Ram Naresh vs State Of U.P. And Others
2013 Latest Caselaw 6589 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 

 
Reserved on 03.09.2013
 
Delivered on 25.10.2013
 

 
Court No. - 34
 

 
Case :- WRIT - A No. - 44105 of 2011
 

 
Petitioner :- Ram Naresh
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- Pankaj Srivastava
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Sudhir Agarwal,J.

1. Heard Sri Pankaj Srivastava for the petitioner and learned Standing Counsel for respondents. Since pleadings are complete, as requested and agreed by learned counsel for the parties, I have proceeded to hear and decide it, under the Rules of the Court, at this stage.

2. Though there are several reliefs sought in this writ petition but in effect, petitioner's claim is three fold: (i) regularisation on a group 'D' post in Forest Department (ii) payment of salary at minimum of regular pay scale so long he is not regularised as per the decision in State of U.P. Vs. Putti Lal (2002) 2 UPLBEC 1595 and (iii) not to be terminated orally or otherwise.

3. Besides above, there is an additional issue in this matter. The petitioner has assailed an order dated 24.06.2011 (Annexure 16 to writ petition), which is a letter issued by Principal Conservator of Forest (Administration), U.P., Lucknow (hereinafter referred to as the "PCF (Admn.)") to the Principal Conservator , (Wildlife), U.P., Lucknow and all Chief Conservator of Forest, U.P. stating that not only vacancies newly created as supernumerary, by Government Order dated 23.06.2011, ought to be utilized for regularisation of employees in Group 'D' posts, under U.P. Regularisation of Daily Wage Appointments on Group 'D' posts Rules 2001 (hereinafter referred to as " Rules 2001") and on Group 'C' posts under U.P. Regularisation of Daily Wages Appointment on Group 'C' Posts (Outside the Purview of the Uttar Pradesh Public Service Commission) Rules, 1998 (hereinafter referred to as "Rules 1998") and all those daily wage employees who are working since 29th June 1991 are to be regularised but if any vacancy has occurred due to retirement etc., and, is existing, the same would also be utilised for such regularisation. Thus validity of this order dated 24.06.2011 is to be tested in the light of Rules, 2001 and 1998.

4. The facts in brief as per petitioner's version in the writ petition, are, that the petitioner was engaged as a Group 'D' employee in February, 1989 and continuing till the date of filing of the writ petition. He claims to be eligible for regularisation as per directions of Apex Court in State of U.P. Vs. Putti Lal (Supra) and also in view of statutory provisions contained in the Rules, 2001. The State Government took a policy decision to implement judgment in State of U.P. Vs. Putti Lal (Supra), as communicated by Principal Chief Conservator of Forest, U.P., Lucknow (hereinafter referred to as the "PCCF") vide letter dated 07.09.2002, to all Chief Conservators of Forest, U.P., Conservators of Forest/Regional Director and Divisional Forest Officers, U.P., directing to follow and comply Court's decision in State of U.P. Vs. Putti Lal (Supra). The Divisional Forest Officers of concerned areas, who are appointing authorities, however, proceeded illegally by making rampant, arbitrary and whimsical regularisations, without caring for length of engagement of individual daily wage employees and without preparing any seniority list vis-a-vis the vacancies available. A complaint was made to State Government that available vacancies for regularisation have been diverted elsewhere, so as to deprive daily wage employees of the benefit of regularisation. In this regard, detailed information was sought by State Government vide order dated 20.05.2002 (Annexure 5 to the writ petition) from all the Divisional Forest Officers/Divisional Directors. It drew attention of this Court also when an Hon'ble Single Judge, dealing Contempt Petition No.1632 of2009 (Laxmi Chandra Vs. N.K. Janu), vide orders dated 03.12.2009, 26.02.2010 and 28.08.2010, sought detailed information from PCCF. The proceedings could not continue since in the meantime, some of the officers concerned went in appeal before Apex Court in Special Leave Petition No. 26664-26665 of 2010 (Chanchal Kumar Tiwari and others vs. Narayan Singh) and the Hon'ble Court, vide order dated 16.09.2010, stayed contempt proceedings. Similar stay order in all contempt proceedings was passed in SLP NO. 26571-26572 of 2010 on 27.09.2010.

