Subedar Singh and Ots.,etc. vs Distt.Judge,Mirzapur & Anr.etc.

P. Dayal, J.—Petitioners in these 3 writ petitions are Class III employees Functioning in the ministerial establishments of the District Courts in the State of Uttar Pradesh. They were all appointed on ad hoc basisand have claimed regularisation of their services. In first two writ petitions, i.e. 17907/96 and 17683/96 the ad hoc appointments of the petitioners have been brought to an end. So in these cases, the petitioners have also claimed a writ of certiorari quashing the orders ceasing their employment.

Before the commencement of the Constitution, recruitment to the ministerial establishment in the Subordinate Civil Courts of the United provinces was regulated by the Subordinate Civil Courts Ministerial Establishment Rules, 1947, (hereinafter referred as ''1947 Rules''). The expression ''ministerial establishment'' was denned by Rule 2(c) of the 1947 Rules as the Staff of the Subordinate Civil Courts consisting of ministerial servants as defined in Fundamental Rule (17), Financial Hand Book, Volume II Part II. According to the definition given in Rule 2(e) of the 1947 Rules the expression ''Subordinate Civil Courts'' included the Courts of District and Sessions Judges, Additional District and Sessions Judges, Civil and Sessions Judges, Civil Judges, Additional Civil Judges, Munsifs, Additional Munsifs and Courts of Small Causes Subordinate to the High Court of Judicature at Allahabad or the Chief Court of Oudh at Lucknow. Rule 5 prescribes academic qualifications which a person should possess for being a candidate to a post in the ministerial establishment. It reads as under:

"5. Academic qualificationsNo person who is not already on the staff attached to a Subordinate Civil Court shall be appointed to a post in the ministerial establishment unless:

(a) he has passed at least the Intermediate Examination conducted by the Board of High School and Intermediate Education, Uttar Pradesh, or any other examination which has been or may be declared by the Governor to be equivalent thereto.

(b) he possesses a thorough knowledge both of Urdu and Hindi;

(c) he possesses in the case of a candidate for the post of stenographer a diploma or certificate from a University or a recognised shorthand and typewriting institution, showing that he possesses a speed of at least 100 words per minute in shorthand &. 35 words per minute in type writing."

Rules 9 to 12 made provisions regarding the method of recruitment. The District Judge is specified as Appointing Authority and the High Court as Appellate Authority in Rule 15, which reads as under:

"15. AppointmentAll appointments to the ministerial establishment shall be made by the District Judge. Except in the case of stenographer, first appointment shall, subject to the provisions of Rule 12 be made to the lowest posts (other posts being filled in by promotion) from amongst the candidates recruited u/R. 11 in order of merit.

(2) In filling the posts of stenographers preference shall be given to officials possessing the prescribed qualifications who are already working in the Judgcship in which the vacancy has occurred:

Provided that.any person aggrieved by any order or appointment made otherwise than in accordance with these rules shall have a right of appeal to the High Court or the Chief Court as the case may be:

Provided also that nothing in these rules shall operate to the disadvantage of any person on the approved list of candidates who have already got an officiating chance and not otherwise disqualified at the time. These rules come into force, whether such person has in fact been appointed or not."

By virtue of the provisions of Article 313 and of Article 372 of the Constitution, the 1947 Rules continued to be in force even after the commencement of the Constitun tion. But on Jury 15, 1950 the Governor of Uttar Pradesh promulgated" "Rules for the Recruitment of Ministerial Staff to the Subordinate Offices" ( here in after referred as the 1980 Rules), in exercise of the powers conferred on him by the proviso to Article 309 of the Constitution of India is supersession of all existing rules and orders on the subject of recruitment to the ministerial establishment of subordinate offices. Rule 3 of these Rules provides that the recruitment to the lowest grade of the ministerial staff in a subordinate office shall be made on the basis of a competitive test. Rules 4 and 5 read as under:

"4. Calculation of vacancies.The head of the subordinate office shall ascertain the probable number of vacancies, if any, in his office during the course of the year and shall if necessary, take steps to make the fact generally known."

Tests to be held annually.The Competitive tests shall be held at least once a year and at the time specified in the Schedule by each head of a subordinate office for posts not requiring technical knowledge, e.g., Stenography:

Provided that if the strength of any office does not warrant annual recruitment in a particular year, a competitive test shall be held whenever it becomes necessary to recruit a ministerial servant to the office."

Rule 6 States that the competitive tests shall comprise a written test as well as an oral test and specifies the subject of test and maximum marks of each subject. Rule 7 reads as under:

"7. Selection of candidates.() On the results of the test, the head of the subordinate office shall select a number of candidates sufficient to fill the number of vacancies as ascertained in Rule 4 and offer to them appointment as and when the vacancies occur according to the order of merit disclosed at the test.

(2) No one who has not been selected in accordance with subrule (1) shall be appointed to any vacancy unless the list of selected candidates is exhausted.

(3) Casual vacancies may be filled up by appointing persons who have not taken the test, but their further retention shall depend on their taking the next test and being selected in it".

3A. The Supreme Court held in Om Prakash Shukla v. Akhilesh Kumar Shukla and others, AIR 1986 SC1043 that the clear effect of the 1950 Rules was that the 1947 Rules stood superseded by the 1950 Rules as regards the subjects prescribed for the test and the manner of the examination to be held for the purpose of selecting candidates for the ministerial staff in the Civil Courts of the State of Uttar Pradesh. To be precise, Rules 9 to 12 and Appendix II of the 1947 Rules were superseded."

Statutory provision was made for regularisation of the services of ad hoc employees on the posts outside the purview of Public Service Commission by the Uttar Pradesh Regularisation of Ad Hoc Appointments (On posts Outside the purview of the Public Service Commission) Rules, 1979 ( here in after referred as the Regularisation Rules) promulgated by the Governor of Uttar Pradesh in exercise of the powers conferred by the proviso to Article 309 of the Constitution on 1451979. Rule 4 to 8 read as under:

"4. Regularising of Ad Hoc appointments. Any person who

(1) was directly appointed on Ad Hoc basis before January 1, 1977 and is continuing in service as such on the date of commencement of these rules;

(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 be has completed three years'' service as such, 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.

(2) In making regular appointments under these rules, reservation for the candidates belonging to the Scheduled Castes, Scheduled IHbes, Backward Classes and other categories shall be made in accordance with the orders of the Government in force at the time of recruitment.

(3) For the purpose of subrule (1) the appointing authority shall constitute a Selection Committee.

(4) The appointing authority shall prepare an eligibility list of the candidates, arranged in order of seniority, as determined from, the date of order of appointmentand if two or more persons are appointed together, from the order in which their names are arranged in the said appointment order, the list shall be placed before the Selection Committee along with the character rolls and such other records of the candidates as may be considered necessary to assess their suitability.

(5) The Selection Committee shall consider the cases of the candidates on the basis of their records referred to in subrule (4).

(6) The Selection Committee shall prepare a list of the selected candidates the names in the list being arranged in order of seniorityand forward it to the appointing authority".

Appointment.The appointing authority shall, subject to the provisions of Subrule (2) of Rule 4 make appointments from the list prepared under subrule (6) of the said rule in the order in which the names stand in the list."

Appointments be deemed to be under the relevant Service Rules, etc.Appointment made under these rules shall be deemed to be under the relevant Service Rules or orders, if any.

"7. Seniority.(1) A person appointed under these rules shall be entitled to seniority only from the date of order of appointment after selection in accordance with these rules and shall in all cases, be placed before the persons appointed in accordance with the relevant service rules or, as the case may be, the regular prescribed procedure, prior to the appointment of such person under these rules.

(2) If two or more persons are appointed together their seniority inter se shall be determined in the order mentioned in order of appointment".

"8. Termination of Service.The services of a person, appointed on ad hoc basis who is not found suitable or whose case is not covered by Subrule (1) of Rule 4 of these rules, shall be determined for thwith and, on such termination, he shall be entitled to receive one month''s pay."

