HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH RESERVED Writ Petition No. 267 (S/B) of 2011 Dr. Himanshu Shekhar Tripathi Vs. State of U.P. & others Hon'ble Pradeep Kant, J.
Hon'ble Ritu Raj Awasthi, J.
(Delivered by Hon'ble Ritu Raj Awasthi, J.) Heard Sri S.K. Kalia, learned Sr. Advocate assisted by Sri Sameer Kalia, learned counsel for the petitioner and Sri N.C. Mehrotra, learned counsel appearing for the opposite party Nos. 2 and 3 as well as the learned Standing Counsel for the opposite party no. 1 and perused the record.
By means of this writ petition, the petitioner has prayed for a writ, order or direction in the nature of mandamus commanding the opposite parties to consider the case of the petitioner for regularization on the post of Publicity Officer in the Mandi Parishad from the date of his initial appointment i.e. 4.8.1995.
Learned counsel for the petitioner submitted that the petitioner was appointed on the post of Publicity Officer in Rajya Krishi Utpadan Mandi Parishad, U.P. (hereinafter referred to as the 'Mandi Parishad') on adhoc basis in the year 1995 and he has completed about 16 years of service. The matter with regard to regularization of service of the petitioner has been under consideration before the Mandi Parishad and the State Government for the last about eight years, but no final decision has been taken on one pretext or the other, though a lot of correspondence has been undertaken by the Mandi Parishad with the State Government time and again recommending the case of the petitioner for regularization although the Mandi Parishad being the employer itself is competent to take decision with respect to the regularization of the service of the petitioner.
It is submitted that for the purpose of adjudication of the controversy involved in the present writ petition, it would be necessary to delve into the procedure adopted by the respondents while appointing the petitioner on the post of Publicity Officer on adhoc basis.
Since the Mandi Parishad was publishing a quarterly magazine known as 'Mandi Darpan' with the object to spread awareness amongst the farmers for agricultural developments and information regarding the schemes relating to Mandis and, therefore, proposals were invited from the eligible persons and one of the proposals received was that of the petitioner. Considering the petitioner the most suitable and expert in the field of publication an order was issued on 26.7.1994, by means of which the proposal of the petitioner for publication of the said magazine for the purpose of publicity of the schemes of the Mandi Parishad was accepted on the wages of Rs. 5,500/- for publication of the first edition, wherein it was observed by the Director, Mandi Parishad that if the publication is attractive and useful further decision would be taken.
It is further submitted by the counsel for the petitioner that the post of Publicity Officer was about to fall vacant on repatriation of one Sri K.D. Trivedi, who was working on deputation as such filling up of the post of Publicity Officer was being considered and since the petitioner was looking after the work of publicity for publication of the quarterly magazine 'Mandi Darpan', his candidature for appointment was considered. After successful publication of the trial issue of the said magazine, it was proposed to appoint the petitioner on the post of Publicity Officer on adhoc basis. The aforesaid proposal was accepted by the Director, Mandi Parishad and the Principal Secretary, Gram Vikas Ayukta and Agriculture Produce Commissioner, who was the Chairman of the Mandi Parishad at the relevant time. Thereafter the Chairman of the Mandi Parishad was changed and it was decided to place the matter before the new Chairman on 24.6.1995. The new Chairman after considering the matter granted his approval on 27.7.1995.
Contention of learned counsel for the petitioner is that after the approval of the Chairman, Mandi Parishad, the petitioner was appointed against the vacant and sanctioned post of the Publicity Officer on adhoc basis vide order dated 3/4.8.1995. A great emphasis has been laid by Sri S.K. Kalia that the appointment of the petitioner was against a sanctioned post by the competent authority after due approval by the Chairman, Mandi Parishad. A long exercise was undertaken for considering the suitability of the petitioner for appointment on the post of Publicity Officer and after the same was duly approved by the Director, Mandi Parishad and the Chairman, the order of appointment appointing the petitioner on adhoc basis was issued.
It is further submitted that though the initial appointment of the petitioner was on consolidated salary but the same was modified within a short period of two months and by order dated 30/31.10.1995, appointment of the petitioner was made in the regular pay scale of Rs. 2200-4000 and since then he is continuously working to the utmost satisfaction of the respondents.
Further submission is that the aforesaid decision was communicated to the Board of Mandi Parishad and was duly informed in its 73rd Meeting, which is evident from the perusal of the letter dated 30.3.2009 of the Mandi Parishad to the State Government. A perusal of the said letter reveals that while providing information to the State Government regarding status of the petitioner and the nature of the petitioner's employment in the Mandi Parishad, the case of the petitioner was also recommended for regularization of the service considering his 14 years of satisfactory service in accordance with U.P. Regularization of Adhoc Appointments (on posts outside the purview of Public Service Commission) (3rd Amendment) Rules, 2001.
Next submission of Sri Kalia, is that the services of the officers and employees of the Mandi Parishad are governed by the U.P. Agriculture Produce Markets Board (Officers and staff Establishment) Regulations, 1984, which envisages one post of Publicity Officer, at Serial No. 17 of the Appendix - 'Ka' to the Service Regulations. A perusal of the said regulation would reveal that only name of the post was mentioned, however, the qualification and source of the recruitment on the post of Publicity Officer was laid down by means of the letter dated 24.3.2001 passed by the Director, Mandi Parishad, which was issued pursuant to a decision taken by the Board of Directors in its 91st Meeting dated 18.1.2001. The said letter further indicates that the source of the recruitment for the post of Publicity Officer was fixed as direct recruitment and the qualification prescribed for the said post was laid down as graduate from a recognized university with experience of five years in the journalism. The petitioner was possessing the requisite qualification as he is M.A. and Ph.D. in Hindi and also possessing the post graduate diploma in Public Administration and ten years experience in journalism, at the time of his appointment on the post of Publicity Officer in the Mandi Parishad.
