancy.
The respondents were not engaged before October 1, 1986 and their continuance after the year 1991 or 1992 was on the basis of interim orders of the Courts. Their claim for regularization, therefore, was rightly rejected. The termination order followed as a necessary consequence.
For the reasons indicated in the body of the judgement and for the above reasons, the special appeal is allowed. The impugned judgement and order of the learned Single Judge is set aside. No other submission is urged. In the circumstances, there shall be no order as to costs.
C. Special Appeal No.395 of 2005 ( State of U.P. v. Shiv Kumar Dubey) This special appeal is directed against the judgment and order dated 11.5.2004 passed by the learned Single Judge. Shiv Kumar Dubey is represented through Shri Krishna Kumar Chaurasiya learned Advocate. Giving a date-chart of details of working of the respondent, the learned counsel argued that the respondent was entitled for the benefit of the directions of Apex Court in Khagesh Kumar and the Regularization rules, 1998. As per the date-chart, Shiv Kumar Dubey was appointed on 12.02.1990 as daily wager. On 28.2.1991, his services were discontinued. He filed Writ Petition No.8767 of 1991 (Rakesh Kumar Srivastava & others v. State of U.P. & others) wherein interim order was granted, and on 28.03.1991 it was dismissed. The writ petition was decided in a bunch by Division Bench in Mohd. Husnain (supra) and travelled up to the Apex Court in Khagesh Kumar. The representation/application of the respondent for regularization was rejected on 14.11.2000. The Writ Petition No.8113 of 2001 filed against the aforesaid order and was decided in a bunch vide judgment and order dated 11.5.2004. As per the aforesaid chart, the respondent worked from 1990 till 1995. He was not appointed prior to the cut off date i.e. 1.10.1986 and as such he has no valid claim for regularization in terms of the directions in Khagesh Kumar.
So far as the Regularization Rules' 1998 are concerned, the respondent did not work after 1995. Thus, as on the date of commencement of the said Rules' 1998 i.e. 9.7.1998, he was not in employment. He is, therefore, not covered by the Regularization rules, 1998. Any continuance on the basis of interim order would confer no right for consideration in favour of the respondent.
For the reasons indicated in the body of the judgement and for the above reasons, the special appeal is allowed. The impugned judgement and order of the learned Single Judge is set aside. No other submission is urged. In the circumstances, there shall be no order as to costs.
D. Special Appeal No.393 of 2005 (I.G. Registration v. Vinod Kumar Chaubey):-
This special appeal is directed against the judgment and order dated 11.5.2004 passed by the learned Single Judge. The respondent, Vinod Kumar Chaubey had died on 31.10.2007 as is evident from the substitution application filed by his wife. The substitution application has been filed by wife with the claim of compassionate appointment in place of her husband. The substitution application is allowed.
However, for the reasons indicated in the body of the judgement and for the above reasons, the special appeal is allowed. The impugned judgement and order of the learned Single Judge is set aside. No other submission is urged. In the circumstances, there shall be no order as to costs.
E. Special Appeal No.379 of 2005 (State of U.P. & Ors. v. Ashok Kumar Verma):-
The special appeal is directed against the judgement and order dated 11.05.2004 passed by the learned Single Judge.
The respondent Nos.1 & 2 in the above noted appeal are represented by Shri Sanjay Kumar Singh, learned Advocate.
As per their claim, respondent No.1 and 2 were appointed on 28.9.1986 under Paragraph 101 of the Registration Manual. They worked as such up to 31.12.1986. They were, thereafter, appointed on 01.01.1987 as daily wage Registration Clerks and worked till 4.2.1991.
The advertisement was issued for regular appointment. The respondents filed Writ Petition No.13763 of 1991 wherein interim order dated 26.4.1991 was passed. Pursuant to which they joined on 16.5.1991 and worked till 5.12.1994. The said writ petition was finally disposed of on 16.9.1997 with the direction to consider their claim as per the judgment in the case of Khagesh Kumar (supra). Their representation was rejected vide order dated 13.12.1997. Being aggrieved, they filed Writ Petition No.17017 of 1999 which was decided on 21.11.2000 with the bunch of writ petitions wherein direction was issued to consider their claim afresh for regularization. The claim of the respondents was again rejected vide order dated 27.2.2001. Third Writ Petition No.26351 of 2001 filed by the respondents was disposed of wherein a direction was given the Secretary, Finance, U.P., Lucknow to decide their claim. Their claim was again rejected vide order dated 1.9.2001 passed by the Secretary, Finance, U.P., Lucknow with the observation therein that the period of working of the respondents under Paragraph 101 could not be counted. Aggrieved, Writ petition no.4782 of 2002 was filed by the respondent which was decided in the bunch on 11.05.2004 by the learned Single Judge.
The submission is that the respondents were appointed prior to the cut off date i.e. 1.10.1986; they had rendered three years services as per the requirement of the Rules' 1979, their claim for regularization was illegally rejected. They are covered by the directions in the case of Khagesh Kumar as also the learned Single Judge under the judgment and order dated 11.5.2004.
Considering this submission, it would be relevant to note that while rejecting the claim of the respondent No.1 Ashok Kumar Verma vide order dated 31.12.1997, the Inspector General, Registration recorded that the respondent had worked for short periods of 61 days, 33 days and 48 days in each year. So far as the claim of the respondent of having worked under Regulation 101 of the Manual in the year 1986, it was recorded that the said work allocation could have been made only after the written permission of the concerned Authority. No such certificate had been filed by the respondent No.1 and there was no record of his working under Regulation 101 of the Manual. He was found not covered by the directions of Khagesh Kumar (supra) and hence his claim was rejected.
Again in the rejection order dated 27.2.2001, the period of working of respondent Nos. 1 & 2 were considered and it was found that they worked for few days in 1987, 1988 and 1990-91. Same position was found by the Secretary, Finance, Lucknow. It has been categorically recorded therein that the respondents did not fulfill the requirement of Regularization Rules' 1979, as interpreted in the case of Khagesh Kumar (supra). They were neither appointed prior to 1.10.1986 nor had completed three years of service as required under Rule 4(1) (iii) of Rules' 1979.
The period of working as shown in the orders of rejection has not been disputed by the respondents. They only urged that the period of working in the year 1986 under Paragraph 101 of the Manual was required to be taken into consideration in terms of the judgment of Khagesh Kumar (supra).
This submission of the respondents is found misconceived in as much as their assertion of engagement of the respondents allegedly under Paragraph 101 of the Manual in the year 1986 was found not proved. Even otherwise, the benefit of continuance could be given under the directions of Khagesh Kumar (supra), only to those daily wage Registration Clerks who were engaged on daily wage basis after sanction and, in between the period of their discontinuance in previous year and fresh engagement in the next financial year, they continued to work as Apprentice under Paragraph 101 of the Manual and discharged the duties of the Registration clerk.