By notification dated 2231984, the Uttar Pradesh Regularisation of Ad Hoc Appointments (On post Outside the purview of the Public Service Commission) (Amendment) Rules, 1984 were promulgated amending the 1979 Rules inserting Rule 9 thus, making the provisions of the 1979 Regularisation Rules also applicable to any person directly appointed on ad hoc basis on or before May 1, 1983, 1979 Regularisation Rules were further amended vide Notification dated 781989 by the Uttar Pradesh Regularisation of Ad Hoc Appointments (On Posts Outside the purview of the Public Service Commission (Second Amendment) Rules, 1989 making the provisions of 1979 Rules also applicable to any person directly appointed an ad hoc basis on or before 1101986 by inserting Rule 10, which reads as under:

"10. Extention of the Rules.The provisions of these Rules shall apply mutatis mutandis, also to any person directly appointed on ad hoc basis on or before October 1, 1986 and contimringin vice as such, on the date of commencement of the Uttar Pradesh Rcgularization of Ad Hoc Appointments (on posts Outside the purview of the Public Service Commission) (Second Amendment) Rules, 1989".

Thus, 1979 Regularisation Rules as amended in the year 1989 provide for regulansation of the services of only those employees who were appointed on ad hoc basis on or before 1101986.

It also needs be mentioned that regular appointments of Class III employees have not been made in the District Courts of Uttar Pradesh for a long time since the High Court was not satisfied with the manner of making the selections and was seriously considering to avoid favouritism, nepotism and ensure proper selection. At one stage the High Court was even considering the creation of a State wide recruiting authority with Head Office at Allahabad Lucknow for Class III employees of the District Courts. The High Court was also not in favour of ad hoc appointments except in every urgent cases. Reference in this connection may be made to the circular letter No. 16/IVh36 (Admn. "G") dated 2731989 sent by the Registrar of the High Court to all the District Judges, a copy of which has been filed by the respondents alongwith their counteraffidavit and which appears at page 124 of thepaperbpok of writ petition No. 17907/96. The said circular letter reads as under:

"It is proposed to create a Statewide recruiting authority with its Head Office a Allahabad Lucknow for Class III employees of the District Courts. This has been felt necessary on account of complaints received from various quarters. In order to provide a clean image to recruitment in the District Courts, you may kindly consider its feasibility, advisability and practicability and send your proposals to the Registrar, High Court, Allahabad. This matter will be discussed in the Administrative Conference Scheduled for 8th April, 1989. Kindly also consider the relevant provisions of law which may be necessary to be looked into in this regard.

Adhoc appointments which are generally made in the District Courts of Class HI employees bring bad name to the judgeshipand, therefore, it has to be discouraged. It may be resorted to only in very urgent cases."

By another circular letter No. 35/Admn (D) dated 2751992 all the District Judges were informed that no ad hoc appointment on Class III posts was to be made without prior approval of Hon''ble the Chief Justice. Thus, by this letter the discretion of the District Judges to make ad hoc appointments even in very urgent cases was taken away. The Registrar of the High Court issued circular letter No. 70/Admn (D) dated 24121992 regarding regularisation of ad hoc employees, which reads as under:

"I am directed to say that the court has been pleased to pass the following orders on the above subject

The appointments of the ad hoc Class III employees of the Subordinate Courts, who are entitled to the benefit of the U.P. Regularisation of ad hoc appointment (On posts Outside the purview of the Public Service Commission) Rules, 1979, as amended upto date (or as applicable on date), be regularised.

That ad hoc Class III employees of the Subordinate Courts who are not entitled to the benefit of the U.P. Regularisation of Adhoc appointment (On posts Outside the purview of the Public Service Commission) Rules, 1979, but have been appointed prior to 21st May, 1992, be allowed to continue subject to their appearing at and passing the competitive test held for selection of Class III employees of the Subordinate Courts.

That Adhoc Class III employees, if any appointed after the issuance of order dated 21st May, 1992, passed by the Hon''ble the Chief Justice in this regard, be ceased and explanation of the appointing authority for making such appointments be also furnished to this Court.

That you are also here by requested to prepare a list of ad hoc appointments made under Rule 269 G.P. (Civil) and submit the same to the Court immediately. The aforesaid directions may kindly be complied with for thwith."

This gives an indication about the gravity of the situation with which the High Court was confronted. It was in the year 1996 that the High Court evolved guidelines to be observed in the matter of recruitment and selection of Class III employees under the 1947 and 1950 Rules. The guidelines which were issued by C.L. No. 27/VIIb104/Admn(D) dated 2451996 sent by the Registrar of the High Court to all the District Judges are quite elaborate and need not be reproduced. It is sufficient to mention that they, inter alia, require the District Judge to inform the concerned Hon''ble Inspecting Judge about the number of vacancies calculated by him before advertising the examination; advertisement is required to be issued in a Hindi daily newspaper having wide circulation in the district in which examination is to be held and also in a Hindi daily newspaper having wide circulation in the State or Uttar Pradesh. In order to check leakage of question papers, tampering in the answer books and manipulation in the examination of copies, the whole of State of Uttar Pradesh is divided in three zones shown by alphabets ;A, ''B'' & ''C. If the examination is held in zone A'', then the district shown in ''B'' & ''C'' are to be the zones for preparing question papers and examining answer books. The guidelines also provide for the creation of a separate call headed by an Hon''ble Judge of the High Court in the Registry for supervising the examination. The examination cell is required to place code numbers on the answer books. Examination papers are required to be prepared and sent in triplicate in a sealed cover and one of them is to be chosen by the Registrar to the delivered after getting the same printed at the place of his choice to the concerned District Judge one day before the date of the commencement of the examination through special messenger. The guidelines further provide that no ad hoc appointment under Rule 269, General Rules (Civil) shall be made without previous permission of the Hon''ble Chief Justice and no such appointment will be for more than two months at a time and beyond a maximum period of three months. Further, the guidetines provide that as soon as there are more than one vacancies, the same shall not be filled in by any ad hoc appointment, but the examination for recruitment for the filling up vacancies shall be made expeditiously by the District Judge.

A learned Single Judge of this Court held in Arvind Kumar Yadav and others v. State of UP and others, (1994) 2 UPLBEC 1019 on 8101993 that the cut off date 1101986 in the Regularisation Rules as amended in 1989 is arbitrary, irrational, unreasonable and hit by Articles 14 and 16 of the Constitution and the date of commencement of Rule 10, i.e., 781989 on which Second Amendment Rules, 1989 were promulgated is the date on which the rights accrued to the ad hoc appointees who were working on the date of the commencement

of the Rules. Consequently, those ad hoc appointees who were appointed prior to 781989, were held to be eligible for consideration for regularisation of their services in accordance with the manner prescribed by the rules, but other appointees who were appointed subsequent to that date were held to fall outside the purview of the rules and not eligible to be considered for regularisation. Thus, as per the judgment even a person who was appointed on 681989 was entitled to be considered for regularisation in the manner prescribed by the Rules. A more liberal view was taken in a subsequent decision rendered on 2431994 by another learned Single Judge in Adya Prasad Misra and others v. State OF U.P. and another, (1994) 3 UPLBEC 1670, where it was held in para 80A that the benefit of the regularisation policy be further extended by this judicial pronouncement that all the employees who have put in three years of service in civil court shall be considered for regularisation subject to their eligibility for the post and their work and conduct being found satisfactory, .mandamus was issued for consideration of regularisation besides the employees who had been appointed before 781989 also the employees who were appointed before 2151992, the moment they complete three years of service. A further mandamus was issued that "ad hoc appointees who were appointed after 2151992 and if continuing in service may also be retained and their regularisation may also be considered if they continued for more than three years .before any regular test is held in the meantime. If a regular test is held in the meantime they shall appear in the test and their fate shall depend upon the result of that test." Thus, by this judgment all the employees irrespective of the date of appointment were held entitled to be considered for regularisation in terms of the directions issued. By another judgment dated 30101995 (Annexure 14) passed by another learned single Judge of this Court in Civil Misc. Writ Petition No. 13614 of 1994 Arun Kumar Srivastava and others v. The District Judge, Varanasi and another, the District Judge, Varansi was directed to consider the case of the petitioners of that case for regularisation with in a period of two months from the date of production of a certified copy of the order alongwith a copy of the judgment dated 2431994 in Adya Prasad Misra and others v. State of U.P. and another and also in the light of the judgment of the Supreme Court in State of Haryana and others etc. etc. v. Piara Singh and others, AIR 1992 SC 2130. It was further directed that in case the District Judge was not inclined to apply the said principles as laid down in the aforesaid judgment, he would give specific reasons in support of his conclusion, "so that the petitioners may move higher up."Special Appeal No. 919 of 1995 against that judgment was dismissed by a division bench of this Court on the ground that there ws no ground to interfere with the order of the learned Single Judge, "since the direction is to be carried out by the Distt. Judge who has to apply his mind in accordance with the direction given in the said judgment."