Mr. Kalia, drawing the attention of the Court towards the Service Regulations of 1984, as amended in 1991, submitted that the service regulation does not contain any provision for regularization of adhoc employees/officers, however, Regulation 29, as amended in 1991, provides that in regard to the matters specifically covered or deemed to be covered by the regulations or by special orders, for other details and further provisions in connection therewith not contained in the regulations or other special orders, persons appointed to the service of the Board shall be governed by the rules, regulations, instructions and orders applicable generally to the Government servants serving in connection with the affairs of the State of U.P. For convenience the Regulation 29 of the Service Regulations is quoted below:
"29. In regard to the matters and specifically covered by these regulations or by special orders, persons appointed to the service of the Board shall be governed by the rules, regulations, instructions and orders applicable generally to Government servants serving in connection with the affairs of the State of Uttar Pradesh.
(2) In regard to the matters specifically covered or deemed to be specifically covered by these regulations or by special orders, for other details and further provisions in connection therewith not contained in these regulations or other special orders, persons appointed to the service of the Board shall be governed by the rules, regulations, instructions and orders applicable generally to Government servants serving in connection with the affairs of the State of Uttar Pradesh."
It is also submitted that under the service regulations, employees have been defined and any person appointed in Class A, B, C or D on full time basis either on contract or deputation or in any other manner would be an employee but would not include a daily wager or a person employed on work charged part-time basis. Regulation 2(e) defining the "employee" is quoted as under:-
"Every person appointed on whole-time basis in Classes 'A', 'B', 'C' and 'D' mentioned in Regulation 5, whether on contract basis, on deputation or otherwise but does not include persons employed on daily wages, work-charged and on part-time basis."
Contention is that on a conjoint reading of Regulation 29 and the provisions defining 'employee', it is apparent that since the petitioner was appointed on adhoc basis against a sanctioned post, he is covered by the Service Regulation of 1984 and, therefore, he is also entitled for the benefit of the regularization as provided under the Regularization Rules 2001 being appointed within the cut of date under the said Rules 2001 i.e. 30.6.1998.
With regard to the regularization of service of the petitioner, it is submitted by the learned counsel for the petitioner that the Director, Mandi Parishad by letter dated 3.2.2009, had sent its recommendations to the State Government for taking appropriate decision. The State Government by letter dated 19.5.2003 had also written to the Director that regularization has to be done at the level of the 'Mandi Parishad' and as such they may themselves take a decision in accordance with law. However, the Director, Mandi Parishad in his own wisdom recommended to the State Government for regularization of the service of the petitioner by letter dated 3.2.2009, although he himself was the appointing authority of the petitioner and the State Government has earlier also informed him that the decision with respect to the regularization of the service of the petitioner is to be taken at the level of the Mandi Parishad itself. The decision in this regard is, however, still pending.
The pith and substance of the arguments of learned counsel for the petitioner is that from the records it is abundantly clear that the petitioner was appointed on adhoc basis in accordance with law against a substantive vacant post of Publicity Officer and as such his service deserves to be treated as regular from the date of his initial appointment and his initial appointment can not at all be termed as de hors the rules since at the time of appointment of the petitioner neither the source of recruitment was laid down nor the qualification for the said post was prescribed and the petitioner was appointed after evaluation of his performance while he was engaged for the publication of the quarterly magazine. There is no legal impediment in regularization of service of the petitioner. The inaction on the part of opposite parties is arbitrary.
Sri S.K. Kalia, informed that under the similar circumstances another person; namely, Sri C.M. Pandey was engaged in the service of the Mandi Parishad on the post of Officer on Special Duty (Law) on adhoc basis and subsequently his service was terminated against which he had filed Writ Petition No. 34356 of 1999 before this Court at Allahabad which was decided by means of the judgment and order dated 9.9.1999, quashing the termination order and the S.L.P. filed against the said judgment was subsequently withdrawn by the State Government. However, after compliance of the aforesaid judgment, Sri C.M. Pandey was allowed to join back but after the judgment of the Apex Court dated 16.12.2005 in the case of State of U.P. Vs. Neeraj Awasthi, (2006) SCC (L&S) 190, his service was again terminated on 28.1.2006, which was again challenged by him by means of the Writ Petition No. 7672 of 2006, which was also finally decided by the judgment and order dated 8.2.2006 and the termination order was quashed treating him to be regular in the service.
Learned counsel for the petitioner contended that the Division Bench of this Court while considering the applicability of the decision in the case of State of U.P. Vs. Neeraj Awasthi (Supra), came to the conclusion that the facts and circumstances of the case in question are distinct and distinguishable and as such the service of Sri C.M. Pandey could not have been terminated merely considering the decision of the Apex Court aforesaid.
Learned counsel for the petitioner, in fact, in his arguments has tried to lay emphasis that it was neither the case of the department i.e. Mandi Parishad nor the State Government that the petitioner is not entitled for regularization or his appointment de hors the rules. The matter with respect to regularization of the petitioner has been drawing the attention of the Mandi Parishad as well as the State Government for a considerable long time, but due to inaction and the lethargic attitude on the part of the authorities concerned, no final decision has been taken in this regard so far. It is also submitted that in the meeting presided over by the Secretary, Agricultural Marketing and Export held on 13.12.2010, in which the officers of the Mandi Parishad also participated, the matter for regularization of the petitioner was considered and a decision was taken that in view of the Regulation 29 of the Service Regulations, the provisions for Regularization Rules, as amended in 2001, are applicable to the employees of the Mandi Parishad. The petitioner was appointed on adhoc basis in the year 1995 against one sanctioned and vacant post on which he has been continuously working satisfactorily.
Submission is that when a decision was taken that the petitioner was entitled for consideration of regularization in accordance with the Regularization Rules 2001,the Karmik Vibhag of the State Government sought clarification as to whether appointment of the petitioner was on adhoc basis or not as the regularization of the adhoc employees can be done only. Thereafter on 16.3.2011, Special Secretary, Karmik Vibhag observed that the nature of appointment of the petitioner should be re-determined as per the words used in the appointment letter of the petitioner dated 3/4.8.1995, as such there is no justification in not regularizing the service of the petitioner.
It is also submitted that an opinion was also sought from the then Advocate General of the State of U.P. in this regard and on the basis of the said opinion, the respondents had come to the conclusion that since the appointment of the petitioner was made in the year 1995 on adhoc basis against a substantive post, as such the observations made in the judgment of the Apex Court in the case of State of U.P. Vs. Neeraj Awasthi (Supra), were not relevant as the same are not applicable in the case of the petitioner. However, no final decision has been taken by the authorities concerned due to which the petitioner has been put to unnecessary harassment.