In view of the above, the claim of respondent Nos.1 & 2 was rightly rejected, being not covered by the directions in the case of Khagesh Kumar (Supra).
For the reasons indicated in the body of the judgement and for the above reasons, the special appeal is allowed. The impugned judgement and order of the learned Single Judge is set aside. No other submission is urged. In the circumstances, there shall be no order as to costs.
Appeals against the Judgements rendered in Post Uma Devi (3) regime:-
We may now deal with the individual claim of the daily wagers seeking regularization who are appellants or respondents in the Special Appeals filed by the daily wagers and the State; as the case may be, against the judgements and orders of the learned Single Judge [rendered in Post-Uma Devi (3) regime] as under:-
Special Appeal No.1531 of 2006 (Shiv Kumar Tiwari v. State of U.P. & Ors.).
The above noted special appeal has been filed by three appellants namely Shiv Kumar Tiwari, Mohd. Akmal and Mohd. Gani, being aggrieved by the judgment and order dated 11.10.2006 passed by the learned Single Judge. Their claim for regularization has been rejected by the learned Single Judge in view of the decision of Apex Court in Uma Devi(3) (supra) as they had not been able to make out a case for regularization.
As per the assertion of the appellants, they were appointed as unpaid Apprentice on 5.4.1986 and 11.4.1986. The appellant Nos.1 and 2 namely Shiv Kumar Tiwari and Mohd. Akmal were appointed on 16.01.1987 on daily wage basis. It is further stated that all three appellants though worked on daily wage basis but no appointment letter had ever been issued to them. The certificates issued by Sub Registrar, Chayal, Allahabad have been pressed to assert that the appellants had worked from January 1987 till March 1987.
It is stated that the appellants had worked uninterruptedly from April 1986 till October 1988. On 16.11.1988, notice was issued by the District Registrar, Allahabad that the engagement on daily wage basis of Registration Clerks would be only for the period of three months in a financial year. The appellants filed Writ Petition No.24941 of 1988 wherein interim mandamus was granted to restrain the respondents from interfering in their functioning as Registration Clerk. The appellants continued to work thereafter. Another Writ Petition No.30498 of 1991 was filed seeking relief for regularization of their services. Both the writ petitions were heard together and allowed.
The detail representations dated 1.2.2002 and reminders were, thereafter, filed by them. The order 7.1.2002 was passed rejecting their claim which was served upon them on 11.2.2003. Being aggrieved, they filed Writ Petition No.21198 of 2003 on 13.5.2003 which was dismissed on 11.1.2006 and hence this appeal.
A perusal of the order of rejection of claim of Shiv Kumar Tiwari and Mohd. Akmal shows that the total period of their working was considered and it was found that they worked as daily wagers for 61 and 53 days from January to March 1987; respectively, 33 days in the year 1988; and from October 1990 till 5.12.1994. After 1994, they are not in service. As the appellants were neither covered by the Regularization Rules' 1979 nor the Regularization rules 1978 and hence their claim was rejected.
Submission is that their claim was illegally rejected on flimsy ground by a backdated order. The period of their service rendered as unpaid Apprentice, was not considered. In support of their claim of having worked till October 1988 continuously, they filed certificates of the District Registrar and a copy of the Bahi Register and submits that they copied documents from March to December 1987. As per own admission of the appellants, they were not in service on the cut off date i.e. 1.10.1986 nor they had worked after 1994. And as such their claim for regularization had rightly been rejected. No interference is required in the impugned judgement and order of the learned Single Judge.
The special appeal is, accordingly, dismissed being devoid of merits.
Special Appeal No.74 of 2016 (State of U.P. & Ors. v. Ashok Pratap Singh).
The said special appeal has been filed by the State/IG Registration against the judgment and order dated 16.9.2015 passed by the learned Single Judge.
The facts of the case are that the respondent/petitioner therein was appointed in the year 1987 on daily wage basis. He worked uptil 8.7.1991 with some artificial breaks. He filed application seeking regularization under the directions of Apex Court in the case of Khagesh Kumar (supra). It was rejected by the IG. Registration on 26.8.1996. He filed first Writ Petition No.27708 of 1998 which was disposed of on 2.1.2001 with direction to consider his claim. His claim was rejected on 2.6.2001. The petitioner filed second Writ Petition No.14129 of 2002 which was allowed on 11.5.2004 with the direction to regularize his services. By the order dated 30.6.2012, his claim was rejected on the ground that he was not in service after 8.7.1991 and, therefore, was not entitled for regularization under the Regularization Rules' 1998. Learned Single Judge while setting aside the order dated 30.6.2012 observed that since the petitioner had continued in service, though under the interim orders of this Court, he had a surviving claim for consideration for regularization. The learned Single Judge simply placing reliance upon the interpretation of "continuing" as contained in the Rule' 2001 (Group-D), as has been made in the case of Janardan Yadav Vs. State of U.P. reported in 2008 (1) ADJ 60 had proceeded to hold that since the petitioner continued in service and was working on the date of enforcement of the Rules, 1998, he was entitled to consideration for regularization, being covered by the said rules.
We find that the learned Single Judge has erred in law in issuing the said directions to consider for regularization.
It is noteworthy that the claim of the petitioner for regularization, for the first time was considered and rejected on 28.06.1996. The writ petition challenging the said rejection order was disposed of on 02.01.2001. Both, the rejection order and the judgement of this Court are not on record. The second rejection order passed on 02.06.2001 has been appended with the writ petition. It appears that it was not examined on merits by the learned Single Judge.
In the aforesaid order, it is recorded that while issuing direction on 02.01.2001, the Court had categorically observed that in case of the claim of the petitioner having been decided earlier, the directions to reconsider would not be attracted. Accordingly, his representation was rejected.
The writ petition challenging the rejection order dated 2.6.2001 was decided with a bunch on 11.05.2004 and the said order of learned Single Judge is under challenge by the State in this bunch of appeals.
The third rejection order dated 30.06.2012 passed by the I.G. Registration, subject matter of the writ petition giving rise to the present appeal, records that the petitioner was not in continuous service since prior to 29.06.1991 till 09.07.1998 (i.e. the date of enforcement of the rules), the two relevant dates under the Regularization Rules, 1998.
The learned Single Judge has fallen in an error of law in ignoring that for whatever period the petitioner could continue on daily wage basis, was on account of intervention of this Court in the repeated writ petitions filed by him. In none of the matters, merits of his claim had been examined in the light of the Rules, 1998.
