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Sanjay Kumar Shrivastava(Typist) Sidharthanagar v. Principal Chief Conservator Of Forest Lkw & Others - WRIT - A No. 48322 of 2000  RD-AH 4281 (17 October 2005)
Judgement reserved on 29.9.2005.
Judgement delivered on 17.10.2005.
Civil Misc. Writ Petition No. 48322 of 2000.
Sanjay Kumar Srivastava
Principal Chief Conservator of Forest,
Civil Misc. Writ Petition Nos. 33520 of 1998, 32260 of 1998, 16811 of 1998, 38987 of 1998, 41846 of 1998, 41850 of 1998, 41848 of 1998, 32262 of 1998, 5534 of 1999, 55461 of 2000, 42353 of 2000, 31387 of 1998, 32758 of 1998, 32256 of 1998, 32258 of 1998, 32760 of 1998, 34001 of 1998, 23648 of 2000, 38985 of 1998, 32014 of 1998, 18576 of 2000, 33257 of 1998, 43150 of 2001, 18192 of 2001, 18191 of 2001, 3171 of 2000, 18135 of 2002, 14534 of 2002, 33587 of 1998, 19670 of 2002, 20775 of 2002, 21650 of 2002, 21651 of 2002, 21652 of 2002, 22746 of 2002, 23225 of 2002, 23408 of 2002, 23493 of 2002, 25248 of 2002, 25461 of 2002, 32072 of 2002, 25600 of 2002, 42412 of 2002, 18536 of 2002, 40388 of 2002, 42409 of 2002, 40512 of 2002, 41374 of 2002, 41598 of 2002, 41602 of 2002, 42407 of 2002, 33262 of 1998, 5530 of 1999, 49800 of 2002, 35592 of 1996, 43823 of 2002, 15331 of 2003, 14844 of 2003, 44300 of 2000, 39672 of 1999, 32132 of 1992, 23558 of 1994, 22864 of 2000, 41778 of 1998, 47574 of 2002, 47582 of 2002, 47598 of 2002, 52968 of 2002, 16744 of 2003, 33533 of 2003, 21137 of 2003, 33391 of 2003, 36346 of 2003, 42276 of 2003, 53503 of 2003, 53047 of 2003, 53723 of 2003, and 54595 of 2003.
Hon'ble Sunil Ambwani, J.
Heard Sri Pankaj Srivastava, learned counsel for the petitioners, Sri M.C. Chaturvedi, Additional Standing Counsel and Sri Rajni Kant Tiwari, learned Standing Counsel appear for State respondents.
2. This bunch of writ petitions seeking regularisation of daily waged Group 'C' and Group 'D' employees of the forest department in the State of U.P, was last heard on 29.9.2005.
3. The petitioners in these writ petitions are daily rated employees serving in Bundelkhand, Allahabad, Gorakhpur, Bareilly and Agra Forests Circles including its 20 Forest divisions working since last more than fifteen to twenty years. In the first round of litigation a Division Bench of this Court in State of U.P. vs. Puti Lal, (1998) 1 UPLBEC 313, allowed the Special Appeals against the order of learned Single Judge directing regularisation of daily waged employees. The Division Bench directed the State of U.P. to appoint a Committee consisting of Secretaries of Finance and Forest Department, and Legal Remembrancer, or their nominees to consider the question of framing a Scheme for regularisation/absorption of the petitioners and other similarly placed employees working in the forest department, and the schemes undertaken by the department. The State Government filed Civil Appeal No. 3634 of 1998 which was decided by Supreme Court on 21.2.2002, in State of U.P. and others vs. Puti Lal reported in (2002) 2 UPLBEC 1595. The short judgement of the Supreme Court relevant for the purpose of deciding this second round of litigation is reproduced as below;
"1. I.A. for discharged of Advocate is allowed.
2. These appeals and the Special Leave Petitions are directed against one and the same judgement of the Division Bench of Allahabad High Court. The High Court disposed of a batch of appeals by a common judgement. The respondents were daily rated wage earners in the Forest Department having already served the Department for several years. They approached the High Court for regularisation of their services. The Division Bench of the High Court by judgement dated 10th December, 1997 called upon the Government to frame a scheme as to how the services of these daily rated workers could be regularised. A committee was directed to be constituted consisting of Secretary (Finance), Secretary (Forest) and the Legal Rememberancers or their nominees, which Committee was called upon to frame the scheme for regularisation of the daily rated employees working in the Forest Department. The High Court also came to hold that these daily rated workers should be paid at the minimum of the pay scale that is available for a regular worker in the corresponding post in the Government. This Court, after issuing notice by order dated 13th of May 1998, directed maintenance of status quo so far as the payments are concerned. Subsequently, on hearing parties after notice, by order dated 3rd of August, 1998 leave was granted and the operation of the impugned judgement was stayed during the pendency of the appeal.