It is against this backdrop, rival submissions made on behalf of the parties have'' to be considered. Main arguments have been advanced by Sri S.C. Budhwar, Senior Advocate, appearing on behalf of the petitioners in Civil Misc. Writ Petition No. 17907 of 1996 and, therefore, it would be sufficient if the facts of only that writ petition are mentioned in details.

In Civil Misc. Writ Petition No. 17907 of 1996 five petitioners, namely, Subedar Singh. Ghanshyam Pandey, Anil Kumar Dubey, Brij Bhushan Dubey and Om Prakash Dubey, were appointed by the District Judge, Mirzapur vine order dated 151991. (Annexures 1 ar .12) with effect from 251991 as extra copyists for disposing of copying applications for a period of six months in exercise of the powers under Rule 269, General Rules (Civil) mentioning that the "pendency of copying department has increased tremendously and there is further endency of increase....... Often difficulty arises in filing appeal against the judgments and decrees which are decided in the month of May, 1991. It has, therefore, become necessary to make arrangement for an early disposal of the copying applications". The other two petitioners, Suml Kumar Misra and Brijesh Kumar Tripathi, were appointed by the District Judge on 171991 as extra copyists for a period of six months with effect from the date of their joining giving the same reasons. It is not in dispute that all these petitioners have been allowed to function even after the expiry of six months and are still functioning. By letter dated 20101992 (Annexure 4) the District Judge, Mirzapur sought approval of the High Court that the names of all these petitioners might be included in the list of approved candidates. But the sought for approval was not accorded by the High Court. On 251996, Hon''ble Mr. Justice M.C. Agrawal, Inspecting Judge of Mirzapur in his order (Annexure17) after perusal of the letter dated 1641996 of the District Judge, Mirzapur recorded that the details furnished by the District Judge revealed strange things in as much as all the persons appointed on the posts of copyists had been deputed to other jobs and eight persons were engaged to work as copyists under Rule 269, General Rules (Civil) who had been working continuously without any break and this was highly irregular. In view of the importance of this order, the same is reproduced as under:

"Seen the D.O. Letter No. 12/P.A 96 dated 16th April, 1996 of the District Judge, Mirzapur.

The details furnished by the District Judge reveal strange things. All the persons appointed to the posts of copyists have been deputed to other jobs and eight persons have been engaged to work as copyists under Rule 169 of the General Rules (Civil) who have been working continuously since 1991 without any break. This is highly irregular. It is therefore, ordered:

(i) All persons employed under Rule 269 of the General Rules (Civil) be ceased with effect from 1551996.

(ii) Sufficient number of copyists out of those deputed to courts/departments be withdrawn to work as copyists.

(iii) The District Judge shall appraise the staff requirements of the judgeship and if need be sent a proposal for regular recruitment to Class III posts for sanction of Hon''ble the Chief Justice.

(iv) If any appointments under Rule 269 of the General Rules (Civil) are considered necessary, the District Judges shall send a proposal for approval of the Chief Justice. The appointments shall be made only after such approval and for not more than two months at a time. Due regard shall be kept of the Reservation in favour of SC/ST and Backward Classes in making appointments under the said Rule.

The District Judge will strictly comply with the instruction contained in a circular to be issued by the Registrar in pursuance of the decision of the Administrative Committee dated 11th April 1996. Registrar to communicate the above order to the District Judge, Mirzapur for compliance for th with.

The District Judge''s D.O. letter No. 12/P.A. 96 dated 1641996 in original along with its enclosures, be also sent to the Registrar for record."

In compliance of this order, the District Judge, Mirzapur passed an order (Annexure 18) that all the petitioners who had been "appointed under Rule 269 of General Rules (Civil) as extra copyists are ceased to work with immediate effect, i.e. 15596." The petitioners have sought a writ of certiordre quashing the orders dated 251996 (Annexure 17) and 1551996 (Annexure 18), a writ of mandamus directing the respondents to consider the petitioners for regularisation on the posts of copyists on the basis of their work and performance and, if found fit, to regularise them with all consequential benefits and a further mandamus to extend the benefit of the judgment of this Court in Adya Prasad Misra and others v. State of U.P. and others, (1994) 3 UPLBEC1670 and also the judgment dated 3010 1995 passed in Writ Petition No. 13614 of 1994 Arun Kumar Srivastavd v. District Judge, Varanasi, affirmed in special appeal No. 919 of 1995 on 29111995. A declaration is also sought that the words"before January 1, 1979..........on the date of commencement of these rules" occurring in Rule 4(1) of the Uttar Pradesh Regularisation of Ad Hoc Appointments (on Posts Outside the Purview of the Public Service Commission) Rules, 1979 are ultra vires, being violative of Articles 14, 16 nd 21 of the Constitution of India. Case of the petitioners is that since admittedly no regular selection for appointment of Class III employees has Heen held after 1985 in accordance with the 1947 and 1950 Rules although the work load greatly increased, the District Judge, Mirzapur in order to meet the administrative exigencies and also the increase in the work load passed the orders appointing the petitioners as ad hoc extra copyists under Rule 269 of the General Rules (Civil) and since the date of their initial appointment all of them have been continuously working on the posts of copyists without any break in service till dateand in the meanwhile, in various judg ships, a large number of persons have been regularised and as such the petitioners are also entitled to be considered for regularisation of their services. According to them, the impugned orders dated 251996 and 1551996 are arbitrary and discriminatory in view of the decisions of this Court referred earlier and also having regard to the various decisions of the Apex Court. On the other hand, the respondents in their oeunteraffidavit have averred that Rule 269, General Rules (Civil) contemplates the appointment of the persons for a very short period to clear the increase work in the copying department and the said rule doestrict Courts vests only in the government. It is also averred that any person employed under Rule 269 to work as extra copyist does not become a part of the ministerial establishment of the Court. Further, the counteraffidavit says that before appointing the petitioners no public advertisement was issued to enable all the aspirants to apply for the job nor was any reference made to the employment exchange for sponsoring the names of eligible persons enrolled there and the appointments of the petitioners are in the nature of back door appointments. Further, under the rules and government instructions, a sizable part of the public service is reserved for Scheduled Castes/Scheduled Tribes, backward classes and handicapped persons etc.and by employing the petitioners under Rule 269, interest of these categories was ignored and interest of public service was also ignored; no test was held to ascertain suitability and no medical examination was got done to test their medical fitness and no character verification was made to identify their antecedents. According to the counteraffidavit, engagement of the petitioner is arbitrary and violative of Articles 14 and 16 of the Constitution and the appointments, not being in accordance with the procedure prescribed under the relevant rules, the petitioners are not entitled to be considered for regularisation of their services. It is further stated that the power of making ad hoc, temporary and for titious appointment was frequently misused and this was noticed by the High Court and so the circular letter dated 2731989 was issued to all the District Judges stating that ad hoc appointments which are generally made in the District Courts of class III employees give bad name to the judgeships and, therefore, it should be discarded and should be resorted to only in very urgent cases; but the circular letter did not stop arbitrariness, favouritism and irregularities in such appointments and ultimately by circular letter dated 2751992 the District Judges were completely prohibited from making ad hoc appointment without the prior approval of the Hon''ble the Chief Justice, the counteraffidavit further states that complaints of favouritism and nepotism in the selection of Class III Staff in the subordinate Civil Courts went on increasing and so District Judges were divested of the exclusive power to recruits the staff in their judgeships and to ensure fairness in recruitment the High Court has devised a new procedure as contained in circular letter dated 2451996 involving the High Court and other District Judges in the process of selection for recruitment to Class III posts. It is also averred that continuance of the employment of the petitioners for such a long period was unjustified and illegal. It is further stated that the information given by the District Judge alongwith his letter dated 1641995 shows that seven persons holding the posts of copyists were deputed to do other duties which did not involve the preparation of copies and the copying department was entirely managed by persons employed under Rule 269, General Rules (Civil) which does not permit the persons regularly holding the posts of copyists to be deputed to work on other duties and to employ extra copyists in their places. Thus, the purported requirement of extra copyists was not genuine but was a consequence of regular copyists having been deputed to other jobs, further, it is averred that after the Hon''ble Inspecting Judge passed the orders dated 251996, 11 copyists working at other places were deputed back to the''copying department vide order dated 1551996 passed by the District Judge and those persons joined the copying department on the same day with the result that there remained no need for continuance of the petitioners as extra copyists and it was for this reason that they were ordered to cease work from 15 51996. It is further stated that even if the services of some other ad hoc employees like the petitioners have been regularised in some other districts, such regularisation is illegal and perpetuates arbitrariness and favouritism and this cannot be a ground to extend similar benefit to other candidates appointed illegally and who have been appointed in violation of the instructions and directions of the High Court contained in the various circular letters and service rules and also in violation of Article 14 of the Constitution and who have been the beneficiaries of unjust favouritism.

