Ravindra Pratap Singh And 13 Ors. vs State Of U.P.Through ...
2018 Latest Caselaw 1451 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

								A.F.R.
 

 
Court No. - 2					         
 
Case :- SPECIAL APPEAL No. - 440 of 2017
 
Appellant :- Ravindra Pratap Singh And 13 Ors.
 
Respondent :- State Of U.P.Through Prin.Secy.Deptt.Of Law Lko.And 2 Ors.
 
Counsel for Appellant :- Manish Mathur,Ram Singh 
 
Counsel for Respondent :- C.S.C.,Gaurav Mehrotra 
 

 
					And
 

 
Case :- SPECIAL APPEAL No. - 444 of 2017
 
Appellant :- Sarvesh Chandra Chaudhary And 4 Ors.
 
Respondent :- State Of U.P.Through Prin.Secy.Deptt.Of Law Lko.And 2 Ors.
 
Counsel for Appellant :- Akhilesh Kumar Kalra,Avinash Chandra 
 
Counsel for Respondent :- C.S.C.,Gaurav Mehrotra 
 

 
Hon'ble Devendra Kumar Upadhyaya,J.

Hon'ble Rang Nath Pandey,J.

Since, the subject matter of both these special appeals is the same i.e. the judgment and order dated 14.09.2017 passed by learned Single Judge, whereby writ petitions filed by the appellants have been dismissed, with the consent of learned counsel appearing for the parties, both the appeals are being decided by the common judgment which follows:

Heard Sri J.N. Mathur, learned Senior Advocate, assisted by Sri Manish Mathur, Sri Akhilesh Kalra and Sri Avinash Chandra representing the appellants, learned Additional Chief Standing Counsel representing the State respondents and Shri Gaurav Malhotra learned counsel representing respondent number 2 and 3.

The facts of the case, which can be culled out from the pleadings available on record and as per the submissions made by the learned counsel representing the respective parties are that all the 19 appellants - petitioners were engaged on ad hoc basis as Class-III employees in Ambedkar Nagar judgeship. Out of these 19 appellants - petitioners, Manish Kumar Malaviya was initially engaged on 6.4.1998 on ad hoc basis, rest 17 appellants-petitioners were initially engaged in the year 1999-2000 and one Rajneesh Kumar Mishra was engaged in the year 2001. Initial engagement of all the petitioners - appellants was made for a period of three months, which term was extended from time to time.

In the year 2001, an advertisement was issued for direct recruitment of Class-III employees which led the appellants-petitioners to file several writ petitions before this Court which were clubbed together with the leading writ petition being Writ Petition No. 7544 (S/S) of 2003. In the said bunch of writ petitions, an order was passed on 01.08.2006 providing therein that appellants-petitioner may apply in response to the advertisement and their cases shall be considered along with other candidates. It was further observed that the District Judge may send their names to Hon'ble Court on administrative side for considering if they may be granted relaxation in age. It was also provided in the said order that it will be open for the District Judge and Selection Committee to take into account the length of service and experience e.t.c. of the petitioners. It was further directed that till the selection process was over, appellants-petitioners would be allowed to continue in service in the same capacity.

The selection which was initiated by issuing the advertisement for fresh recruitment on Class-III posts in Ambedkar Nagar judgeship was, however, cancelled though it was scheduled earlier. The petitioners thereafter are said to have continued to discharge their duties and work as ad hoc employees pursuant to the order dated 1.8.2006 passed by this court in the writ petitions filed by them earlier.