3. On behalf of the employees an I.A, had been filed claiming that they should at least be allowed their regular wages during the pendency of the appeals, but by order dated 27th September, 1990 that prayer was rejected and it was held that the persons working will be paid only the amount payable to a daily wager. When these matters had been posted for hearing before the Court on 1st May 2001, after hearing the parties for a considerable length of time, the Court felt that the impugned direction of the High Court for providing a scheme for regularisation of all the daily wage workers/muster roll employees under the Forest Department who have rendered 10 years of service or more, should be regularised by making appropriate scheme. The Court directed that the scheme should be framed within three months from the date of the order. As the State of U.P. was bifurcated to two States and State of Uttaranchal had come into existence, by a subsequent order the State of Uttaranchal was also impleaded as a party and they had been granted time to file their response. Pursuant to the aforesaid direction of the Court dated 1.5.2001 the State of U.P. has framed a set of rules in exercise of power conferred under the proviso to Article 309 of the Constitution called 'The Uttar Pradesh Regularisation of Daily Wages Appointment on Group 'D' Post Rules 2001. It appears that a similar rule has bee framed for regularisation of Group 'C' daily wages employees. Both these Statutory Rules would govern the case of all daily wagers appointed Sobha Hymavathi Devi Vs. Setti Gangadhara Swamy & Ors. (20in any department including the Forest Department, which Department was before us pursuant to the direction of the division Bench of Allahabad High Court. Since a statutory rule has been framed indicating the manner in which the daily wagers can be regularised question of framing any further scheme by the State of Uttar Pradesh does not arise.
4. Mr. Bahuguna, learned Senior Counsel appearing for the employees, made a grievance with regard to some of the provisions of the aforesaid rules but, we are not inclined to entertain that grievance and issue any direction in this case inasmuch as grievance, if any, emanating from the aforesaid Statutory rules would be on a fresh cause of action which could be assailed before an appropriate forum by the aggrieved party. Mr. Bahuguna, however, contended that so far the entitlement of these daily wagers until they are regularised in accordance with the statutory rule to get minimum of the pay scale, should be granted by this Court which is not being given because of the interim order of stay that had been passed by this Court and the dismissal of the I.A. Filed by the employees. According to him, a judgement of a learned Single Judge in respect of the forest employees unequivocally held that the daily wagers should be paid in the minimum of the pay scale as is available to a regularly employed worker in the corresponding cadre.
5. In several cases this Court applying the principle of equal pay for equal work has held that a daily wager, if he is discharging the similar duties as these in the regular employment of the Government, should at least be entitled to receive the minimum of the pay scale though he might not be entitled to any increment or any other allowance that is permissible to his counter part, in the Government. In our opinion that would be the correct position and Sobha Hymavathi Devi Vs. Setti Gangadhara Swamy & Ors. (20was therefore, direct that these daily wagers would be entitled to draw at the minimum of the pay scale being received by their counter part in the Government and would not be entitled to any other allowances or increment so long as the continue on daily wager. The question of their regular absorption with obviously be dealt with in accordance with the statutory rule already referred to.
6. So far as the State of Uttaranchal is concerned, a scheme for regularisation of daily workers has been produced before we which prima facie does not appear to be objectionable excepting the provision regarding qualification for regularisation. Be it stated that the qualification essential for being regularised would be the qualification as was relevant on the date a particular employee was taken in as a daily wager and not the qualification which is being fixed under the scheme. The fact that the employees have been allowed to continue for so many fears indicates the existence or the necessity for having such posts. But still it would not be open for the Court to indicate as to how many posts would be treated for the absorption of these daily wages workers. Needless to mention that the Appropriate Authority will consider the case of these daily wagers sympathetically who have discharged the duties for all these years to the satisfaction of their Authority concerned. So far as the salary is concerned, as we have stated in the case of State of Uttar Pradesh, a daily wager in the State of Uttaranchal would be also entitled to the minimum of the pay scale as is available to his counter part in the Government until his services are regularised and he is given regular scale of pay.
