Sanjeev Kumar vs State Of U.P. & 2 Others
2015 Latest Caselaw 3044 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

RESERVED
 
A.F.R.
 
Court No. - 59
 

 
Case :- WRIT - A No. - 54949 of 2015
 

 
Petitioner :- Sanjeev Kumar
 
Respondent :- State Of U.P. & 2 Others
 
Counsel for Petitioner :- Siddharth Khare
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Vivek Kumar Birla,J.

1. Heard learned counsel for the petitioner as well as learned Standing Counsel appearing for the respondents and have perused the record.

2. The present petition has been filed with the following reliefs:

"(i) A writ, order or direction in the nature of mandamus commanding the respondent authorities to regularize the service of petitioner on the post of Tax Collector within a period to be specified by this Hon'ble Court.

(ii) Issue a writ, order or direction in the nature of which this Hon'ble Court may deem fit and proper under the circumstances of the case.

(iii) Award cost to the humble petitioner throughout of the present writ petition.

3. On 24.9.2015 after some arguments on the request of learned counsel for the petitioner, the case was directed to be placed on 5.10.2015 as a fresh case. The adjournment was sought by the learned counsel for the petitioner for moving an amendment application. Subsequently, the Amendment Application No. 345508 of 2015 was filed, which was allowed on 5.10.2015 and following prayer was added:

"(iv) Issue a writ, order or direction in the nature of certiorari quashing the government order dated 13.8.2015 (Annexure 1) to the writ petition insofar as it limits regularization to persons appointed prior to 31.3.1996.

4. The petitioner was appointed on 1.6.1996 on the post of Tax Collector in Nagar Panchayat, Gadhi Pukhta, Shamli, Muzaffar Nagar. The petitioner has not annexed copy of his appointment letter nor has he disclosed nature of his appointment in the entire petition, however, perusal of the record indicates that the petitioner was working either on daily wage basis or as work charged employee or purely on ad-hoc basis or on contract basis. It appears from perusal of paragraph 6 of the petition that the petitioner was engaged on contractual basis.

5. By a Government Order dated 13.8.2015 issued by the State Government, those persons who were working in the State Government or autonomous bodies or public enterprises, Nigam, local bodies, Development authorities and Zila Panchayats on daily wage basis, work charged basis or contract basis, have been regularized in case they fulfill the the minimum eligibility criteria and they are to be regularized against the available vacancies and in case vacancies are not available, they are to be regularized on supernumerary post. The said government order has been annexed as Anneuxre 1 to the petition. The cut-off date mentioned in the aforesaid government order is 31.3.1996. The petitioner was admittedly engaged on 1.6.1996 and thus, fall outside the zone of consideration as per the aforesaid government order.

6. The grounds taken in the petition are that the petitioner has not been regularized only because of his date of appointment, which is two months after 31.3.1996 i.e. 1.6.1996; there exists no justification for such discrimination; there exits no justification for regularizing such persons who were appointed uptill 31.3.1996; there is no basis to choose cut-off date i.e. 31.3.1996 and that under such circumstances the petitioner has been discriminated from being regularized in service and thus the action of the respondent authorities in regularizing only such persons appointed uptill 31.3.1996 is in clear violation of Articles 14 and 16 of the Constitution of India.

7. In support of his arguments, the learned counsel for the petitioner has placed reliance on a judgement dated 2.7.2015 of Hon'ble Apex court passed in Civil Appeal No. 4916 of 2015 (Surendra Kumar & Ors. vs. Greater NOIDA Industrial Development Authority & Ors.) to contend that in view of judgment of Hon'ble Apex court in Secretary, State of Karnataka & Ors. vs. Uma Devi & Ors., (2006) 4 SCC 1, the State Government should take steps to regularize the services of such irregular employees who have worked for more than ten years. Paragraph 53 of the aforesaid judgement of Uma Devi (supra), as quoted in paragraph 10 of the aforesaid decision in Surendra Kumar (supra), has been relied upon by the learned counsel for the petitioner.

8. Initially the government order was not under challenge but it is only by way of amendment application prayer for quashing of the government order dated 13.8.2015, insofar as it limits regularization to persons appointed prior to 31.3.1996, has been made.

9. Learned Standing Counsel appearing for the respondents submits that the government order has been passed in consonance with the directions of the Hon'ble Apex Court in the case of Uma Devi (supra) and it is within the exclusive domain of the employer or the rule making authority or the State Government to fix a cut-off date and unless any mala fide or arbitrariness is proved by the petitioner beyond any shadow of doubt, there is no occasion to quash the government order dated 13.8.2015.

10. I have considered the rival submissions and perused the record including the judgement of the Hon'ble Apex Court in Surendra Kumar (supra). It is to be noticed that the judgement of Hon'ble Apex Court is distinguishable to the present case. In the case of Surendra Kumar (supra), the issue of claim of regularization with retrospective effect was in question, which was rejected by the Hon'ble Apex Court and there was no dispute regarding the original cut-off date fixed for regularization or the date from which the appellants in the aforesaid case were regularized.

