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SMT. PRABHA MISRA versus DISTRICT JUDGE, KANPUR DEHAT

High Court of Judicature at Allahabad

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Smt. Prabha Misra v. District Judge, Kanpur Dehat - WRIT - A No. 271 of 1998 [2004] RD-AH 998 (1 October 2004)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved

Civil Misc. Writ Petition No. 271 of 1998

Smt. Prabha Misra Vs. District Judge, Kanpur Dehat

~~~~~

Hon'ble Dilip Gupta, J.

This petition has been filed under Article 226 of the Constitution of India for a direction upon the respondent to regularise the services of the petitioner and pay her salary and not to interfere with her functioning.

The petitioner was initially appointed as a Stenographer in the Civil Courts, Kanpur Dehat on 1.4.1989 for a period of one month. It was specifically stated in the appointment letter that her services were purely temporary on ad hoc basis and could be terminated at any time without notice. The said ad hoc appointment was extended from time to time with breaks in between but after 31.1.1994 the petitioner was not engaged.

Reliance has been placed on the provision of Rule 4 of the U.P. Regularisation of ad hoc appointments (On Posts Outside the Purview of the Public Service Commission) Rules, 1979 (hereinafter referred to as the ''Rules') and it has been stated that though the cut-off date was stipulated as 1.1.1977 but subsequently by means of the notification dated 7.8.1989 the said date was altered to 1.10.1986 and subsequently in view of the decision of this Court in Writ Petition No. 4279 of 1993, the cut-off date was fixed as 7.8.1989 by the Circular dated 10.11.1993 sent by the High Court. Since the claim of the petitioner for regularisation under the aforesaid rules was rejected, the petitioner filed the present petition claiming the reliefs mentioned above.

On 9.1.1998 a report was called for from the District Judge, Kanpur Dehat. A detailed report dated 17.2.1998 has been filed and a counter affidavit has also been filed. It has been stated that the petitioner was initially appointed as an ad hoc Stenographer on 1.4.1989 for a period of one month but this term of appointment was extended from time to time till 30.6.1991. However, one Sidh Gopal Awasthi, Stenographer in the Court of VII Additional District Judge, Kanpur Dehat proceeded on medical leave and so the petitioner was engaged in the said leave vacancy from 3.7.1991 up to 9.8.1991. Subsequently the petitioner was again appointed on ad hoc basis on 1.2.1992 up to 31.3.1992. This period was extended from time to time up till 31.1.1994. It has further been stated that the petitioner was not entitled for being regularised since her case was not covered under the provisions of the Rules and that the petitioner cannot claim parity with Raj Narain inasmuch as there was a long break of seven months.

Learned counsel for petitioner submitted that three Stenographers had been given appointment on ad hoc basis in the Judgeship of Kanpur Dehat. The services of one Stenographer, namely, Neeraj Kumar Parashar, was regularised by the District Judge pursuant to the aforesaid Circular but the benefit of the Circular was not granted to the other two persons namely the petitioner and Raj Narain. Raj Narain filed a writ petition in this Court being Writ Petition No. 3939 of 1996 which was allowed by means of the judgment and order dated 12.9.1997. He, therefore, submitted that services of the petitioner should also be regularised under the Rules.

The question that requires to be considered in the present petition is whether the petitioner is at all entitled to be regularised under the provisions of Rule 4. Rule 4 (1) which is relevant for the purposes of the present petition is quoted below:-

"4. Regularisation of ad hoc appointments.-(1) Any person who-

(i) 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 ad hoc appointment: and

(iii) has completed or as the case may be, after he 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 rules or orders."

  The cut-off date provided for in Rule 4(1) was 1.1.1977. It was, however, extended up to 1.10.1986 by the Notification dated 7.8.1989. However, in view of the decision of a learned Judge of this Court in Writ Petition No. 4279 of 1993 a Circular dated 10.11.1993 was issued extending the date up to 7.8.1989. The decision in the case of Raj Narain on which heavy reliance has been placed by the learned counsel for the petitioner was rendered taking into account the Circular dated 10.11.1993 extending the cut-off date to 7.8.1989 and the benefit was given since the petitioner in that case was initially appointed on 12.7.1989.