Learned Single Judge has misconstrued and misapplied the ratio of the judgement in "Janardan Yadav (supra)" in as much as the observations therein came in the facts of that case. It was recorded that the petitioner therein had been engaged and worked intermittently between two relevant dates mentioned under the U.P. Regularization on Ad-hoc Appointment (on post outside the Purview of the Public Service Commission) (Third Amendment) Rules, 2001.
Considering the stand of the State/respondent therein, it was recorded that the engagement of the petitioner therein remained necessity of the department or that the requirement thereof, continued for more than 10 years. In these facts and circumstances of the said case, the Rule' 2001 was interpreted to mean that it nowhere requires continuous service between the date of initial engagement and the date of commencement of the rules, and the artificial breaks were to be ignored.
In other words, the ratio of the Janardan Yadav (supra) is that when a daily wager was engaged prior to the cut off date (mentioned in the rule) and was engaged and worked intermittently (for more than 10 years) due to necessity of the service, merely because he did not work continuously between the two required dates (i.e. 29.6.1991 till 21.2.2001) or there were some gaps between two engagements, his claim could not be rejected on the ground that he was not in continuous service.
The said ratio is not applicable in the facts and circumstances of the instant case in as much as the distinctive words are "Necessity of the department", as considered therein, whereas in the instant case the petitioner/respondent could continue, for whatever period, may be, only on the intervention of the Court and not in the exigencies of the department.
For the reasons indicated in the body of this judgement and for the above reasons, the special appeal is allowed. The impugned judgement and order of the learned Single Judge is set aside. No other submission is urged. In the circumstances, there shall be no order as to costs.
Regularized daily wagers as Registration Clerks/Intervenors:-
Now we may deal with the individual claims of those who have regularized in the year 2011 and thereafter on the strength of the interim orders of this Court, pending adjudication of their claim in this Court or after dismissal thereof including those who are party in this bunch.
(I). Special appeal No.767 of 2004 (State Of U.P. & Others Vs. Raj Kumar Srivastava & Others):- In the said Special Appeals, against the judgement and order dated 11.5.2004, one of the counsels Sri J.K. Tiwari had appeared on behalf of the daily wage Registration Clerks, regularized during the pendency of the Special Appeal. He vehemently submits that there is a difference between the two words namely "continuing" and "continuous". The words "Continuous service" according to the dictionary meaning is "Nirantar Sewa" whereas the meaning of the word "continuing" is "enduring i.e. subsisting for a definite period" but is not terminated by a single act or fact. His submission is that the word "continuous" though refers to an action without interruption but the word "continuity" or "continuing" does not contemplate such a situation, rather they would be interpreted to mean an event or state which may have been marked by disruption but has continued thereafter. Disruption or discontinuance for certain period (s) would not mean that the incumbent was not in continuous employment or was not 'continuing' in service.
Reference has been made to the meaning of word of "continuous" and "continuing" given in the Black's Law Dictionary, Oxford dictionary of English, Law Lexicon and Hindi to English dictionary namely Vidhi Shabdawali of Government of India.
He has further relied upon the judgement of the learned Single Judge of this Court in Janardan Yadav (supra) and urged that the meaning of "continuing in service" as interpreted by the learned Single Judge may be accepted to hold that the daily wage Registration Clerks would be treated to be "continuing in service" between 29.06.1991 and 09.07.1998, and thus, they would be covered under the Regularization rules 1998 and their regularization, therefore, has to be held to be made in accordance with law.
We are afraid to accept the interpretation given by Sri J.N. Tiwari in as much as only artificial breaks or short breaks in service could be ignored for computing "continuous service" or holding that the incumbent was in "continuous service" of the department, for the purpose of regularization.
Further the benefit could be given only to those who remained in employment "continuously" or "continuing in service" giving the impression that their services were required continuously though they had been engaged on daily wages basis. The persons who had been appointed for few days in one year and did not work continuously for the whole one year or more than that between two relevant dates from 29.06.1991 till 09.07.1998, cannot be said to be in "continuous employment", working on the requirement of the Registration department. They cannot be said to be covered by the meaning of words "continuing in service'' under the Regularization Rules' 1998. None of the daily wagers before us could demonstrate otherwise.
For the reasons indicated in the preceding part of this judgement and those indicated above, we reaffirm our view that the daily wage registration clerks working in the Registration Department were not entitled to be regularized under the Regularization Rules' 1998. The exercise of regularization undertaken by the State Government in the year 2011 was an illegal exercise.
(II). Special Appeal No.1531 of 2012 (State of U.P. & others Vs. Anil Kumar Singh) :-
This Special appeal filed by the State appellant is directed against the judgement and orders dated 01.04.2002 and 31.01.2003 passed by the learned Single Judge in writ petition no.17570 of 2001 and the review application.
The above noted writ petition was filed by the respondent herein for quashing of the order dated 31.03.2001 of removal of his services. The Court having noted that an interim order dated 26.02.1999, was operating in his favour passed in the pending Special Appeal no.121 of 1999, had disposed of the writ petition with the observations that the working of the respondent shall be subject to the final decision in the said Special Appeal. The order of removal dated 31.03.2001 was also made subject to the final orders in the said appeal. The review application filed by the State was dismissed vide judgement and order dated 31.03.2003 on the ground that after 27.06.1997, three was no order for stopping the respondent from work and, therefore, he was entitled to work under the interim order.
A counter affidavit dated 19.02.2017 has been filed by Sri Anil kumar Singh (respondent) in the present Special Appeal.
The fact narrated therein are that the respondent was engaged on daily wage basis on 04.12.1990 and continued with artificial breaks. He filed a writ petition no.19871 of 1991 wherein an interim order dated 20.07.1991 was passed allowing him to work. He joined on 22.07.1991. The aforesaid writ petition was dismissed on 08.02.1995 and the matter was finally decided with the leading case of Khagesh Kumar (supra) by the Apex Court. His claim was rejected by I.G. Registration being not covered by the direction of Khagesh Kumar (supra). Aggrieved, writ petition no.4262 of 1997 was filed by him wherein interim order dated 03.02.1997 was passed again allowing him to continue till regularly selected candidate join in. On 29.06.1997, the respondent was allowed to join. The writ petition no.4262 of 1997 was dismissed with a bunch on 20.11.1998. Special Appeal (D) no.121 of 1999 was filed wherein the interim order dated 11.02.1999 was passed permitting him to work. The respondent was then, permitted to work from 26.02.1999. On 31.03.2001, services of respondent with other daily wagers was again dispensed with. He challenged the removal order in Writ petition no.17570 of 2001 which was allowed on 01.04.2002 and the order dated 31.01.2001 was quashed.