In the rejoinder affidavit filed by the petitioners, the stand taken by them in the petition has been reiterated.

During arguments a preliminary objection has been taken on behalf of the petitioners to challenge the constitution of this Division Bench on the ground that the petitioners being the cases concerning Class III employees fall with in the jurisdiction of a learned Single Judge and the constitution of Division Bench for these cases would result in loss of the right of special appeal before a Division Bench under the provisions of Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952. On merit the submissions made on behalf of the petitioners may be summarised as under:

(i) The petitioners are entitled to be considered for regularisation oftheir services under the Regularisation Rules,

(ii) If petitioners are not held covered under the Regularisation Rules, they are entitled to consideration for regularisation because they have rendered service as ad hoc employees for long periods;

(iii) Work is still available since vacancies are there in the respective establishments;

(iv) Since no regular recruitment has been made after 1985, the petitioners did not have the opportunity to appear in the test as contemplated in the 1950 Rules:

(v) Adhoc employees similarly situated in some other districts have already got regularisation of their services in pursuance of the judgments rendered by learned Single Judges in Aryind Kumar Yadav and others v. State of U.P. and others; Adya Prasad Misra and others v. State of U.P.andanothers andArun Kumar Srivastava and others v. The District Judge, Varanasi and anotherand when the benefit of these judgments Jias been given to some employees, denial of the benefit of the same judgments to other employees situated similarly would amount to discrimination against the petitioners;

(vi) The District Judge is the appointing authority and therefore, the order ceasing the employment of the petitioners could only be passed by the District Judge, but in the present case such an order was passed on the direction of the Hon''ble Inspecting Judge and as such the petitioners lost the right of appeal which would otherwise be available to them.

As regards the preliminary objections, there is no dispute that writ petitions regarding Class III employees fall with in the jurisdiction of a learned Single Judge. Reference during arguments has been made to Rule 1, Clauses (a) & (b) of the proviso to Rule 2 and Rules 6 and 8 of Chapter V of Allahabad High Court Rules, which read as under:

"1. Constitution of Benches. Judges shall sit alone or in .such Division Courts as may be constituted from time to time and do such work as may be allotted to them by order of the Chief Justice or in accordance with his directions."

"2. Jurisdiction of a Single Judge.Except as provided by these Rules or other law, the following cases shall be heard and disposed of by a Judge sitting alone, namely:

Provided that

"(a) the Chief Justice may direct that any case or class of cases which may be heard by a Judge sitting alone shall be heard by a Bench of two or more Judges or that any case or class of cases which may be heard by a Bench of two or more Judges, by a Judge sitting along;

(b) a Judge may, if he thinks fit, refer a case which may be heard by a Judge sitting along or any question of law arising there inn for decision to a larger Bench; and.

"6. Reference to a larger Bench.The Chief Justice may constitute a Bench of two or more Judges to decide a case or any question of law formulated by a Bench hearing a case. In the latter event the decision of such Bench on the question so formulated shall be returned to the Bench hearing the case and that Bench shall follow that decision on such question and dispose of the case after deciding the remaining questions, if any, arising there in."

"8. Cases to be heard by two judges.Save as otherwise provided by these Rules or other law or by any general or special order of the Chief Justice, every other case (including writ petitions in which special Appeal are not barred) shall be heard and disposed of by a Bench of two Judges." Proviso (a) of Rule 2 empowers the Chief Justice to direct that any case or class of cases which may be heard by a Judge sitting alone shall be heard by a Bench of two or more Judges.

Sri S.C. Budhwar and Sri Ravi Kant, appearing on behalf of the petitioners have argued that though the Chief Justice has the power to constitute a Division Bench in respect of a case which is otherwise to be heard by a learned Single Judge, such power is to be exercised only if the circumstances exist making it necessary to deviate from the normal course, since the exercise of such power is to result in denial of the right of the losing party to prefer special appeal contemplated under Rule 5 of Chapter VIII of the Rules and since the order of reference by the Chief Justice to the Division Bench does not state any reason, the reference is bad. On the other hand, Sri Kripa Shanker, learned Standing Counsel, appearing on behalf of the respondents, has submitted that the matter was referred to the Division Bench, since there was conflict in the decisions rendered by learned Single Judges in Arvind Kumar and Adya Prasad (supra). He further submits''that the order passed by the learned Inspecting Judge on 251996 (Annexure 17), which is under challenge, was made under Article 227 of the Constitution and no special appeal lies against an order passed under that Article and as such the special appeal would not have been maintainable even if the present cases were heard by a learned Single Judge. His further submission is that the jurisdiction of the Chief Justice to assign a case ordinarily cognizable by a learned Single Judge to a Division Bench is absolute without any exception.

Rule 5 of Chapter VIII, Allahabad High Court Rules, reads as under:

"5. Special Appeal.An appeal shall lie to the Court from a judgment (not being a judgment passed in the exercise of appellate jurisdiction) in respect of a decree or order made by a Court subject to the superintendence of the Court and not being an order made in the exercise of revisional jurisdiction or in the exercise of ils power of superintendence or in the exercise of criminal jurisdiction or in the exercise of jurisdiction conferred by Article 226 of Article 227 of the Constitution in respect of any judgment, order or award(a) of a tribunal, Court or statutory arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State list or the Concurrent List in the Seventh Schedule to the Constitution, or (b) of the Government or any Officer or authority, made or purported to be made irt the exercise or purported exercise of appellate or revisional Jurisdiction under any such Act of one Judge."

It is clear from Rule 5 that no special appeal lies to the Court from a judgment which amounts to an order made in exercise of its power of superintendence under Article 227 of the Constitution. However, by the present petitions, the petitioners do not seek the exercise of the power of superintendence vested in the High Court under Article 227 of the Constitution and, therefore, the petition is not a petition under Article 227. The fact that the impugned order dated 251996 was passed in exercise of jurisdiction vested in the High Court under Article 227 is not material because that order does not amount to judgment and the High Court, while exercising writ jurisdiction, does not exercise the power of superintendence over itself. Therefore, we are of the view that where a writ petition challenging an order passed by the High Court on the administrative side is decided by a learned Single Judge, special appeal is not excluded under Rule 5 simply because the impugned order was passed by the High Court on the administrative side.

During arguments office note dated 15101996 was produced by the learned Standing Counsel for our perusal to show that the office made a proposal to the Hpn''ble Chief Justice for constituting a Division Bench, after reproducing an order passed by the Supreme Court on 2191995 in Special Leave petition (C) No. 7394 of 1994 taking note of the arguments advanced by learned counsel for one of the parties that there are conflicting Single Bench decisions on the point raised in the matter and that there are several writ petitions pending in the High Court in which similar controversy was involved and, therefore, if approved, the matter might be referred to a Division Bench. Sri S.C. Budhwar, Senior Advocate, appearing on behalf of the petitioners submits that there is no conflict between the decisions rendered by the learned Single Judges in Arvind Kumar and Adya Prasad Misra (supra). However, we are of the view that there is conflict between the two decisions in as much as according to Arvind Kumar no ad hoc employee appointed after 781989 is entitled to be considered for regularisation, whereas according to Adya Prasad Misra even the employees who were appointed subsequent to 781989 are entitled to be considered for regularisation.

