Harsh Kumar Mishra and Others vs State of U.P.and Others

Rajiv Sharma, J.—There are four writ petitions and all are related to each other involving the same question, hence, feel it proper to dispose of all the petitions by following common order.

Heard learned counsel for the petitioner and learned Standing Counsel appearing on behalf of State and Sri A.K. Bajpai, learned counsel, appearing on behalf of Nagar Palika Parishad, Sultanpur.

Ram Dulare Mishra was engaged as daily wager on the post of Pipe Line Fitter from time to time and as his services were not regularized in spite of preferring several representations to the authority concerned, therefore, he preferred a writ petition No.636 (S/S) of 1999, with a prayer to regularize his services and further pay the arrears of the service period. During the pendency of the aforesaid writ petition, the Executive Officer, Nagar Palika Parishad, Sultanpur, vide letter dated 20.1.2003, sent a notice to Ram Dulare Mishra, Harishchandra Singh, Babulal, Surendra Prasad Mishra, Jagannath Mishra, Sri Ram Rawat, Rajendra Prasad Lal, Ashok Kumar Shukla, Amar Bahadur Verma and Ram Pratap that the post of which they are working, the sanction by the Government is only up to the year February, 1997 and thereafter no sanction has been accorded by the Government and as such their services stands dismissed. Consequently, they preferred a writ petition No.1036 (S/S) of 2003, before this Court with a prayer to quash the impugned notice dated 20.1.2003 and further the petitioners may be allowed to continue in service. This Court by the order dated 14.2.2003 stayed the operation of the order dated 20.1.2003.

Prior to the aforesaid writ petitions, Shitla Prasad, Harish Kumar Mishra, Raj Bahadur Yadav, Ram Samujh Verma, Ram Chandra Yadav, Noor Ahmad and Bharat Singh have preferred a writ petition, which was numbered as writ petition No.4820 of 1996 (S/S), before this Court with a prayer to absorb and regularize the petitioners on the post of Pump Attendant in Jal Kal Vibagh, Nagar Palika, Sultanpur and to pay the similar pay scale and allowance as are admissible to the regular and permanent Pump Attendants. This Court, vide order dated 23.12.2005, allowed the writ petition No.4820 of 1996 (S/S) along with similar identical matters i.e. writ petition No.4135 (S/S) of 2000 and 5134 (S/S) of 2000 with the direction that before making any direct recruitment on the post of Group ''D'' post, the petitioners shall be considered for regularization for Group ''D'' post within its sanctioned strength in accordance with Rules and further a writ of mandamus is issued to the State Government/Nagar Palika Parishad, Sultanpur to proceed expeditiously and consider the petitioners'' regularization under the relevant Rules against the sanctioned post and if the Rules permit so, before making the appointment directly on vacant class III post, the petitioner of writ petition No.5134 (S/S) of 2000 shall be considered for giving appointment on the said post subject to his eligibility in accordance with law. In spite of specific directions issued by this Court vide order and judgment dated 23.12.2005, the authority concerned did not comply with the order dated 23.12.2005 and as such, the proceedings under the Contempt of Courts Act were initiated by the petitioners by filing a contempt petition, which was numbered as Criminal Misc. Case No.695 of 2006 (C) and in response thereof, the Executive Officer of Nagar Palika Parishad, Sultanpur appeared and filed counter affidavit therein.

