Braj Kumar vs State of U.P. and Others

Hon''ble Dilip Gupta, J.—The petitioner, who was appointed as a Clerk on a temporary basis for a period of three months in the District Supply Office, Allahabad, has filed this petition for a direction upon the respondents to regularise the services of the petitioner on the post of Clerk. The petitioner has placed on record the order dated 10th February, 1984 passed by the Commissioner, Allahabad Division, Allahabad by which the petitioner was appointed as a Clerk in the District Supply Office, Allahabad in place of Gulab Singh in the pay scale of Rs. 354-550. The order mentions that the appointment: of the petitioner was purely temporary in nature for a period of three months or till a regularly selected candidate was appointed and that it could be terminated at any time without notice. It was also provided in the order that the petitioner shall stand attached to the office of the Assistant Commissioner, Allahabad Division, Allahabad from the day he joins the District Supply Office and his salary shall be drawn from the District Supply Office, Allahabad.

The petitioner continued to work on the basis of the aforesaid order and submitted various representations before the Commissioner, Allahabad Division, Allahabad, the District Supply Officer, Allahabad and the Additional District Magistrate, Allahabad for regularisation and confirmation of his services. Papers were sent on 7th November, 2005 to the Commissioner, Food and Civil Supplies, Lucknow who by his letter dated 28th April, 2009 sought information from the Commissioner, Allahabad Division, Allahabad about the services of the petitioner and though the Commissioner, Allahabad Division, Allahabad sent the required information but still no decision was taken. It is further stated that Sri Nawab Alam working in the District Supply Office, Fatehpur, Sri Sitaram working in the Rent Control and Eviction Office, Allahabad, Sri Dilip Sonkar working at Kaushambi and Sri Asfaq Ahmad who are junior to the petitioner have been regularised.

The petitioner claims regularisation in terms of the Uttar Pradesh Regularisation of Ad hoc Appointments (On Posts Out Side the Purview of the Public Service Commission), Rules, 1979 (hereinafter referred to as the ''1979 Regularisation Rules'') as amended by the Uttar Pradesh Regularisation of Ad hoc Appointments (On Posts Out Side the Purview of the Public Service Commission) (Third Amendment) Rules, 2001 which substitutes the earlier Rule 4(1). The amended Rule 4(1) is quoted below :

4(1) 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 Out Side the Purview of the Public Service Commission) (Third Amendment) Rules, 2001.

(ii) possessed requisite qualifications prescribed for regular appointment at 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.

Sri A.K. Srivastava, learned counsel appearing for the petitioner submitted that the petitioner is entitled for regularisation of his services in terms of the 1979 Regularisation Rules as amended in 2001 since the petitioner has been working before 30th June, 1998; was in service on 20th December, 2001 when the 1979 Regularisation Rules were amended in 2001; possesses the requisite qualifications at the time he was appointed and has completed three years of service. In support of his contention, learned counsel for the petitioner placed reliance on the following decisions of the Supreme Court:

Secretary, State of Karnataka and Others Vs. Umadevi and Others, ;

State of Haryana and Others Vs. Shakuntla Devi, ;

Khagesh Kumar and others Vs. Inspector General of Registration and others, ;

State of Karnataka and Others Vs. M.L. Kesari and Others, ; and

Rajpal Vs. State of Haryana and Others, .

Learned Standing Counsel appearing for the respondents, however, submitted that the petitioner is not entitled for regularisation under the 1979 Regularisation Rules as amended in 2001 for the reason that the petitioner was not appointed on ad hoc basis; was not appointed in accordance with the procedure prescribed under the Uttar Pradesh Food and Civil Supplies (Supply Branch) Ministerial Service Rules, 1979 (hereinafter referred to as the ''1979 Ministerial Service Rules''); there was no vacancy on the post of Clerk in the District Supply Office; the petitioner did not possess the requisite qualification and that the persons who have been regularised stand on an entirely different footing. In support of his contention, he has placed reliance upon the decisions of the Supreme Court in State of Bihar Vs. Upendra Narayan Singh and Others, , State of Orissa and Another Vs. Mamata Mohanty, and the decision of this Court in Vikas Kumar and others v. State of U.P. and others, 2012(2) ADJ 40 (NOC).