7. The Civil Appeals and the Special Leave Petitions stand disposed of accordingly.
8. Delay condoned and applications for intervention and impleadment stand allowed."
4. In compliance of the Judgement, the State Government initiated the exercise of regularisation. The Principal Conservator of , Forest, U.P. Lucknow sent a letter on 30.3.2002 to all the Conservators of Forests and the Project Incharge to compile and send the number of vacancies of Class IV posts in their respective Divisions. By a letter dated 20.5.2002 the Special Secretary, Government of U.P. informed all the Divisional Forests Officers and Divisional Project Directors to provide the information with regard to vacancies in their divisions. He also communicated that some complaints were received for diverting the vacancies to other divisions, and attempts were made to cease senior daily rated employees so that they fall out of the eligibility. The State Government issued strict instructions not to divert any vacancies and directed to allow the senior most daily waged employees to continue in employment. The selection committees were constituted and that the process of regularisation was initiated and concluded in each division regularizing hundreds of daily rated employees in the department.
5. The petitioners in this bunch of writ petitions are challenging the decisions taken by the selection committee by which they were found to be ineligible for regularisation. In the second category of cases it is alleged that the regularisations were denied for want of availability of vacancies and in the third category of cases, the petitioners have claimed regularisation with effect from previous dates.
6. All the petitioners working as daily wages on Group ''D' posts are claiming regularisation under the U.P. Regularisation of Daily Wages Appointment on Group D Posts Rules 2001 (in short the Rules of 2001) in which the cut of date under Rule 4 (1) (a) is 29.6.1991. The Rules of 2001 came into force on 21.12.2001 and provided that all those who were directly appointed on daily waged basis on a Group ''D' post in the Government service on or before 29.6.1991, and is 'continuing in service' as such on the date of commencement of the Rules and possess requisite qualification prescribed for regular appointment for that posts, at the time of such appointments on daily wage basis under the permanent or temporary vacancy as may be available in Group ''D' posts on the basis of his record and suitability, shall be considered for regular appointment before any regular appointment is made in such vacancy in accordance with the relevant service rules or orders. Rule 6 provides that the appointments made under these Rules shall be deemed to be appointment under the relevant service rules or orders if any. Sub Rule (3) of Rule 3 provides for constitution of Selection Committee by the Appointing Authority in accordance with the relevant provisions of the service Rules; Sub Rule (4) provides for drawing an eligibility list arranged in the order of seniority. The selection committee under sub rule (5) is required to consider the cases on the basis of their records referred to in sub rule (4) and if it considers necessary it may interview the candidates. The appointments under sub rule (5) are to be made by Appointing Authority from the list prepared under sub rule (6). Rule 6 provides that the appointments made under these Rules shall be deemed to be made under the relevant Service Rules or Orders, if any.
7. The Class III employees working on daily wages are claiming regularisation under the U.P. Regularisation of Daily Wages Appointment on Group ''C' Posts (Outside the Purview of U.P. Public Service Commission) Rules 1998 ( in short the Rules of 1998). The cut of date in these Rules of 1998 is 29.6.1991. Rule 4 (1) (a) provides that any person who was directly appointed on daily waged basis on Group C Posts in the Government service before 29.6.1991 and is ,'continuing in service' as such from the commencement of the Rules (the Rules of 2001, were notified on 9.7.1998) and possess requisite qualification prescribed for regular appointment for that post at the time of such appointment on the relevant service rules on daily wages basis shall be considered for regularisation and appointment on group ''C' posts on permanent or temporary vacancy. The selection committee constituted by the appointing authority under Rule 3 is required to prepare an eligibility list under sub rule (4) arranged in order of seniority. It is required to consider in Rule 5 the cases of the candidates on the basis of their records and if necessary interview them to assess their suitability. The appointments are required to be made by the Appointing Authority from such list in the order in which their names stand in the list. Rule 6 provides that these appointments shall be deemed to be made under the relevant Service Rules, or orders, if any.
8. Sri Pankaj Srivastava, learned counsel for the petitioners submits that the Selection Committees were constituted in violation of statutory Rules of 1998 and 2001. The mandatory provisions of regularisation Rules were violated. The Selection Committee exercised their discretion in favour of totally ineligible candidates. There was gross abuse and misuse of administrative discretion by the Appointing Authority. Elaborating his submissions, Sri Srivastava submits that the interim orders granted by different benches of this Court were ignored by the authorities. The State Government filed false affidavits with manufactured documents with regard to availability of vacancies and the eligibility of the candidates. The minimum wages paid to the eligible employees were stopped. Learned counsels appearing for the State Government does not have authority to appear in these matters and that in fact a large number of vacancies were diverted to regularize the favoured employees and that the seniority lists have been concealed from the Court.
