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RAKESH CHANDRA SRIVASTAVA versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Rakesh Chandra Srivastava v. State Of U.P. And Others - WRIT - A No. - 36584 of 2004 [2007] RD-AH 16895 (25 October 2007)

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HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. 32

Civil Misc. Writ Petition No. 36584 of 2004

Rakesh Chandra Srivastava

Vs.

State of U.P. & others

Hon'ble Sudhir Agarwal, J.

Heard Sri Vinod Kumar Dwivedi for the petitioner, learned standing counsel for the respondents and perused the record.

The petitioner has sought a writ of mandamus commanding the respondents to regularize him on the post of Chowkidar in the department and pay minimum pay scale along with other allowances which are being paid to the regularly appointed Chowkidars of the department until regularization of the petitioner is made.

The facts in brief as stated in the writ petition are that the petitioner was engaged as a daily wage Chowkidar on 1.9.1985 and is continuously discharging his duties since then. He was appointed in work-charge establishment as Chowkidar on the basis of monthly salary vide order dated 10.9.2001 w.e.f. 24.8.2001 and is discharging his duties accordingly. In exercise of power under proviso to Article 309 of the Constitution, the State Government has framed U.P. Regularization of Daily wages Appointments on Group 'D' Posts Rules, 2001 (hereinafter referred to as "2001 Rules") published in the Gazette dated 21st December 2001 which provides for regularization of such daily wage employees in Group 'D' posts who were appointed before 29th June 1991 and are continuing in service on the date of commencement of said Rules. Since, the petitioner was appointed prior to 29th June 1991 and was continuing in service on 21st December 2001, he claims that he is entitled for regularization under the said Rules.

Respondents have filed counter affidavit stating that the petitioner was engaged as daily wage employee against the requirement for completion of work as and when various schemes and projects were undertaken by Public Work Department but he was never engaged against any sanctioned post in the department. Initially, he was engaged on daily wage basis and, thereafter, in Work-Charge Establishment since there was requirement of Chowkidar, he was engaged on monthly salary with effect from 24th August 2001 but his engagement has never been in any regular establishment against any sanctioned post. It is further submitted that under 2001 Rules, the department has prepared a seniority list of all daily wage employees on the basis of their length of service and against the existing vacancies as per Rules have been they will be considered for regularization. Since, the petitioner is lower in the seniority, he could not have been regularized and it is not possible to regularize the petitioner over and above the persons, who are senior to him in the seniority list of daily wage employees similarly engaged as the petitioner.

Learned counsel for the petitioner drew the attention of this Court to para-14 of the rejoinder affidavit and stated that as a result of several retirements of class 4th employees, there are 15 posts of Chowkidar lying vacant and, therefore, the petitioner is entitled for regularization against these vacancies under 2001 Rules. He also placed reliance on a Single Judge judgment of this Court in Writ Petition No. 59535 of 2005, Jawahar Lal Vs. State of U.P. & others decided on 1.11.2006 wherein a direction has been issued to the respondents to consider the candidature of the petitioner and other similarly situated candidates under 2001 Rules as and when the vacancies arise in future.

Per contra, learned standing counsel submitted that 2001 Rules do not permit consideration of candidature of any person for regularization against the vacancies, which may be available in future inasmuch a perusal of the said Rules would make clear that it is one time arrangement made by the Rule framing authority in respect to such daily wage employees, who have rendered about 10 years of service and the said right was limited against the vacancies, permanent or temporary, as were available on the date of commencement of the said Rules and not for future vacancies.

A right of regularization cannot be claimed by a person who has never been engaged or appointed after undergoing process of selection in accordance with rules and without equal opportunity of employment granted to similarly placed persons under Article 16 of the Constitution of India. The Apex Court, recently, in the case of State of Karnataka and others Vs. Uma Devi and Others, 2006(4) SCC 1 has held that regularization is not a mode of recruitment and a person who has not been engaged after giving opportunity of employment to all other eligible persons and after undergoing the process of selection in accordance with rules consistent with Article 16 cannot claim regularization. However, where the legislature has made some provision, the incumbents have been allowed benefit thereunder and may be considered for regularization. Referring to various earlier judgements on this aspect, recently, the Apex Court in M.P. State Corporation Bank Limited, Bhopal Vs. Nanuram Yadav & others JT 2007 (11) SC 369 has culled out the following principles in para-20 of the judgment :

"(1) The appointments made without following the appropriate procedure under the Rules/Government Circulars and without advertisement or inviting applications from the open market would amount to breach of Arts. 14 & 16 of the Constitution of India.

(2) Regularization cannot be a mode of appointment.

(3) An appointment made in violation of the mandatory provisions of the statute and in particular, ignoring the minimum educational qualification and other essential qualification would be wholly illegal. Such illegality cannot be cured by taking recourse to regularization.

(4) Those who come by back door should go through that door.

(5) No regularization is permissible in exercise of the statutory power conferred under Art. 162 of the Constitution of India if the appointments have been made in contravention of the statutory Rules.

(6) The Court should not exercises its jurisdiction on misplaced sympathy.

(7) If the mischief played so widespread and all pervasive, affecting the result, so as to make it difficult to pick out the persons who have been unlawfully benefited or wrongfully deprived of their selection, it will neither be possible nor necessary to issue individual show-cause notice to each selectee. The only way out would be to cancel the whole selection.