I have considered the submissions advanced by the learned counsel for the parties.

The petitioner was appointed on a temporary basis as a Clerk by the Commissioner of the Division in the District Supply Office, Allahabad for a period of three months or till a regularly selected joined and was attached to the office of the Additional Commissioner, Allahabad Division, Allahabad though his salary was to be drawn from the District Supply Office, Allahabad. It is admitted to the parties that the service conditions of employees appointed in the District Supply Office is governed by the 1979 Ministerial Rules. Under Rule 3 of the 1979 Ministerial Rules, the Appointing Authority is the District Magistrate of the district. Rule 4(1) provides that the strength of the service and of each category of posts therein shall be such as may be determined by the Governor from time to time. Rule 4(2), however, provides that the strength of the service and of each category of posts until orders varying the same are passed under sub-rule (1) is as follows :

Post

Permanent

Temporary

Total

Clerk-cum-Typist

373

919

1292

Senior Accounts Clerk

70

60

130

Head Clerk

55

71

126

Accountant

13

13

26

Stenographer (ordinary grade) (10% posts of Stenos are in the Selection Grade)

57

16

73

Rule 5 of the 1979 Ministerial Rules deals with the Recruitment to the various Categories of Posts in the Service and is as follows :

Recruitment to the various categories of posts in the service shall be made from the following sources :

(1) Clerk-cum-Typist :

(i) by direct recruitment in accordance with the provisions of the Subordinate Offices Ministerial Staff (Direct Recruitment) Rules, 1975, and

(ii) by promotion of Group ''D'' employees to the extent of 10% of the vacancies in accordance with the proviso to rule 7 of the Subordinate Offices Ministerial Staff (Direct Recruitment) Rules, 1975,

(2) Senior Accounts Clerks

By promotion on the basis of seniority subject to the rejection of the unfit from amongst permanent Clerks-cum-Typists of the concerned division.

(3) Head Clerks

(4) Accountants

By promotion on the basis of seniority subject to the rejection of the unfit from amongst permanent Senior Accounts Clerks of the concerned division.

Provided that if in particular year sufficient number of permanent Senior Accounts Clerks are not available

for promotion, the field of eligibility may be extended to include permanent Clerks-cum-Typists who have put in five years continuous service on that post.

(5) Stenographer (Ordinary Grade)

By direct recruitment

(6) Stenographer (Selection Grade)

By promotion on the basis of seniority subject to the rejection of the unfit from amongst permanent Stenographer (Ordinary Grade).

Rule 6 provides that the Reservation for candidate belonging to Scheduled Castes, Scheduled Tribes and other Categories shall be in accordance with the orders of the Government in force at the time of the recruitment. Rule 7 deals with the Qualifications. Rule 8 of the 1979 Ministerial Rules deals with the Academic Qualifications for Direct Recruitment and is as follows :

8(1) A candidate for direct recruitment to the post of Clerk-cum-Typist must have the qualifications prescribed in the Subordinate Offices Ministerial Staff (Direct Recruitment) Rules, 1975 and possess a speed of at-least 25 words per minute in Hindi typewriting.

(2) A candidate for the post of Stenographer (Ordinary Grade) must have passed the Intermediate examination of the Board of High School and Intermediate Education, Uttar Pradesh, or an examination recognised by the Government as equivalent thereto and must have a good working knowledge of Hindi written in Devanagari Script. He must also possess a speed of at-least 80 words per minute in Hindi shorthand and 30 words per minute in Hindi typewriting.

Rule 14 deals with the Determination of Vacancies. Rule 15 deals with the Recruitment to the post of Clerk-cum-Typist, while Rule 16 deals with the Recruitment to the post of Stenographer (Ordinary Grade).

