State of U.P. and Others vs Shiv Babu Garg

Sudhir Narain, J.—These Special Appeals are being disposed of by a common judgment, as common questions of law arise in all these appeals. The learned Single Judge, in the writ petition giving rise to these special appeals, passed an order directing the Appellants to regularise the services of the Petitioner-Respondents.

The Petitioner-Respondents were working in the Forest Department and their contention was that they had been working for more than three years and were entitled for regularisation. The learned Single Judge, taking the view that as the Petitioners had been working for more than three years, they were entitled for regularisation, allowed the writ petitions and directed the Appellants to regularise the services of the Petitioners on the post on which they had been working.

The main thrust of the submission of the learned Counsel for the Appellants in these appeals is that the Court can issue a mandamus commanding the Appellants to consider their claim for regularisation in service in accordance with relevant Rules, Regulations and the Circulars but no mandamus can be issued by the Court directing the authorities to regularise the services of the Respondents. It depends upon various facts. In case there is any Rule applicable for regularisation of their services, the authorities can regularise only if the necessary conditions mentioned in such Rules are fulfilled. The authorities have further to take into consideration the eligibility of the employees, their past conduct and further whether there were vacant posts on which they can be regularised.

In Khagesh Kumar and Ors. v. Inspector General of Registration and Ors. (1996) 1 UPLBEC 23. wherein the daily rated workers claimed regularisation of their services on the ground that they had worked for more than three years, their Lordships of the Hon''ble Supreme Court held that the regularisation could be done only in accordance with the provisions of U.P. Regularisation of Ad hoc Appointments (On Posts Outside Purview of the Public Service Commission) Rules, 1979. The Rules provide detailed procedure for regularisation. Regarding those who were not entitled for regularisation under the Rules, it was directed that they may be considered for appointment at the time of regular recruitment taking into consideration their past experience. A Division Bench of this Court in Garhwal Jal Sansthan v. Jagdish Prasad Magain 1995 (70) FLR 179, set aside the direction given by the learned Single Judge for regularisation of service of the Petitioner in that case. It was held that no direction for regularisation of service of an employee should be made but a direction can be given to consider his case for regularisation. The regularisation depends upon the various factors such as, nature of the work, conduct of the employee concerned and the availability of the post. The Court quoted the observation made in the case of Zakir Hussain v. Engineer in Chief 1993 (1) UPLBEC 15 as follows:

Merely because an employee has worked for two or three years, he cannot claim regularisation of service as a matter of right. For regularisation as mentioned before, there must be both posts and the need for retention of the employees according to the requirement of work. That apart, he must be qualified and the work and conduct of such employee must also be satisfactory. It is also to be considered whether appointments on ad hoc/daily wages basis have been made against the leave or casual vacancies. In cases of appointments on such vacancies, there would hardly be any scope for regularisation. These and various other factors have to be taken into consideration before deciding the question as to whether service of an employee, appointed on ad hoc/daily wages basis should be regularised. Regularisation cannot be made as a ''rule of thumb'' on the basis of completion of certain years of service of such an employee. It all depends on various facts, some of which have been mentioned above and it is for the employer to decide as to whether in view of the fact and circumstances of the case, the services of those employees who were appointed on ad hoc/daily wages basis, should be regularised.

Similar view was expressed in Executive Chairman, U.P. State Legal Aid and Advise Board, Lucknow and Ors. v. Ram Bilas and Ors. 1995 (70) FUR 294, wherein it was held that the relief for regularisation must be moulded in each case having regard to relevant facts and circumstances of the case.

While making regularisation, the authorities have further to examine whether the appointment of an employee was made In accordance with Rules. If the initial appointment is itself invalid, an employee is not entitled for regularisation merely on the ground that he had worked for many long years. In J and K. Public Service Commission, etc. Vs. Dr. Narinder Mohan and others etc. etc., the Hon''ble Supreme Court set aside the directions given by the High Court to regularise the service of ad hoc employees on the ground that the appointments were to be made under the Jammu & Kashmir Medical Education (Gazetted) Service Recruitment Rules, 1979. These Rules prescribed only two modes of recruitment, i.e., direct recruitment or promotion by selection. The direction given by the High Court for regularisation by considering the service records of ad hoc employees was held as hybrid procedure not contemplated by the Rules. Hon''ble K. Ramaswamy, J. observed: "It is settled law that once statutory rules have been made, the appointment shall be made only in accordance with the rules. The executive power could be exercised only to fill in the gap but the instructions cannot and should not supplant the law but would only supplement the law. Having made the rules, the executive cannot call back its general power under Article 162 to regularise the ad hoc appointments under the Rules."

