Mohammad Azim and Others vs Commissioner, Trade Tax and Another

O.P. Garg, J.—By this writ petition, under Article 226 of the Constitution, the Petitioners have prayed that the Respondents be directed to regularise the services of the Petitioners in the Trade Tax Department, Bareilly Division. Counter and rejoinder-affidavits have been exchanged. Heard Sri S. K. Verma, learned Counsel for the Petitioner as well as learned standing counsel on behalf of the Respondents.

The Petitioners who are five in number, along with seven other persons, were initially appointed in the Bareilly Division of Trade Tax Department by the Deputy Commissioner, Administration, Trade Tax. Bareilly on the post of Clerk/Typist against the substantive vacancies for a period expiring upto 28.2.1991 on the fixed consolidated amount of salary of Rs. 950 per month. The Petitioner No. 1 was posted in Badaun, while Petitioner Nos. 2 and 3 were posted in Pilibhit and Petitioner Nos. 4 and 5 were posted in Bareilly office of the Trade Tax Department. Subsequently, on 23.2.1991, an order, Annexure-6 to the writ petition, was passed whereby the Petitioners were directed to continue on their respective posts until further orders. Instead of consolidated salary of Rs. 950 per month, the Petitioners were allowed to draw pay in the pay scale of Rs. 950-1,500 w.e.f. 1.2.1991. The Petitioners, it is alleged, are continuing in service throughout the period from their initial appointment. They applied for regularisation of their services but the department did not accede to their request. According to the Petitioners one Vijai Kumar Srivastava, who was appointed on 6.11.1991, has been regularised in service while the Petitioners who are senior to him with reference to the date of appointment, have been denied the benefit of regularisation of their services.

Counter-affidavit has been filed by Desh Raj, Trade Tax Officer, Badaun. The pleas taken in the counter-affidavit to refute the claim of the Petitioners are that the relief of regularisation of services cannot be granted by this Court in view of decision in Special Appeal No. 371 of 1995 and that the U.P. Regularisation of Ad Hoc Appointment (on Posts Outside the Purview of Public Service Commission] Rules, 1979 (hereinafter referred to as ''the Rules of 1979''.), do not apply to the case of the Petitioners.

After filing of this writ petition, an order was passed on 20th May, 1996 directing the Respondents to decide the representations of the Petitioners. The Petitioners made representations before the Deputy Commissioner, Trade Tax, Bareilly Region, Bareilly, who by order dated 11.7.1996 has rejected the representations of the Petitioners by observing that since the Petitioners were not selected for appointment according to the procedure prescribed, question of regularisation of their services does not arise and that the appointment of the Petitioners in the pay scale of Rs. 950-1,500 instead of the consolidated amount of Rs. 950 per month does not confer any right for confirmation or regularisation on them in service.

On behalf of the Petitioners, two amendment applications have been moved. The order dated 11.7.1996 passed on the representations of the Petitioners during the pendency of the present writ petition has been challenged as illegal and arbitrary. It is also prayed that the provisions of Section 4 of the Rules of 1979 be declared as unconstitutional.

To begin with, it may be mentioned that the question of regularisation of the services of the employees is dependent upon various imponderables. Regularisation cannot be claimed as a matter of right. The appointing authority has to take into consideration the various factors, such as, the availability of funds, need for retention of the employee in service according to the requirements of work, past performance of the employee and the availability of the post after applying Government orders to implement the reservation policy etc. The matter came to be considered in State of U.P. and Ors. v. Shiv Babu Garg Special Appeal No. 371 of 1995, decided on 24.5.1996. After taking into consideration the various decisions of the Supreme Court as well as this Court, it has been laid down that the Court cannot itself examine the question of regularisation of an employee on the post on which he is claiming his right for regularisation. The matter may be left for decision by the appropriate authority. Now, therefore, the law is that the order of regularisation of the services of an employee cannot be passed by Court. The matter, of necessity, has to be left to be considered and decided by the appointing authority. At best, the Court can issue a direction to the appointing authority to consider the question of regularisation of the services of employee and no more. Therefore, in this writ petition, no direction can be issued for regularisation of the services of the Petitioners against the posts which they are holding on ad hoc basis since 1990.