5. Petitioner further pleads that one Sri Pratap Singh son of Jhunni Lal has been regularised by order dated 11.02.2011. The same benefit should be extended to petitioner also. Salary payable to daily wage employees, yet not regularised, has also been revised, implementing recommendation of VII Pay Commission by order dated 11.03.2010 (Anenxure 11 to writ petition). Non-preparation of a combined eligibility and seniority list by respondents, before considering daily wage employees for regularisation in Forest Department, is illegal and arbitrary. It amounts to deliberate and intentional attempt to circumvent judgment in State of U.P. Vs. Putti Lal (Supra). It is gross abuse of power so as to deny benefit of regularisation in accordance with Rules 2001, to the concerned workers. Further that, now work of Forest Department has been reduced by granting exemption to forest produce, peat, surface soil, rock and minerals etc., mentioned in sub-clause (iv) of Clause (b) of Sub-Section (4) of Section 2 of Indian Forest Act 1927, excavated from non forest land and moved from forest area, for operation of U.P. Transit of Timber and other Forest Produce Rules, 1978, so as to help forest Mafias, causing loss of revenue to the department. Much of work, which earlier, used to be done by Forest Department has now been transferred to Gram Panchayat etc. and is being done under National Rural Employment Guarantee Act, 2005 (hereinafter referred to as "NREG Act, 2005"). The petitioner is now being engaged under aforesaid NREG Act 2005. This has also resulted in denying continuity of engagement to petitioner as Group 'D' employee in Forest Department. This action is clearly illegal, arbitrary and with an intention of victimisation of daily wage employees, like the petitioner. The change of mode of payment of wages by applying NREG Act 2005 and deviating from the procedure prescribed under Rules 98 to 100 of Forest Accounts Rules, Part VII, is wholly arbitrary and illegal. Lastly, it is said that in order to absorb daily wage workers in Group 'D' vacancies, the State Government created 2022 posts for regularisation in Group 'D' and 37 in Group 'C' vide Government Order dated 23.06.2011 with clear direction that these posts shall be utilised for the purpose of regularisation of daily wage employees. The posts having been created as supernumerary, shall go on abolition as soon as regular posts are available to the concerned employees. The petitioner, therefore, is entitled for regularisation against the aforesaid newly created supernumerary Group 'D' posts, following the procedure prescribed in Rules 2001.

6. Respondents have filed a counter affidavit wherein basic facts about engagement of petitioner, as stated in the writ petition, have been denied. The petitioner's claim that he is working since February 1989 continuously and at least, till date of filing of writ petition in 2011 is denied. The averment made in para 4 of writ petition, has been denied in para 12 of counter affidavit, stating that petitioner has not placed any material on record to show that he was entitled to regularisation under Rules 2001. It is, however, said that the petitioner worked as daily wager for one month in 1982, 5 months in 1983, five months in 1984, 12 months in 1985, 11 months in 1986, 10 months in 1987, 9 months in 1988, 12 months in 1989, 12 months in 1990, 3 months in 1991, 9 months in 1996, 7 months in 1997 and 7 months in 2001. Right to claim regularisation has been denied on the ground that that he has not worked continuously from the date of his initial engagement till commencement of Rules 2001 i.e., upto 21st December 2001. In para 16 of counter affidavit it is also averred that only those daily wage employees were eligible for consideration of regularisation under Rules, 2001 who were engaged on daily wage basis on or before 29.06.1991 and continuing to work on the date of commencement of Rules 2001, i.e., 21.12.2001. The petitioner was ineligible under the aforesaid Rules, hence, not considered for regularisation. There was no occasion for placing his name in the list, in order of seniority, for the purpose of regularisation since he does not fulfil requirement under Rule 4(1) of Rules 2001. Nobody could have been compelled to work under NREG Act, as the scheme thereunder is totally different and has nothing to do with Forest Department as such.

7. A very bulky and voluminous rejoinder affidavit has been filed by petitioner. In para 8 thereof, it is said that petitioner has been working at Chakar Nagar Forest Range, Etawah throughout. Photo copies of cash books commencing from February 1989 have been filed as Anenxures 1 and 2 to rejoinder affidavit to show continuous working of petitioner.

8. Sri Pankaj Srivastava, learned counsel for the petitioner vehemently argued that unless a list of daily wage employees engaged, in Forest Department, before 29.06.1991, for the purpose of regularisation, is prepared, in order of seniority, Rules 2001 cannot be applied and implemented truly. In the present case, since no list has been prepared, this indicates how respondent authorities have acted illegally so as to deny benefit of regularisation to petitioner and similarly placed other employees. He reiterated various grounds, as set up in the writ petition and mentioned above, placing reliance on Apex Court's decision in State of U.P. and others Vs. Putti Lal (supra). He also complained on non payment of salary as directed by Court in above decision in Putti Lal.

9. Learned counsel for petitioner contended that in order dated 24.06.2011 direction is in the teeth of statutory rules inasmuch as, in both the sets of Rules, namely, Rules 2001 and Rules 1998 only those vacancies as were available on the date of commencement of Rules , could have been utilised for the purpose of regularisation, any vacancy subsequently created or occurred in whatever manner, it is, but the same cannot be utilised for the purpose of regularisation under the aforesaid Rules. Learned Standing Counsel, however, apparently found it difficult to defend impugned order dated 24.06.2011 (Annexure 16 to writ petition), but simply said that whatever has been said therein, he supports it and rest is for the Court to decide.

10. Learned Standing Counsel on the contrary, submitted that the petitioner did not fulfil all the conditions precedent, required under Rule 4(1) of Rules, 2001, therefore, he was not entitled to be considered for regularisation. It is further said that the petitioner since long is not working in Forest Department and as admitted by him, has been engaged under NREG Act, 2005 by the concerned authorities and not by Forest Department. Refuting the complaint about salary, he argued that petitioner, as per his own admission, is engaged under NREG Scheme hence the direction in Putti Lal (supra) does not apply on such engagement.

11. in view of rival contentions, adjudication of this writ petition requires answer of the following questions:

(1) Whether petitioner fulfilled requisite eligibility conditions, making him eligible for consideration for regularisation under Rules, 2001 ?

