Ravi Raj Singh vs State of U.P. & Ors.

Sudhir Agarwal, J.—Heard Sri V.S. Gupta, learned counsel for the petitioner and learned Standing Counsel for the respondents.

This writ petition is directed against the order dated 30.08.2006 (Annexure11 to the writ petition) whereby the claim of petitioner for regularisation under U. P. Regularization of Daily Wages Appointments on Group ''D'' Posts Rules, 2001 (hereinafter referred to as the "Rules, 2001") has been rejected by Superintending Engineer, U.P. P.W.D., Allahabad Circle, Allahabad.

It is contended that the petitioner was initially engaged as Beldar in U.P. P.W.D. in the year 1989. A seniority list was published of such temporary employees, copy whereof has been filed as Annexure1 to the writ petition, wherein petitioner''s name was shown at Serial No. 167 and his date of appointment was shown as December, 1989. Relying thereon, the petitioner claim regularisation under Rules, 2001 and made a representation dated 13.12.2002. When his request was not considered, he approached this Court in Writ Petition No. 18002 of 2003 which was disposed of vide judgement dated 18.05.2006 directing the respondent no. 3 i.e. Superintending Engineer, U.P. P.W.D. Provincial Division, Allahabad to consider the claim of petitioner strictly in accordance with Rules, 2001 and pass appropriate order within three months. It is pursuant to this Court''s order that the impugned order has been passed by the Superintending Engineer rejecting claim of petitioner for regularisation. The Superintending Engineer has said that the petitioner was continuously engaged after the cut off date prescribed in Rules, 2001 and not in December, 1989 as his claim was and, therefore, the aforesaid Rules were not applicable to him. He also held that for claiming regularisation under Rules, 2001 existence of vacancy was necessary and in the absence thereof no one can claim regularisation.

The respondents have filed counter affidavit denying appointment of petitioner in 1989 and it is also said that the petitioner is not continuously functioning in the department. It further says that the seniority list of district level was amended and published on 10.08.2001 wherein the petitioner''s name was at Serial No. 158 and the date of appointment was mentioned as 26.12.1992, therefore, his claim about functioning since 1989 is false. It is also said that the Rules, 2001 are applicable only to the employees of the State Government and not to the field employees of Group ''D''. The respondents have also denied about the appointment of petitioner as daily wager and have said that he was engaged and joined only on 26.12.1992.

In the rejoinder affidavit filed by the petitioner he has virtually reiterated what he has said in the writ petition by generally denying the averments made in the counter affidavit.

Sri Gupta, learned counsel for the petitioner submitted that the seniority list filed as Annexure1 to the writ petition clearly shows his date of appointment as December, 1989, therefore, to non suit him on the ground that he was engaged continuously after 29.06.1991 is perverse hence the impugned order of Superintending Engineer declining to regularise him deserves to be quashed.

However, I do not find any force in the submission for the reasons more than one.

From the judgement dated 18.05.2006 passed by this Court in the petitioner''s earlier Writ Petition No. 18002 of 2003 it does appear that there also the respondents pleaded in the counter affidavit that the seniority list relied by the petitioner had already been quashed by this Court in a writ petition filed by the union and another seniority list was issued on 10.08.2001. It was also pleaded by the respondents that the petitioner had never worked before 01.01.1990. The said defence taken by the respondents has not been disbelieved by this Court but since the petitioner disputed the said pleadings the matter was left to be decided by the Superintending Engineer.

In the counter affidavit before this Court in the present writ petition the respondents in para 7 to

10 have clearly pleaded that the date of appointment of petitioner is 26.12.1992 and not 1989. An extract of the amended seniority list dated 10.08.2001 has also been placed on record as AnnexureCA1 to the counter affidavit.

In reply to para 7 to 10 of the counter affidavit the petitioner in para 7 to 10 of the rejoinder affidavit while simply denying para 7 to 10 of the counter affidavit has referred to the order dated 20.09.2006 and has said that the respondents have not shown as to in what contingency the amended seniority list was prepared. However, it is not his case that the amended seniority list was not prepared at all. In any case having gathered knowledge of amended seniority list he has chosen not to challenge the same.

Besides, it appears to this Court also that the petitioner also knew that he was engaged after 1991 inasmuch as in his representation dated 13.12.2002, copy whereof has been filed as Annexure3 to the writ petition, he has said that he was engaged in 1989 but thereafter in the next very sentence he has said that he is continuously working as temporary employee for the last 11 years. The sentence that he is continuously working for last 11 years made in the representation dated 13.12.2002 clearly show that he was aware that he is continuously working since 1992 only and not prior thereto. Had he been continuously working from 1989 instead of saying that he is working from 11 years, that would have been mentioned as 13 years at least.