Now, the moot point for consideration is whether on legal and factual matrix, Petitioners have qualified themselves for being regularised in service as claimed by them. One of the submissions made on behalf of the Petitioners is that one Vijay Kumar Srivastava, who is junior to the Petitioners has been regularised in service and, therefore, the Petitioners are entitled to be regularised in service. If for some reason, regularisation of the services of Vijay Kumar Srivastava has been against the rules, or illegal, it would not confer any right or benefit on the Petitioner to claim regularisation of their services on that ground. In this connection, a reference may be made to the decision of the Supreme Court in Harpal Knur Chahal v. Director Punjab Instructions 1995 Suppl (4) SCC 706, in which it was observed that:

It is next contended that along with the Appellant two more candidates were selected and were appointed and their appointments were upheld by the High Court. Denial to her is violative of Article 14 of the Constitution. We find no force in contention. The view of the High Court is obviously from and the judgment rendered would not form the ground for our holding that the others who got the benefit by illegal orders will be extended in favour of other candidates though illegally appointed. Article 14 cannot be extended to legalise the illegal orders though others had wrongly got the benefit of the orders.

The Petitioners cannot, in any manner, take the advantage of the fact that the services of Vijay Kumar Srivastava have been regularised. The case of the Petitioners has to be scrutinised with reference to the various provisions of Rules of 1979 and the decisions of the Supreme Court and this Court on the point. The ad hoc appointments are generally made in the exigencies of service. Where it is not possible to fill up the post by direct recruitment according to the rules or by promotion, ad hoc appointments are made as a stop gap arrangement so that the Government work may not suffer for want of suitable hands. If an ad hoc appointee has continued for a considerable long period of service, some benefit is conferred upon him taking into consideration his past conduct, satisfactory work and the period during which he has worked as such. In the absence of any statutory provision, regularisation of the ad hoc-employees was not possible and consequently to meet the situation, statutory provision was made for regularisation of the services of ad hoc employees both on the posts within or outside the purview of the Public Service Commission. In respect of Class III and IV employees the State Government notified Rules of 1979, in exercise of powers conferred under Article 309 of the Constitution of India on 14.5.1979. Rule 4 which deals with regularisation of ad hoc appointments lays down that any person who was directly appointed on ad hoc basis before 1.1.1977 and is continuing in service as such on the date of the commencement of the Rules, 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 Service Rules or Orders. The cut-off date mentioned in the Rules as January 1, 1977 was extended and determined as 1.5.1983 by notification dated 22nd March, 1984. The Rules were again amended vide notification dated 7.8.1989 and they were made applicable to any person directly appointed on ad hoc basis on or before 1.10.1986. Thus, the Rules of 1979, as amended in the year 1989, provide for regularisation of the services of only those employees who were appointed on ad hoc basis on or before 1.10.1986. These rules came to be interpreted in two decisions of this Court the first is Arvind Kumar Yadav and Ors. v. State of U.P. and Ors. 1994 (2) UPLBEC 1019, in which it was held that the cut-off date 1.10.1986 is arbitrary and without any rationale and, therefore, void and the cut-off date will be the date of the commencement of the amended Rules, i.e.. 7.8.1989. In a subsequent decision in Adya Prasad Misra and Ors. v. State of U.P. and Anr. (1994) 3 UPLBEC 1670, the matter was carried to a further length and a mandamus was issued that the ad hoc appointees who were appointed before 21.5.1992 shall also be considered for regularisation, the moment they complete three years of service and that the ad hoc appointees who were appointed after 21.5.92 and if continuing in service, may also be retained and their regularisation may be considered if they continued for more than three years before any regular test is held in the meantime. The impact of these two judgments was that any ad hoc appointee would be qualifying himself for being considered for regular appointment by way of regularisation no sooner he completes three years continuous service irrespective of the cut-off date as laid down in the amended rules. Both these judgments on which reliance has been placed on behalf of the learned Counsel for the Petitioners, came to be considered before a Division Bench of this Court in the case of Subedar Singh and Ors. v. District Judge, Mirzapur and Ors. 1997 (1) ESC 655. It was held therein that the law laid down in Arvind Kumar''s case and Adya Prasad Misra''s case (supra), is not good law as the cut-off date fixed by rule making body cannot be extended by means of judicial interpretation, as it would amount to legislation which does not fall within the function of the Court.