Learned counsel for the respondent, however, submitted that the decision rendered by the learned Single Judge in extending the cut-off date to 7.8.1989 came up for consideration before a Division Bench of this Court in the case of Subedar Singh and others Vs. District Judge, Mirzapur and others reported in 1997(1) ESC, 655 in which it was held that the decision of the learned Single Judge extending the cut off date does not lay down the correct law. It was observed as follows:-

"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 Outside the Purview of the Public Service Commission) Rules 1979 were promulgated by the Governor on 14.5.1979 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 1.1.1977. These rules were amended on 22.3.1984 by the Uttar Pradesh Regularisation of ad hoc Appointments (on Posts Outside 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 1.5.1983. The Rules were again amended on 7.8.1989 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 1.10.1986. These rules do not on terms apply to the petitioners in the instant cases inasmuch as they were all appointed admittedly after 1.10.1986. However, the petitioners claimed that they are entitled to the benefit of the 1979 Rules in view of the decisions rendered by learned single Judges in Arvind Kumar Yadav and Adya Prasad Misra referred earlier. It was held in Arvind Kumar Yadav and others v. State of U.P. and others that the cut off date, i.e., 1.10.1986 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 19 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. 1.10.1986 mentioned in the Rules was held to be void and all those persons who were employed on ad hoc basis on or before 7.8.1989 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.

...........................

We hold that specification of cut off date 1.10.1986, of 1979 Regularisation Rules as amended by the Second Amendment Rules, 1989 is valid and the decision in Arvind Kumar Yadav case did not lay down the correct law.

...........................

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 within the function of the Court. We are, with respect, accordingly, of the view that the decision in Adya Prasad Misra v. State of U.P. also did not lay down the law correctly."

The Supreme Court in the case of Subedar Singh and others Vs. District Judge, Mirzapur and another reported in 2000 (1) ESC, 7 dismissed the Appeal filed against the aforesaid Division Bench decision of this Court. It was observed as follows:-

"We have carefully scrutinized the aforesaid Regularisation Rules and we do not find any substance in the arguments of the learned counsel for the appellants that their services ought to have been regularised under the aforesaid Regularisation Rules. The High Court has examined all the contentions by a detailed discussion of the relevant provisions of the Rules and we do not find any infirmities with the reasoning and conclusions of the High Court in the impugned judgment. No rule, law or regulation, nor even any administrative order had been shown to us, on the basis of which the appellants could claim the right of regularisation."

Thus the cut-off date in Rule 4 of the Rules remains as 1.10.1986. The petitioner was appointed after the said date on 1.4.1989 and as such is not entitled for regularisation under the Rules. The decision in the case of Raj Narain does not, therefore, help the petitioner.

The Supreme Court in the case of A. Umarani Vs. Registrar, Co-operative Societies and others reported in 2004 AIR SCW 4462 held that regularisation cannot be the mode of recruitment of any "State" within the meaning of Article 12 of the Constitution of India or any body or authority governed by a Statutory Act or Rules framed there under.

Learned counsel for the petitioner then submitted that the petitioner should be regularised in view of the fact that Neeraj Kumar Parashar had been regularised. This plea of the learned counsel for the petitioner cannot also be accepted.

The Division Bench of this Court in the case of Subedar Singh and others (supra) had also examined this contention but refused to grant reliefs to the petitioners because the benefit of illegal orders would not confer rights upon the others to claim the said benefit. It was observed as follows:-

".... We also do not see any merit in the submissions 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 contention. The view of the High Court is obviously from and the judgment rendered could not form the ground for our holding that the others who got the benefit by illegal orders will be extended in favour of other candidates though illegally appointed. Article 14 cannot be extended to legalise the illegal orders though others had wrongly got the benefit of the orders....."    

For the reasons stated above, there is no merit in this petition. It is, accordingly, dismissed. There shall be no order as to costs.

Dt/-

Sharma  


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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