It is stated that a letter was written to the State Government for compliance of the directions issued by this Court vide order and judgment dated 23.12.2005. Abruptly, the petitioners services were terminated vide order dated 18.5.2006 and the said order was assailed by Harish Kumar Mishra, Raj Bahadur Yadav, Ram Samujh Verma, Ram Chandra Yadav and Noor Ahmad by filing a writ petition, which was numbered as writ petition No.4929 (S/S) of 2006, whereas Shitla Prasad filed writ petition No.5670 (S/S) of 2006 before this Court, inter alia, on the grounds that the order is wholly arbitrary and in violation of principle of natural justice. It has also been stated that the petitioners are entitled to consideration for regularization of the services in view of the statutory provisions of U.P. Regularisation of Daily Wages Appointments on Group ''D'' Posts Rules, 2001 as they fulfil all the requisite conditions as enumerated in the Rules. This Court, vide interim order dated 26.5.2006, directed that the petitioners would be allowed to continue as earlier up to the time their regularization is considered by the opposite parties. The State Government was directed to take a decision with regard to sanction of the post within a period of three months from the date a certified copy of the order is produced before it and thereafter the Nagar Palika Parishad will act in accordance with the judgment rendered by this Court dated 23.12.2005, which attains finality. As the respondents did not comply with the interim order dated 26.5.2006, the petitioners preferred another contempt petition, which was numbered as Contempt Petition No.2312 (C) of 2006. As both the contempt petitions relate to the same subject, as such, they were connected and the same are still pending.

Thereafter, vide order dated 6.7.2006, this Court directed for connecting the writ petition No.4929 (S/S) of 2006 with writ petition No.5670 (S/S) of 2006 and passed the interim order to the effect that the petitioner of writ petition No.5670 (S/S) of 2006 would also be entitled for the benefit of the interim order dated 26.5.2006 passed in writ petition No.4929 (S/S) of 2006 in the same terms and conditions. Thereafter, the petitioners of writ petition No.4929 (S/S) of 2006 have preferred an application for interim directions and this Court, vide order dated 18.8.2007, directed the authority concerned that in case vacancies are available, the claim of the petitioners may be considered for regularization in accordance with the Government Order dated 22.11.2006.

A counter affidavit has been filed in writ petition No.4929 (S/S) of 2006 along with an application for vacation of the interim relief dated 26.5.2006 controverting the contents of the writ petition. Learned counsel for the respondents submits that exercise relating to appointment/regularization is subject to availability of post sanctioned by the State Government as provided under Government Order dated 22.11.2006 and as the post has not been sanctioned by the State Government till date, as such, there is no occasion for regularization of their services on the post of Pump Operator. It has further been stated that there is no posts of Pump Operator in Nagar Palika Parishad but he did not dispute that the post of Pump Operator falls within the category of Group ''D''. It has further been stated that the petitioners being daily wagers and as such, they have no legal right on the post in question.

In support of the aforesaid submission, learned counsel for the respondents has relied upon the decisions of the Apex Court rendered in the case of State of M.P. and others v. Yogesh Chandra Dubey and others, (2006) 8 Supreme Court Cases 67, Surinder Prasad Tiwari v. U.P. Rajya Krishi Utpadan Mandi Parishad and others, (2006) 7 Supreme Court Cases 684, and Accounts Officer (A & I) A.P. SRTC and others v. P. Chandra Sekhara Rao and others, (2006) 7 Supreme Court Cases 488.

In State of M.P. (supra), the Apex Court has held that a State within the meaning of Article 12 of the Constitution of India, while offering public employment, must comply with the constitutional as also statutory requirements. Appointments to the posts must be made in terms of the existing rules. A person, who had been appointed by a State upon following the Recruitment Rules, enjoys a status. A post must be created and/or sanctioned before filling it up. As the respondents did not hold any post, they are not entitled to any scale of pay. Regularisation is not a mode of appointment. If any recruitment is made by way of regularization, the same would mean a back door appointment, which does not have any legal sanction.

In Surinder Prasad Tiwari (supra), the Apex Court has held that where such employee appointed without following procedure laid down under Articles 14, 16 and 309 of the Constitution, he cannot be directed to be regularized in service and as such, dismissal of writ petition by the High Court filed by the appellant contractual employee seeking direction for his regularization was proper.

In Accounts Officer (A & I) A.P. SRTC (supra), the Apexd Court has held that contractual appointments made by State Corporation concerned in violation of statutory Rules, direction for regularization on the basis of guidelines issued by the Corporation for regularization was not justified in view of the decision of the Constitution Bench in the case of State of Karnataka v. Umadevi (2006) 4 SCC 1, that the appointments made on contract basis or on daily wages and in violation of the statutory Rules or the Rules framed under proviso to Article 309 of the Constitution, being void ab initio and thus nullities, question of regularizing their services would not arise and as such, no guidelines regularizing such appointments could have been made even in terms of Article 162 of the Constitution.

