Uma Shankar Dubey and Anr. vs Inspector General of Registration,U.P.,Allahabad & Anr.

O. P. Garg, J.—In this petition under Article 226 of the Constitution of India, the petitioners have sought a writ of certiorari to quash the order dated 1191995, Annexure 12 to the writ petition, passed by Inspector General of Registration, U.P. Allahabad, where by the representation of the petitioner has been rejected. It is further prayed that by means of writ of mandamus respondent No. 1 Inspector General of Registration be commanded to appoint the petitioners as registration clerks with effect from 1987 and pay the salary and arrears to them at par with regularly appointed registration clerks.

Counter and rejoinder affidavits have been exchanged. Heard Sri R.K. Jain, learned counsel for the petitioners and the learned standing counsel on behalf of the respondents.

The petitioner were employed as Tabulators for doing census work in the office of the Deputy Director (Census Operation) Varanasi Region, for six months and thereafter they were retrenched. Uma Shankar Dubey, petitioner No. 1 worked during the period 2991981 to 3131982 while petitioner No. 2, Mohd. Ahsan Mirza, remained in the employment in Census department during the period 481981 to 3131982. As rentrenched employees of the census department, the petitioners were engaged on daily wage basis for clearance of arrears of work of registration clerk in the officer of SubRegistrar, Varansai. They worked on different occasions for small patches of period during February, 1983 till March, 1987. Normally, the tenure of their engagements was about three months and the intervening breaks were of about a year, nine months or six months.

On the basis of various Government Orders, the petitioners claimed appointments as regular registration clerk in the office of SubRegistrar, Varanasi, in pursuance of the order of this Court. The representations made by the petitioner were considered by the Inspector General of Registration. On 1191995 by an elaborate speaking impugned order, the representations of the petitioners were rejected primarily on the grounds that they cannot claim appointments on the ground that they are retrenched employees of the census department. According to respondent No. 1, the petitioner had to apply for recruitments/appointments under the Rules framed on the subject which are the Subordinate Offices Ministerial Staff (Direct Recruitment) Rules, 1985, U.P. Registration Department (District Establishment) Ministerial Service Rules, 1978 and the U.P. Registration Department Ministerial (Headquarters Establishment) Service Rules, 1979, which provide for the procedure for appointment as registration clerk. The view taken in the impugned order is that the petitioners being trained employees may be allowed certain exemptions with regard to the educational qualifications and age limit but they cannot directly be appointed as registration clerk without being processed through the service rules.

The learned counsel for the petitioners vehemently argued that the petitioners shall be deemed to have been regularly appointed as registration clerks and their services had to be regularised in view of the various Government orders and find that there is not even a word in the Executive Orders that the petitioners who were retrenched from the census department after having worked for a short period of six months shall be entitled to regular appointments against the post of registration clerk. The petitioners, however, under the Executive Order could avail of certain concessions with regard to age limit and education qualifications but certainly they have to pass through the procedure prescribed for the regular appointment under the rules framed for the purposes.

Leaned counsel for the petitioners made reference to the decision of the Supreme Court in the case of Inspector General of Registration U.P. and another v. Awadhesh Kumar and another, in Civil Appeal No. 70500 of 1996 arising out of SLP (C) 17381 of 1993, decided on 12th April, 1996 in which reliance was placed on the earlier decisions of the Supreme Court in Khagesh Kumar and others v. Inspector General of Registration, (1995 Supp. (4) SCC 1830, to support his submission that the daily wage employees have been given right to be regularised in service. I have throughly studied the two decisions of the Supreme Court referred to above and find that the case of the present petitioners is not covered by the observation/direction in the said case. In Khagesh Kumar case (supra) the Supreme Court issued the direction as follows:

"(1) The petitioners or other similarly placed persons who were employed as Registration Clerks on daily wage basis prior to 1101986 shall be considered for regularisation under the provisions of Rule 4 of the Regularisation Rules provided they fulfil the requirements of Rule 4(1) (ii) and they have completed three years'' continuous service. The said period of three years'' service shall be computed by taking into account the actual period during which the employee had worked as Registration Clerk on daily wage basis. The period during which such an employee has preferred the duties of Registration Clerk under Paragraph 101 of the Manual shall be counted as part of service for the purpose of such regularisation."

The petitioners though had worked on daily wage basis prior to 1101986, cannot be considered for regularisation in view of the above direction as they have not completed three years continuous service. The petitioners were appointed on daily wage basis, as said above, at intervals for about three months. The broken period was not artificial but substantial as it ranged over a period of six months to one year on all the occasions.

The petitioner were called up for work as and when their services were required to clear the arrears. A list was drawn up for calling up such candidates who were available for engagements on daily wage/causal basis. The petitioners are not justified in asserting that their enlistment was in the approved list for purposes of regular appointment. In para10 of the counter affidavit it has been specifically mentioned that according to para97 of the Registration Manual an approved list was drawn up and appointments were made from the said list till it exhausted. After the commencement of the Recruitment Rules in the year 1978, no such approved list could be prepared. Now the recruitment on the post of Registration Clerk is made after selection by the U.P. Subordinate Staff Service Selection Commission. The Sub Registrar has nothing to do with the matter of appointments on the basis of causal engagements at intervals, on daily wage basis in different years. The petitioners cannot claim appointment or regularisation in service, even if it be taken that there are Executive Order on the point, though there is none. The provisions contained in the rules for the recruitment of Registration Clerk shall prevail and no backdoor entry can be allowed even in favour of the retrenched employees of census department. In J.K. Public Service Commission and others v. Dr. Narender Mohan and others, AIR 1994 SC 1808. Hon''ble R. 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 adhoc appointment under the Rules."

This fact cannot also be lost sight off that regularisation in service is not automatic. Even if a person has put in more than three years continuous service this fact is to be screened with reference to his past conduct, satisfactory service, availability of the post as well as the reservation policy. The need for retention of the employee according to the requirement of the work and the financial resources of the employer are added consideration which have to be taken into account to make the regular appointment of an adhoc/daily wage employee. The rule of thumb cannot be applied to regularise the service of an employee who has put in more than three years continuous service either as adhoc employee or an employee on daily wage basis. In this connection a reference may be made to the observation made by the Supreme Court in Khagesh Kumar''s case (supra) ; State of Haryana v. Piyara Singh, AIR 1992 SC 2130. This Court has also held in a series of cases that an employee cannot claim regularisation as a matter of right merely because he has worked for a specific period and that the regularisation is to be done after taking into consideration the various imponderable. The decision of this Court in Garhwal Jal Sansthan v. Jagdish Prasad Magain, 1995 (70) FLR 179; ZakirHusain v. EngineerinChief 1993(1) UPLBEC 15, Executive Chairman, U.P. State Legal Aid and Advice Board Lucknow and others v. Ram Bilas and others, 1995(70) FLR 294 and to cap the above decisions, the decision dated 2451996 in Special Appeal No. 371 of 1995 State of U.P. and others v. Shiv Babu Garg, may profitably be cited.

In the conclusion, I find that the petitioners cannot be deemed to have been appointed to the post of Registration Clerks in the office of SubRegistrar, Varanasi. The causal engagements to clear the arrears for a short period, do not confer any right on the petitioner for regular appointment as Registration Clerks. Since the petitioners have not been in continuous service for a period of three years, the question of regularisation of their services is wide off the mark. The petition is devoid of any merits and substance and is accordingly dismissed.

Petitioner dismissed.