No party has a vested right in slow moving justice. If the Hon''ble Chief Justice refers a matter which is ordinarily to be heard by a learned Single Judge to a Division Bench in the interest of expeditious disposal, it clearly amounts to giving such matter the same importance as is accorded by the rules to more important matters which are ordinarily congnizable by a Division Bench. Service matters relating to Class I and Class II employees are to be heard under the rules by a Division Bench and no special appeal lies from the decision of a Division Bench. It cannot be said that the rule stipulating hearing of the cases involving Class I and Class II employees by a Division Bench is discriminatory merely because no special appeal lies from the judgment of a learned Single Judge.

This apart, otherwise also the objection that the matter should not have been referred to the Division Bench is without any merit, since the matter stands concluded by the Full Bench of this Court in Sanjay Kumar Srivastava v. Acting Chief Justice and others, 1996 AWC 644 where it was held that under proviso (a) to Rule 2 of Chapter V, "it is with in the exclusive jurisdiction of the Chief Justice to direct that any case which is otherwise cognizable by a Judge sitting alone shall be heard and disposed of by two or more judges or any case which is otherwise cognizable by a Bench of two or more Judges will be heard by a Judge sitting alone. The powers given to the Chief Justice in this regard are absolute and admit of no exception. The Rule, therefore, clearly contemplates a situation where the Chief Justice may in his discretion direct that the case which is otherwise to be heard and disposed of by a Judge sitting alone, shall be heard by two or more Judges0. Further, the Supreme Court held in Inder Mani and others v. Mahehwari Prasad & others, JT 1996(9) SC 135 that it "is the prerogative of the Chief Justice to constitute Benches of his High Court and to allocate work to such Benches. Judicial Judge of the discipline requires that the puisne Judges of the High Court comply with the directions given in this regard by their Chief Justice. In fact it is their duty to do so. Individual puisne Judges cannot pick and choose the matters they will hear or decide nor can they decide whether to sit singly or in a Division Bench." Thus, we see no substance in the preliminary objection raised on behalf of the petitioners and the same is, accordingly, overruled.

Now we proceed to consider the matter on merit. Regularisation of the services of ad hoc employees has received consideration from the government from time to time. The Uttar Pradesh Regularisation of Ad Hoc Appointments (on Posts Out side the Purview or Public Service Commission) Rules, 1979 were promulgated by the Governar on 1451979 in exercise of the powers conferred by the proviso to Article 309 of the Constitution envisaging consideration of the persons who were directly appointed on ad hoc basis before 111977. These rules were amended on 2231984 by the Uttar Pradesh Regularisation of Ad Hoc Appointments (on Posts Out side the Purview of the Public Service Commission) Amendment Rules, 1984 making the 1979 Rules also applicable to any person directly appointed on ad hoc basis on or before 151983. The Rules were again amended on 781989 by the Uttar Pradesh Regularisation of Ad hoc Appointments (on Posts Outside the Purview of the Public Service Commission) (Second Amendment Rules, 1989 also applying the 1979 Rules to any person directly appointed on ad hoc basis on or before 1101986. These rules do not on terms apply to the petitioners in the instant cases in as much''as they were all appointed admittedly after 1101986. However, the petitioners claim that they are entitled to the benefit of the 1979 Rules in view of the decisions rendered by learned Single Judges in Arvind Kuamr Yadav and Adya Prasad Misra referred earlier. It was held inArvind Kuamr Yadav and others v. State of U.P. and others that the cut off date, i.e. 1101986 is arbitrary, irrational and unreasonable and hit by Articles 14 and 16 of the Constitution as it is the date of the commencement of Rule 10 on which the rights accrued to the ad hoc appointees who were working on the date of the commencement of the Rules.

Thus, the cut off date, i.e. 1101986 mentioned in the Rules was held to be void and all these persons who were employed on ad hoc basis on or before 781989 were held to be eligible to be considered for regularisation and the persons who were appointed subsequent to that date were held to be ineligible. We are, however, with regret, not persuaded to agree with this view. On of the relevant considerations for regularisation is the length of the service rendered by the ad hoc employee. It is true that on account of promulgation of the Second Amendment Rules 1989 certain ad hoc employee became entitled to be considered for regularisation of their services on the date of the promulgation of the Amendment Rules, i.e., 781989, but we see no rationale behind the view that all the employees, even if they had put in only one day of service as ad hoc employee should have been made eligible to be considered and, therefore, the cut off date specified in Rule 10 is irrational. Specification of a cut off date was essential in as much as classification was required to be made between the employees who had rendered long service making them 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. Further, length of service is not the only criterion to be taken into consideration while making such decision. There can be no rule of thumb in such matters. It is not beyond the competence of the Rule making authority to limit eligibility to the employees who joined service as ad hoc employee upto a specified date. The Supreme Court held in Dr. (Mrs.) Sushma Sharma etc. etc. v. State of Rajasthan and others, AIR 1985 SC1367 that it "is wellsettled that if a particular period of experience is fixed for screening or for absorption, it is with in the wisdom of the legislatureand what period should be sufficient for a particular job or a particular employment is not subject to judicial review." In State of Haryana and others etc. etc. v. Piara Singh and others etc. etc., AIR 1992 SC 2130, which was also a case for regularisation of the services of ad hoc employees, a question arose for consideration before the Court whether the date specified in the Government''s orders to make the employees eligible for consideration for Regularisation of their services was arbitrary. The High Court held that there is no magic in fixing a date by which an employee was to complete the prescribed tenure of service for regularisation and held that the dates fixed for the policies of regularisation of the two governments were discriminatory and the various dates fixed from time to time in their regularisation policies were hit by Articles 14 and 16 of the Constitution of India. The Supreme Court took a different view and held that in the circumstances, there was nothing wrong in prescribing a particular date by which the specified period of service (whether it is one year or two years) ought to have been put in and observed that "we see no basis for holding that fixation of the date can be held to be arbitrary in the facts and circumstances of the case.........In this context we must remember that what is in issue is not the wisdom of the executive in issuing a particular order or orders but the validity there of. The Court may think it more desirable that the order should be in particulaMerms as indicated by it, but that is not enough."

The learned Single Judge placed reliance on the following extract from D.S. Nakara and others v. Union of India, (1983) Labour and Industrial Cases (Supreme Court):

"The fundamen al principle is that Article 14 forbids class legislion but pemits reasonable classification for the purpose of legislation which classification must satisfy the twin tests of classification being founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group and that differentia must have a Rational nexus to the object sought to be achieved by the statute in question. The doctrine of classification was evolved to sustain a legislation or State action designed to help weaker sections of the society, in need of succour. Legislative and executive action may accordingly be sustained if it satisfies the twinsts of reasonable classification and the rational principle correlated to the object sought to be achieved. The State, therefore, would have to affirmatively satisfy the Court that the twin tests have been satisfied. It can only be satisfied if the State establishes not only the rational principle on which classification is founded but correlated it to the objects sought to be achieved. Where all relevant considerations are the same, persons holding identical posts may not be treated differently in the matter of their pay merely because they belong to different departments. If that cannot be done when they are in service, can that be done during their retirement.Expanding this principle, it can confidently be said that if pensioners form a class, their computation cannot be by different formula affording unequal treatment solely on the ground that some retired earlier and some retired later."

We are of the view that this authority is not applicable to the facts of the present case. In that case the question for decision was whether the benefits of liberalised pension scheme was to be available only to those pensioners who retired subsequent to the date specified in the scheme or to all the pensioners. It was held that the pensioners form class as a whole and so computation of their pension cannot be by different formula affording unequal treatment solely on the ground that some retired earlier and some retired later. In the instant case, all the ad hoc employees do not form one class. Those who have rendered service for long are in a class different from those who did not render service for so a long period to make them eligible to be considered for Regularisation. We hold that specification of cut off date, 1101986, of 1979 Regularisation Rules as amended by the Second Amendment Rules, 1989 is valid and the decision in Arvind Kumar Yadav''s case did not lay down the correct law.