Resultantly, the respondent continued to work on daily wage basis till 25.02.2011 when he was regularized. His services were confirmed on 29.09.2015. He is working as such in the office of Sub Registrar, Sultanpur Sadar, since thereafter. So far as the Special Appeal no.121 of 1999 is concerned, it was informed by Sri Saroj Kumar Singh learned counsel for the respondent that the same has been rendered infructuous after regularization of the respondent.
In view of the above facts, it is more than apparent that with the dismissal of the Special appeal No.121 of 1999, order of the learned Single Judge dated 20.11.1998 dismissing the writ petition of the respondent and simultaneously his termination order stood revived. As far as the continuance of the respondent after 11.02.1999 is concerned, it was on the strength of the interim orders of the Court.
The continuance of the respondent, therefore, in service would not confer a right for further consideration in view of the dictum of Uma Devi (3).
Resultantly, the regularization of Sri Anil Kumar Singh, the respondent, in Special Appeal No.1531 of 2012 is held illegal. The impugned judgment and order of the learned Single Judge is set aside. The Special appeal of the State is allowed.
(III). In Special Appeal No.1360 of 2008 (State of U.P. & another Vs. Atul Kumar Dwivedi):-
The present special appeal is directed against the judgement and order dated 15.02.2000 passed by the learned Single Judge. Sri Ashok Kumar Pandey, learned Advocate appears on behalf of respondent Atul Kumar Dwivedi who has been regularized as Registration Clerk during the pendency of the present appeal. The date chart given for his working shows that he was appointed on 23.11.1990 as Registration Clerk on daily wage basis. First Writ Petition No.40752 of 1998 (Atul Kumar Dwivedi v. State of U.P. & Ors.) was filed by him claiming regularization under the Regularization rules, 1998. The same remained pending and is connected with this bunch. A counter affidavit has been filed by the State therein, in the year 2000 giving the details of working of Sri Atul Kumar Dwivedi. Second Writ Petition No.12047 of 1999 filed by him which also remained pending.
Third Writ Petition No.8053 of 2000 (Atul Kumar Dwivedi v. Inspector General Registration, U.P. Allahabad and Anr.) filed by him was disposed of on 15.2.2000 with a direction to consider his claim for regularization which is under challenge in the present appeal.
The services of Sri Atul Kumar Dwivedi was regularized on 13.3.2014. The regularization order has been appended with the supplementary affidavit dated 27.2.2017 filed in Writ Petition No.40572 of 1998. A perusal thereof indicates that Sri Atul Kumar Dwivedi was removed from service on 18.3.1999. Pursuant to the interim order passed by this Court in Writ Petition No.12047 of 1999, he was allowed to continue from 25.5.1999 onwards. He however, was not in service between 19.3.1999 and 24.5.1999. His regularization was made conditional that he would withdraw the Writ Petition No.12047 of 1999.
It is stated by the learned counsel appearing for the respondent that the aforesaid writ petition was withdrawn after regularization order was passed. In this Special Appeal No.1360 of 2008, the stand taken by the State is that the interim order was granted in favour of the respondents without any opportunity to the State and further no benefit could be derived by continuance on the strength of the interim order. The respondent namely (Atul Kumar Dwivedi) claim was not covered by the Regularization rules, 1998 and he had no right to the post.
However, his regularization was done in the year 2014 merely on the ground that he continued on the strength of the interim order. His regularization is, therefore, held illegal.
(IV). The Registration Clerks who had been regularized in the year 2011 and thereafter, filed impleadment/Intervenor applications before us to justify their regularization, their cases are being considered as under;-
(a) Anandi Pal son of Sri Ram Narain Pal and Raju Nawab son of late Baquar Hussain:-
They were appointed on daily wage basis on 02.03.1983 and 26.04.1983. They filed first writ petition no.12613 of 1990 with the prayer for regularization. On 14.03.1991, an interim order was passed to allow them to continue to work till the date regular selected Registration Clerks were made available. Further another direction was issued to consider their claim in the event of holding of regular selection. However, as no regular selection was held, they continued to work as such. Their writ petitions alongwith the bunch of writ petitions were dismissed on 08.02.1995 and the matter was decided on 27.09.1995 in the case of Khagesh Kumar (supra). Second writ petition no.4506 of 1998 was filed by the petitioners which was disposed of finally on 05.10.1998 with the direction to consider them for regularization under the Rules 1998.
After consideration, their claims for regularization were rejected. Third Writ petition No.2363 (S/S) of 1999 was filed, wherein an interim order dated 30.09.1999 was passed directing to continue them and a further direction had been given to regularize their services in the same terms of the directions dated 07.09.1998 given the same in another Writ Petition no.885 (S/S) of 1997 (Ashok Kumar Vs. State of U.P. & others). The interim order dated 30.09.1999 passed in the said writ petition has not been brought on record.
It was, however, pleaded by them that the service of one Ashok Kumar, the petitioner in writ petition no.885 (S/S) of 1997 was regularized after rejection of the Special Leave to Appeal filed by the State. The submission was that the services of Ashok Kumar had been regularized despite the fact that he did not work on daily wage from 15.02.1991 to 29.06.1991 whereas the interveners namely Anandi Pal and Raju Nawab, were in continuous service since 14.03.1991 till the date of commencement of Regularization Rules 1998 i.e. on 09.07.1998.
The third writ petition no.2363 (S/S) of 1999 preferred by these interveners was decided on 11.05.2005 in a bunch of writ petitions with the leading writ petition no.3573 (S/S) of 1998 with the direction to consider their cases for regularization in the light of judgement and order dated 05.08.2003 passed by a Division Bench. The said order of the Division Bench, as narrated in the intervener application, has not been brought on record. Their claim of regularization was again rejected vide order dated 21.12.2005 and they were removed from the department under Rule 8 of the Regularization Rules' 1998. Fourth writ petition no.3304 of 2006 was filed with the prayer to grant relief under the direction of the Apex Court in the case of Awadhesh Kumar (supra). By the interim order dated on 20.04.2006, the temination order dated 21.12.2005 was stayed. As a result of it, these persons were allowed to work. Later, pursuant to the Government order dated 08.09.2010, their services were regularized by the order dated 25.02.2011 treating them in continuous service. By the order dated 28.09.2015 their service had been confirmed under Rule 21 of U.P. Registration Department Service (District Establishment) Rules' 1978. The fourth writ petition no.3304 (S/S) of 2006 was dismissed for want of prosecution on 29.09.2010 and the interim order granted therein was vacated. The order passed by the writ Court is reproduced as under;-
"None appears to press the petition.
The petition is, therefore, dismissed for want of prosecution.
