Manoj Kumar vs State Of U.P. & Others
2018 Latest Caselaw 2130 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 34
 

 
Case :- WRIT - A No. - 41863 of 2002
 

 
Petitioner :- Manoj Kumar
 
Respondent :- State Of U.P. & Others
 
Counsel for Petitioner :- Yogendra Kumar Srivastava,A.Khare,Siddharth Khare
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Sudhir Agarwal,J.

1. Heard Sri Umang Srivastava, Advocate, holding brief of Sri Siddharth Khare, learned counsel for the petitioner and learned Standing Counsel.

2. That petitioner was engaged as Seasonal Assistant Wasil Baqi Nawis in Collectorate, Mainpuri on 01.07.1999. Present writ petition has been filed in 2002 claiming regularization on the said post as also a mandamus commanding respondents to allow him to work in substantive vacancy.

3. Learned counsel for the petitioner could not show any provision whereunder petitioner is entitled to be considered for regularization on the post of Assistant Wasil Baqi Navis having worked as Seasonal Assistant Wasil Baqi Navis since 1999. It appears that initially, petitioner was engaged as Seasonal Assistant Wasil Baqi Navis on 01.7.1999 for one season whereafter it automatically ceased. Thereafter, from time to time, he was engaged for a certain duration but it is evident that his engagement was not continuous.

4. Counsel for petitioner could not dispute that considering the manner in which he has been engaged from time to time neither it can be said that he was a temporary employee or ad hoc employee nor he can claim regularisation under U.P. Regularisation of Ad-hoc Appointments (On Posts Outside the Purview of Public Service Commission) Rules, 1979 (hereinafter referred to as the "Rules, 1979"). He could not place any other provision to show that petitioner can be considered for regularisation thereunder.

5. Recruitment to the post of ministerial staff in District level offices is governed by the statutory rules, namely, U.P. District Offices (Collectorates) Rules, 1980 framed in exercise of power under proviso to Article 309 of the Constitution (hereinafter referred to as "Rules, 1980"). Rule 5 of aforesaid Rules provides sources for recruitment to various category of ministerial services, which includes Assistant Wasil Baqi Nawis in Category ''A' for which recruitment is to be made by direct recruitment or by promotion of Group-D employees in accordance with provisions of Subordinate Officers Ministerial Staff (Direct Recruitment) Rules, 1975, as amended from time to time. Rest of the ministerial posts, which have been placed in categories B, C, D & E are liable to be filled in by promotion. Category 'A' under Rule 5 only necessary to be reproduced which says as under :

"5. Sources of Recruitment :- Recruitment to the various categories of posts in the Service shall be made district-wise from the following sources :

Category ''A'

Assistant Bill Clerk, Ahalmad, Naib Nazir (Grade II), Library Clerk, Assistant Routine Clerk, Assistant Revenue Clerk, Assistant Revenue Clerk (Grade III), Assistant English Record Keeper, Assistant Judicial Assistant (Grade III), Arms Forms-Keeper Appeal Ahalmad, Assistant Record Keeper, Arrangers, Weeders, Copyist, Assistant Local Bodies Clerk, Syaha Navees, Suits Clerk, Judicial Moharrir, Revenue Moharrir, Kurk Amin, Assistant Record Keeper (Indexer), Town Clerk, Typist, Land Acquisition Clerk, Assistant Excise Clerk, Stamp Clerk, Assistant Record Keeper (Revenue), Assistant Record Keeper (Judicial) Despatcher, Assistant Record Keeper, (Lekhpal), Political Pension Clerk, Local Bodies Clerk, Assistant Commissioner's Clerk, Cell Clerk, Junior Clerk, Assistant Session Clerk, Nazul Clerk, Assistant Moharrir (Judicial), Embossing Clerk, Junior Clerk, Freedom Fighters Clerk, Complaints Clerk, Assistant General Clerk, Small Saving Clerk, Honorary Court Clerk, Auction Clerk, Suits Clerk (Grade II), Land Record Clerk, Mutation Clerk, Assistant Record Keeper, Teleprinter Operator, Assistant Vasil Baqi Navis, Ceiling Clerk, Assistant Chief Revenue Accountant, Agriculture Income Tax Clerk, Government State Clerk, Moneylending Clerk, Finance and Revenue Clerk, Mela Clerk, Assistant Suits Clerk, Ziledar Government Estate and any other ministerial posts in the scale of pay Rs. 200-320.