It is contended that in the counter affidavit a plea of applicability of the judgment in State of U.P. Vs. Neeraj Awasthi (Supra) and certain observations made therein, have been taken as defence against the claim of regularization of the petitioner though the same was neither the case of the State Government nor the Mandi Parishad while considering the case of the petitioner for regularization.
Learned counsel for the petitioner also submitted that in the case of State of U.P. Vs. Neeraj Awasthi (Supra), the validity of the Government Order dated 12.2.1999, which was only with respect to the termination of appointment of daily wage, work-charged or muster roll employees appointed between 1.4.1996 to 30.10.1997 was under consideration. The petitioner was neither the daily wage, work-charged or muster roll employee nor he was appointed between 1.4.1996 to 30.10.1997 and as such the decision of the Hon. Supreme Court in the case of State of U.P. Vs. Neeraj Awasthi (Supra), is not applicable to the case of the petitioner. Certain observations made therein regarding regularization of employees would not be relevant since the same were made in the facts and circumstances attending to the case of State of U.P. Vs. Neeraj Awasthi (Supra), and the same cannot be of universal application having been made in the peculiar facts and circumstances of a particular case. In support of the aforesaid submissions , the petitioner placed reliance on the following cases;
1.Union of India & others Vs. Dhanwanti Devi & others; (1996) 6 SCC 44
2.ICICI Bank & another Vs. Municipal Corporation of Greater Bombay and others; (2005) 6 SCC 404
3.State of Orissa & others Vs. Mohd. Illiyas: (2006) 1 SCC 275
4.Jitendra Kumar Singh & another Vs. State of U.P. & others; (2010) 3 SCC 119
5.Sushil Suri Vs. Central Bureau of Investigation & another; (2011) 5 SCC 708 It is also submitted by learned counsel for the petitioner that after the judgment in the case of State of U.P. Vs. Neeraj Awasthi (Supra), when the same was being interpreted, many clarificatory applications were moved and Hon. Supreme Court finding those employees who were not covered by the Government Order dated 12.2.1999 and the validity of which was under consideration before the Supreme Court, directed that the matter be reconsidered by the High Court.
Learned counsel for the petitioner further submitted that in view of the various decisions of the Supreme Court the petitioner is entitled for regularization having completed more than ten years of service on adhoc basis fulfilling the requisite qualifications and having been appointed on a vacant and substantive post.
Sri N.C. Mehrotra, learned counsel for the respondents-Mandi Parishad, on the basis of the counter affidavit submitted that the Mandi Parishad was publishing a quarterly magazine known as 'Mandi Darpan' and vide its letter dated 22.7.1994, petitioner's cooperation was sought in the publication of the said magazine and for that purpose he was paid certain remuneration and expenses. Later on, the petitioner was appointed as Publicity Officer on adhoc basis by letter dated 4.8.1995. The said appointment was till further orders or till a regular appointment is made on the said post, whichever is earlier. Initially the appointment of the petitioner on the post of Publicity Officer was on a fixed amount, however, subsequently by letter dated 31.10.1995, the petitioner was allowed the pay scale of Rs. 2200-4000.
One post of the Public Relation Officer, which was created in the 35th Meeting of the Mandi Parishad dated 28.6.1984 and in the 53rd Board's Meeting dated 22.4.1988, the recommendations of the Manpower Planning Committee were adopted and in compliance of the said decision, the Director, Mandi Parishad issued an Office Memorandum dated 29.4.1988 whereby the post of Public Relation Officer was merged into the Publicity Officer and as a result of which the nomenclature of the person working on the post of Public Relation Officer was changed as Publicity Officer and in this way both the posts were merged into the one post.
In the Service Regulations, the post of Public Relation Officer was a promotional post, however, in its 91st Meeting dated 18.1.2001, it was resolved by the Board of the Mandi Parishad that the post of Publicity Officer may be filled through the direct recruitment and the qualification and age and other criteria of eligibility for the said post was also considered and in order to make suitable amendment in the Service Regulations, the matter was referred to the State Government.
However, the Board vide its 92nd Meeting dated 19.4.2001, took a decision that both the posts i.e. Public Relation Officer and Publicity Officer may be separated and for the said purpose the approval of the State Government may also be taken. In compliance of the said decision, the Mandi Parishad through its letter dated 18.6.2001 had referred the matter to the State Government for seeking approval for separation of the posts in question but the State Government, in reply thereof, however, informed the Mandi Parishad that the aforesaid matter may be resolved by the Mandi Parishad itself under the provisions of the Regulations 2(b) of the Service Regulations and since then the matter is pending consideration before the Board of Directors of the Mandi Parishad and no final decision has been taken as yet.
Learned counsel for the respondents, on the basis of the aforesaid position submitted that at the time of appointment of the petitioner neither the post nor the vacancy was available and that it was not a post of direct recruitment, as such the petitioner was never appointed against any substantive vacancy. As he was engaged to work on pick and choose basis without status or lien on any substantive vacant post, therefore, his appointment itself is nullity being de hors the rules and regulations. Thus, the engagement of the petitioner to work on daily wages cannot be said to be an appointment in any regular cadre in the service of the Mandi Parishad. Further, the petitioner has never been appointed against any substantive post under the Service Regulations, 1984. The Regulation 2(h) defines; "substantive appointment means an appointment not being adhoc appointment, on a post in cadre of service, made after selection in accordance with these regulations."
It is vehemently submitted by Sri Mehrotra that the matter of appointments made on daily wage, part time or adhoc basis was the subject matter before the Supreme Court in the case State of U.P. Vs. Neeraj Awasthi (Supra), wherein the provisions of Regulation 29 of the Service Regulations 1984 considered by the Apex Court. Further the analogy that the persons may be regularized under the Regulation 29 as the matter is not specifically covered by the rules and the matter of the persons so appointed shall be governed by the rules and the regulations, are not entitled to be regularized under the U.P. Regularization of adhoc appointments (on posts outside the purview of Public Service Commission) Rules, as amended in 2001, was considered by the Apex Court in the said case where in Paras 73, 74, 75 and 76, the Supreme Court observed as under:
"73.Submission of Mr. Chaudhari to take to take recourse to Regulation 29 of the Establishment Regulations providing that in regard to the matters not specifically covered by the Rules, persons appointed to the service of the Board shall be governed by the Regulations applicable generally to the State Government employees, is misconceived.