(2) Whether preparation/non-preparation of seniority list of Group 'D' employees has any relevance for the purpose of claim of petitioner for regularisation, if question no. (1)is answered against him ?

(3) Whether claim of petitioner, presently, for payment of salary at minimum of regular pay scale, is admissible and applicable, when admittedly, he is discharging duty having been employed under NREG Act, 2005, after enforcement of the aforesaid Act ?

(4) Whether the respondents are justified in utilising any vacancy occurred or created, after commencement of Rules 1998 and 2001, for the purpose of regularisation, under the aforesaid Rules and whether the order/letter dated 24.06.2011 is valid?

12. First, I propose to consider question no.1. For that purpose, suffice it to mention that a person can claim right of consideration for regularisation under Rules, 2001, only if, he fulfils requisite conditions, provided in Rule 4(1) thereof. This Rule (1) reads as under:

"4. Regularisation 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, reservations for the candidates belonging to the Schedule Castes, Schedule Tribes, Other Backward Classes of citizens and other categories shall be made in accordance with the Uttar Pradesh Public Services (Reservation for Schedule Caste, Schedule Tribes and Other Backward Classes ) Act, 1994 and the Uttar Pradesh Public Services (Reservation for Physically Handicapped, Dependents of Freedom Fighters and Ex-Servicemen ) Act, 1993 as amended from time to time and the orders of the Government in force at the time of regularisation 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 to the provisions of sub rule (1), prepare an eligibility list of the candidates, arrange in order of seniority as determined from the date of order of Appointment on daily wage basis and if two or more persons are 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 asses their suitability.

(5) The Selection Committee shall consider the cases of the candidates on the basis of their record 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 added)

13. A bare perusal of Rule 4(1) of 2001 Rules makes it clear that only such daily wager is entitled to be considered for regularisation, who ;

(A) was appointed on daily wage basis on a group 'D' post in Government Service before 29th June 1991;

(B) continuing in service as such i.e., in his capacity as daily wager, on the date of commencement of Rules, i.e. 21.12.2001;

(C) possessed requisite qualification prescribed for regular appointment for that post at the time of initial appointment on daily wage basis; and,

(D) a permanent or temporary vacancy in Group 'D' post is available on the date of commencement of Rules, i.e. 21.12.2001.

14. The two crucial dates have to be satisfied by daily wage employee, namely, employment before 29th June 1991 and continuing in service on 21.12.2001. This condition is mandatory. If either of the two conditions, is found missing, in any particular case, such incumbent shall not be eligible for consideration for regularisation under Rules, 2001.

15. Similarly, Rule 4(1)(b) makes it clear that the incumbent must possess requisite qualification prescribed for the post or against which he was appointed on daily wage basis, but further right of regularisation is confined vide Rule 4(1)(a), only against such vacancies as were available on the date of commencement of Rules, 2001, namely, 21.12.2001 and not against any vacancy occurring subsequently. This is one time benefit made available to Group 'D' employees, who fulfil requisite conditions under Rule 4(1). It is not a perennial source of recruitment so as to induct a person by way of regularisation as and when the vacancies are available, either due to creation of post or otherwise, on any date, subsequent to 21.12.2001. On this aspect also, matter has been considered in Santosh Kumar Bajpai Vs. State Of U.P. & Others (Writ - A No. - 58886 of 2009, decided on 18.11.2009) and it has been held in para 11:

"11. A perusal of 2001 Rules thus makes it clear that it is applicable to only such vacancies as were existing on the date of commencement of said Rules, i.e., 21.12.2001. As soon as such vacancies are filled in and get exhausted, no further regularisation is permissible. The rules are one time measure and shall render otiose as soon as the vacancies existing on 21.12.2001 are filled in. If that be so, it would be difficult to construe the word "generally applicable" so as to include such rules made for Government servants which have application only for a limited period or which are one time measure...... ..............." (emphasis added)

16. In Rakesh Chandra Srivastava Vs. State of U.P. & Ors., 2008 (1) ADJ 371 wherein Rule 4 of U.P. Regularization of Daily Wages Appointments on Group 'D' Posts Rules, 2001 came up for consideration, the Court looking all the aspects of Rule 4(1), said :

"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...." (emphasis added)

17. The above decision has been followed in Ram Dayal Vs. State of U.P., 2011 (2) ADJ 594 and in a number of other cases.

18. A Division Bench of this Court (of which I was also a member) in Dukhi Singh Vs. State of U.P. and others , 2007(4) ADJ 186 also took a similar view.

19. Whether a daily wager is continuously and without break/gap employed in between two cut off dates or not, is not of any relevance. This question, whether Rule 4(1)(a) of Regularisation Rules 2001 mandated that a daily wage employee, after his engagement/appointment before 29.06.1991, should continue to work throughout till the date of commencement of Rules i.e., 21.12.2001 has been considered and answered already in various authorities.