Interim order, if any, stands vacated."
(b) Sri Ram Teerath son of late Ram Lal and Indra Mohan son of late Brij Mohan:- As per own case, they were appointed as daily wage Registration Clerks in the year 1988 (appointment letter is not on record). Their services were terminated in the year 1991 by oral orders, they filed writ petition no.5258 (S/S) of 1991 (Ram Teerath & others Vs. State of U.P. & others) wherein an interim order dated 16.09.1991 was passed which was modified on 17.12.1999. Pursuant thereto, they continued on daily wage basis. In the meantime, the Regularization rules 1998 came into force, they filed representation for claiming regularization of their services under the Regularization rules 1998.
Their writ petition was decided finally on 24.01.2000 in the same terms of the directions in another writ petition no.885 (S/S) of 1997 (Ashok Kumar Vs. State of U.P.). The writ petition no.885 of 1997 was disposed of on 07.09.1998 with the observation that since the petitioner therein was working for more than 12 years, his services be regularized. The Special Leave to Appeal filed by the State was dismissed. Sri Ashok Kumar, the petitioner in writ petition no.885 (S/S) of 1997 was regularized.
The contention of the interveners herein is that despite the direction in their favour dated 24.01.2000, their services were not regularized. However, a special appeal had been preferred by the State and they continued to work on daily wages and regularized on 25.02.2011. They were confirmed vide order dated 28.09.2015 under Rule 21 of U.P. Registration Department Service (District Establishment) Rules' 1978.
(c) Claim of Keshav Kumar Srivastava son of late Bhagwati Prasad Srivastava and Anil Kumar son of Ram Kripal:-
These persons claimed their engagement on daily wages as registration clerk made in the year 1988 (appointment letter is not on record); their services were terminated in the year 1991 orally. They filed first writ petition no.37228 (S/S) of 1991, which was disposed of on 02.01.1992 with the direction to continue them on daily wage and consider their candidature in the event of regular selection. Resultantly, they continued to work. The said writ petitions was dismissed with bunch on 08.02.1995 and the matter was finally decided in Khagesh Kumar (supra).
Contention is that since no regular selection was held, these persons continued to work as registration clerk on daily wages. However, with their affidavit there is no record of their working. In the meantime Regularization rules 1998 came into force, they filed representation for regularization of their service but no decision was taken.
It is contended that the interveners continued on the strength of the judgement and order dated 12.04.1996 passed by the Apex Court in the case of Awdesh Kumar (supra). In the year 2010, the government took a decision to regularize services of all those daily wagers who were working prior to 29.06.1991.Consequently, their services were regularized on 25.02.2011 and they were confirmed vide order dated 28.09.2015 under the Service Rules.
In the list of 392 regularized Registration Clerks, the name of Sri Keshav Kumar Srivastava is at serial no.361, his date of initial appointment has been mentioned as 18.02.1988. In the year 1988, he worked for 32 days; in 1989 for 46 days; and in 1990 for 35 days. However, for the entire one year in 1991, he did not work at all. His period of working after 1992 is more than 200 days which appears to be under the interim orders of the Court.
So far Sri Anil Kumar is concerned. His name does not reflect in the list of 392 regularized clerks.
Thus, we find that correct facts have not been disclosed.
(d) Claim of Akhilesh Kumar Pandey son of Ram Ashrey Pandey: -He was appointed on 01.11.1987 as a daily wage registration clerk. The appointment letter indicates that it was an engagement for three months. However, he claims to be continued till 31.01.1988. Fresh engagement was made on 28.12.1989 and he continued till 28.03.1990 and again from 09.10.1990 to 11.02.1991. He filed first writ petition no.4002 of 1990 wherein interim order dated 26.04.1991 was passed stating therein that, in case of existing vacancies, the petitioner should be allowed to work and pay salary. In case of regular selection, one post shall be kept reserved for him. Pursuant thereto, he joined on 13.06.1991 and continued to work. The aforesaid writ petition was dismissed on 08.02.1995 with the bunch and was decided finally in the reported case of Khagesh Kumar (supra).
His claim was, thereafter, rejected vide order dated 18.10.1996 passed by the I.G. Registration State of U.P. Allahabad. Second writ petition no.4652 (S/S) of 1997 was filed wherein interim order dated 04.09.1998 was passed permitting him to continue on daily wages subject to selection of regular candidates. He was allowed to join on 26.09.1998. Third writ petition no.4652 (S/S) of 1997 was filed by him which was decided with the bunch being leading Writ Petition No. 3573 (S/S) of 1998 on 11.05.2005 with the direction to re-consider the claim of regularization of all the applicants/petitioners therein in the light of judgment of Khagesh Kumar (supra). Taking into account the Regularization Rules such as the U.P. Regularization on Ad-hoc Appointment (on post outside the Purview of the Public Service Commission) (Third Amendment) Rules, 2001 (herein after referred as Third Amendment Rules 2001).
His services were regularized vide order dated 25.02.2011 and he was allowed to join vide order dated 01.03.2011. He was later on confirmed on the post of registration clerk vide order dated 29.12.2015.
In the list of regularized 392 Registration Clerks, name of Sri Akhilesh Kumar Pandey appears at serial no.350, the details of his working giving therein show that he did not work for two years consecutively in 1996 and 1997.
(e) Interveners application of 46 applicants filed by Sri Gireesh Chandra Triwari in Special appeal no.767 of 2004 accompanied with the affidavit of Mohd. Shaqir Khan son of late Mohd. Khatir Khan:-
The facts narrated therein are that they had been working on daily wage basis and were subsequently regularized during pendency of the appeal. It is not explained as to whether they are party in any appeal in this bunch. As per the chart given in the affidavit, these applicants have been appointed on various dates between 1983 and 1991.
In writ petition No.3593 (S/S) of 1998, order dated 25.08.1998 was passed directing the respondents to consider them for regularization under the Regularization rules, 1998. Later on the aforesaid writ petition was disposed of with a bunch on 11.05.2005 by the Lucknow bench of this Court with the direction that their claim for regularization be considered under the relevant Regularization rules. Their claim, thereafter, was rejected. Second writ petition no.127 (S/S) of 2006 was filed which was disposed of on 06.01.2006 relegating the petitioner to approach the State Public Service Tribunal by filing a claim petition.
Aggrieved, the petitioner filed Special Appeal no.59 of 2006 which was allowed on 04.04.2006 setting aside the judgment and order dated 06.01.2006 and the matter was relegated to the learned Single Judge to decide afresh. Meanwhile, the applicant's services were regularized on 25.02.2011. The aforesaid writ petition filed by them was dismissed as infructuous on 17.05.2011.