74.The said submission of Mr. Chaudhary is further more inconsistent with his submission with his submission, as noticed supra that even in terms of Section 26-M of the Act, the State Government had no power to issue any direction governing appointment in respect of the terms and conditions of the services of the employees. Persons who may be appointed to the services of the Board, furthermore, even according to the learned counsel appearing on behalf of the respondents, are those who are regular employees having been appointed in terms of the provisions of the Act, and the Regulations framed thereunder. We have, therefore, no doubt in our mind that Regulation 29 of the Establishment Regulations which is in Chapter VII of the Regulations, refers to only such regulations and orders which would be applicable to the regular employees.
75. The fact that all appointments have been made without following the procedure, or services of some persons appointed have been regularized in the past, in our opinion, cannot be said to be normal mode which must receive the seal of the Court. Past practice is not always the best practice. If illegality has been committed in the past it is beyond comprehension as to how such illegality can be allowed to perpetuate. The State and the Board were bound to take steps in accordance with law. Even in this behalf Article 14 of the Constitution will have no application. Article 14 has a positive concept. No equality can be claimed in illegality is now settled (See State of A.P. Vs. S.B.P.V. Chalapathi Rao, SCC para 8; Jalandhar Improvement Trust Vs. Sampuran Singh, SCC page 13 and State of Bihar Vs. Kameshwar Prasad Singh, SCC page 30.)
76.In the instant case, furthermore, no post was sanctioned. It is now well settled when a post is not sanctioned, normally, directions for reinstatement should not be issued. Even if some posts were available, it is for the Board or the Market Committee to fill up the same in terms of the existing rules. They, having regard to the provisions of the regulations, may not fill up all the posts."
Sri N.C. Mehrotra, further submitted that although in 91st Meeting dated 18.1.2001 and vide letter dated 24.3.2001, the qualification, experience and eligibility for the post of Publicity Officer was considered and decided, but the same could not be given effect to as no amendment was made in the Service Regulations and in the 92nd Meeting dated 19.4.2001 it was decided that the posts of Public Relation Officer and Publicity Officer be separated. The amendment also has not been made in the Service Regulations. Since the very appointment of the petitioner de hors the rules, therefore, he is not entitled to be regularized and to get the benefit of provisions of the Regulation 29 of the Service Regulations 1984.
It is further submitted that even if the petitioner is having qualification and even if the post is also vacant, it does not mean that any person appointed through the back door entry would be entitled to get lien or is having any right for his regularization. Since the petitioner is not entitled to be considered for regularization, therefore, under the Service Regulations 1984, the representation made to this effect has no meaning.
It is also submitted that the case of C.M. Pandey is distinct and separate as he was appointed after approval, earlier on probationery basis and when the action was taken, he preferred a writ petition which was allowed and the matter went to the Supreme Court where the S.L.P. filed by the Mandi Parishad was withdrawn. The petitioner, therefore, cannot claim parity of the said judgment.
The main plank of arguments of Sri N.C. Mehrotra is based on the decision of the Supreme Court in the case of State of U.P. Vs. Neeraj Awasthi (Supra), wherein it has been categorically held by the Supreme Court that regularization can not be a mode of appointment. Illegal appointments cannot be regularized. Framing of scheme for regularization by judicial fiat in the absence of legal right on part of the persons concerned to continue in employment is not permissible and also framing of a scheme/policy for regularizing the services of adhoc or daily wage employees not having been appointed in terms of statutory provisions, rules and regulations, cannot be made.
The learned Standing Counsel has basically adopted the arguments of Sri N.C. Mehrotra, Advocate.
We have considered various submissions made by the learned counsel for the petitioner as well as the counsel for the opposite parties.
Before considering the claim of the petitioner for regularization on the post of Publicity Officer, it would be apposite to first consider the legality and validity of appointment of the petitioner.
The petitioner was appointed on the post of Publicity Officer in the Mandi Parishad by order dated 3/4.8.1995 on adhoc basis. Before the said appointment, the petitioner was engaged for publishing a quarterly magazine known as 'Mandi Darpan'. Since for several years on account of the lack of staff the said magazine could not be published, with the result the interest of Mandi Parishad and its Mandis was hampering, a proposal in this regard was submitted by the petitioner which was accepted by the Director, Mandi Parishad on 26.7.1994, wherein it was also observed by the Director that if the publication is attractive and useful further decision would be taken.
The earlier incumbent on the post of Publicity Officer, Sri K.D. Trivedi was working on deputation in the Mandi Parishad and on his repatriation the said post had fallen vacant. Since the petitioner was looking after the work of Publicity Officer through the publication of the said magazine as such his candidature for appointment was considered. After successful publication of the trial issue of the magazine, which was found to be very attractive, it was proposed to appoint the petitioner on the post of Publicity Officer on adhoc basis. The said proposal was accepted by the Director, Mandi Parishad and the Principal Secretary, Gram Vikas Ayukta and Agriculture Produce Commissioner, who was the Chairman of the Mandi Parishad at the relevant time. It was after the approval of the Chairman, Mandi Parishad that the petitioner was appointed on the vacant and sanctioned post of Publicity Officer on adhoc basis by order dated 3/4.8.1995. It is also to be noted that although the initial appointment of the petitioner was on consolidated salary, but the same was modified within a short period of two months, by order dated 30.10.1995 he was allowed regular pay scale of Rs. 2200-4000. The decision to appoint the petitioner and to pay him regular pay scale was placed before the Board of Mandi Parishad in its 73rd Meeting.