20. In Janardan Yadav Vs. State of U.P. & others, 2008 (2) ESC 1359 this Court in paras 5, 6 and 8 of the judgment said:

"5. Since the facts are not in dispute and it is also not disputed that the petitioner was engaged on daily wage basis in 1984, i.e., before 29.6.1991 and was also working on the date of commencement of Rules 2001, i.e, on 21.12.2001, thus it is evident that he was entitled to be considered for regularization under the said Rules. The only question up for consideration is whether the said Rules require continuous service throughout, i.e., from the date of initial engagement till the commencement of the Rules. In my view, there is no such requirement under the Rules as is apparent from perusal thereof.

6. The only requirement under Rule 4(1)(a) are that the incumbent was directly appointed on daily wage basis on a Group 'D' Post in a Government Service before 29.6.1991 and is continuing in service as such on the date of commencement of the said Rules. The further requirement under Clause (b) of Rule 4(1) is that he must have possessed requisite qualification required for regular appointment on that post at the time of such employment on daily wage basis."

"8. The said stand is contrary to the Rules and it amounts to reading certain words in Rule 4(1) which is not provided therein by the Rule framing authority. The rule framing authority has not framed the aforesaid Rules in manner as are being read by the respondents. Since the Rules are applicable only to daily wage employees, the Rules framing authority was aware that such employee could not have worked continuously throughout and, therefore, has clearly provided that the engagement must be before 29.6.1991 and he is continuing as such on the date of commencement of the Rules. If a daily wage engagement has been made before 29.6.2001 and was continuing on 21.12.2001, meaning thereby the daily wage engagement remained necessity of the department or the requirement thereof for more than 10 years, for such a person only, the benefit of regularization under 2001 Rules has been provided, and it nowhere requires further that the incumbent must have worked continuously from the date of initial engagement till the commencement of these Rules and to read these words would amount to legislation, which is not permissible in law. While interpreting the statute, it is well settled that neither any word shall be added nor be subtracted but if a plain reading of the statute is clear and unambiguous, the same has to be followed as such. This Court does not find any ambiguity in Rule-4(1) providing as to which kind of persons would be entitled for regularization and it nowhere requires that the incumbent must have worked throughout from the date of initial engagement till the date of commencement of the Rules."

21. Following the law laid down in Janardan Yadav (Supra), this Court in Pooran Lal Vs. State of U.P. through Ministry of Forest and others (Writ A No. 61444 of 2007) decided on 1.8.2013 held as under:

"In view of the law laid down in Janardan Yadav (supra) it is evident that continuous service through out is not a requirement in the Rules, 2001 and thus, the reason given by respondents that the petitioner did not work for certain period is wholly incorrect and misconceived for the reason that Rules, 2001 nowhere require that a daily wage employee ought to have worked continuously to get the benefit of the said Rules. The order impugned in this writ petition has been passed by the respondents by reading something in the Rules which in fact is not provided therein. The respondents, therefore, have acted wholly without jurisdiction and exceeding the powers by reading a statutory provision in his own way and to the extent of reading certain words therein though it is not there. The respondents cannot sit over the wisdom of the rule framing authority to find out something which is not in the rule. The manner in which the respondents have considered this aspect is wholly erroneous and, therefore, the impugned order cannot sustain."

22. I find it my duty to make certain aspects relating to regularisation, clear, at this stage. The appointments in public services are made in various ways. The purest form of appointment is one which is made following the procedure laid down in statute consistent with Article 16 of the Constitution of India. When a vacancy on a civil/public post is available, it is made known to every one, eligible and willing, to apply therefor, so as to be considered thereagainst. It conforms the fundamental right of equal opportunity of employment to all qualified and willing persons for such employment. When this opportunity is given and appointment is made after following procedure prescribed in statute, the appointment is absolutely just, valid and called the purest form of appointment.

23. Then comes an appointment, where vacancies are advertised, consideration for employment is afforded to all qualified and willing but in the process of selection and appointment there is some procedural defect which may not affect the very appointment to its root. Such an appointment, at the best may be an irregular appointment which would confer a right upon the appointee to continue and hold the post subject to subsequent rectification or validation by competent authority, expressly or impliedly.

24. Then comes an appointment made, fortuitous in nature, in certain exigencies. For example, a short term, stop gap, officiating, daily wage etc. appointments, which normally is opted when requirement and tenure is precarious and by the time, procedure is followed, very purpose would stand frustrated. Such appointments are made normally by pick and choose method, i.e., whosoever come and apply, whether after getting knowledge on his own or otherwise, is given opportunity to serve for the limited purpose and tenure, which is called, sudden requirement and exigency of situation. Such appointments do not confer any right upon the appointee, either to hold post for a long time or to get the post in substantive manner. Above exception has been pleaded and allowed though it deprives right of equal opportunity of consideration to all eligible and willing persons by advertising the vacancy etc. only for the reason that requirement is sudden, tenure precarious and delay shall cause greater public loss, otherwise such appointments, in other words, comes in the category of illegal when tested on the anvil of Article 14 and 16 of the Constitution. One can say that applying doctrine of reasonable classification and considering fortuitous nature of requirement and process followed for its achievement, per se it may not be termed as illegal so long as that requirement is there but in case it is extended so as to confer a benefit more than such requirement, it will cross the dotted line of validity and will enter in the realm of illegality. Such appointments have been held void ab initio and not entitled to confer any right upon appointee so as to claim a substantive right on the post in his holding, in whatever capacity, whether daily wager, officiating, ad hoc etc.