The learned Counsel for the Petitioner vehemently argued that the provisions of Rule 4 of 1979 Rules prescribing the cut-off date are arbitrary, illegal, irrational and unreasonable and therefore, violative of Articles 14 and 16 of the Constitution of India. This submission of the learned Counsel is obviously founded on the decisions of Arvind Kumar''s case and Adya Prasad Misra''s case (supra), which have been, as stated above, held to be not a good law. In Subedar Singh''s case in which it was held that specification of a cut-off date was essential, inasmuch as classification was required to be made between the employees who had rendered long service making them so eligible to be considered and those whose services were not for a period long enough to make them so eligible to be considered for regularisation. What should be the length of service is a matter of policy to be decided by the Rule making authority. In Union of India and Another Vs. Sudhir Kumar Jaiswal, , following and approving earlier decisions in D.G. Gose and Co. (Agents) Pvt. Ltd. Vs. State of Kerala and Another, and Dr (Mrs) Sushma Sharma and Others Vs. State of Rajasthan and Others, , it was held that the choice of date cannot always be dubbed as arbitrary even if no particular reason is forthcoming for the choice unless it is shown to be capricious or whimsical in the circumstances. It was further pointed out where a point or line has to be, there is no mathematical or logical way of fixing a date precisely and so the decision of the Legislature or its delegatee must be accepted, unless it can be said that it is very wide of any reasonable mark. A reference was also made to Dr. Ami Lal Bhat Vs. State of Rajasthan and others, , in which earlier decision in Union of India (UOI) and Another Vs. Parameswaran Match Works and Others, , was followed. In the instant case, it cannot be said that three dates, namely, 1.1.1977, 1.5.1983 and 1.10.1986 as incorporated by successive amendments in Rule 4 of the 1977 are in any manner ''picked out from a hat''. Prescription of the cut-off dates in Rule 4 of the Rules, 1979 was necessary in order to regularise the ad hoc employees with reference to the length of their service. The submission of the learned Counsel that the prescription of particular date in Rule 4 is unconstitutional is wide off the mark and cannot be accepted. In Subedar Singh''s case (supra), the validity and constitutionality of the cut-off dates in Rule 4 has been upheld. This point, therefore, cannot be agitated again before this Court.

It is well-settled that the ad hoc employees who have continuously worked for more than three years'' period on or before the cut-off date cannot be regularised in service, unless they found their entry in service according to the procedure prescribed, meaning thereby those candidates who have entered the service from ''back door'' cannot be regularised in service even though they have put in more than three years'' continuous service on or before the cut-off date. This aspect of the matter came to be considered in a number of cases before the Apex Court. In State of Haryana v. Piara Singh and Ors. AIR 1992 SC 1230, it was observed that where a temporary or ad hoc appointment is continued for long the Court presumes that there is need and warrant for a regular post and accordingly directs regularisation. In para 12 of the said decision. Supreme Court said that the Court must, while giving direction for regularisation, act with due care and caution. It must first ascertain the relevant facts, and must be cognizant of several situations and eventualities that may arise on such directions. A practical and pragmatic view has to be taken inasmuch as every such direction not only tells upon the public exchequer but also has the effect of increasing the cadre strength of a particular service or category. In Clause (e) of para 12 of the said case, it was observed that many appointments may have been made irregularly in the sense that the candidates were neither sponsored by the Employment Exchange nor were they appointed after issuing a proper advertisement calling for applications. In short, it may be a ''back door'' entry. A direction to regularise such appointments would only result in encouragement to such unhealthy practices. In para 25 thirdly, it was observed that even where an ad hoc or temporary employment is necessitated on account of the exigencies of administration, he should ordinarily be drawn from the employment exchange unless it cannot brook delay in which case the pressing cause must be stated on the file. If no candidate is available or is not sponsored by the employment exchange, some appropriate method consistent with the requirements of Article 16 should be followed. In other words, there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly. These observations have been made in order to maintain fairness and impartiality in public life and to reduce the chances of picking up a person to bestow favour upon him, for variety of reasons.