The services of the officers and employees of the Mandi Parishad are governed by the U.P. Agriculture Produce Markets Board (Officers and staff Establishment) Regulations, 1984, which envisages one post of Publicity Officer, which finds mention at Serial No.17 of the Appendix-'Ka' to the Service Regulations. At the time of appointment of the petitioner the mode of recruitment on the post in question as well as the qualification and source of recruitment was not prescribed. However, later on the qualification and the source of the recruitment for the post of Publicity Officer was laid down by means of the letter dated 24.3.2001 issued by the Director, Mandi Parishad pursuant to the decision taken by the Board of Directors in its 91st Meeting dated 18.1.2001.
The perusal of the letter dated 24.3.2001, communicating the decision to the State Government reveals that the source of recruitment for the post of Publicity Officer was fixed as direct recruitment and the qualification prescribed for the said post was as graduate from a recognized university with the experience of five years in the journalism. Undisputably the petitioner is M.A. and Ph.D. in Hindi to his credit and he also possesses post graduate diploma in Public Administration and ten years experience in the journalism when he was appointed on the post of Publicity Officer in the Mandi Parishad. As such the petitioner possesses the requisite qualification and experience for the post in question and he was appointed by the competent authority after due approval of the Chairman of the Mandi Parishad which was also communicated to the Board of Directors of the Mandi Parishad.
A perusal of the Office Memorandum dated 29.4.1988 indicates that the Mandi Parishad in its Board Meeting dated 22.4.1988 had resolved to abolish certain posts in order to streamline the working and reduce the administrative expenditure. In this regard the post of Public Relation Officer was merged into the post of Publicity Officer. The mode of recruitment on the post of Publicity Officer was not prescribed at the time of appointment of the petitioner. The contention of learned counsel for the respondents that after the merger of the post of Public Relation Officer into the Publicity Officer, the mode of recruitment for the post in question would be by way of promotion as the post of Public Relation Officer was a promotional post, has no force in view of the fact that the post of Public Relation Officer was merged with the Publicity Officer and not otherwise.
From what has been discussed hereinabove, it is evident that the petitioner was appointed against a substantive vacancy after due approval of the Chairman and with information to the Board of Mandi Parishad. With regard to the source of recruitment and the qualification which was subsequently prescribed by the Board of Directors, the petitioner was absolutely qualified and the appointment of the petitioner that way cannot be faulted with, although the fact remains that his appointment was made on adhoc basis in the year 1995 and he is still working on the post of Publicity Officer on adhoc basis.
So far as the qualification and the source of recruitment for the post of Publicity Officer as prescribed by the letter dated 24.3.2011, which was also considered in the Board 91st Meeting dated 18.1.2001, but the same could not be given effect to as no amendment has been made in the Service Regulation, is concerned, suffice is to mention that the appointment of the petitioner on the post of Publicity Officer has not been cancelled and it is not the case of the respondents that the petitioner does not fulfill the requisite qualification and the experience for the post in question. Simply because the required amendment in the service regulation having not been carried out it will not make the appointment of the petitioner wrong or illegal, as such, we are of the considered opinion that the appointment of the petitioner cannot be said to be against the rules or de hors the rules.
At this juncture, it would be relevant to mention that the Service Regulation 1984, as amended in 1991, does not contain any provision for regularization of adhoc employees/officers, however, Regulation 29, provide that in regard to the matters specifically covered or deemed to be specifically covered by the regulations or by special orders, for other details and further provisions in connection therewith not contained in the regulations or other special orders, persons appointed to the service of the Board shall be governed by the rules, regulations, instructions and orders applicable generally to the Government servants serving in connection with the affairs of the State of U.P. Under Regulation 2, employees have been defined as any person appointed in Class A, B, C or D on full time basis either on contract or deputation or in any other manner, it would not include a daily wager or a person employed on work charged part-time basis. It clearly means that the said Service Regulations governing the conditions of service of the employees of the Mandi Parishad would not be applicable to the daily wagers or the persons employed on work charged part time basis.
On a conjoint reading of Regulation 29 and the provision defining 'employee' it is apparent that since the petitioner was appointed on adhoc basis against a sanctioned post by the competent authority with the approval of the Chairman, Mandi Parishad, he is covered by the service regulation of 1984 and consequently he is also entitled for the benefit of the regularization as provided under the Regularization Rules 2001 being appointed within the cut of date under the said Rules i.e. 30.6.1998.
We cannot leave aside the fact that at no point of time the Mandi Parishad or the State Government had taken the stand that the appointment of the petitioner de hors the rules and he was not entitled to be considered for regularization. The entire correspondence between the Mandi Parishad and the State Government clearly indicates that the Mandi Parishad in its Meeting held on 13.12.2010 in which the matter of regularization of the petitioner was considered, had taken a decision that in view of the Regulation 29, provisions of regularization rules, as amended in 2001, were applicable to the employees of the Mandi Parishad and the petitioner was appointed on adhoc basis in 1995 against one sanctioned and vacant post on which he has been working satisfactorily. The State Government on 19.5.2003 itself had written to the Director that the regularization of the petitioner is to be done at the level of the Mandi Parishad and as such they may themselves take a decision in accordance with law. When the decision was taken for consideration of the petitioner for regularization in accordance with Regularization Rules 2001, the Karmik Vibhag of the State Government wanted a clarification whether appointment of the petitioner was on adhoc basis or not as the regularization of only adhoc employees can be done. Thereafter on 16.3.2011, Special Secretary, Karmik Vibhag observed that the nature of the appointment of the petitioner be re-determined as per the words used in the appointment letter of the petitioner. As such from what has been narrated above and what is clear from the records the Mandi Parishad and the State Government considered the matter of regularization of the service of the petitioner at various levels and came to the conclusion that the appointment of the petitioner was made in 1995 on adhoc basis against a sanctioned post, however, but no final decision has been taken by the authorities concerned till date. It is only in the counter affidavit that the plea has been taken by the respondents that appointment of the petitioner de hors the rules.
So far as the applicability of the observations made in the case of State of U.P. Vs. Neeraj Awasthi (Supra), is concerned, a coordinate Division Bench of this Court had the occasion to consider the applicability of the said decision in the case of C.M. Pandey Vs. State of U.P. and others, (Civil Misc. Writ Petition No. 7672 of 2006), which is based on almost similar facts and circumstances. The Division Bench of this Court by the judgment and order dated 8.2.2006, passed in the Civil Misc. Writ Petition No. 7672 of 2006, came to the conclusion that the facts and circumstances of the case in question are quite distinct and distinguishable from the facts and circumstances of the case decided by the Apex Court and as such, the service of C.M. Pandey could not have been terminated on the basis of the decision of the Apex Court.