25. The Constitution Bench in Secretary, State of Karnataka Vs. Uma Devi 2006 (4) SCC 1 has held that such illegal appointments cannot be asked to be regularized as that would amount to violating the fundamental right of equal opportunity of employment to those who have been denied such opportunity. The Constitution Bench decision has overruled dozens of earlier decisions taking a view otherwise so as to show sympathy in favour of those who got or managed their appointments illegally, i.e., without complying the requirement of equal opportunity of employment to all others, came to the office on account of their individual resources and managing continuance for quite some time or long time, and then claim a substantive right on the basis of long tenure, they have managed to continue. In other words, the incumbent comes to the office by virtue of a pick and choose method, usurps office by back door or whatever other term one may use, despite it being short of compliance of requirement of Article 16(1) of the Constitution, but having maintained such benefit to continue for quite some time, which normally has the support of appointing authorities also, the beneficiary comes to claim a sense of sympathy on the basis of such long continued usurpation of office. In other words, a violator of law claims a substantive right for having violated law continuously for quite a long time with regard to a public office.

26. In the matter of appointment there is no principle of adverse possession but a plea somewhat similar thereto many a times is raised that since he has continued to work for quite long time, now he should be allowed to stay in the office for rest of tenure otherwise his family would suffer. A situation is created where sympathy is sought not in favour of victims, i.e., those who were denied right of equal opportunity of employment but in favour of those who have violated law, contravened it, breached it with impunity, and, have continued to do so for quite some time, and now, boldly and blatantly claiming a kind of right to retain such benefit of breach of law for all times to come and for that purpose various pleas in the name of equity, sympathy, compassion etc. are raised and pleaded and many a times find favour in the Courts of Law. Fortunately, Constitution Bench, after having a retrospect of all earlier authorities, took a clear stand against such kind of favour shown to those who have come in public office, by denying right of equal opportunity to others. The Court in unequivocal terms observed that any favour shown to such violators would be a misplaced sympathy.

27. The maxim dura lex, sed lex, which means "law is hard but it is the law", in my view, aptly applies in the cases where incumbents have come to an office not following procedure consistent with constitutional requirement of Article 16(1) but otherwise and thereafter claim equitable and other consideration for sustaining their entry and occupancy of the office for all times to come. In Raghunath Rai Bareja and another Vs. Punjab National Bank and others, 2007(2) SCC 230 it is said:

"When there is a conflict between law and equity, it is the law which has to prevail . . . . . Equity can only supplement the law, but it cannot supplant or override it."

28. It has been followed in State of Uttaranchal and Anr. Vs. Rajendra Singh Kandwal 2011(5) AWC 5075 (SC).

29. After Uma Devi (supra) there is a chain of authorities wherein the above view has been followed and some of the authorities which tried to take a different view, subsequently, have been overruled and clarified.

30. The Regularisation Rules is an attempt to give a cover to such illegal appointments and, therefore, may have to be tested on the anvil of constitutional validity under Article 14 and 16(1) of the Constitution. However, in the present case, since validity of regularization rules is not in question, therefore, for the purpose of present case I am following Rules, 2001 or Rules, 1998, as the case may be, as they are, but has no hesitation in observing that benefit thereunder will have to be construed very strictly. Unless and until every indicia is satisfied, one cannot be given benefit under Rules, 2001 or 1998. In other words, every requirement entitling a persons to be considered for regularization must be held to be mandatory and any deviation therefrom will either disentitle the claimant from such benefit or any attempt by executive otherwise would render such action of even executive authority, ultra vires.

31. Some of the recent authorities, in this regard, just to recapitulate and remind the exposition of law with regard to regularisation may be referred to hereat.

32. Commenting upon one time scheme of regularization, in State of Rajasthan and others Vs. Daya Lal & others, 2011(2) SCC 429, the Court in para 12 of the judgment said:

"12. The decision relied upon by the High Court namely the decision in Anshkalin Samaj Kalyan Sangh of the High Court no doubt directed the state government to frame a scheme for regularization of part-time cooks and chowkidars. It is clear from the said decision, that such scheme was intended to be an one-time measure. Further said decision was rendered by the High Court prior to Uma Devi, relying upon the decision of this Court in Daily Rated Casual Labour v. Union of India 1988 (1) SCC 122, Bhagwati Prasad v. Delhi State Mineral Development Corporation 1990 (1) SCC 361 and Dharwad District PWD Literate Dalit Wage Employees Association v. State of Karnataka 1990 (2) SCC 396. These directions were considered, explained and in fact, overruled by the Constitution Bench in Uma Devi. The decision in Anshkalin Samay Kalyan Singh is no longer good law. At all events, even if there was an one time scheme for regularisation of those who were in service prior to 1.5.1995, there cannot obviously be successive directions for scheme after scheme for regularization of irregular or part-time appointments. Therefore the said decision is of no assistance."