9. Sri Srivastava further submits that in all the forest divisions the selection committees were constituted with Divisional Forest Officers as its Chairmen who were the Appointing Authorities along with their subordinates. This, according to him, was in violation of the rules inasmuch as the Appointing Authority is not provided to be the member of the selection committee. The educational qualifications were arbitrarily fixed in accordance with the Lower Subordinate Forests Service Rules 1980, which do not provide for daily waged appointments. The petitioners working for more than two decades were held ineligible under the Lower Subordinate Forest Service Rules1980 for their initial appointment on the daily wages. The kith and kin of the forest officers were regularized in different forest divisions where they had never worked and that the pay vouchers and muster rolls of the senior most employees were deliberately misplaced to deprive them from regularisation. He submits that the State Government did not fix guidelines for determining continuous service, number of vacancies and eligibility of the candidates. He submits that the entire exercise was done for consideration other than those given in the statutory rules and with malafides intentions.
10. Sri M.C. Chaturvedi, learned Additional Chief Standing Counsel and Shri Rajni Kant Tiwari learned Standing Counsel for the respondents have relied upon the counter affidavits filed in the writ petitions in which, the allegations has been specifically denied. They submit that detailed guidelines were framed by the State Government under the Regularisation Rules of 2001 and the Regularisation Rules of 1998 for regularisation of Class IV and Class III employees. The vacancies were rightly calculated in each forest divisions, after taking into account both permanent and temporary posts of Class IV and Class III employees. The Lower Subordinate Forest Service Rules 1980 provides for determination of vacancies under Rule 14 and for constitution of the Selection Committee in Rule 15 which provides that for the purposes of recruitment the selection committee shall consist of the appointing authority and to officers not below the rank of Assistant Conservator of Forest to be nominated by the Conservator of Forest having jurisdiction. The educational qualifications and standard of physical fitness for different category of posts is provided in Rule 8 and 13 of these Rules. For Class III employees, the statutory committee is required to include the appointing authority, two persons from reserved category, two members of general category. According to him, the regularisation was made strictly in accordance with the Rules and those who were not found eligible were not considered.
11. Writ petitioners are seeking relief for regularisation in accordance with Rules of 2001 for Group 'D' Posts, and Rules of 1998 for Group 'C' Posts after ignoring the requirements of the educational qualifications as provided in Lower Subordinate Forest Services Rules 1980 which also provides for physical endurance test; and to ignore artificial breaks in daily waged employment on account of which these petitioners were declared to be ineligible for regularisation. They have also prayed for considering those employees for regularisation who were parties to the earlier writ petitions and the Special Leave Petitions before the Supreme Court and were ceased before the cut of dates provided in the Regularisation Rules. They have further prayed for the payment of minimum wages during the pendency of the procedure of regularisation and for creation of vacancies to accommodate those who were ignored. The second category of petitioners are those who could not prove the continuous appointments for want of availability of vouchers and muster rolls certifying payments made to them, when they were working on daily wages.
12 So far as the artificial breaks between the cut of dates in both set of Rules is concerned I have already held in Jaglal and others vs. Director of Horticulture, U.P. Government, Lucknow, Writ Petition No. 16842 of 2003, decided on 21.5.2003, and in Visheshwar vs. Principal Secretary, Forest Anubhag-3, and others, Writ Petition No. 47568 of 2002, decided on 29.11.2004, that the word ''continuing in service' in rule 4 (1) (a) of the Rules of 2001 must ignore the artificial breaks. The relevant portion of the judgment is quoted as below;
"The object and purpose of the above quoted Rules of 2001 is to obtain regularisation of the of the appointees, directly appointed on daily wages basis on a Group 'D' post in the Government service before June 29, 1991 and is continuing in service as such on the date of commencement of the Rules. The Hindi version of the Rules uses the words "Is Niyamawali Ke Prarambh Ke Dinaink Ko Is Roop Me Niranter Sevarat Ho" in Rule 4 (1) (a) where as English gazette notification mentions the words "continuing in service as such on the date of commencement of these Rules" in the same Rules in Rule 4(1) (a). There is apparently a difference in the expression. Whereas "Nirantar Sevarat Ho" means that such appointee has been in continuous employment on the date of commencements of the rules, the English version means that he is continuing in service as such on the date of commencement of the Rules. Article 348 (3) of the Constitution of India provides that the translation of the order, Rule, Regulation or bye law of the same in English language, published under the authority of the Governor of the State in the official Gazette of the State shall be deemed to be the authoritative text thereof. In Nityanand Sharma v. State of Bihar (1996) 3 SCC 576 and in Vinay Prakash v. State of Bihar (1997) 3 SCC 406, the Supreme Court relied upon notification in English to be authoritative text where there was ambiguity in such text with the text of the language of the State.