C.M. Pandey was appointed in the service of the Mandi Parishad on the post of Officer on Special Duty (Law) on adhoc basis and subsequently his service was terminated against which a challenge was made in the Writ Petition No. 34356 of 1999, which was decided by means of the judgment and order dated 9.9.1999 quashing the order of termination for compliance of the said judgment, C.M. Pandey was allowed to join back, however, after the judgment of the Apex Court in the case of State of U.P. Vs. Neeraj Awasthi (Supra) his service was again terminated on 28.1.2006 which was again challenged by him by filing Writ Petition No. 7672 of 2006, which was also finally decided by means of the judgment and order dated 8.2.2006 quashing the order of termination and treating him to be regular in service. In the case of C.M. Pandey, the Division Bench considering in detail the relevant provisions of the Service Regulations applicable to the officers/employees of the Mandi Parishad as well as the relevant material on record, came to the conclusion that the power to create additional permanent or temporary posts always lie with the Board and does not seem to be dependent on previous approval of the State Government. It was also observed that since no procedure for selection and appointment on the aforesaid post has been given under regulations, having regard to special nature of the post, therefore, there was no difficulty in selection and appointment of the petitioner by adopting any special or peculiar mode of selection and appointment by the Board, which is the competent authority to make appointment of the petitioner under the provisions of the Act and Regulations. Relevant portion of the judgment is quoted hereunder;
"14. .............since no procedure for selection and appointment on the aforesaid post has been given under Regulations, having regard to special nature of the post, therefore, there was no difficulty in selection and appointment of the petitioner by adopting any special or peculiar mode of selection and appointment of the petitioner by the Board, which is competent authority to make appointment of the petitioner under the provisions of the Act and Regulations. In this connection, the definition of "employee" given in Regulation 2(e) of Regulation also assumes significance which means a person appointed on whole time basis in Class A,B,C & D mentioned in Regulation 5 whether on contract basis or on deputation or otherwise except the persons employed on daily wage basis work charged basis or on part time basis comes within the category of expression "employees" under the Regulation. Since as indicated hereinbefore that the petitioner was not appointed either on daily wage basis or on part time basis or on contract or on deputation, therefore, his employment can be termed within the meaning of expression "employee" under the expression "otherwise" given under the definition of employee in Regulation 2(e) of the aforesaid Regulations."
While considering the decision of the Apex Court in the case of State of U.P. Vs. Neeraj Awasthi (Supra), the Division Bench of this Court in the case of C.M. Pandey Vs. State of U.P. & others , observed as under:
".............Further submission of the learned counsel for the petitioner is that the recent decision of Hon'ble Apex Court dated 16.12.2005 in Civil Appeal No. 4092 of 2001, State of U.P. Vs. Neeraj Awasthi and others decided along with other connected Civil Appeals was in respect of other employees who have been appointed on adhoc/daily wage and work charged basis without any post and without following existing statutory regulations in the establishment of Mandi Parishad as well as market committees thus in total different factual and legal back drop altogether therefore cannot be stretched to cover the case of the petitioner which has already attained finality between the parties and the respondent cannot be justified in reopening the case of the petitioner on merit by re-agitating the validity of the appointment of the petitioner again at the strength of the aforesaid decision rendered by Hon'ble Apex Court. The submission of the learned counsel for the petitioner in this regard appears to have some substance.
23. In this connection learned counsel for the respondents has further contended that since the subsequent decision rendered by Supreme Court in Neeraj Awasthi's case (Supra) has virtually altered legal situation existing earlier, therefore, the decision rendered by Division Bench of this Court dated 9.9.1999 in earlier writ petition filed by petitioner cannot be given effect to and law declared by Supreme Court under Article 141 of the Constitution of India has to be observed by the respondents, therefore the respondents have no option but to pass impugned order dated 28.1.2006 terminating the services of the petitioner on the grounds mentioned therein. In support of his submission learned counsel for the respondents has also placed strong reliance upon a decisions rendered by the Apex Court in Mafatlal Industries Ltd and another Vs. Union of India and others (1997) 5 SCC 536 and another decision of Apex Court rendered in Director of Settlements, A.P. And others Vs. M.R. Apparao and another A.I.R. 2002 S.C. 1598. Thus before proceeding further with the case it is necessary to examine the legal effect of the decision rendered by Hon'ble Apex in Neera Awasthi's case.
24. From a close analysis of decision rendered by Hon'ble Apex Court in Neeraj Awasthi's case (supra) which is on record as Annexure 16 of the writ petition is clear that question in controversy before the Hon'ble Apex Court was as to whether the High Court has jurisdiction to issue a direction for framing of scheme for regularization of employee of U.P. State Agricultural Produce Market Board and U.P. State Agriculture Produce Market Committee. In the aforesaid case in view of the direction of the State Government dated 12.2.99 the services of such daily wage, adhoc employees, appointed between 1.4.96 and 30.7.97 were terminated by Mandi Parishad and Mandi Samiti. Feeling aggrieved against which such employees have filed writ petitions before the Lucknow Bench of this Court. In some of the petitions the employees have succeeded before this Court and Special Appeal filed by the State Government as well as Mandi Parishad have been dismissed against which unsuccessful party has preferred S.L.P. Before the Hon'ble Apex Court and in some cases of the employees writ petition and Special Appeals was dismissed therefore they also approached to the Hon'ble Apex Court by filing S.L.P. and Hon'ble Apex Court by clubbing all the Civil Appeals arose from such S.L.Ps. has decided the aforesaid appeal by a common judgment referred herein before. By this judgment Hon'ble Apex Court has held that the terms of appointment and service conditions of employees of Market Board and Market Committees are governed by the existing statutory regulations framed under the Act referred herein before but their appointments were made without any sanctioned post and without following the provisions of the existing statutory Regulations therefore held that their appointments are de hors the provisions of the Act and Regulations accordingly are null and void and ab-initio and no direction for regularization of their services could have been issued by the High Court. Consequent upon the aforesaid decision the services of adhoc and daily wage work charged employees of Mandi Parishad and Mandi Samiti have been terminated. Since the petitioner's appointment was also made between the cut of date provided in the aforesaid Government Order therefore while taking shelter of decision of Hon'ble Apex Court the respondent has also terminated the services of the petitioner vide impugned order dated 28.1.2006. In this connection it would be relevant to refer a decision of Hon'ble Apex Court where the doctrine of and ratio of decision has been considered by Hon'ble Apex Court.