Sri A.K. Bajpayee, learned counsel for the respondents, submits that by means of order dated 22.11.2006, creation of the posts has been declined by the State Government whereas it has been provided by the State Government that the daily wages employees shall be considered for regularization in accordance with the provisions of Rules, 2001. It was also urged that the petitioners have right to be considered in service against the existing Group ''D'' posts.

On the other hand, Sri Ramesh Pandey, learned counsel for the petitioners, submits that the Constitution Bench of the Apex Court in Paragraph 53 in the case of The Secretary, State of Karnataka and others v. Uma Devi and others, (2006) 4 SCC 1, has specifically held that:

�53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in State of Mysore v. S.V. Narayanappa, AIR 1967 SC 1071: (1967) 1 SCR 128 and B.N. Nagarjan v. State of Karnataka, (1979) 4 SCC 507: 1980 SCC (L&S) 4 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 onetime measure, the services of such irregularly appointed, who have worked for ten years and more in duly sanctioned posts but not under cover of orders of the Courts or of tribunals and should further insure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or dailywagers 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 sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.�

He further submits that in compliance of the order dated 26.5.2006, the State Government by means of order dated 22.11.2006 provided that the daily wages employees shall be considered for regularization in accordance with provisions of U.P. Regularisation of Daily Wages Appointments on Group ''D'' Posts Rules, 2001. Consequently, the Executive Officer, Nagar Palika Parishad, Sultanpur had reinstated the petitioners on the same terms as they were working earlier, vide order dated 27.4.2007 and as such, the petitioners are continuously working under the control of respondents and they have submitted representations, with regard by consideration of their case of regular appointment/regularization in service against existing Group ''D'' posts and are also entitled for arrears of salaries from May, 2006 to May, 2007, which has illegally been withhold. He also submits that vacancies available in the Nagar Palika Parishad, Sultanpur cannot be filled up through process of direct recruitment until and unless respondents consider the case of the petitioners.

Admittedly, the petitioners were engaged on daily wage basis and for the last ten years, they have been working continuously and as such, they are legally entitled for the benefit of regularization under the U.P. Regularization of daily wages Appointments on Group ''D'' Posts Rules 2001.It may be mentioned that this Court by the judgement and order dated 23.12.2005 passed in writ petition No. 4820 of 1996 (SS) provided that before making any direct recruitment on the post of group ''D'' the petitioners shall be considered for regularization for Group ''D'' post within its sactioned strength in accordance with Rules and further a writ and mandamus is issued to the State Government/Nagar Palika Parishad, Sultanpur to proceed expeditiously and considered the petitioners regularization under the relevant rules against the sanctioned post and if the Rules permit so, before making the appointment directly on vacant class III post, the petitioner of writ petition No. 5134 (SS) of 2000 shall be considered for giving appointment on the said post subject his eligibility in accordance with law. The aforesaid judgement has attained finality as it has not been challenged by the respondents. Therefore, it is not open for the respondents not to consider the case of the petitioners for regularization and, as such, the action of the respondents is nonest and unjustified.

For the reasons aforesaid, the writ petition Nos.4929 (S/S) of 2006, 5670 of 2006 (S/S) and 1036 (S/S) of 2003 are allowed and the orders of termination dated 18.5.2006 assailed by the petitioners in writ petition Nos.4929 (S/S) of 2006 and 5670 of 2006 (S/S) and the notice dated 20.1.2003 assailed by the petitioner in writ petition No.1036 (S/S) of 2003 are hereby quashed. The respondents are directed to consider the case of the petitioners in accordance with the provisions of U.P. Regularisation of Daily Wages Appointments on Group ''D'' Posts Rules 2001.

The writ petition No.636 of 1999 (S/S) is disposed of finally. The respondents are directed to consider the case of the petitioner for regularization in accordance with the provisions of U.P. Regularisation of Daily Wages Appointments on Group ''D'' Posts Rules 2001.

There is no order as to costs.

(Ordered accordingly)