The principles of purposive construction of interpretation of statutes also supports the language used in English text. Daily wage appointees have no right or control over their appointments. They are hired and fired at will. Many a times their engagements are ceased, to allow other favoured persons to be accommodated and on other occasions they are not allowed to work either on account of temporary cessation of work, displeasure of the appointing authority, or due to some delay or gap in receiving the financial grants for payment of salaries. In the present case as we have seen above the daily wage services of some of the petitioners were ceased by the appointing authority as soon as they filed contempt petitions to enforce the order passed by this Court on 12.12.95. They were subsequently taken back in daily wage service. The nature of their casual engagement did not give them any permanency in service. The English Text thus rightly uses the words continuing in service as such on the date of commencement of the Rules, as an essential condition for consideration for regularisation. The rules obviously ignore any artificial breaks in service, or daily wages appointees, beyond their control. At this place it may be clarified that this Court is not considering any such case where an employee may have voluntarily given up employment or had taken employment of permanent nature some where else. There is nothing on the record to show that the petitioners were not willing to work or that they had given up or abandoned their daily waged employment. All the petitioners were appointed on daily wage basis before 29 June, 1991, and were continuing in service on the date of commencement of the Rules i.e. On 21st December, 2001. In the circumstances I find that the respondents were not justified and have acted illegally and arbitrarily in ignoring the claims of these daily waged petitioners who were not allowed to work for different periods. The Selection Committee erred in law in ignoring
Even if Hindi text is taken into consideration, we arrive at the same conclusion. In Banaras Hindu University Varanasi and others vs. Dr. Indra Pratap Singh AIR 1992 SC 780, Hon'ble Supreme Court was considering the U.G.C. Evolved scheme called a "Merit Promotion Scheme" with a view to provide incentive to teachers to prevent stagnation and to improve their efficiency. One of the condition which a lecturer was required to satisfy for promotion, was eight years continuous service. The respondent in the said case had a break in service between 1.4.1980 to 20.7.1980 and was found by the University not to have satisfied the requirement. The Supreme Court relied upon the meaning of the phrase, "Continuous employment" in Words and Phrase" volume 9 as follow; "it means working with reasonable regularity, and work does not cease to be "continuous" because of interruptions in occupation due to periods of temporary illness, such are incident to people of normal health". Continuous service has been defined in the same volume as containing in the collective bargaining agreement is to be viewed in light of terms of agreement which provided for work schedule. The report further relied upon the case of Budge Budge Municipality v. P.R. Mukherjee (AIR 1953 SC 58) as follows;
" the same words may mean one thing in one context and another in different context. This is the reason why decisions on the meaning of particular words or collection of words found in other statutes are scarcely of much value when we have to deal with a specific statute of our own; they may be helpful but cannot be taken as guides or precedents"...."Continuous service" in the context of the scheme of gratuity framed by the tribunal in the earlier reference postulates the continuous of the relationship of master and servant between the employer and his employees. If the servant resigns his employment service automatically comes to an end. If an employer terminates the service of his employee that again brings the continuity of service to an end if the service of an employee is brought to an end by the operation of any law that again is another instance where the continuance is disrupted; but it is difficult to hold that merely because an employee is absent without obtaining leave that itself would bring to an end the continuity of his service"
In the present case, the same question has been called upon to be decided by this Court. There may be various circumstances in which a person, who was in service as daily wager on Group 'D' post on 29.6.1991 and was in service as such on 21.12.2001 i.e. on the date of enforcement of these Rules, was not in continuous service in the sense that there were an artificial break. These circumstances cannot be put in straight jacket. A person may have been compelled by the circumstances beyond his control, to take leave, which is not available to a daily wager or was replaced by some other persons by the employer without his consent for a short period or may not have been paid wages for various reasons, like lack of funds even though he had worked on the post. The test, however, is that the person may not have left the employment. A daily wager serves at the pleasure of the employer. A few days break in service as a daily wager, which was involuntary and at the instance of the employer cannot be treated to be a break dis-entitling him to the benefit of regularisation. Any other interpretation would make the Rules extremely harsh unreasonable, inequitable and thus violation of Article 14 and 16 of Constitution of India.