25. In the State Financial Corporation and another Vs. M/s. Jagdamba Oil Mills and another, A.I.R. 2002 S.C. 834, the Hon'ble Apex Court has held that the judgments of courts are not to be construed as statute. The observations must be read in context they appear. For ready reference the observations of para 19 of the decision are reproduced as under:
"19. Court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are not to be read as Euclid's theorems nor as provisions of the statute. These observations must be read in the context in which they appear. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to... Judges' interpret statutes, they do not interpret judgments. They interpret words of statutes, their words are not to be interpreted as statutes."
26. Thus in view of the aforesaid settled legal position it is clear that since the facts and circumstances of the case in question is quite distinct and distinguishable from the facts and situation of the case decided by Hon'ble Apex Court in a decision rendered in Neeraj Awasthi case (Supra) therefore in view of the aforesaid factual and legal back drop of the case of Neeraj Awasthi (supra) we are of the considered opinion that the respondent could not have legitimately terminated the services of the petitioner by pressing the aforesaid decision of the Hon'ble Apex Court in service in case of the petitioner. As the observations made by Hon'ble Apex Court in aforesaid case should be understood in the context of question in controversy involved and decided by Hon'ble Apex Court in case before the Hon'ble Apex Court and the aforesaid decision cannot be pressed into service to reopen the dispute between the petitioner and respondents, which has attained the finality between the parties."
In the present case the appointment of the petitioner as Publicity Officer was made on 3/4.8.1995 against the sanctioned and vacant post and he was not appointed on daily wage, work-charged or muster roll without any post. However, his appointment was on adhoc basis.
Since we have come to the conclusion that the petitioner was covered under the definition of employee, as provided under the Service Regulations 1984 and he is covered under the provisions of Service Regulations such as Regulation 29, therefore, he is entitled to be considered for regularization under the Regularization Rules 2001.
In the case of State of U.P. Vs. Neeraj Awasthi (Supra), the Hon'ble Apex Court had the occasion to consider the validity of the Government Order dated 12.2.1999 which was only with respect to the termination of appointment on daily wage/work-charged or muster roll employees appointed between 1.4.1996 to 30.10.1997 and since the petitioner was neither appointed as a daily wage/work charged or muster roll employee nor between 1.4.1996 to 30.10.1997, as such the decision of the Supreme Court in the case of State of U.P. Vs. Neeraj Awasthi (Supra), is not applicable in the present case.
So far as certain observations made in the judgment of State of U.P. Vs. Neeraj Awasthi (Supra), on which great emphasis has been laid by the counsel for the opposite parties is concerned, we are of the considered opinion that the said observations were made in the facts and circumstances attending to the case of State of U.P. Vs. Neeraj Awasthi (Supra), and the same cannot be of universal application having been made in the peculiar facts and circumstances of a particular case. In this regard, it is relevant to mention that the Supreme Court in the case of Union of India & others Vs. Dhanwanti Devi & others (1996) 6 SCC 44, in Para-9 observed as under:
9.........The only thing in a Judge's decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the well settled theory of precedents, every decision contain three basic postulates - [i] findings of material facts, is the inference which the Judge draws from the direct, or perceptible facts;[ii] statements of the principles of law applicable to the legal problems disclosed by the facts; and [iii] judgment based on the combined effect of the above. A decision is only an authority for what it actually decides. What is of the essence in decision is its ratio and not every observation found therein not what logically follows from the various observations made in the judgment. Every judgment must be read as applicable to the particular facts proved, since the generality of the expressions which may be found there is not intended to be exposition of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. It would, therefore, be not profitable to extract a sentence here and there from the judgment and to build upon it because the essence of the decision is its ratio and not every observation found therein. The enunciation of the reason or principle on which a question before a court has been decided is alone binding between the parties to it, but it, is the abstract ratio decidendi, ascertained on a consideration of the judgment in relation to the subject matter of the decision, which alone has the force of law and which, when it is clear what it was, is binding. It is only the principle laid down in the judgment that is binding law under Article 141 of the Constitution. A deliberate judicial decision arrived at after hearing an argument on a question which arises in the case or is put in issue may constitute a precedent, no matter for what reason, and the precedent by long recognition may mature into rule of stare decisis. It is the rule deductible from the application of law to the facts and circumstances of the case which constitutes its ratio decidendi.
The Supreme Court again in the case of ICICI Bank and another Vs. Municipal Corporation of Greater Bombay & others, (2005) 6 SCC 404 in Paras 11 & 12, observed as under:
"11. In the matter of CIT V. Sun Engg. Works (P) Ltd. (SCC p 363) Justice Anand (as His Lordship then was, speaking for the Court, has said that it is neither desirable nor permissible to pick out a word or a sentence from the judgment of the Court, divorced from the context of the question under consideration and treat it to be the complete "law" declared by the Supreme Court. The judgment must be read as a whole and the observations from the judgment have to be considered in the light of the questions which were before the Supreme Court. The decision on the question involved in the case in which it is rendered and while applying the decision to the later case, the courts must carefully try to ascertain the true principle laid down by the decision and not to pick out words or sentences from the judgment divorced from the context of the question under consideration by the Court."
"12.In the case of Municipal Corpn, of Greater Bombay, Section 328-A was not at all interpreted by this Court. For the case to be a binding precedent fundamental requirement would be, that the law pronounced would result from the issues raised before the Court between the parties and argued on both sides...."