(f) Claim of Sri Ramveer Sharma registration clerk (confirmed):- The applicant claims that he was appointed on 22.05.1986 under Rule 101 of Registration Manual and joined on 23.05.1986. He worked uptill 1990 without any break. The appointment letter dated 22.05.1986 has been brought on record. First writ petition no.19960 of 1991 was filed by the applicant wherein an interim order was granted allowing him to continue. He was, thereafter, permitted to work from 20.07.1991 upto 25.03.1995. The said writ petition was dismissed in the year 1995 alongwith other on 08.02.1995 and was finally decided in the Special Leave to Appeal in Khagesh Kumar (supra). The applicant moved an application for payment of salary for the period of working under Rule 101 of Registration Manual under the directions of Khagesh Kumar (supra). His claim was, however, rejected on 28.12.1996 with the assertion that there was no prior sanction of such appointment by the I.G. Registration. Second writ petition no.4263 of 1997 was filed wherein by the interim order dated 03.12.1997 he was permitted to continue. On 27.06.1997, he was allowed to join and work uptill 11.01.1999. In the year 1999, the said writ petition was dismissed and Special Appeal no.175 of 1999 was filed wherein interim order dated 10.03.1999 was passed. The said order has been appended as 'Annexure no.4' to the affidavit. A perusal thereof indicates that permission was granted by the Court to him to continue, in case, he had worked uptill 27.11.1998. The applicant, thereafter, worked from 06.04.1999 till 09.09.2004 at Agra office and was transferred to Bulandshahar. Since 13.09.1994 he worked there till 25.02.2011 when he was regularized alongwith other incumbents. It is contended that the claim of the applicant for payment of salary was illegally rejected, however, what has happened to Special Appeal no.175 of 1999 filed by him is not disclosed in the affidavit. Upon enquiry it is found that the said appeal was dismissed as infructuous.
(g) Interveners applicants Raja Ram Pandey, Manoj Kumar Srivastava, Vishwa Nath Mishra and Amit Kumar Srivastava;- These applicants claimed to have been appointed in the year 1988 as Registration Clerks on daily wage basis. First writ petition no.285 (S/S) of 1991 (Amit Kumar Srivastava & others Vs. State of U.P. & others) was filed wherein an interim order dated 19.01.1991 was passed hence they continued till the year 1992. Their writ petition was decided with the direction to allow them to continue till regular selection was made. Submission is that the applicants were allowed to continue as no regular selection took place under the direction of Apex Court in Khagesh Kumar (Supra) & Awdesh Kumar (Supra). In the meantime, regularization rules came into force and the applicants preferred representation for regularization of their services. In the year 2010, the Government had decided to regularize the services of all daily wagers who were working prior to 29.06.1991 and thus the services of these applicants were regularized on 25.02.2011 as they were continued.
However in support of the above submissions of working continuously since the year 1992, nothing has been brought on record.
As per the chart of 392 regularized employee, the name of Sri Manoj Kumar Srivastava is at serial no.173. The details of his working shows that there were long gaps from the year 1992 till 1996; in the year 1998 he worked for 90 days. From 1999, his period of working exceeded to more than 200 days, it appears on the basis of interim order of the Court.
Name of Vishwa Nath Mishra is at serial no.263 in the aforesaid chart, he worked for 59 days in the year 1988 then gaps of six year from 1989 to 1996; worked for 170 days in 1997; 136 days in 1998.
Similar is the position of Amit Kumar Srivastava he worked for 85 days in the year 1985; gaps from 1991 till 1996; 172 in 1997; 273 days in 1998.
Raja Ram Pandey is at serial no.268 of the aforesaid chart, he worked for 65 days in the year 1988; 47 days in 1989; gaps from 1990 till 1996; 270 days in 1998.
(h) The intervener application filed by Sri Arvind Kumar Shukla is on behalf of 32 persons;- they claim that all of them were working prior to the cut off date i.e. 29.06.1991 in the department. They were party to the writ petition no.6134 of 1997 which was dismissed on 27.11.1998. Special Appeal no.3 of 1999 preferred by them was withdrawn by an application filed by these persons. They were confirmed on 28.09.2015. There is no detail of working of these persons in the affidavit.
(I) Raj Kumar Srivastava, Amar Nath Sonkar and Brijnath the respondents in Special Appeal no.767 of 2004:-
The respondents submits that they did not get any benefit of the judgement and order dated 11.05.2004 passed by the learned Single Judge in Civil Misc. Writ Petition No.42654 of 1993 rather they filed a writ petition no.190002 of 2013 which was allowed on 30.04.2015 with the direction to the respondents to reconsider their claim for regularization. Pursuant to the judgement and order dated 30.04.2015, their services were regularized vide order dated 18.08.2015. The order dated 18.08.2015 for regularization of Amarnath Sonkar has been brought on record wherein the order of the writ Court is quoted.
A perusal thereof indicates that Sri Amarnath Sonkar was engaged for the first time on 13.09.1990; he worked from 13.09.1990 till 31.12.1990. On a writ petition no.23188 of 1991, he was again engaged on 13.08.1991. His claim was rejected on 12.03.2013. The said order dated 12.03.2013 was set aside in a writ petition and a direction was issued to reconsider. From a perusal of the regularization order dated 18.08.2015, it is evident that there is no consideration of the period of working of these persons nor the fact that they worked after 31.12.1990 only on the strength of the interim order passed by this Court has been considered.
(j) Rakesh Kumar Pandey;- It is contended that he was engaged on 07.02.1990 on daily wage basis and continued as such with some artificial breaks. The copy of the appointment letter is not on record. First writ petition no.38461 of 1997 was filed, wherein interim order dated 20.11.1997 was granted. Pursuant thereto he joined on 23.01.1998. The aforesaid writ petition was disposed of on 20.11.2000 (the order is not on record). A perusal of the order dated 23.01.1998 (annexure no.2 to the affidavit) filed by the applicant shows that he was appointed till further order of this Court in the pending petition. Second writ petition no.1019 of 2000 was filed seeking regularization under the Regularization rules 1998 wherein interim order dated 10.01.2000 was passed to regularize the applicant. Special Appeal (D) no.503 of 2000 was filed which was disposed of on 21.11.2011 giving direction to the respondents to consider the claim of the applicant for regularization under the Rules, 1998. Prior to that, he was regularized on 25.02.2011.
In the chart of 392 regularized registration clerk, we find the name of Rakesh Kumar Pandey at serial no.391. The details of his working shows that for the first time, he started working in the year 1998. How he was appointed prior to 29.06.1991 and continued, thereafter, is not explained.