In all these cases, I find that the consideration for regularisation was denied by the Selection Committee on the ground of short breaks in service. According to the stand taken in the counter affidavit, a policy was adopted at the Divisional Level to exclude all those persons, who had not completed 240 days of work in one calender year. This consideration in my opinion was wholly arbitrary as we are not dealing with the question of retrenchment under the Industrial Disputes Act 1947. On the contrary I find that in Allahabad Division the Conservator of Forest/Regional Director, Social Forestry, U.P. Allahabad in the matter of similarly situate persons for regularisation ignored this policy and directed that in interpreting the word 'continuing in service', any short break may be ignored with the condition that the person has been employed subsequently on daily wages. Sri M.C. Chaturvedi, Additional Chief Standing Counsel submits that this order was immediately recalled. Sri Pankaj Srivastava submits that even after recalling of the order, the regularisation obtained with interpretation given in the order were not cancelled. Be that as it may, since I am holding that an artificial break in case of regularisation has to be ignored I need not to decide this question
For the aforesaid reasons, all the writ petitions are allowed. It is declared that the ignorance of the periods of artificial break in the matter of regularisation in interpreting the word 'continuing in service' in Rule-4 (1) (a) of the Rules of 2001 was arbitrary, unreasonable, illegal and thus violative of Articles 14 and 16 of the Constitution of India. The respondents shall consider the petitioners for regularisation afresh in accordance with the directions given in the judgement. Such consideration may be made as expeditiously as possible and preferably within a period of three months. In case the petitioners are still in employment, they shall continue to earn the minimum of pay scale as directed by the Apex Court in Puti Lal's case. The question of filling of backlog vacancies by Scheduled Caste and Scheduled Tribe candidates by direct recruitment under the Rules of 1980, is not connected with the present case. The petitioners shall have right to appointment on all the vacancies excluding those which are to be filled up in accordance with U.P. Act No. 4 of 1994. The direction to fill up back log vacancies provided by U.P. Act No. 4 of 1994 are not in conflict with the process of regularisation, which does not restrict and stop any direct recruitment made on the vacancies available for a particular quota in accordance with Reservation Rules. The interim order with regard to stay on the recruitment of Scheduled Caste and Scheduled Tribe candidates by any of such recruitment on the vacancies for such categories are discharged."
13. Both Rules of 2001 for regularisation of Group D Posts and the Rules of 1998 providing for regularisation of persons serving on Group C Posts, provide that such persons continuing in service on the date of commencement of the Rules must possess requisite qualifications prescribed for regular appointments for that post at the time of such appointments under the relevant service rules on daily wages basis. Both the Rules adopt the similar criteria of eligibility. In the present case, these Rules are Lower Subordinate Forest Service Rules 1980 ( In short the Rules of 1980). These Rules of 1980 providing for cadres, recruitment, qualification, procedure of recruitment, scale of pay and other service conditions of lower forest service comprising of Group D posts including Jamadars, Guards, Muharrir and other seasonal workers. The academic qualification for Moharrir and Jamadar provided in Rule 8 is High School with Science or Agriculture and Intermediate examination or an examination recognised as equivalent thereto. For Guards the same qualifications were prescribed. In the case of recruitment of candidates from open markets, preference is to be given to Home Guards and to those who have served in Territorial Army for two years and have obtained ''B' Certificate of National Cadet Core. The physical fitness in Rule 13 provides for good mental and bodily health and free from any defect likely to interfere with the efficient performance of the duties. Measurement of height, and chest are given in the note appended to the rule. Rule 27 provides for relaxation from the conditions of service. These relaxations are provided where the State Government satisfies that the operation of any rule shall cause undue hardship in any particular case. Appendix ''B' provides for physical test at the time of recruitment which includes brisk walk of 25 KM carrying a weight of 10 KG in a bag to be completed in four hours and a written test in Hindi and at least 40% marks in each subject. These Rules were amended by the Fourth Amendment of these Rules of 1980, on 16.10.2001. These amended rules are not relevant for the purposes of determining the eligibility of the candidates as almost all the petitioners were appointed prior to 16.10.2001. The amended Rules are, however, important for finding out the composition of the selection committee which under the Regularisation Rules is to be the same as provided to be constituted in the service rules and the determination of vacancies. The Rule 15 of the Rules of 1980, as amended on 16.10.2001, provide for the composition of the selection committee, with the Appointing Authority, and two officers not below the rank of Assistant Conservator of Forest to be nominated by the Conservator of forest having jurisdiction. The note appended to the amended rule provides for the nomination of the officers for giving representation to Scheduled Caste, Scheduled Tribes, and other Backward Classes of citizens in the selection committee to be made in accordance with the order made under Section 7 of the Rules as amended from time to time.