For the purpose of attracting the Rules, 2001 the mere initial appointment on a date prior to 29.06.1991 is not conclusive but what it requires is that the incumbent must have been engaged prior to 29.06.1991 and must have continued on the date of commencement of Rules, 2001, i.e., 21.12.2001. Further, that a vacancy temporary or permanent was also available on the date of commencement of Rules, 2001 whereagainst the said incumbent could been considered for regularisation. The respondents have clearly pleaded that the petitioner was engaged in December, 1992 and that date is also mentioned in the seniority list, AnnexureCA1 to the counter affidavit, which has not been challenged by the petitioner. No material except Annexure1 to the writ petition has been placed on record to show that the petitioner was engaged prior to 29.06.1991. Annexure1 to the writ petition, once has already been amended and the date mentioned therein has been changed, unless the amended order is challenged, no relief can be granted ignoring the said order.

One reason mentioned in the impugned order passed by the Superintending Engineer is that Rules, 2001 are not applicable to the field staff Group ''D'' employees and are applicable only to the State Government employees and also that unless someone continue to work throughout, he is not covered by Rules, 2001. In my view, it is not correct. Rules, 2001 has been made in respect to engagement of persons on daily wage basis. It cannot be disputed that the respondents are all the authorities of the State Government and if they have engaged a person on daily wage basis on a Group ''D'' post which is in the Government service before 29.06.1991, he would be covered by the Rules, 2001. It is not the case of the respondents that the post of Beldar is not a Group ''D'' post and also that the service under the respondents whether Executive Engineer or Superintending Engineer would not be a service in the Government. There is no distinction between a Group ''D'' daily wager whether engaged in the field or in the office or in the Secretariat etc. It appears that the Superintending Engineer on the basis of his own notions without understanding legal perspective of the matter has said that Rules, 2001 are not applicable to the petitioner as they are applicable to the persons engaged in the Government service namely in the Secretariat etc. and not to field staff. This reasoning, in my view, is not correct and contrary to the settled legal position. I may add that in order to determine as to when one is holding a post in the Government service, some of the relevant considerations are (i) the source of payment of wages, whether it is paid from the State Exchequer or not; (ii) the authority competent to appoint and terminate him as also to take disciplinary action against him; (iii) the nature of his duties and functions. The above factors are only illustrative and not exhaustive but where the appointing and terminating authority of the incumbent is the Government or its authorities, the payment of wages are being made from the State Exchequer and the incumbent is also required to discharge the functions which are being discharged by the Government or its authorities, it cannot be said that he is not in Government service.

The further reasoning that the incumbent ought to have continued to work is also incorrect inasmuch as Rule 4 of Rules, 2001 nowhere require a daily wager to have continuously work from the date of initial appointment till the date of commencement of the Rules and also even thereafter when his case is considered for regularisation. The words "continuously working or functioning" have not been mentioned in Rules 2001 which are meant for the regularisation of daily wagers though they have been used in the U.P. Regularization of Ad hoc Appointments (On the Post within the Purview of Public Services Commission) Rules, 1979. The Rule framing authority knew that by the very nature of appointment namely, the daily wage, one cannot continue to work throughout. Therefore, only two dates have been noticed which are crucial for attracting Rule 4(1) of Rules, 2001, i.e.,(i) appointment on daily wage basis before 29.06.1991; and (ii) continuance in service as such on the date of commencement of the Rules, i.e., 21.12.2001. The word "continuance in service" as such cannot be read in isolation as if it provides for continuance in service throughout but the said words are with reference to the date of commencement of the Rules, 2001 and not for the interregnum period. This view has been taken by this Court earlier also in Janardan Yadav Vs. State of U.P. and others, 2008(2) ESC 1359.

Therefore, the aforesaid reasoning contained in the impugned order cannot be sustained but since there are other reasons which shows that the petitioner cannot be granted any relief ultimately, I do not find any reason to interfere with the impugned order though the above finding has been recorded to keep the legal position strict.

One of such reason as already noticed above is the finding of fact recorded that the petitioner was not appointed prior to 29.06.1991 on daily wage.