(k) Sri Manoj Kumar Srivastava son of Indra Prakash Srivastava:- He was appointed on 20.01.1990 as daily wage registration clerk. First writ petition no. 5169 (S/S) 1992 was filed and he continued, thereafter, on the strength of an interim order till it was dismissed on 08.02.1995. His claim for regularization was rejected, thereafter. Second writ petition no. 3871 (S/S/) of 1997 was filed wherein an interim order was passed on 19.09.1997 permitting him to continue till the appointment of regular selected candidates. He thus continued to work till 2006. Third writ petition no.1086 (S/S) of 2000 was filed with the claim for regularization under Rules 1998 wherein by interim order dated 02.03.2000 it was directed to consider his claim under the Rules, 1998. Vide order dated 30.12.2005, the services of the applicant were terminated. Fourth writ petition no.2574 (S/S) of 2006 was filed whereby interim order dated 03.04.2006 and termination order was stayed allowing him to continue.
On 25.02.2011, the applicant was regularized and was confirmed on 28.09.2015.
(l) Abul Hasan:- He was engaged on 01.10.1986. First writ petition no.Nil/1992 was filed wherein interim order dated 25.04.1992 was passed allowing him to continue till the appointment of regularly selected candidates. The said writ petition was dismissed on 08.02.1995 and was finally decided in Khagesh Kumar (supra). His claim of regularization was rejected. Second writ petition no.5271 of 1997 was filed wherein interim order dated 14.02.1997 was granted permitting him to work till regular selection.
His service were terminated on 30.12.2005. Third writ petition no.2574 (S/S) of 2006 was filed wherein, on 03.04.2006, termination order was stayed. Again on 24.04.2010, the applicant was restrained from working, he filed fourth writ petition no.4551 (S/S) of 2010 wherein again the said termination order was stayed. He was, thereafter, regularized on 25.02.2011 and confirmed on 28.09.2015.
(m) Raj Kumar:- He was engaged in service on 07.02.1990 on daily wage basis and continued with breaks. First Writ petition no.1416 of 1993 was filed, interim mandamus was granted. The writ petition was dismissed on 08.02.1995 and was decided finally in Khagesh Kumar (supra). His claim was rejected by I.G. Registration. Second Writ petition no.7185 of 1997 was filed; interim order dated 28.02.1997 was passed. He joined on 30.06.1997 on the strength of the interim order. Third writ petition no.53147 of 1999 was filed, interim order dated 17.02.1999 was passed therein to regularize him within three months. The State filed Special Appeal (D) no.359 of 2000 which was disposed of on 21.11.2011 with the direction that the committee constituted for the purpose shall consider the claim of the applicant in the light of the Regularization rules as per the direction of the Apex Court. On 25.02.2011, the applicant was regularized and was confirmed on 28.09.2015.
(n) Sri Zami Ahmad:- He was engaged on 22.07.1986. First writ petition no.1416 of 1993 was filed, interim order was passed therein allowing him to continue. It was dismissed on 08.02.1995 and finally decided in Khagesh Kumar (supra). The claim of the applicant was rejected by the I.G. Registration. Second writ petition no.38461 of 1997 was filed wherein interim order dated 20.11.1997 was passed. He was engaged on 29.01.1998. Third writ petition no.53147 of 1999 seeking regularization under Rules 1998 was filed wherein interim order was granted on 17.12.1999 directing the respondents to regularize his services. The State filed Special Appeal (D) No.359 of 2000 which was disposed of on 21.11.2011 modifying the interim directions dated 17.12.1999. He continued and was regularized on 25.02.2011 and confirmed on 28.09.2015.
(o) Shivdas Pandey:- was appointed on 20.01.1989. First writ petition no.1416 of 1993 was filed, interim order was passed to allow him to continue. The writ petition was dismissed on 08.02.1995 and was finally decided in Khagesh Kumar (supra). His claim was rejected by I.G. Registration. Second Writ petition no.7189 of 1997 was filed wherein interim order dated 20.02.1997 was passed. He was then engaged on 30.06.1997. Third writ petition no.53147 of 1999 was filed wherein interim order dated 17.12.1999 was passed.
The chart of regularized registration 392 clerks shows that he was not in service at all from the year 1991 till 1996.
(p) Rajesh Kumar Pandey:- was engaged on 17.01.1989. His claim for regularization was rejected after decision in the case of Khagesh Kumar (supra). First Writ petition No.38463 of 1997 was filed wherein interim order dated 20.11.1997 was passed. Pursuant thereto, he was engaged on 22.01.1998 and continued till 27.11.1998. The said writ petition was dismissed. Aggrieved, he filed Special Appeal (D) No.65 of 1999 wherein interim order dated 03.02.1999 was passed allowing him to continue. Second Writ petition no.63148 of 1999 was filed with the prayer to regularize him under the Rules 1998. The order dated 17.12.1999 was passed to regularize him which was modified in Special Appeal (D) No.331 of 2000 vide judgement and order dated 05.08.2003. He was regularized on 25.02.2011 and was confirmed on 28.09.2015.
(q) Diwakar Pandey:- was engaged on 20.01.1989. He filed first writ petition no.1416 of 1993 and continued on the strength of the interim order. The said writ petition was dismissed on 08.02.1995 and was finally decided in the case of Khagesh Kumar (supra). His claim for regularization was considered and rejected by I.G. Registration. Second writ petition no.7189 of 1997 was filed, interim order dated 20.02.1997 was passed. He was engaged on 30.06.1997 and continued. Third writ petition no.53147 of 1999 was filed; interim order dated 17.12.1999 was passed with the direction to regularize him. The said order was modified on 21.11.2011 in the Special Appeal (D) No.359 of 2000 filed by the State. The applicant was regularized on 25.02.2011 and was confirmed on 28.09.2015. The chart of 392 regularized Registration Clerks shows that he did not work at all from 1989 till 1996.
Other relevant facts:-
It would be pertinent to add at this stage that from the list provided by the State appellant during the course of hearing (on record), it is evident that the representations of as many as 617 persons (daily wagers) were rejected on various dates between the year 1996 and 1997 after consideration of their claim under the directions of Khagesh Kumar (supra). One more list of 96 persons (daily wagers) has been filed along with the orders of rejection of their claims which were passed in the years 1996, 1997, 1998, 2001 and 2005. Both the lists have been placed on record.
Lastly, Sri H.N. Singh learned Advocate appearing for the daily wage registration clerks placed reliance on the judgement dated 29.03.2017 passed in Special Appeal No.2097 of 2012 (State of U.P. & others Vs. Laik Ahmad & others) to submit that appeal filed by the State of U.P. and 3 others to assail the judgement and order dated 24.08.2012 passed by the learned Single Judge in Civil Misc. Writ Petition No.44520 of 1993 (Prakash Chandra & others Vs. State of U.P. & others) directing for regularization in terms of the direction of the Khagesh Kumar (supra) has been dismissed.