14. The Selection Committees as such was constituted in accordance with the amended rule which came into force on 16.10.2001. The selection committees, however, in my opinion grossly erred in rejecting petitioner's on the ground of lacking with the minimum educational qualifications and physical fitness, under the Service Rules, at the time of their consideration for regularisation. The Lower Subordinate Forest Service Rules 1980 do not provide for appointment on daily wages. The respondents have not placed on record any such rules which provide for appointment on daily wages on Group 'D' and Group ''C' posts in the department. The regularisation Rules are very clear on this point and do not admit any ambiguity. The educational qualifications and physical ability, appointment and recruitment are relevant only for appointment on permanent or temporary posts at the time of initial appointment.
15. It will be wholly unjust and unfair to reject a candidate for regularisation on the ground that he did not possess the minimum educational qualifications and physical fitness at the time when the selection committee considered him for regularisation, after taking work from the same person, on the same post on which he is seeking regularisation without any complaint for about more than two decades. It will be wholly unfair to hold him ineligible for regularisation at such distance of time. In J.C. Yadav vs. State of Haryana (1990) 2 SCC 189, the Rules of regularisation for the purposes of promotion in Haryana Service of Engineers Class I posts came for consideration before the Supreme Court. The expression ''any particular case' in the exemption clause was held not be confined to any individual case, and to include appreciation by the cases of a group or classes of individual to meet a particular situation in a just and equitable manner. In Ashok Kumar Uppal and others vs. State of Jammu and Kashmir and others, 1998(4) SCC 179, the Supreme Court held under service jurisprudence as also in Administrative Law the power of regularisation has necessarily to be conceded to the employer particularly the State Government or the Central Government to deal with the hundreds employees working in different departments where the implementation of the rules, to meet a particular situation or where injustice has been caused to either individual employee or class of employees. The power has to be exercised in a fair and reasonable manner. In this case 26 candidates out of 78 who appeared in the test qualified for filling up the post of Senior Scale Stenographers, the Recruitment Board recommended an additional list of 26 candidates, who were nearer the prescribed standard and therefore could be considered for the power in relaxation to such prescribed standard. The State Government instead of accepting the recommendation amended the rules retrospectively prescribing seniority as a criteria for promotion and thus who had failed were included in the select list. The exercise of relaxation power was held to be valid. In Ghanshyam Sunder vs. State of Punjab, 2001 (3) JT 492 the Supreme Court in similar situation held that relaxation in physical endurance test has to be given to those candidates who have rendered sufficient service.
16. I find substance in the submission of Sri Pankaj Srivastava that where the employees have worked for decades altogether on the same post and have worked on such posts without any complaint, they should not be denied regularisation on the ground that they do not possess requisite minimum educational qualifications prescribed for regular appointment on that post on the day they are considered for regularisation. The object and purpose of the Rules of 2001, as interpreted by Supreme Court in State of U.P. vs. Puti Lal (supra) is not to deprive such candidates from regularisation.
17. In all the counter affidavits filed in the previous litigation as well as in Supreme Court, no such objection was taken that the petitioners are not eligible as they do not hold the requisite qualifications for the post. In Gujrat Agricultural University Vs. Rathor Lambu Bechar, AIR 2001 SC 706, relying upon Bhagwati Prasad Vs. Delhi State Mineral Development Corporation, 1990(1) SCC 361, the Supreme Court held that initial minimum educational qualification is undoubtedly a factor to be taken into consideration at the time of initial entry into service. Once however the daily rated workers were appointed and allowed to work for considerable length of time, it would be hard and harsh to deny them confirmation on he respective posts on the ground that they lack the prescribed educational qualifications. In view of their long experience on the concerned posts, the prescribed qualifications, if any should not come in the way of their regularisation.
18. The State Government must, therefore, having regard to the facts and circumstances the regularisation rules and the directions of Supreme Court, give relaxation to all these candidates who have been declared ineligible on the ground of minimum educational qualifications and physical endurance test and to reconsider them for regularisation.