33. In Union of India and others Vs. Vartak Labour Union, 2011(4) SCC 200 in para 16 of the judgment the Court said:

"16. We are of the opinion that the Respondent Union's claim for regularization of its members merely because they have been working for BRO for a considerable period of time cannot be granted in light of several decisions of this Court, wherein it has been consistently held that casual employment terminates when the same is discontinued, and merely because a temporary or casual worker has been engaged beyond the period of his employment, he would not be entitled to be absorbed in regular service or made permanent, if the original appointment was not in terms of the process envisaged by the relevant rules. (See: Secretary, State of Karnataka and Ors. v. Umadevi (3) and Ors. (2006) 4 SCC 1; Official Liquidator v. Dayanand and Ors. (2008) 10 SCC 1; State of Karnataka and Ors. v. Ganapathi Chaya Nayak and Ors. (2010) 3 SCC 115; Union of India and Anr. v. Kartick Chandra Mondal and Anr.; Satya Prakash and Ors. v. State of Bihar and Ors. (2010) 4 SCC 179 and Rameshwar Dayal v. Indian Railway Construction Company Limited and Ors. 2010) 11 SCC 733."

34. In Brij Mohan Lal Vs. Union of India and others, 2012(6) SCC 502, dealing with the Fast Track Courts, the Court referred to the Constitution Bench decision in Uma Devi (supra) and said that therein the principle has been laid down that in matters of public employment, absorption, regularization or permanent continuance of temporary, contractual or casual daily wage or ad hoc employees appointed and continued for long in such public employment would be de hors the constitutional scheme of public employment and would be improper.

35. In University of Rajasthan and another Vs. Prem Lata Agarwal, 2013(3) SCC 705 after referring to the dictum in Uma Devi (supra), the court observed, that when a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by relevant rules/procedure, he is aware of the consequences of appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed on a post when an appointment on the post could be made only by following proper procedure.

36. In the light of above discussion now it has to be seen whether the petitioner fulfilled requisite conditions under Rule 4(1) of Rules, 2001 or not. He claimed that he was engaged and continuing to work since February 1989. Assertion to this effect made in para 4 of the writ petition has been denied by respondents in para 12 of counter affidavit. To meet this objection, in para 8 of the rejoinder affidavit, read with annexures 1 and 2 thereto, petitioner has placed on record certain documents showing payment of salary for certain period. A perusal thereof would show that payment of salary, shown to have been made to petitioner is for the following period:

Sl.

Period

Page no. in the rejoinder affidavit

1.

April 1989 to March 1991

26A

2.

April 1996 to January 1997

27A

3.

April 1997 to September 1997

27B

4.

June 2001 to February 2002

27C

37. A reading of the Rules, exposition of law and the fact about engagement/employment of petitioner on various days as daily wager as discussed above, make it very clear that in the present case, the petitioner was engaged as a daily wager before 29th June 1991 and was in employment in the month of December 2001 and on the date when Rules 2001 came into force. Due to vague reply on the part of respondents that the petitioner was engaged in the entire month but without any date etc. this Court would be justified to infer that on the date of commencement of Rules 2001 i.e., 21.12.2001, the petitioner was in employment, as a daily wager, with the respondent, hence was eligible and entitled to be considered for regularisation in a vacancy on a Group 'D' post, existing or available, on the date of commencement of Rules 2001. It goes without saying that the aforesaid entitlement of petitioner would be subject to condition that he also possessed qualification for Group 'D' post, as prescribed on the date of engagement on daily wage basis. The respondents have not disputed that no vacancy existed on the date of commencement of Rules, 2001 so as to consider petitioner for regularisation thereagainst. Question no. 1, thus, is answered accordingly, and, in favour of petitioner.

38. Now coming to question no.2, once it is clear that the petitioner was eligible and entitled to be considered for regularisation under Rules 2001, it goes without saying that respondents were under obligation to prepare a list of all eligible candidates, entitled to be considered for regularisation, in order of seniority, for the reason that the senior incumbent, having been employed for a longer period, is entitled to be considered for regularisation, in preference to a person who had a lessor period of employment as daily wager. If number of vacancies available is more than the number of candidates eligible for regularisation, respondents practically may not prepare a seniority list for the reason that all eligible daily wagers, entitled for consideration for regularisation, could have been considered, but where number of candidates exceed the number of available vacancies, process of regularisation makes it obligatory upon respondents to prepare a seniority list. This is so contemplated in Rules 2001 also.

39. Sub rule (4) of Rule 4 says that an eligibility list of candidates, arranged in order of seniority will have to be prepared by appointing authority. The said list of seniority shall contain all eligible candidates who satisfy requirement of Rule 4(1) of Rules 2001. Reckoning point for seniority will be the date on which the incumbent was initially appointed on daily wage basis, irrespective of number of days for which a daily wager was employed. It is the point of time of his engagement, which will govern his seniority. A person appointed earlier in point of time, will be senior to that appointed/employed, as daily wager, subsequently. The number of days in which daily wager is employed is not relevant for the purpose of seniority, in view of clear language used by Rule framing authority in Rule 4(4) of Rules 2001. The words "arranged in order of seniority as determined from the date of order of appointment on daily wage basis" make it very clear that seniority list, which shall be prepared, determining seniority of eligible candidates must be with reference to the date of order of appointment on daily wage basis. When rule itself contemplates a particular reckoning point for seniority, without doing any violence or providing individual's rationality, the wisdom of the legislature has to be given effect to. The appointing authority is obliged to follow it, verbatim, and, in true spirit.