It is thus seen that there is no designation of a Clerk in the category of posts prescribed under Rule 4 of the 1979 Ministerial Service Rules as the posts are of Clerk-cum-Typist, Senior Accounts Clerk or a Head Clerk. Recruitment is made to the post of a Clerk-cum-Typist and not to the post of Clerk but even the procedure prescribed for appointment on the post of Clerk-cum-Typist has not been followed.

It is in the light of the aforesaid facts that the claim of the petitioner for regularisation of his services under the 1979 Regularisation Rules as amended in 2001 has to be examined.

Learned counsel for the petitioner has placed reliance on Rule 4(1) of the 1979 Regularisation Rules as amended in 2001. The said Rule provides that any person who was directly appointed on ad hoc basis on or before 30th June, 1998 and is continuing in service on 20th December, 2001 shall be considered for regular appointment on the basis of his record and suitability provided he possessed the requisite qualifications for regular appointment at the time such ad hoc appointment was made and has completed three years of service.

The petitioner was not appointed on ad hoc basis. The order dated 10th February, 1984 passed by the Commissioner, Allahabad Division, Allahabad mentions that the petitioner was appointed as a Clerk on a purely temporary basis for a period of three months or till a regularly selected candidate joined with the condition that the engagement of the petitioner could be terminated at any time without notice. As the post is of a Clerk-cum-Typist, it cannot be said that there was any vacancy on the post of Clerk on which the petitioner was appointed and there is nothing on the record to indicate that any advertisement was issued by the Department before appointing the petitioner on a temporary basis. The Appointing Authority for the persons appointed in the District Supply Office is the District Magistrate, but the petitioner was appointed by the Commissioner of the Division and what is important to be noticed is that the petitioner was straight away attached to the office of the Assistant Commissioner immediately on his joining the post of Clerk in the District Supply Office. The procedure prescribed under the 1979 Ministerial Service Rules was not followed and what is important to be noticed is that in the District Supply Office, there is no post of Clerk as the posts are of Clerk-cum-Typist, Senior Accounts Clerk or a Head Clerk. Even for the post of Clerk-cum-Typist, a candidate apart from possessing the qualifications prescribed in the Subordinate Offices Ministerial Staff (Direct Recruitment) Rules, 1975, should also possess a speed of at least 25 words per minute in Hindi typewriting but there is nothing on the record to show that the petitioner had possessed the said typing speed. It cannot, therefore, be said that the petitioner possessed the requisite qualifications for even the post of Clerk-cum-Typist.

Learned counsel for the petitioner has placed reliance on the following observations of the Supreme Court in Umadevi and others (supra):

One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in State of Mysore and Another Vs. S.V. Narayanappa, , R.N. Nanjundappa Vs. T. Thimmiah and Another, , and B.N. Nagarajan and Others Vs. State of Karnataka and Others, , 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 regulariation 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.

This paragraph does not come to aid of the petitioner because as, noticed hereinabove, the appointment of the petitioner is not irregular but is illegal.

This position has further been clarified by this Court in Vikas Kumar and others (supra) and the observations are as follows:

Learned counsel for the petitioners, however, could not dispute that none of petitioners were ever engaged by respondent-authority by following procedure prescribed in statute consistent with Article 16 of the Constitution of India, i.e., by advertisement of vacancy giving opportunity of consideration to all other eligible persons. The petitioners in a wholly illegal manner without following any procedure of selection were engaged abruptly by officials of NOIDA in a whimsical manner and they have been allowed to continue obviously with cooperation of authorities who did not admittedly follow prescribed procedure in law for making recruitment. Such appointments are in the teeth of Article 16 of the Constitution particularly when the authority is "State" under Article 12 of the Constitution. Considering such types of appointments the Constitution Bench of Apex Court in Secretary, State of Karnataka and Others Vs. Umadevi and Others, , held:

The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularization or permanent continuance unless the recruitment itself was made regularly and in terms of the Constitutional Scheme."