19. Sri Srivastava has laid great emphasis on the allegations of malafides in the selections. He submits that the role of the appointing authorities in the process of regularisation is seriously in doubt. The appointing authorities were not required to take active part in selection in regularisation at pre-selection stage. They were required to follow guidelines issued by the State Government with regard to vacancies, eligibility and preparation of merit list for regularisation. Sri Srivastava, however, has not been able to point out any such irregularity in any case. I have already held that any artificial break in service and lack of educational qualifications and physical endurance on the date of consideration for regularisation shall be ignored and to this effect the prejudice if any which may have been caused may be removed. The allegations of malafides, however, are not established on record.
20. Learned counsel for the petitioners made efforts to demonstrate the diversion of the vacancies/candidates from one division to another, for depriving the senior employees of the benefits of regularisation. He submits that hundreds of sanctioned vacancies, were diverted from one forest divisions to another forest division and the favoured the daily wagers working in such divisions were sent to be regularized in such divisions depriving the right of persons who were senior to them. The details of such diversions were, however, not placed on record. It is contended that in the counter affidavit filed in writ petitions from Budaun, Allahabad and Shahjahanpur divisions, such diversions of vacancies have been accepted. He relies upon a judgment of Supreme Court in Satpal and others vs. State of Haryana and others (1995) 1 SUPP SCC 206 (para 9) in which the Supreme Court in the facts of that case held that the entire selection process was tainted and thus the submission of the appellants they should be protected as they had received training and passed examinations was not allowed. The judgement in my opinion has no application to the facts of the case. Sri Srivastava has further relied upon the judgements in Krishna Yadav vs. State of Haryana AIR 1994 SC 2166; Union of India vs. O. Chakradhar 2002 (1) UPLBEC 924 in which the Supreme Court had detected large scale fraud committed in the selections by the selection boards and thus quashed the entire selections. These judgments were based on the finding that the entire selection was tainted and that since the fraud vitiates all actions the selection could not be upheld. In this batch of writ petitions the petitioners have not established fraud in regularisations and thus these cases do not held them. It is easy to allege fraud, and very difficult to prove it. I do not find that the allegations are such or that the motive attributed to the officers of the department has been pleaded or established to make a detailed enquiry or to refer to the charts and documents filed in support of direversion of vacancies.
21. So far as the break in service between the two cut of dates, on account of non-availability of vouchers/must rolls for payment is concerned, I find on the ratio of the decisions in Jaglal (supra) and Visheshwar (supra) that where such persons were taken in daily waged employment before the date on which the Rules of 2001 and Rules of 1998 came into force, the breaks unless it is shown that such persons had left the employment on their own and had taken up some other job or vocation, shall also be ignored. The prayers to treat the petitioners (those who have been regularised), to be regularised with effect from the dates of their initial appointment on daily wages or from the dates the vacancies became available or alternatively the date they were considered by the selection committee, are rejected. The Rules of 2001 and the Rules of 1998, do not provide for any such retrospective operation of the date of appointment. All those petitioners, who have either been regularised or may be found eligible and regularised on available vacancies, shall be treated to be appointed and born on the cadres in the department, only from the dates on which they are appointed, on the posts.
22. For the aforesaid reasons all the writ petitions are partly allowed. It is held that the petitioners have not succeeded in establishing malafides in selections for the regularisation and diversion of vacancies. The selection Committees were constituted in accordance with the Rules. The petitioners, however, are held entitled to be considered for regularisation afresh after ignoring the artificial breaks in their services in accordance with the judgments of this Court in Jaglal and others vs. Director of Horticulture, U.P. Government, Lucknow and others (supra) and Visheshwar vs. Principal Secretary, Forest Anubhag-3 and others (supra) and further they are also held entitled for exemption from minimum educational qualifications and physical endurance test, for regularisation as Group 'D' and Group 'C' employees in the forest department. All the petitioners shall be considered for regularisation afresh by the selection committees.
23. The State Government is directed to reconsider all the petitioners for regularisation ignoring the artificial breaks, and the minimum educational qualifications and the physical endurance prescribed by the service rules. The selection committees shall meet again and shall reconsider the candidature of all the petitioners for regularisation. Those petitioners who are found eligible shall be included in the merit list to be regularized on the vacancies or the vacancies which may arise in future in their respective divisions, and until then all the petitioners who are still working shall be allowed to continue on the daily wages, and shall be entitled for minimum pay scale which was so allowed by the Supreme Court in State of U.P. vs. Puti Lal 2002 1 UPLBEC 1595. The directions shall be carried out in three months. The petitioners are also held entitled to the costs.
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