40. It also goes without saying that process of regularisation cannot begin, unless, first, eligibility of candidates is determined and, second, those candidates are enlisted/arranged in order of seniority. The only inconsequential exception, which may be conceived, giving a minor leverage to appointing authority of not preparing list in order of seniority, would be, where number of vacancies, available for regularisation, is greater than the number of eligible candidates.

41. However, this Court does not intend to say that the appointing authority, invariably, may not prepare list of eligible candidates in order of seniority, if number of vacancies is greater than the number of eligible candidates, inasmuch as, the actual order of regularisation and consequential seniority of candidates would also depend on the date of order of their regularisation and I have no hesitation, in holding that a person, who is senior, is entitled to be regularised first and maintain his seniority after regularisation, over another daily wager, who is also regularised, but junior to him as daily wager, and, therefore, as regularised employee also he must stand junior to him.

42. Practically, preparation of seniority list, since, excludes any discrimination or arbitrariness, therefore, it must be prepared, truly and faithfully. The appointing authority therefore, before proceeding to make regularisation, must prepare a list of eligible candidates, in order of seniority, as contemplated in Rule 4(4) of Rules 2001. Any process of regularisation without following mandate of Rule 4(4) would be illegal, particularly , if it has resulted in non consideration of senior person(s) for regularisation before junior is considered therefor.

43. Question no.2 in this case, therefore, is answered accordingly. It is held that the respondents are obliged to prepare a list of eligible candidates, in order of seniority, in accordance with Rule 4(4) of Rules 2001, before proceeding to make any regularisation, against available vacancies under Rules 2001.

44. Now coming to question no. 3, learned counsel for petitioner could not show anything as to how work rendered by petitioner in the beneficial scheme under NREG Act 2005 can be connected with Forest Department so as to treat his engagement as daily wage employee on Group 'D' post in Forest Department. The purpose, objective and methodology, operating under NREG Act, 2005 is totally different. It would have no concern vis a vis engagement of a person as daily wager against a Group 'D' post in Forest department itself. The kind of engagement in the two is totally different. It has no co relation. Nothing could be shown otherwise by learned counsel for the petitioner than whatever said above. Question no.3, thus is answered in negative i.e. against the petitioner.

45. Then comes question no.4. As has already been discussed, the words "permanent or temporary vacancy, as may be available in Group 'D' post, on the commencement of these Rules" in Rule 4(1)(b) of Rules 2001 make it very clear that Rules 2001 contemplate regularisation only against such vacancies, as were available on the date of commencement of the said Rules. By virtue of Rule 1(2) it came into force at once, w.e.f. 21.12.2001. The aforesaid Rules commenced on the said date. Therefore, all the vacancies of Group 'D' as were available on 21.12.2001 shall be consumed for the purpose of regularisation under Rules 2001. The vacancies which occurred subsequently, either due to new creation or retirement of existing employees or death etc., whatever may be the reason, such vacancies cannot be utilised for the purpose of regularisation of daily wage employees under Rules 2001. This exposition of law has also been discussed above while considering question no.1, above.

46. Rule 4(1) of Rules 1998 is also pari materia to Rule 4(1) of Rules 2001 so far as this aspect of the matter is concerned. Therefore, what has been said with respect to Rule 4(1), Rules 2001 shall ipso facto apply for considering regularisation under Rules 1998.

47. Now in this line of the matter, I have to examine whether direction contained in impugned letter dated 24.06.2011, issued by respondent no.2, is legal and valid, or not. The answer is quite evident and obvious. The direction contained in the letter dated 24.06.2011 is clearly in the teeth of aforesaid Rule 4(1) of the two sets of Rules. Respondent no.2 has said that not only those vacancies which were created on 23.06.2011 be utilised for regularisation under Rules 2001 and Rules 1998, but even the vacancies, which occurred in the recent past, be also consumed for such regularisation and if any supernumerary post created by the Government Order dated 24.06.2011, remains unfilled due to non-availability of eligible candidates, such vacancies/posts be surrendered.

48. It appears that before issuing aforesaid direction, the concerned respondents did not care to have a careful glance of relevant Rules. The unambiguous and clear language thereof would have led them to understand in correct perspective that no vacancy which would come into existence/occur, subsequent to the date of commencement of Rules 2001 or Rules 1998, as the case may be, can be/would be utilised for regularisation, under the two sets of Rules.

49. In other words, as also said earlier, process of regularisation under the aforesaid Rules is not perennial reservoir which has to continue for an indefinite time in perpetuity. The reason is quite obvious. Incumbents, for whose benefit, the aforesaid rules are promulgated, are those who have been appointed illegally, i.e without following the process of recruitment, prescribed in the statutory Rules i.e. recruitment and appointment on Group 'C' and 'D' posts, as the case may be. Taking a sympathetic view of the matter and looking to the fact that such persons have continued to work for quite a long time, the rule framing authority, as one time measure, decided to make such appointees, regular, subject to certain conditions, provided under the aforesaid two sets of Rules, That is how this process of regularisation, being a kind of exception to normal procedure of recruitment, has been treated as one time event, i.e. to be considered and applied only against available vacancies on the date of commencement of Rules and not to be extended to vacancies which may become available subsequently. Any other view may put the aforesaid Rules, susceptible of being challenged as violative of Articles 14 and 16 of Constitution of India.