Their Lordships of the Supreme Court also considered the case of State of Haryana and others Vs. Piara Singh and others etc. etc., , and it was explained that if a temporary or ad hoc employee continues for fairly long spell, the authorities must consider his case for regularisation provided he is eligible and qualified according to the rules and his service record is satisfactory and his appointment does not run counter to the reservation policy of the State. The Court observed as under:

It is to be remembered that in that case, the appointments are only to class III or class IV posts and the selection made was by subordinate Selection Committee. Therefore, this Court did not appear to have intended to lay down as a general rule that in every category of ad hoc appointment, if the ad hoc appointee continues for a long period, the rules of recruitment should be relaxed and the appointment by regularisation be made.

Learned Counsel for the Respondent contended that in Writ Petition No. 26925 of 1990 Wahid Ullah v. Conservator of Forest Bundelkhand Circle, Jhansi, U.P. and Ors. wherein a daily wager was working as a Forest Guard for more than three years, this Court issued a direction for regularisation to the authorities concerned and against that order SLP was dismissed by the Hon''ble Supreme Court. Similarly, in Civil Misc. Writ Petition No. 12241 of 1989 Ashok Kumar Srivastava v. State of U.P. and Ors. wherein the Petitioner was working as a casual worker in the office of the District Forest Officer since the year 1979, a direction was issued for regularisation of his service. The Special Appeal against the said decision was dismissed by the Hon''ble Supreme Court. It has been contended that this Court had been issuing directions for regularisation and such orders, having been upheld by the Hon''ble Supreme Court, this Court is empowered to issue a direction for regularisation in exercise of Jurisdiction under Article 226 of the Constitution of India.

The power of the High Court under Article 226 of the Constitution is wide enough to issue any direction in a particular set of facts and circumstances of the case. But it cannot be held that the Court must itself examine as to whether Petitioner is entitled for regularisation to a post on which he is claiming his right for regularisation. This involves the various questions of facts which can be considered by the authorities concerned. If there are Rules, Regulations or Government Orders, specifically providing for the conditions for regularisation, it has to be examined by the authorities whether the employee is entitled for regularisation in accordance with those Rules and regulations, etc. It has further to examine whether the post is vacant on which such an employee can be absorbed. The qualification and other eligibility of the employee and his past conduct and work is also relevant before passing the order for regularisation. This can be examined appropriately by the authorities concerned and normally this Court under Article 226 of the Constitution will not be Justified to issue any direction for such regularisation. The dismissal of the leave petition by the Hon''ble Supreme Court in those cases cannot be held to be a law laid down by the Hon''ble Supreme Court in the matter of regularisation.

In the State of Maharashtra and another Vs. Prabhakar Bhikaji Ingle, , It was held that dismissal of SLP without speaking order does not constitute res Judicata as it does not decide any question of law.

Learned Counsel for the Respondent further urged that in case the discretion is left with the authorities concerned in the matter of regularisation, they may exercise the discretion at their own sweet will and further keep the matter of regularisation pending with them which may cause great injustice to the Petitioner-Respondents. He has placed reliance on the decision Sukhdev Singh, Oil and Natural Gas Commission, Life Insurance Corporation, Industrial Finance Corporation Employees Associations Vs. Bhagat Ram, Association of Clause II. Officers, Shyam Lal, Industrial Finance Corporation, , wherein the Court held that when other man''s rights are affected by decision taken under statutory powers, the Court would presume the existence of duty to observe the rules of natural justice and compliance with Rules, Regulations and the Statutes by the authorities concerned.

The Respondents have not yet passed any order examining the case of Petitioner Respondents for regularisation of their services. In case any order is passed which Is arbitrary or in violation of any Rules or against the record, it is always open to the Petitioner-Respondents to challenge the said order in appropriate forum in accordance with law.

In view of the discussion, made above, we allow the Special Appeals and set aside the order of the learned Single Judge and dispose of the Special Appeal with the direction that the Respondents shall consider the case of the Petitioner-Respondents for regularisation of their services in accordance with the Rules and Regulations applicable for their appointments and in accordance with the observations made above, within three months from the date of production of a certified copy of this order by the Petitioner-Respondents.

The parties shall bear their own costs.