By direct recruitment and promotion of Group ''D' employees in accordance with the provisions of the Subordinate Offices Ministerial Staff (Direct Recruitment) Rules, 1975 as amended from time to time: Provided that subject to the provision of Rue 6 where paid Apprentices were enlisted before the commencement of these Rules in accordance with the G.O. no. B-2876/IB-149B/59, dated August 16, 1961, they shall, if available, be considered for appointment to the post in Category ''A' before appointment are made by direct recruitment and promotion

6. The aforesaid Rules, 1980 nowhere contemplates any regularization on the post of Assistant Wasil Baqi Navis. On the contrary, direct recruitment is to be made only after advertisement of vacancies and complying with entire procedure of selection provided therein.

7. The question whether regularisation can be allowed simply because a person has worked for some time has been considered in a catena of decisions by various Courts. A Constitution Bench in Secretary, State of Karnataka Vs. Uma Devi (2006) 4 SCC 1 has held that regularisation is not a source of recruitment and if initial appointment was made without complying with the requirement of Article 16 (1) of Constitution, regularisation is not permissible particularly in absence of any statutory provision. I do not propose to give exhaustive list of all such cases, but it would be appropriate to place on record as to how the matter, of late, has been treated by the Apex Court in the light of the law laid down by Constitution Bench in Uma Devi (supra). Deprecating practice of State making appointment in ad hoc manner without caring to the recruitment in accordance with rules, the Court in State of Karnataka & others Vs. G.V. Chandrashekhar JT 2009 (4) SC 367 said that State Government should not allow to depart from normal rule and indulge in temporary employment in permanent posts. Court is bound to insist upon the State to make regular and proper recruitment. The Court is also bound not to encourage or shut its eyes to the persistence transgression of the rules of regular recruitment. Any direction to the State to consider the persons for regularisation even though they have not been recruited in accordance with rules would only encourage the State to flout its rules and to confer undue benefits on a selected few at the cost of many waiting to compete. Adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court of law and even a Court of equity would certainly be disabled to pass an order upholding violation of Article 14 or directing the State to overlook the need of compliance of Article 14 read with 16 of Constitution of India and thereby give certain advantage to a person who is beneficiary of such violation. Considering the scheme of public employment in the context of fundamental rights and in particular the right of equal opportunity of employment, this Court would insist upon appointment to be made in terms of relevant rules and after a proper competition amongst qualified persons instead of conferring a right on non selected appointees who have come from a channel not recognised in law. Such appointees cannot be conferred a valid entry being in breach of Articles 14 and 16 of the Constitution. In G.V. Chandrashekhar (supra), the Apex Court also said :

"If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularisation, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because an employee had continued under cover of an order of the court, which we have described as "litigious employment" in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service."

8. The same view has been reiterated in Man Singh Vs. Commissioner, Garhwal Mandal, Pauri & others JT 2009 (3) SC 289.

9. In State of Bihar Vs. Upendra Narayan Singh & others (2009) 5 SCC 65, the Court held that any regular appointment made on a post under the State or Union without issuing advertisement, inviting applications from eligible candidates and without holding a proper selection where all eligible persons get a fair chance to compete is in violation of guarantee enshrined under Article 226 of the Constitution. Ad hoc/ temporary/ daily wage employees are not entitled to claim regularisation in service as a matter of right. If an illegality or irregularity has been committed in favour of any individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior Court for repeating or multiplying the same irregularity or illegality or for passing wrong order.

10. In Pinaki Chatterjee & others Vs. Union of India & others 2009 (5) SCC 193, Court observed that it is no doubt true that respondents under certain circumstances had been appointed directly as casual Mates and they continued as such and further by virtue of their continuance, they acquired temporary status but that by itself does not entitle them to be regularised as Mates since that would be contrary to the rules in force. The Court further held that the respondents did not acquire a right for regularisation as Mates from the mere fact of their continuance as casual mates for a considerable period.

11. State of Uttaranchal Vs. Alok Sharma & others JT 2009 (6) SC 463, Harminder Kaur & others Vs. Union of India & others 2009 (7) SCALE 204, State of Madhya Pradesh & another Vs. Mohd. Abrahim 2009 (7) SCALE 609, State of Rajasthan & others Vs. Jagdish Narain Chaturvedi 2009 (8) SCALE 28, General Manager, Uttaranchal Jal Sansthan Vs. Laxmi Devi & others (2009) 7 SCC 205, State of Punjab & others Vs. Surjit Singh & others JT 2009 (10) SC 424, State of Rajasthan and others Vs. Daya Lal & others 2011(2) SCC 429 and State of Bihar Vs. Chandreshwar Pathak (2014) 13 SCC 232 are some other authorities where Apex Court has reiterated the same view.

12. In view of the above discussion, I find that neither the petitioner is entitled for regularisation nor the relief as sought in the present writ petition can be allowed to the petitioner.

13. The writ petition is devoid of merit. Dismissed.

14. There shall be no order as to costs.

Order Date :- 24.8.2018

KA