From a reading of the judgement in case of the State of U.P. & others Vs. Laik Ahmad & others passed in Special Appeal no.2097 of 2012 on 29.03.2017, we find that in paragraph no.12, Writ Court has specifically taken note of the fact that directions for considerations of the claim of the petitioners therein had been issued under the order of the Writ Court dated 11.05.2004 and against the said order, special appeal had been filed by the State of U.P. which was pending before this Court.
What logically follows is that the entire consideration of the claim of Laik Ahmad & others was dependent upon the outcome of the appeal filed against the judgement and order dated 11.05.2004.
Counsel for the parties before us would concede that the special appeal against the order dated 11.05.2004 would also be covered by the judgement which to be passed in this bunch. The net result would be that if we come to the conclusion that the order dated 11.05.2004 is illegal not sustainable, as we have already recorded above, the entire consequential exercise undertaken would fall automatically and, therefore, the Division Bench judgement would have no further impact on the issue at hand.
It is also to be noticed that the Division Bench in the said case has failed to take into consideration the judgement in the case of Uma Devi (supra), State of Karnataka Vs. M.L. Keshri (supra) and State of Jammu & Kashmir (supra). The judgement in State of U.P. & others Vs. Laik Ahmad & others, therefore, is clearly distinguishable.
And further that if a writ petition is disposed of with the direction that the particular petitioner shall continue till his claim is considered for regularization, such continuance would also be with the assistance of the interference of the Court and not otherwise which aspect of the matter has escaped attention of the Division Bench.
Conclusion:-
From a threadbare discussion of the facts of the cases before us and the legal position in the matter of regularization, we record our conclusion as follows:-
(I) None of the daily wagers before us are entitled for consideration for regularization as Registration Clerk in the Stamp and Registration Department, State of U.P, as they do not fulfill the requirement either of the Regularization Rules, 1979 [as per the directions of Khagesh Kumar (supra)] or the Regularization Rules, 1998 (enforced w.e.f. 9.7.1998).
(ii) The daily wage Registration Clerks had succeeded in continuing in the Stamp and Registration Department, State of U.P. by misuse of the process of the Court by filing successive writ petitions and special appeals. Their claims were rejected twice and thrice (in most of the cases) and their services were terminated in terms of the Rule 8 of the Rules' 1979, by the Competent Authorities after due consideration.
(iii) These daily wagers had succeeded in getting interim orders from the Court and had continued as such but not a single writ petition or special appeal had been decided on merits of their rejection/termination orders. Repeated directions were issued by the Courts to consider their claim without adjudication on merits ignoring the fact that their services were not required in the Registration Department and they could not continue on daily wage after rejection of their claim for regularization as a consequence of Rule 8 of the Rules' 1979.
(iv) The direction of the Inspector General of Registration in not holding regular selection for the post of Registration Clerks cannot be said to be in contravention or violation of the directions of the Supreme Court in Khagesh Kumar (supra) as, infact, there was no such positive direction.
(v) The learned Single Judge in the judgement and order dated 11.5.2004, could not have taken exception to the decision of the Inspector General of Registration Department/ State of U.P. in not holding regular selection for the post of Registration Clerks as it was exclusively within the domain of the Executive Authority.
(vi) The directions of the learned Single Judge dated 11.05.2004, to the respondents to absorb all daily wagers on the post of Registration Clerks by preparation of a seniority list against all existing and future vacancies are simply in contravention of the Statutory Rules.
(vii) The judgment and order dated 11.05.2004 passed by the learned Single Judge, under challenge, is a result of misreading and misconstruction of the directions of the Supreme Court in Khagesh Kumar (supra) and cannot be sustained in the eye of law.
(viii) The judgement and order dated 27.11.1998 passed by the learned Single Judge is hereby affirmed for the reasoning given herein before.
(ix) The entire exercise of regularization undertaken by IG Registration was tainted by the vice of non adherence to the Regularization Rules, 1998 and was per-se illegal.
(x) The decision taken by the Cabinet of State Ministers (Mantri Parishad) and the promulgation of the Government Orders dated 8.9.2010 and 13.12.2010, as a result thereof, giving continuance to the daily wagers, who were working on the basis of interim orders of this Court, is in teeth of the pronouncement of the Constitution bench judgement of the Supreme Court in the case of Uma Devi (3). It had even otherwise resulted in overriding the Rules' 1998 framed by the Governor under Article 309 of the Constitution of India, which was not permitted in law.
(xi) The daily wage Registration Clerks who were not in employment between two dates i.e. 29.6.1991 and 9.7.1998 in the exigencies of the registration department and were continuing on the strength of the interim orders of the Courts, were not entitled for regularization under the Regularization Rules' 1998.
(xii) All the special appeals filed by the State of U.P and the IG Registration (covered by the 2nd group) are consequently, allowed. The Special appeals and the writ petitions filed by the daily wagers (in the 1st and 3rd group) are, hereby dismissed.
Before parting with the judgement, we are constrained to record that the entire exercise of regularization of daily wagers as Registration Clerks in the Stamp and Registration Department, State of U.P., was an effort to extend illegal benefit to the chosen few in order to bring them within the frame work of Regularization Rules 1998. This entire exercise smacks of malafide on the part of the State Government/ Inspector General of Registration Department.
The public funds have been misused at the hands of the State Authorities. The Principal Secretary, Stamp and Registration, U.P., Lucknow, for the reasons best known to him, did not examine the matter despite directions given by us and acted illegally and recklessly in justifying the regularization of 392 Registration Clerks made in the department.
We, therefore, direct the Chief Secretary of the State of U.P. to take up the matter and initiate an enquiry into the illegal exercise of regularization made by the State Officials. The role of the officers of the Registration department including the then IG Registration, U.P. Allahabad shall be inquired and responsibility be fixed upon all those who were sitting at the helm of the affairs and those who were involved in the entire process of regularization. The recovery for misuse of State Exchequer be also initiated against all those guilty, after fixing their responsibility after affording them opportunity to explain. A report may be submitted by the Chief Secretary to the High Court through Registrar General, High Court, Allahabad within a period of four months from the date of receipt of certified copy of this order.
The learned Chief Standing Counsel is directed to communicate this decision for necessary compliance.
Subject to the above observations and directions, this bunch of Special Appeals and writ petition, is decided finally. No order as to costs.
I agree
(Sunita Agarwal,J.) (Arun Tandon,J.)
Order date:- 05.10.2017
HIMANSHU