A similar view has also been taken by the Apex Court in the case of State of Orissa & others Vs. Md. Illiyas, (2006) 1 SCC 275, in Para-12 and in the case of Jitendra Kumar Singh & another Vs. State of U.P. & others (2010) 3 SCC 119 in Paras 53 and 54. Relevant paragraph 12 in the case of State of Orissa & others (Supra) and paragraphs 53 and 54 in the case of Jitendra Kumar Singh & another (Supra), are quoted below:
"12. ......A case is a precedent and binding for what it explicitly decises and no more. The words used by Judges in their judgments are not to be read as if they are words in an Act of Parliament. In Quinn V. Leathem the Earl of Halsbury, L.C. Observed that every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which are found there are not intended to be the exposition of the whole law but governed and qualified by the particular facts of the case in which such expressions are found and a case is only on authority for what it actually decides."
"53.Even otherwise, merely quoting the isolated observations in a judgment cannot be treated as a precedent dehors the facts and circumstances in which the aforesaid observation was made."
"54.Considering a similar proposition in Union of India Vs. Dhanwanti Devi, this Court observed as follows: (SCC pp.51-52, para 9).
"9..........It is not every this said by a Judge while giving judgment that constitutes a precedent. The only thing in a Judge's decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidenti.
.....A decision is only an authority for what it actually decides.What is of the essence in a decision is its ratio and not every observation made in the judgment.
.....It would, therefore, be not profitable to extract a sentence here and there from the judgment and to build upon it because the essence of the decision is its ratio and not every observation found therein.....It is only the principle laid down in the judgment that is binding law under Article 141 of the Constitution." (emphasis supplied)"
In the case of Sushil Suri Vs. Central Bureau of Investigation (2011) 5 SCC 708, the Supreme Court in Para 32, observed as under:
"32.It needs little emphasis that even one additional or different fact may make a world of difference between the conclusions in two cases and blindly placing reliance on a decision is never proper. It is trite that while applying ratio, the Court may not pick out a word or sentence from the judgment divorced from the context in which the said question arose for consideration. (See Zee Telefilms Ltd. V. Union of India). In this regard, the following words of Lord Denining, quoted in Haryana Financial Corpn. V. Jagdamba Oil Mills, are also quite apt: (SCC p 509, para 22).
"22.....Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive."
After the judgment in the case of State of U.P. Vs. Neeraj Awasthi (Supra), when the same was being misinterpreted, number of clarificatory applications were made and the Supreme Court finding those employees who were not covered by the Government Order dated 12.2.1999, validity of which was under consideration before the Supreme Court and the appointments were made between 1.4.1996 to 31.10.1997 directed that the matters be reconsidered by the High Court (Pages 26 and 27 of the rejoinder affidavit), which is being quoted below:
"In view of the admitted fact that the applicants did not come within the purview of the aforementioned Government Order dated 12.2.1999 and furthermore the period of their recruitment does not fall within the period 1.4.1996 to 3110.1997, we are of the opinion that interest of justice would be subserved if the High Court is requested to consider their cases afresh."
In view of above, it is abundantly clear that in the case of State of U.P. Vs. Neeraj Awasthi (Supra), the Supreme Court only considered the validity of the Government Order dated 12.2.1999 and the appointments made between 1.4.1996 to 31.10.1997 and as such, any observation made in the judgment of State of U.P. Vs. Neeraj Awasthi (Supra) is not at all relevant for the purpose of controversy involved in the present writ petition.
In view of the above decisions, it is apparent that a judgment has to be read in context of the controversy involved therein and the law declared while deciding the same which forms the ratio of the said judgment and which acts as a binding precedent under Article 141 of the Constitution of India and any observation divorced of the context in which the same was made cannot be of an universal application and as such, it is clear that since the case of State of U.P. Vs. Neeraj Awasthi (Supra) was in absolute different context and background and as such, any observation made therein cannot be made applicable to be binding while considering the right of the petitioner for being regularized from the date of initial appointment on the post of Publicity Officer in the Mandi Parishad.
The Hon'ble Supreme Court in the case of State of Karnataka and others Vs. M.L. Kesari and others (2010) 9 SCC 247, has considered the impact of the directions issued by the Supreme Court in the case of State of Karnataka Vs. Uma Devi 2006 (4) SCC 1, and has held that Uma Devi case (Supra) casts a duty upon the Government or instrumentality concerned to take steps to regularize the services of those regularly appointed employees who had served for more than ten years without the benefit or protection of any interim orders of Courts or Tribunals, as a one-time measure. The one-time measure has to be understood in its proper perspective. This would normally mean that after a decision in Uma Devi (supra), each department or each instrumentality should undertake a one-time exercise and prepare a list of all casual, daily wage or adhoc employees who have been working for more than ten years without the intervention of Courts and Tribunals and subject them to process verification as to whether they are working against vacant posts and possess the requisite qualification for the post and if so, regularize their services. Relevant paras 8 and 9 are reproduced hereunder:
"8. Uma Devi casts a duty upon the Government or instrumentality concerned, to take steps to regularize the services of those regularly appointed employees who had served for more than ten years without the benefit of protection of any interim orders of courts or Tribunals, as a one-time measure. Umadevi directed that such one-time measure must be set in motion within six months from the date of its decision.
9.The term "one-time measure" has to be understood in its proper perspective. This would normally mean that after a decision in Uma Devi, each department or each instrumentality should undertake a one-time exercise and prepare a list of all casual, daily-wage or ad hoc employees who have been working for more than ten years without the intervention of courts and Tribunal and subject them to process verification as to whether they are working against vacant posts and possess the requisite qualification for the post and if so, regularize their services."
In view of the above, the petitioner is entitled to be considered for regularization having completed more than 10 years of service on adhoc basis and fulfilling the requisite qualification and having been appointed on a vacant post on adhoc basis and is still continuing in service on ad hoc basis.
For the aforesaid reasons, the writ petition is allowed with the direction that the opposite parties shall consider the case of the petitioner and pass appropriate orders with regard to his regularization on the post of Publicity Officer in the Mandi Parishad from the date of his initial appointment i.e. 4.8.1995, expeditiously, say, within a period of two months from the date a certified copy of this order is produced before the opposite party no. 3.
Costs is made easy.
Date: September 26th, 2011 Arjun/-