11. For proper application of the issue involved in the present petition, a reference to various decisions of Hon'ble Apex Court may be made. A reference may be made in this regard to a judgement of Hon'ble Apex Court rendered in Council of Scientific and Industrial Research and others vs. Ramesh Chandra Agrawal and another, (2009) 3 SCC 35. The relevant paragraphs 29, 33 and 38 of the aforesaid judgement are quoted as under:

"29. A "State" is entitled to fix a cut-off date. Such a decision can be struck down only when it is arbitrary. Its invalidation may also depend upon the question as to whether it has a rational nexus with the object sought to be achieved. 2.5.1997 was the date fixed as the cut off date in terms of the Scheme. The reason assigned therefor was that this was the date when this Court directed the appellants to consider framing of a regularisation scheme. They could have picked up any other date. They could have even picked up the date of the judgment passed by the Central Administrative Tribunal. As rightly contended by Mr. Patwalia, by choosing 2.5.1997 as the cut-off date, no illegality was committed. Ex facie, it cannot be said to be arbitrary.

33. Indisputably, a policy decision is not beyond the pale of judicial review. But, the court must invalidate a policy on some legal principles. It can do so, inter alia, on the premise that it is wholly irrational and not otherwise. The contention of the respondents that only two chances are granted for consideration of the candidature of the employees for the purpose of regularisation is, in our opinion, misconceived. The scheme being a one-time measure, even one opportunity could have been granted.

38. Strong reliance has been placed by the learned counsel appearing on behalf of the respondent on Ami Lal Bhat (Dr.) v. State of Rajasthan & Ors. (1997) 6 SCC 614, wherein it has been opined :

"5.........In the first place the fixing of a cut-off date for determining the maximum or minimum age prescribed for a post is not, per se, arbitrary. Basically, the fixing of a cut-off date for determining the maximum or minimum age required for a post, is in the discretion of the rule-making authority or the employer as the case may be. One must accept that such a cut-off date cannot be fixed with any mathematical precision and in such a manner as would avoid hardship in all conceivable cases. As soon as a cut-off date cannot be fixed with any mathematical precision and in such a manner as would avoid hardship in all conceivable cases. As soon as a cut-off date is fixed there will be some persons who fall on the right side of the cut-off date and some persons who will fall on the wrong side of the cut off date. That cannot make the cut-off date, per se, arbitrary unless the cut-off date is so wide off the mark as to make it wholly unreasonable." (Emphasis supplied)

12. A reference may also be made to a judgement of Hon'ble Apex court in the case of State of Rajasthan and others vs. Daya Lal and others, (2011) 2 SCC 429. The relevant paragraph 12 of the aforesaid judgement is quoted as under:

"We may at the outset refer to the following well settled principles relating to regularization and parity in pay, relevant in the context of these appeals:

(i) High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularization, absorption or permanent continuance, unless the employees claiming regularization had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and courts should not issue a direction for regularization of services of an employee which would be violative of constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularized, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularized.

(ii) Mere continuation of service by an temporary or ad hoc or daily-wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be `litigious employment'. Even temporary, ad hoc or daily- wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularization, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularization in the absence of a legal right.

(iii) Even where a scheme is formulated for regularization with a cut off date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut off date), it is not possible to others who were appointed subsequent to the cut off date, to claim or contend that the scheme should be applied to them by extending the cut off date or seek a direction for framing of fresh schemes providing for successive cut off dates.

(iv) Part-time employees are not entitled to seek regularization as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularization or permanent continuance of part time temporary employees.

(v) Part time temporary employees in government run institutions cannot claim parity in salary with regular employees of the government on the principle of equal pay for equal work. Nor can employees in private employment, even if serving full time, seek parity in salary with government employees. The right to claim a particular salary against the State must arise under a contract or under a statute.

(Emphasis supplied)

13. Perusal of the aforesaid judgement of Hon'ble Apex Court in State of Rajasthan vs. Daya Lal (supra) clearly indicates that certain principles have to be followed for the purpose of regularization and in sub para (iii) of paragraph 12 of the aforesaid judgement, it has clearly been mentioned that even where a scheme is formulated for regularization with a cut-off date, it is no possible to others who were appointed subsequent to the cut-off date or to claim or contend that the scheme should be applied to them by extending the cut-off date or seek a direction for framing of fresh scheme providing for successive cut-off dates. Relying upon the aforesaid judgement in the case of State of Rajasthan vs. Daya Lal (supra), the Hon'ble Apex Court in the case of Secretary to Government, School Education Department, Chennai vs. R. Govindaswamy and others, (2014) 4 SCC 769, in the facts and circumstances of the aforesaid case, it was clearly held that the cases were squarely covered by Clauses (ii), (iv) and (v) of the aforesaid judgement in Daya Lal and, therefore, the appeals were allowed.

14. In the present case also, the case of the petitioner is squarely covered by Clause (iii) of the aforesaid judgement in State of Rajasthan vs. Daya Lal (supra) and as such, no case for quashing the government order dated 13.8.2015 has been made out. Apart from this, the petitioner has utterly failed to point out any mala fide or arbitrariness on the part of the respondent authorities in fixing the cut-off date as 31.3.1996 or that this cut-off date is wholly irrational.

15. In such view of the matter, the present petition is devoid of merit and is dismissed accordingly.

16. There shall be no order as to costs.

Order Date :- 9.10.2015

aBHISHek