Subsequently in some matters the observations made by Apex Court in para 53 of the judgment of Uma Devi (supra) were sought to be construed as if the persons even if their engagement made without following procedure prescribed in statute but continued for some times are entitled for regularisation but this misconstruction was clarified by Apex Court in subsequent decisions, some of which are, State of M.P. and Others Vs. Lalit Kumar Verma, ; Rajasthan Krishi Vishva Vidhyalaya, Bikaner Vs. Devi Singh, ; State of Karnataka and Others Vs. Sri G.V. Chandrashekar, ; Harminder Kaur and Others Vs. Union of India (UOI) and Others, ; Union of India (UOI) and Another Vs. Kartick Chandra Mondal and Another, ; Satya Prakash and Others Vs. State of Bihar and Others, and State of Rajasthan and Others Vs. Daya Lal and Others, .

The Apex Court consistently since then has held that in absence of any statutory provision if a person has been engaged in a wholly illegal manner without following procedure prescribed in statute and in violation of Article 16 of the Constitution, such person cannot be allowed to be regularised as that would amount to commanding the respondents to commit a patent illegality which is unconstitutional also.

Learned counsel for the petitioner has also placed reliance on paragraph 26 of the Supreme Court in Shakuntla Devi (supra). This decision does not help the petitioner. Likewise, the decisions of the Supreme Court in Khagesh Kumar and others (supra), M.L. Kesari and others (supra) and Rajpal (supra) do not help the petitioner.

Learned counsel for the petitioner has claimed parity with the certain employees who have been regularised. The petitioner has not placed before the Court the details and the manner in which such persons were initially appointed or regularised. Even otherwise, the petitioner has to establish his claim for regularisation in terms of the relevant Rules because the guarantee of equality before law enshrined in Article 14 is a positive concept as has been held by the Supreme Court in Upendra Narayan Singh (supra) and the observations are :

By now it is settled that the guarantee of equality before law enshrined in Article 14 is a positive concept and it cannot be enforced by a citizen or Court in a negative manner. If an illegality or irregularity has been committed in favour of any individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior Court for repeating or multiplying the same irregularity or illegality or for passing wrong order- Chandigarh Administration and another v. Jagjit Singh and another (1995) 1 SCR 745; Secretary, Jaipur Development Authority, Jaipur Vs. Daulat Mal Jain and Others, ; Union of India (Railway Board) and others Vs. J.V. Subhaiah and others etc. etc., ; Gursharan Singh and others etc. Vs. New Delhi Municipal Committee and others, ; State of Haryana and Others Vs. Ram Kumar Mann, ; M/s. Faridabad Ct. Scan center Vs. D.G. Health Services and others, ; M/s. Style (Dress Land) Vs. Union Territory Chandigarh and Another, ; State of Bihar and Others Vs. Kameshwar Prasad Singh and Another, ; Union of India (UOI) and Another Vs. International Trading Co. and Another, and Directorate of Film Festivals and Others Vs. Gaurav Ashwin Jain and Others, .

This apart, what needs to be noticed is that the Supreme Court in Mamata Mohanty (supra) held that any appointment even on a temporary or ad hoc basis has to be made by issuance of an advertisement otherwise it will not be a valid appointment and a person would not be entitled to any relief. The relevant observations are :

Therefore, it is a settled legal proposition that no person can be appointed even on a temporary or ad hoc basis without inviting applications from all eligible candidates. If any appointment is made by merely inviting names from the Employment Exchange or putting a note on the Notice Board etc. that will not meet the requirement of Articles 14 and 16 of the Constitution. Such a course violates the mandates of Articles 14 and 16 of the Constitution of India as it deprives the candidates who are eligible for the post, from being considered. A person employed in violation of these provisions is not entitled to any relief including salary. For a valid and legal appointment mandatory compliance of the said Constitutional requirement is to be fulfilled. The equality clause enshrined in Article 16 requires that every such appointment be made by an open advertisement as to enable all eligible persons to compete on merit.

Thus, for all the reasons stated above, the petitioner is not entitled for regularisation under the 1979 Regularisation Rules. The writ petition is, accordingly, dismissed.