The subsequent decision by another learned Single Judge of this Court in Adya Prasad Misra v. State of U.P., went even further from what was held in Arvind Kumar''s case and it was held in para 80A as under:

"80A. Therefore, I am of the firm opinion that the benefit of the regularization policy be further extended by this judicial pronouncement that all the employee who have put in three years of service in Civil Courts shall be considered for regularization subject to their eligibility for the post and their work and conduct being found satisfactory".

In our view the benefit of regularisation policy crystalised in statutory rules cannot be extended by judicial pronouncement, since its extension would amount to legislation, which does not fall with in the function of the Court. We are, with respect, accordingly, of the view that the decision on Adya Prasad Misra v. State of U.P., also did not lay down the law correctly.

Now we proceed to consider the arguments advanced on behalf of the petitioners whether they should be held entitled to be consider for regularisation of their services on ad hoc basis on the basis of long service rendered by them.

The question whether the services of certain employees appointed on ad hoc basis should or should not be regularised relates to the conditions of service. As held in State of Haryana and others etc. etc. v. Piara Singh and others etc. etc., AIR 1992 SC 2130, it is the executive that lays down the conditions of service subject, of course, to a law made by the appropriate legislature. This power to prescribe the conditions of service can be exercised either by making Rules under the proviso to Article 309 of the Constitution or (in the absence of such Rules) by issuing Rules/instructions in exercise of its executive power. The Court comes '' into the picture only, to ensure conservance of fundamental rights, statutory provisions, Rules and other instructions, if any, governing the conditions of service. The main concern of the Court in such matters is to ensure the Rule of law and to see that the executive Acts fairly and gives a fair deal to its employees consistent .with the requirements of Articles 14 and 16. It also means that the State should not exploit its employees nor should it seek to take advantage of the helplessness and misery of either the unemployed persons or the employees, as the case may be. As is often said, the State must be a model employer. It is for this reason, it is held that equal pay must be given for equal work, which is indeed one of the directive principles of the Constitution. It is for this very reason it is held that a person should not be kept in a temporary or ad hoc status for long. Therefore, the employees who were appointed an ad hoc basis on or before October 1, 1986 are eligible to be considered for regularisation by virtue of the Regularisation Rules, 1979 as amended in the years 1984 and 1989 in the manner prescribed there inn. Regular recruitment is to be made as per 1947 Rule and 1950 Rules. Rule 7(3) of 1950 rules provides that casual vacancies may be filled up by appointing persons who have not taken the test, but their further retention shall depend on their taking the next test and being selected in it. The circular letter dated 24121992 issued by the High Court allowed the continuance of ad hoc employees who were not entitled to the benefit of regularisation rules but who were appointed prior to 2151992 subject to their appearing at and passing competitive test held for selection of Class III employees for the Subordinate Courts. This is consistent with Rule 7(3) of 1950 Rules and we are of the view and it is conceded also on behalf of the respondents that the employees who were appointed on ad hoc basis prior to 2151992 may be allowed to continue and may be held to be eligible to be considered for regularisation in terms of circular letter issued by the High Court. Now the question is whether the employees who were appointed subsequent to 2151992 should also be held eligible to be considered for regularisation on the strength of the service rendered by them for a number of years. In this respect there can be no rule of thumb. The Court has to consider this question with the due care and caution. The Court must first ascertain the relevant factsand must be cognizant of the several situationsand eventualities that may arise on account of such directions which are sought by the petitioners for regularisation. A practical and pragmatic view has to be taken, in as much as every such direction has to affect the right of the aspirants who seek employment on regular basis in terms of the relevant recruitment rule.

Admittedly, the petitioners in writ petition No. 17907/96 were appointed on ad hoc basis under Rule 269, General Rules (Civil) which were made by the High Court of Judicature at Allahabad in exercise of the powers conferred by Article 227 of the Constitution of India and Section 122 of the Code of Civil Procedure, 1908 and are thus statutory in character. Rule 269 reads as under:

"269. District Judge to be informed when work increases for copyist.If in any Court, copying work increase so much that the existing staff of copyists cannot cope with it, the head copyist shall at once report to the District Judge, in the case of the Court of the Judge, throughjthe Munsarim of that Courtand in the case of any other Court, through the presiding officer of the Court. The District Judge shall ascertain whether any increase of establishment is necessary and if an increase be necessary in his opinion, he shall report the matter for the orders of the High Court. In urgent.cases the District Judge may employ extra copyists and report to the High Court."

This rule requires the District Judge if he is of the opinion that copying work has increased so much that the existing staff of copyists cannot copy with it and any increase of establishment is necessary, to report the matter for orders to the High Court. In urgent cases the District Judge is empowered by Rule 2 to employ extra copyists and to report to High Court. As averred in the counteraffidavit, the District Judge does not have the power to create posts of extra copyists which are required in his opinion to cope up with the increase in work. At the same time, however, he is empowered to employ extra copyists to meet with an urgent situation. Necessarily this is to be for a very short period in order that the litigant public may not suffer due to undue delay in getting certified copies from the copying department. Since the employment of these extra copyists by the District Judge is not related to there being any vacancy on the establishment of the District Judge, the employment of extra copyists does not amount to filling up any vacancies on the establishment nor to an addition to the strength of the establishment. It needs be emphasised that the District Judge is empowered to employ extra copyists only to meet an urgent situation when the copyists are, in view of the increase in work, not able to cope up with the work in the copying department. It does not empower the District Judge to employ extra copyists to do copying work after deputing the copyists on the establishment to some other duties. The counteraffidavit filed by the respondents and the order of the Hon''ble Inspecting Judge dated 251996 clearly state that all, the persons appointed to the posts of copyists had been deputed to other jobs and the petitioners were employed to work as copyists under Rule 269. The learned Inspecting Judge expressed the opinion that this was highly irregular and we are of the view that this course was not permissible under Rule 269. Further, this was in violation of the circular letter dated 2731989 issued by the High Court (reproduced earlier) where in it was stated that ad hoc appointments nude in the district court of Class III employees brought bad names to the Judgeship and, therefore, it was to be discouraged and might be resorted to in very urgent cases. Even regular recruitment was not being resorted to under the instructions of the High Court, since in view of the complainants which had been received from various categories, the High Court was seized with the process of evolving methodology to ensure fairness and to avoid manipulation in the examination in making Selection for Class III posts in accordance with the relevant statutory legal provisions. Furthermore, the rule empowers the District Judge to employ extra copyists for short duration in order to meet an urgency and does not intend to empower the District Judge to employ extra copyists for long durations by passing successive orders extending their continuance from time to time. These ad hoc employees were appointed without getting their applications either from the employment exchange or on the basis of advertisement which could have been issued in some newspapers. Then these employees have been appointed and continued in employment without following the reservation policy in favour of Scheduled Casts/Scheduled Tribes and other backward classes. If the services of these ad hoc employees are regularised, that would be in violation of the fundamental right of equality guaranteed under Articles 14 and 16 of the Constitution, since other who had also the right to be considered for ad hoc appointment did not get the opportunity orbeing considered for such employment and the regularisation of such employees would deprive the other aspirants to apply for regular appointment in terms of 1947 Rules and 1950 Rules.

In Jacob M. Puthuparambil and others v. Kerala Water Authority and others, (1991) 1 SCC 28 one of the questions for consideration was whether the employees appointed on ad hoc basis between 141984 and 481986 after the Kerala Water Authority was constituted with effect from 141984 were entitled to be regularised. The claim for regularisation was contested, inter alia, on th''e ground that the relevant rule limited the appointment to 180 days and since the rule was statutory the authority was bound to act in accordance there with. It was held that the relevant rules were statutory in character when they were framed in exercise of power conferred by the proviso to Article 309 of the Constitution, out they did not retain statutory character subsequently in their application to the staff members of the authority since they were adopted by the authority under resolution. In the circumstances, the Court held that once the appointment continued for long, the services had to be regularised if the incumbent possessed the requisite qualifications''. While dealing with another set of employees who were appointed on or after 481986, note was taken of the fact that by certain statutory provision need to consult the Public Service Commission arose from 481986 and a direction was issued to the Public Service Commission to consider their regularisation in accordance with the relevant statutory provision, after waiving the age bar.