Secondly, another aspect of the matter is that there is no averment in the writ petition whatsoever that any permanent or temporary vacancy was existing on the date of commencement of Rules, 2001 whereagainst the petitioner could lay his claim for regularisation. This fact is also mentioned in the impugned order of Superintending Engineer where he has said that to claim regularisation existence of vacancy was necessary. Rules, 2001 have not been enacted for perpetual obligation but they appears to be a one time measure and applicable to limited number of vacancies i.e. the permanent or temporary vacancy as may be available on Group ''D'' post on the date of commencement of the said Rules as is evident from Rule 4(1) which is reproduced as under:

"4. Regularisation of daily wages appointments on Group ''''D'' posts. (1) Any person who

(a)was directly appointed on daily wage basis on a Group ''''D'' 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

(b)possessed requisite qualification prescribed for regular appointment for that post at the time of such appointment on daily wage basis under the relevant service rules, shall be considered for regular appointment in permanent or temporary vacancy, as may be available in Group ''''D'' post, on the date of commencement of these rules 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."

A perusal of Rule 4(1) shows that only such person would be entitled for regularisation under the Rules, 2001 who satisfy the following requirements:

(i) was directly appointed on daily wage basis on a Group ''D'' post in the Government service before 29.06.1991; and

(ii) is continuing in service as such on the date of commencement of Rules, 2001 i.e. 21.12.2001; and

(iii) possess requisite qualification prescribed for regular appointment for that post at the time of such appointment on daily wage basis; and

(iv) permanent or temporary vacancy in Group ''D'' post is available on 21.12.2001.

The stress on the limited number of vacancies is further evident from Rule 4(1)(b) which in the initial part says "shall be considered for regular appointment in permanent or temporary vacancy, as may be available in Group ''D'' post, on the date of commencement of these rules..............before any regular appointment is made in such vacancy."

Therefore, it is evident that the claim for regularisation under Rule 4(1) is available only against such temporary or permanent Group ''D'' post as exist on 21.12.2001 and not for any vacancy which may be available subsequently. This aspect has already been considered by this Court in Rakesh Chandra Srivastava Vs. State of U.P. and others, 2008(1) ADJ 371 and Yadvendra Singh and others Vs. State of U.P. and others, Civil Misc. Writ Petition No. 37106 of 2006 decided on 14.12.2007 and it has been held that the claim for regularisation under 2001 Rules is limited to the vacancies as were available on 21.12.2001 and not to the subsequent once. It is nowhere pleaded by the petitioner that any such vacancy was available on 21.12.2001 whereagainst his claim could have been considered for regularisation.

Learned counsel for the petitioner also contended that in any case since he has been working continuously for more than 10 years, in view of the law laid down by the Apex Court in Secretary, State of Karnataka vs. Uma Devi (2006) 4 SCC 1 (para 53) he is entitled to be considered for regularisation.

The said submission is thoroughly misconceived. Unfortunately, it appears that learned

counsel has not gone through the subsequent authorities wherein para 53 of Uma Devi (supra) has been considered by the Apex Court as well as this Court.

In para 53 of the judgement in Uma Devi (supra) the exception carved out by the Apex Court is confined to the cases where the appointments are ''irregular'' and not ''illegal'' as explained in State of Mysore Vs. S.V.Narayanappa A.I.R. 1967 SC 1071, R.N. Nanjundappa Vs. T. Thimmiah 1972 1 SCC 409 and B.N. Nagrajan Vs. State of Karnataka 1949 SCC 507.

The distinction between "irregular" and "illegal" appointments as referred to in para 53 of the judgment in Uma Devi (supra) has been dealt with in a subsequent decision in State of M.P. And others Vs. Lalit Kumar Verma (2007) 1 SCC 575 wherein para 12 it has been held:

"12. The question which, thus, arises for consideration, would be: Is there any distinction between "irregular appointment" and "illegal appointment"? The distinction between the two terms is apparent. In the event the appointment is made in total disregard of the Constitutional scheme as also the recruitment rules framed by the employer, which is ''State'' within the meaning of Article 12 of the Constitution of India, the recruitment would be an illegal one; whereas there may be cases where, although, substantial compliance with the constitutional scheme as also the rules have been made, the appointment may be irregular in the sense that some provisions of some rules might not have been strictly adhered to."

Learned counsel for the petitioners at this stage submitted that in Mineral Exploration Corpn. Employees'' Union Vs. Mineral Exploration Corpn. Limited and another, (2006) 6 SCC 310 the Apex Court issued some direction for regularization of the workmen who were continuing for a long time, referring to para 53 in Uma Devi (supra), therefore, the petitioners is also entitled. However, it would be useful to notice that relying on Mineral Exploration Corpn. Employees'' Union Vs Mineral Exploration Corpn. Limited and another (supra), a similar argument was raised in State of M.P. Vs Lalit Kumar Verma (supra), but the same has been negatived by the Apex Court by referring to para 39 of Mineral Exploration Corpn. Employees'' (supra), and the observations of the Apex Court in paras 13 to 16 of the judgment of Lalit Kumar Verma (supra) are as under:

"13. In National Fertilizers Ltd. v. Somvir Singh (supra) it has been held: (SCC pp.50001) paras 2325)

"23. The contention of the learned counsel appearing on behalf of the respondents that the appointments were irregular and not illegal, cannot be accepted for more than one reason. They were appointed only on the basis of their applications. The Recruitment Rules were not followed. Even the Selection Committee had not been properly constituted. In view of the ban on employment, no recruitment was permissible in law. The reservation policy adopted by the appellant had not been maintained. Even cases of minority had not been given due consideration.