50. Be that as it may, while implementing statutory provision, neither its ambit can be extended by Court or executive who is under an obligation to act strictly in accordance with statute, nor it can be altered in any other manner. Respondent no.2, in my view had no authority at all to proceed to make regularisation under Rules 2001 and 1998 by taking into account vacancies of Group 'C' and 'D' posts, which had occurred either due to creation or otherwise after the commencement of said Rules, whatever, as that would be in complete disregard of requirement of Rule 4(1) of the aforesaid Rules. The Government Order, creating new posts without any simultaneous amendments in the statutory Rules will not have the effect of amendment or modification of statutory Rules. To this extent the Government Order/executive order is inconsistent to Rules, would be inoperative, ineffective and inconsequential, being ultra vires of statutory Rules and non est to that extent.

51. The law is well settled that an executive order cannot have effect of statutory Rules nor prevail over the statutory rules. Mere executive decision cannot authorize the authorities concerned to do something which is not otherwise permitted under statutory rules. It is well settled that an executive order cannot prevail over statutory rules. In Indra Sawhney and others Vs. Union of India and others, 1992 (Suppl) 3 SCC 217 the Apex Court held that though the executive orders can be issued to fill up the gaps in the rules if the rules are silent on the subject but the executive orders cannot be issued which are inconsistent with the statutory rules already framed. In Laxman Dundappa Dhamanekar and another Vs. Management of Vishwa Bharata Seva Smithi and another, JT 2001 (8) SC 171 also the same view was taken. In K. Kuppusamy and another Vs. State of T.N. And others, 1998 (8) SCC 469 the Court said that statutory rules cannot be overridden by executive orders or executive practice and merely because the government has taken a decision to amend the rules, it does not mean that the rule stood obligated. So long as rules are not amended in accordance with the procedure prescribed under law the same would continue to apply and would have to be observed in words and spirit. In Chandra Prakash Madhavrao Dadwa and others Vs. Union of India and others, 1998(8) SCC 154 also the Apex Court expressed the same view holding that the executive orders cannot conflict and override the statutory rules. The executive instructions cannot supplant rules, held in Indian Airlines Officers' Association Vs. Indian Airlines Ltd. and Ors., 2007(10) SCC 684; Dhananjay Malik and Ors. Vs. State of Uttaranchal and Ors., 2008(4) SCC 171; and, S. Sivaguru Vs. State of Tamil Nadu and others, (Civil Appeal Nos. 4483-4485 of 2013, decided on 07.05.2013).

52. In State of Kerala and Ors. Vs. K. Prasad and another, 2007(7) SCC 140 the Court said that even an executive order is required to be made strictly in consonance with the Rules. Therefore, when an executive order is called in question, while exercising power of judicial review, the Court is required to see whether government has departed from such Rules, and if so, the action, of the government is liable to be struck down. It has been followed in The Accountant General, M.P. Vs. S.K. Dubey and another, 2012(3) SCALE 124. The same view has been taken by a Division Bench of this Court (of which I was also a Member) in Shiv Raj Singh Yadav Vs. State Of U.P. And Others Special Appeal No. 375 of 2005, decided on 27th May 2011.

53. In view thereof, question no.4 is answered in favour of petitioner and it is held that impugned order dated 24.06.2011 (Annexure 16 to writ petition), is illegal, in so far as it has directed for regularisation in Group 'C' and 'D' posts with respect to vacancies which occurred/existed/created after commencement of Rule 1998 and 2001.

54. The discussion made above leaves no manner of doubt that petitioner in the case in hand is entitled to be considered for regularisation, subject to the conditions, that, his seniority entitles him for consideration for regularisation against vacancies available on the date of commencement of Rule 2001. The writ petition deserves to be allowed partly, in the following manner:-

(i) The impugned order dated 24.06.2011 (Annexure 16 to writ petition), is hereby declared illegal and is quashed, in so far it has directed for considering regularisation of a daily wager against a vacancy occurring subsequent to the date of commencement of Regularisation Rules, 1998 and 2001 (as amended from time to time), as the case may be.

(ii) The petitioner shall be considered for regularisation.

(iii)    For the said purpose:
 
(a)	the respondents shall prepare a list of eligible candidates in order of seniority;
 
(b) 	eligible candidates in order of seniority shall be considered against vacancies available on the date of commencement of 2001 Rules, following the procedure prescribed therein;
 
(c) 	regularisation, if any, already made by respondents in complete disregard of Rules 2001, as read and interpreted above, shall be subject to ultimate orders of regularisation, passed pursuant to this order.
 

(iv) The order(s) of regularisation, made/issued, without following procedure of preparation of seniority list etc., as discussed above, would confer no right upon individual(s) concerned. The respondents competent authority shall review all such cases, and after giving an opportunity of hearing to all concerned parties, shall pass appropriate orders so as to ultimately implement, apply and follow the Rules 2001, strictly, and in true spirit thereof.

55. The petitioner shall be entitled to cost, which I quantify at Rs.2000/-

Dated: 25.10.2013

Akn/AK