In State of Haryana and others, etc. etc. v. Piara Singh and others etc. etc., AIR 1992 SC 2130, the Court 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 paragraph 12 the Court said that the court must, while giving directions for regularisation, act with due care and caution. It must first ascertain the relevant factsand must be cognizant of the several situations and eventualities that may arise on account of such directions. A practical and pragmatic view has to be taken, in as much 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, class of category. In that case the directions given by the High Court for regularisation were not approved by the Court for several reasons. Two of the reasons which are relevant for our purpose are specified in subparas (d) and (a) of paragraph No. 12, which read as under:

"(d) Such directions have also the effect of disregarding and violating the rule relating to reservation in favour of backward class of citizens made under Article 16(4). What cannot be done directly cannot be allowed to be done in such indirect manner".

"(e) Many appointments may have been made irregularly as in this case 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..........."

Following observations made are very pertinent for the instant case:

"23. This is not a case, we must reiterate, where the Governments have failed to taken any steps for regularisation of their ad hoc employees working over the years. Every few years they have been issuing orders providing for regularistion. In such a case, there is no occasion for the Court to issue any directions for regularising such employees more particularly when none of the conditions prescribed in the said orders can be said to be either unreasonable, arbitrary or discriminatory. The Court cannot obviously help those who cannot get regularised under these orders for their failure to satisfy the conditions prescribed there inn. Issuing general declaration of idulgence is to part of our jurisdiction. In case of such persons we can only observe that it is for the respective Governments to consider the feasibility of giving them appropriate relief, particularly in cases where persons have been continuing over a long number of yearsand were eligible and qualified on the date of their ad hoc appointment and further whose record of service is satisfactory."

"The normal rule, of course, is regular recruitment through the prescribed agency but exigencies of administration may sometimes call for an ad hoc or temporary appointment to be made. In such a situation, ef for t should always be to replace such an ad Aoc/temporary employee by a regularly selected employee as early as possible. Such a temporary employee may also compete alongwith others for such regular selection/appointment. If he gets selected, welband good, but if he does not, he must give way to the regularlySelected candidate. The appointment of the regularly selected candidate cannot be with held or kept in abeyance for the sake of such an ad AocAemporary employees."

"Thirdly, 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."

"If for any reason, an ad hoc or temporary employee .is continued for a fairly long spell, the authorities must consider his case for regularisation provided he is eligible and qualified according to rules and his service record is satisfactory and his appointment does not run counter to the reservation policy of the State."

In v & K. Public Service Commission etc. v. Dr. Narinder Mohan & others, JT 1993 (6) SC 593, the Supreme Court after reviewing a number of authorities observed in para 11 that the "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 continued for long period, the rules of recruitment should be relaxed and the appointment by regularisation be made." Referring to the decision in Dr. A.K. Jain v. Union of India, 1988 (1) SCR 335 the Court said that directions were given to regularise the services of the ad hoc doctors appointed on or before October 1, 1984 under Article 142" on the peculiar facts and circumstances there inn. Therefore, the High Court is not right in placing reliance on the judgment as a ratio to give the direction to the Public Service Comission to consider the cases of the respondents. Article 142 power is confided only to this Court." Reference was also made to H.C. Puttaswamy v. Hon''ble Chief Justice of Karnataka, AIR 1991 SC 295 where the Court while holding that the appointments to the posts of clerk etc. in the Subordinate Courts in Karnataka State without consultation of the Public Service Commission are not valid appointments, exercising the power under Article 142 directed their appointment as regular, on humanitarian grounds, since they had put in more than 10 years service. Emphasising the overriding need of making regular recruitment as per the relevant statutory rules and of not regularising back door ad hoc appointments, the Court said:

"7. Existence of statutory Rules is not a condition precedent to appoint an eligible and fit person to a post. The executive power is coextensive with legislative power of the State and under Article 162, the State can create Civil Posts and fill them up according to executive instructions consistent with Articls 14 and 16 of the Constitution.

It is settled law that once statutory rules have been made, the appointment shall be only in accordance with the rules. The executive power could be exercised only to fill in the gaps but the instructions cannot and should not supplement the law, but would only supplement the law. The Governor exercising the power under proviso to Section 125 (Article 309 of the Constitution of India) made the rules which do not expressly give the power to the State Government to make ad hoc appointments. No such rules has been brought to our notice. No express power was conferred and in fact cannot be conferred to relax the rules of recruitment. Having made the rules the executive cannot fall back upon its general power under Article 162 to regularise the ad hoc appointments under the Rules. Rule 9(3) empowers only to relax the qualification of age in particular exigencies which cannot be called in aid to relax the rules of recruitment. To tide over unforeseen exigencies, power to make ad hoc appointments, may be visualised as envisaged by Explanationb to Rule 4 but it expressly states that by virtue of such appointment, the ad hoc appointee does not become member of the service. The rules prescribes direct recruitment/promotion by selection as the mode of recruitment which would be done only by Public Service Commission or promotion committee duly constituted and by no other body. Therefore, ad hoc employee should be replaced as expeditiously as possible by direct recruits. A little leeway to make ad hoc appointment due to emergent exigencies, does not clothe the executive government with power to relax the recruitment or to regularise such appointment nor to claim such appointments to be regular or in accordance with rules. Back door ad hoc appointments at the behest of power source or otherwise and recruitment according to rules are mutually antagonistic and strange bed partners. They caiv not coexist in the same sheath. The former is in negation of fair play. The later are the product of order and regularity. Every eligible person not necessarily be fit to be appointed to a post or office under the State, selection according to rules by a properly constituted commission and fitment for appointment assures fairness in selection and inhibits arbitrariness in appointments. In view of the Explanationb to Rule 4, the ad hoc appointments to any post in any of the three wings of the services under the rules are therefore de horse the rules. Appointments of the respondents 1 to 6 cannot be held to be in accordance with the Rules."

In E. Ramakrishnan and others v. State of Kerala and others, (1996) 10 SCC 565 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 Comission, were required to be appointed.

In Ashwani Kumar and others v. State of Bihar and others, JT1997 (1) SC 243 the Court observed:

"14. In this connection it is pertinent to note that question of regularisation in any service including any Government service may arise in two contingencies. Firstly, if on any available clear vacancies which are of a long duration appointments are made on ad hoc basis or daily wage basis by a competent authority and are continued from time to time and if it is found that the concerned incumbents have continued to be employed for a long period of time with or without any artificial breaksand their services are otherwise required by the institution which employees them, a time may come in the service career of such employees who are continued on ad hoc basis for a given substantial length of time to regularise them so that the concerned employees can give their best'' by being assured security of tenure. But this would require one precondition 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. The second type of situation in which the question of regularisation may arise would be when the initial entry of the employee against an available vacancy is found to have suffered from some flaw in the procedural exercise though the person appointing is competent to effect such initial recruitment and has otherwise followed due procedure for such recruitment. A need may then arise in the light of the exigency of administrative requirement for waiving such irregularity in the initial appointment by competent authority and the irregular initial appointment may be regularised arid security of tenure may be made available to the concerned incumbent. But even in such a case the initial entry must not be found to be totally illegal or in blatant disregard of all the established rules and regulations governing such recruitment. In any case back door entries for filling up such vacancies have got to be strictly avoided. However, there would never arise any occasions for regularising the appointment of an employee whose initial entry itself is tainted and is in total breach of the requisite procedure of recruitmentandespeciallywhen there is no vacancy on which such an initial entry of the candidate could ever be effected. Such an entry of an employee would remain tainted from the very beginning and no question of regularising such an illegal entrant would ever survive for consideration, however competent the recruiting agency may be."

A perusal of the authorities would show that appointments are as a rule to be made in accordance with the statutory rules, giving equal opportunity to all the aspirants to apply for the posts and following the prevalent policy of reservation in favour of Scheduled Castes/Scheduled Tribes and other backward classes. Whenever the employees are appointed on ad hoc basis to meet an emergent situation, every ef for t should be made to replace them by the employees appointed on regular basis in accordance with the relevant rules as expeditiously as possible. Where the appointment on ad hoc basis has continued for long and the State has made rules for regularisation, regularisation has to be considered in accordance with the rules. Where, however, no rules are operative, it is open to the employees to show that they have been dealt with arbitrarily and''their weak position has been exploited by keeping them on ad hoc for long spell of time. However, it is a question of fact whether in the given situation, they were treated arbitrarily.