In a subsequent case in J and K. Public Service Commission, etc. Vs. Dr. Narinder Mohan and others etc. etc., , the Supreme Court after reviewing a number of authorities observed that the "Court did not appear to have intended to lay down as a general rule that in every category of ad hoc appointment by regularisation be. made". In E. Ramakrishnan and Others Vs. State of Kerala and Others, , the Supreme Court rejected the claim of the Petitioners for regularisation made on the ground that they had been continuing in service for more than 14 years on ad hoc basis and held that the candidates who were found eligible and selected and recommended for appointment by the Public Service Commission were required to be appointed. In another case in Dr. Surinder Singh Jamwal and another Vs. State of Jammu and Kashmir and others, , it was observed by the Supreme Court that the settled legal position now is that the recruitment to the service should be governed by the appropriate statutory rules. Under the rules, the regular recruitment to the posts shall be made by the Public Service Commission. Consequently, the ad hoc appointments would be only temporary appointments de hors the rules, pending regular recruitment without conferring any right to regularisation of service. In Ashwani Kumar and Others Vs. State of Bihar and Others, , the Court observed that the regularisation would require one pre-condition that the initial entry of such an employee must be made against an available sanctioned vacancy by following the rules and regulations governing such entry. Where an entry of an employee is tainted from the very beginning, question of regularisation such an illegal entrant would never survive for consideration, however, competent the recruitment agency may be.

In the backdrop of the above legal position, now let us examine the ease of the present Petitioners for regularisation. The Petitioners were appointed initially on contractual basis at consolidated amount of Rs. 950 per month. They have been allowed to continue till further orders on ad hoc basis by order dated 23.2.1991 (Annexure-6 to the writ petition) and have further been allowed the benefit of running pay scale of Rs. 9501,500 with effect from 1.2.1991. The learned Counsel pointed out that the Petitioners are enjoying various privileges as are available to regular employees such as deduction of provident fund, encashment of leave, etc. and therefore, for all practical purposes, the Petitioners are being treated as regular employees. Even if the Petitioners have been allowed salary under the regular scale of pay and privileges as mentioned above, the fact remains that they continued to be the ad hoc employees. The Petitioners were appointed after the cut off date i.e., 1.10.1986. The Rules of 1979 give right of regularisation only to those employees appointed on ad hoc basis on or before 1.10.1986. The Petitioners cannot, therefore, take the advantage of the provisions of Rules, 1979 which deal with the question of regularisation of services of ad hoc employees appointed on or before 1.10.1986. Moreover, there is no evidence worth the name on record to indicate that the Petitioners were appointed as a result of some selection held and after processing the applications which may have been received in pursuance of any advertisement or notification. Their names were also not sent by the Employment Exchange. The Petitioners were picked up for the purposes of appointment initially on contractual basis and later on ad hoc basis in regular scale. The Petitioners, therefore, entered service through the back door. In view of the authoritative pronouncements of the Apex Court as mentioned above, the illegal entry of the Petitioners in service cannot be legitimatised or regularised through the agency of the Court. The representations of the Petitioners have, therefore, been rightly rejected by order dated 11.7.1996.

The Petitioners cannot, therefore, be considered for regularisation. They continued to be ad hoc employees liable to be replaced by the employees appointed on regular basis after due selection in accordance with relevant rules.

In the result, for the reasons stated above, the petition fails and is accordingly dismissed. However, the Petitioners shall continue in service on ad hoc basis till they are replaced by the incumbents who may be appointed on regular basis in accordance with the relevant rules of recruitment. The Petitioners shall also be permitted to compete with other candidates at the regular test/examination for recruitment. If all the Petitioners or any one of them has become or becomes overage at the time of recruitment, the competent authority may, in its discretion, grant relaxation in the age of the Petitioners.