(8) When the entire selection is stinking, conceived in fraud and delivered in deceit, individual innocence has no place and the entire selection has to be set aside."

In the present case, admittedly, the petitioner was never engaged after advertisement of any vacancy and undergoing the process of selection in accordance with rules. He was engaged as a daily wage employee by pick and choose method and, therefore, apparently there is clear violation of Article 16 of the Constitution of India. However, since the validity of 2001 Rules is not in question, to the extent the regularization is permissible under 2001 Rules, the petitioner, if he fulfils requirements thereunder, and comes within its purview, would be entitled to be considered for regularization. But the moot question is whether the petitioner qualify for the same. Rule-4 of 2001 Rules reads as under :

"4. Regularization of daily wages appointments on Group 'D' Posts.-(1) Any person who-

(a)was directly appointed on daily wage 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 these rules; and :

(b)possessed requisite qualification prescribed for regular appointment for that post at the time of such appointment on daily wage basis under the relevant service rules, shall be considered for regular appointment in permanent or temporary vacancy, as may be available in Group 'D' post, on the date of commencement of these rules 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, Schedules Tribes, Other Backward Classes of citizens and other categories shall be made in accordance with the Uttar Pradesh Public Services (Regularization for Scheduled Castes, Schedules Tribes and Other Backward Classes) Act, 1994, and the Uttar Pradesh Public Services (Reservation for Physically Handicapped, Dependents of Freedom Fighters and Ex-Serviceman) Act, 1993 as amended from time to time and the orders of the Government in force at the time of regularization under these rules.

(3) For the purpose of sub-rule (1) the appointing authority shall constitute a Selection Committee in accordance with the relevant provisions of the service rules.

(4) The appointing authority shall, having regard tot he provisions of sub-rule (1), prepare an eligibility list of the candidates, arranged in order of seniority as determined from the date of order of appointment on daily wage basis and if two or more persons were 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 such relevant records pertaining to 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 sub-rule (4) and if it considers necessary, it may interview the candidates also.

(6) The Selection Committee shall prepare a list of selected candidates in order of seniority, and forward the same to the appointing authority." (emphasis supplied)

A bare perusal of Rule 4 (1) (a) & (b) makes it clear that it confers a right of consideration for regularization upon such daily wage employees who: (1) were appointed on daily wage basis on a Group 'D' post in the Government service before 29th June, 1991 and (2) is continuing in service as such on the date of commencement of these rules and (3) possesses requisite qualification prescribed for regular appointment for that post at the time of such appointment on daily wage basis under the relevant service rules, and (4) a person who fulfils all the above qualifications shall be considered for regular appointment in permanent or temporary vacancy, as may be available in Group 'D' post on the date of commencement of the said rules 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.

Therefore, the vacancy against which right of consideration for regularization is available are only those which were available on the date of commencement of the rules, namely, 2001 Rules and against such vacancies only, if the incumbent fulfils the aforementioned qualifications and eligibility, would be entitled for regularization before any regular appointment is made in such vacancy in accordance with relevant service rules or orders. There is no provision under 2001 Rules which permits right of regularization to a daily wage employee against any vacancy which may occur in future or subsequent to 21st December 2001. The rules of regularization being in the nature of exceptional provisions having overriding effect over other provisions of normal procedure of selection in accordance with rules, can be allowed and permitted to apply strictly in accordance with the rules and not otherwise. There is nothing on record to show that on 21st December, 2001, there were or is available any vacancy of Group 'D' post against which the petitioner could have been considered for regularization in accordance with 2001 Rules. So far as the judgment of this Court in Jawahar Lal (supra) is concerned, a bare perusal thereof makes it clear that the Hon'ble Court has not considered Rule 4(1)(b) of 2001 Rules at all which makes it clear that the regularization is permissible only against the vacancies which were available on the date of commencement of 2001 Rules, i.e., 21st December 2001 and not for future vacancies and it appears that the said issue was neither raised nor considered nor decided. A judgment which has not considered the relevant statutory provision will not constitute a binding precedent and, therefore, in my view, there is no occasion to refer the matter to Larger Bench since the aforesaid judgment has not dealt with Rule 4(1)(b) and therefore, cannot be said to be a binding precedent on this issue.

Rule 4 Sub-Rule (4) also shows that a person who was found eligible for regularization shall be placed in a list of order of seniority as determined from the date of order of appointment on daily wage basis and in the said order itself against the available vacancies, the regular appointment shall be made. The respondents have clearly stated that against the available vacancies, the petitioner was much lower in seniority list and this fact has not been shown to be incorrect or false by the petitioner placing any material on record.

In view of the aforesaid discussions, since the petitioner could not substantiate his claim for regularization under 2001 Rules, no relief can be granted to petitioner for regularization.

So far salary at par with the regular employees is concerned, it is admitted that the petitioner is not working against a sanctioned post in the regular establishment after undergoing a process of regular selection. In the case of M.D./Chief Engineer U.P. Jal Nigam & others Vs. Sri Nath Singh & others Special Appeal No. 1317 of 2003 after considering various Apex Court's judgments, a Division Bench of this Court, in which I was also a member, has clearly held that in such circumstances, the principle of 'equal pay for equal work' is not applicable and the employee cannot claim salary or wages at par with the regularly selected and appointed persons.

The writ petition, therefore, lacks merit and is, accordingly, dismissed.

Dt. 25.10.2007

PS


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