In the State of Uttar Pradesh the rules for regularisation were framed in the year 1979 to enable consideration of the claim of Class III employees appointed on ad hoc basis up to 111977 for regularisation. By subsequent amendments the employees appointed upto 1101986 because eligible to be considered for regularisation. After 1985 regular recruitment as per the rules could not be made as the High Court was evolving some methodology which would ensure clean image to recruitment in the District Courts. Ad hoc appointments to Class III posts was banned vide circular letter dated 2751992 issued by the High Court. It was on 2451996 that the circular letter was issued providing the procedure and method for making recruitment in accordance with the rules. By the circular letter dated 24121992 (Annexure5) reproduced earlier, the High Court directed regularisation of the services of Class III employees who are entitled to the benefit of regularisation rules. Those who were not entitled to get regularisa tion under the rules and who were appointed prior to 2151992 were allowed to continue subject to their appearing at and passing the competitive test held for selection of Class III employees of Subordinate Courts. This is consistent with Rule 7(3) of the Uttar Pradesh Rules for the Recruitment of Ministerial Staff of the Subordinate Offices, 1950 which provides that casual vacancies may be filled up by appointing person who have not taken the test, but their further retention shall depend on their taking the next test and being selected in it. Further, a direction was given that employees who were appointed on ad hoc basis after 2151992, the date when Hon''ble the Chief Justice issued orders banning ad hoc appointments, be ceased. This circular gives a fair deal to the employees and is consistent with the principles of equality enshrined in Articles 14 and 16 of the Constitution. Any person who has been employed contrary to the orders passed by Hon''ble the Chief Justice is not entitled to get his employment on ad hoc basis regularised merely because he has served for a number of years. The employees who joined prior to 2151992 have no legitimate reason to complain that they should not be required to appear in the test. If they have requisite qualifications and have gained sufficient experience and are otherwise fit to be in service, their continuance in service should be beneficial to them in competing with others who did not have the opportunity to be in service even on ad hoc basis. We are of the view that at hoc Class III employees of Subordinate Courts who are not entitled to be considered for regularisation under the Regularisation Rules are entitled to be considered for regularisation of their services in terms of the circular letter dated 24121992 and not merely because they have rendered the services for three years or any such long period. The employees who are not eligible to be considered under the Regularisation Rules or the circular dated 24121992 are not entitled to be considered for regularisation. It cannot be said that such employees have been exploited, because of their helplessness. The circumstances under which regular recruitment was not made for a number of yearsand even ad hoc appointments were restricted and the manner in which the petitioners were appointed, as discussed earlier, indicate they were not dealt with arbitrarily. We do not see any merit in the submission that the ad hoc employees are entitled to be considered for regularisation because the work is still available in the ministerial establishments of the District Courts. Appointments are to be made as per the recruitment rules and not by regularisation of the services of ad hoc employees in an arbitrary manner. The fact that no regular recruitment has been made after 1985 would not also in the circumstances, justify regularisation de hors the Regularisation Rules and the circular letter issued by the High Court. We also do not see any merit in the submission that the services of the petitioners should be regularised merely because ad hoc employees similarly situated in some other districts have got regularisation. We have not agreed with Arvind Kumar Yadav and Adya Prasad Misra. The petitioners cannot claim the benefit of illegal orders because certain others have got such benefits. Such a contention was rejected by the Supreme Court in Harpal Kaur Chahal v. Director, Punjab Instructions, 1995 Supp (4) SCC 706 in following words:

"3. It is next contended that alongwith 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 the contention. The view of the High Court in obviously illegal and the judgment rendered would not form the ground for out 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............."

We also see no merit in the submission that simply because the order of ceasing employment of the petitioners on ad hoc basis was issued by the District Judge in compliance with the order of the Hon''ble the Inspecting Judge, the impugned order ceasing the employment of the petitioners is invalid. The learned counsel for the petitioners has referred to Rule 15 of the Subordinate Civil Courts Ministerial Establishment Rules, 1947 (reproduced earlier). The learned counsel also referred to Surjit Ghosh v. Chairman & Managing Director, United Commercial Bank and others, (1995) 2 SCC 474, where an order of dismissal was passed not by disciplinary authority but by appellate authority and it was held that the appellant was denied the right of appeal and, therefore, the order of dismissal suffered from inherent defect. However, present is not the case of that nature. In the present case, it came to the notice of the Hon''ble Inspecting Judge that ad hoc employees had been appointed in a wrongful manner since the persons appointed to the posts of copyists had been deputed to other jobs and eight person had been engaged to work as copyists under Rule 269, General Rules (Civil) and had been working since 1991 without any break. When any illegality comes to the notice of an Inspecting Judge, he is not supposed to looK the other way merely because the District Judge could have himself taken action against the illegality. As it was held in Chief Justice of Andhra Pradesh and another etc. v. L. VA. Dikshitulu and others etc., AIR 1979 SC193 "the control over the subordinate judiciary vested in the High Court under Article 235 is exclusive in nature, comprehensive in extent and effective in operation." We are, therefore, of the view that the authority cited by the learned counsel for the petitioners is of no avail. We hold that the order of the Hon''ble Inspecting Judge does not suffer from lack of jurisdiction and also that the impugned order (Annexure 18) by which the petitioners were required to cease work with effect from 1551996 is not bad merely because the order was passed in compliance of the order of the Hon''ble Inspecting Judge.

In writ petition No. 17907 of 1996 five of the petitioners were appointed on 151991 and the remaining two on 171991 on ad hoc basis. An order dated 15596 (Annexure 18) was passed by respondent No. 1 ceasing their employment. In paragraphs 15(c) and 15(d) of the counteraffidavit, the respondents have stated that on realisation of me situation that the requirement of extracopyists was not genuine, as extra copyists had been appointed after deputing regular copyists to other jobs, the regular copyists working on other jobs were brought back to the copying department vide Order dated 1551996 passed by the District Judgeand then there remained no need for the continuance of the petitioners as extra copyists arid it was for this reason that they were ordered to cease work from 1551996. It is clear that the petitioners'' employment was brought to an end not because of their initial appointment being wrongful, but because their services were not longer required on regular copyists being brought back to the copying department. There is no merit in the claim of the petitioners for a writ of certiorari to quash the impugned order ceasing their work, Annexure18. Consequently, their claim for regularisation has also no substance. This petition is, therefore, liable to be dismissed.

In writ petition No. 17683 of 1996, Sunil Misra v. District Judge, Mirzapur and another, the petitioner was initially appointed as paid Apprentice on ad hoc basis on 1641991. Subsequently, his employment was converted into that of extra copyist under Rule 269, General Rules (Civil) on ad hoc basis. The fact that the petitioner was initially appointed as Paid Apprentice does not make any difference as regards legal status, as no provision could be pointed out providing for ad hoc appointment as Paid Apprentice. His services were terminated with effect from 1551996 vide Annexure9, which is the same order as Annexure 18 in writ petition No. 17907 of 1996. Accordingly, this petition is also liable to be dismissed.

In writ petition No. 31182 of 1996, Samiuddin and another v. District Judge, Budaun and another, petitioner No. 1, Samiuddin, was appointed on 7111990 and petitioner No. 2, Rajiv Kumar Saxena, on 15111990 on ad hoc basis on the post of stenographers in the establishment of Civil Courts at Budaun. Their request for regularisation was rejected by the District Judge vide orders dated 1281996, Annexure 1 and 2, for the reason that the regularisation rules of 1979 did not cover their case. As they have been continuing in service since prior to 2151992 they are entitled to the ''benefit of circular letter dated 24121992.

In the result, writ petitions Nos. 17907 of 1996 and 17683 of 1996 are dismissed. Writ Petition No. 31182 of 1996 is allowed partically and it is directed that the petitioners in this petition shall be entitled to continue subject to their appearing at and being selected in the next test, as per the Subordinate Civil Courts Ministerial Establishment Rules, 1947 and the Rules for the Recruitment of Ministerial Staff to the Subordinate Offices, 1950. No order as to costs.