The Constitution Bench thought of directing regularization of the services only of those employees whose appointments were irregular as explained in State of Mysore v. S.V.Narayanappa, R.N. Najundappa v. T.Thimmiah and B.N. Nagaranaj v. State of Karnataka wherein this Court observed: (Uma Devi (3) case, SCC p.24, para 16).

"16. In B.N.Nagarajan v. State of Karnataka, this Court clearly held that the words "regular" or "regularisation" do not connote permanence and cannot be construed so as to convey an idea of the nature of tenure of appointments. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to methodology followed in making the appointments."

Judged by the standards laid down by this Court in the aforementioned decisions, the appointments of the respondents are illegal. They do not, thus, have any legal right to continue in service."

In R.S.Garg V. State of U.P. 2006(6 SCC 430 it has been held by this Court : (SCC p.448,para 24)

"24. The original appointment of the 3rd respondent being illegal and not irregular, the case would not come within the exception carved out by the Constitution Bench. Furthermore, relaxation, if any, could have been accorded only in terms of Rule 28 of the Rules; Rule 28 would be attracted when undue hardship in any particular case is caused. Such relaxation of Rules shall be permissible only in consultation with the Commission. It is not a case where an undue hardship suffered by the 3rd respondent could legitimately be raised being belonging to a particular class of employee. No such case, in law could have been made out. It, in fact, caused hardship to other employees belonging to the same category, who were senior to him; and thus, there was absolutely no reason why an exception should have been made in his case."

(See also State of Gujarat V. Karshanbhai K. Rabari (2006) 6 SCC 21.)

Yet, recently, in Principal, Mehar Chand Polytechnic v. Anu Lamba (2006) 7 SCC 161 it was held: (SCC p.171, para 35)

"35. The respondents did not have legal right to be absorbed in service. They were appointed purely on temporary basis. It has not been shown by them that prior to their appointments, the requirements of the provisions of Articles 14 and 16 of the Constitution had been complied with. Admittedly, there did not exist any sanctioned post. The Project undertaken by the Union of India although continued for some time was initially intended to be a time bound one. It was not meant for generating employment. It was meant for providing technical education to the agriculturists. In the absence of any legal right in the respondents, the High Court, thus, in our considered view, could not have issued a writ of or in the nature of mandamus."

We may, however, notice that in Mineral Exploration the attention of this Court was not drawn to the earlier precedents including a threejudge Bench of this Court in B.N. Nagarajan V. State of Karnataka."

The same view has been reiterated in Municipal Corpn., Jabalpur vs. Om Prakash Dubey (2007) 1 SCC 373 (para 10 to 19 ) State of U.P. And others Vs. Deshraj (2007) 1 SCC 257 (para 9 to 12) and Government of Andhra Pradesh and others Vs. K. Brahmanandam and others, (2008) 5 SCC 241.

All these judgements considering the distinction between irregular and illegal appointment have been noticed recently in State of Karnataka and others Vs. Sri G.V. Chandrashekar, JT 2009(4) SC 367 and it has been held that the law laid down by the Constitution Bench in Uma Devi (supra) is binding on all the Courts including the Apex Court till the same is overruled by a larger Bench and cannot be ignored at all. It has been followed even thereafter in State of Bihar Vs. Upendra Narayan Singh and others, 2009(4) SCC 77; State of Uttranchal Vs. Alok Sharma and others, JT 2009(6) SC 463; and Civil Appeal No. 33373361 of 2009, Harmindar Kaur and others Vs. Union of India and others decided on 06.05.2009.

In view of the above discussion, I do not find any merit in the writ petition. The order passed by the respondent no. 3 declining to grant any relief to petitioner in respect to his claim for regularisation under Rules, 2001 cannot be said to be erroneous though some of the reasons contained therein are not correct in view of the discussions made above. However, the ultimate conclusion drawn by the respondent no. 3 warrants no interference under Article 226 of the Constitution of India.

Dismissed.

No order as to costs.