Thus, the regular selection could not be held pursuant to the advertisement issued in the year 2001 and the appellants-petitioners continued to work on ad hoc basis and in the meantime, it appears that the petitioners made some representation to the District Judge praying therein that since they have continued to work on ad hoc basis for fairly a long period of time, their services may be regularized. On the said representation, the then District Judge Ambedkar Nagar constituted a committee vide order dated 28.05.2012 under the chairmanship of an Additional District Judge and comprising of two other members, one Judicial Magistrate and the other, an Additional Civil Judge (Junior Division). The said committee submitted its

report on 12.07.2012 making recommendation therein that the appellants-petitioners may be regularised in service. Pursuant to the aforesaid recommendation made by the said committee on 12.07.2012, the District Judge passed orders of regularising the services of the appellants-petitioners on 09.11.2012 and since then they had been working as regular Class-III employees. However by an order dated 16.08.2014, the District Judge while reconsidering the process of regularisation of services of the appellants-petitioners undertaken earlier, has declared the order of regularisation to be non-est. By another order passed on the same day i.e. 16.08.2014, the District Judge withdrew the order whereby appellants-petitioners were granted the benefits of increments and certain other benefits. District judge passed a third order on 16.08.2014 whereby recovery of emoluments paid to the appellants-petitioners was required to be made. It is, thus, these three orders dated 16.08.2014 which were challenged by the petitioners by filing two separate writ petitions namely Writ Petition No. 4813 (S/S) 2014 and Writ Petition No. 5530 (S/S) 2014.

The judgement and order under appeal dated 14.09.2017 passed by Hon'ble Single Judge decides

the aforesaid two writ petitions along with the earlier writ petitions filed by the appellants-petitioners challenging the advertisement issued in the year 2001.

Submission of learned counsel appearing for the appellants impeaching the judgement and order dated 17.09.2017 passed by learned Single Judge is primarily two folds. Firstly, it has been vehemently argued on behalf of the appellants-petitioners that since vide order dated 09.11.2012 their services were regularised and the said order was given effect to and further that the appellants-petitioners had drawn the benefit of the said order as such before passing the order dated 16.08.2014 whereby the order of regularisation dated 09.11.2012 has been held to be in-operative and non-est, it was incumbent on the part of the District Judge to have given an opportunity of hearing and putting forth their respective cases, to the appellants-petitioners. It has thus been argued that appellants-petitioners were not given any opportunity of being heard before passing the order dated 16.08.2014, and hence the impugned action on the part of the respondents clearly suffers from the vice of non-observance of principles of natural justice. Thus the submission is that the Hon'ble Single Judge has completely ignored this legal aspect of the matter while passing the judgment and order under appeal and the finding recorded by Hon'ble Single Judge is erroneous, hence the same is not sustainable.

The second argument raised by learned Counsel appearing for the appellants is that the order dated 16.08.2014 which was challenged before Hon'ble the Single Judge, in fact, amounts to reviewing the earlier order dated 09.11.2012 and since there is no such authority vested in the District Judge, he could not have reviewed his earlier order of regularization of services of the appellants-petitioners passed on 09.11.2012. In support of this ground, further submission made by learned Counsel appearing for the appellants is that the matter relating to the regularization of the appellants-petitioners was not there before the Disrict Judge while passing the order dated 16.08.2014 as he was considering grant of increments in pay to the appellants-petitioners. It has been further submitted that there was, in fact, no direction from any superior authority or by this Court to reconsider the matter relating to regularization of services of the appellants-petitioners and as such there was no occasion for the District Judge to have gone into the legality or otherwise of the order of regularization of the services of the appellants dated 19.11.2012. On behalf of appellants-petitioners, it has thus been argued that Hon'ble Single Judge has therefore erred in law in not considering this aspect of the matter which renders the judgment and order under appeal liable to be set aside.

Further argument as canvassed on behalf of the learned Counsel appearing for the appellants-petitioners is that irrespective of the fact whether petitioners-appellants are eligible for being regularized in service or whether their regularization in service was made lawfully or not, they will still be entitled to continue to work at least in ad hoc capacity in Ambedkar Nagar, Judgeship.

In support of the submission that irrespective of eligibility/entitlement of appellants-petitioners to continue as regular employee or to be considered for regularization, they shall still be entitled to continue in ad hoc capacity, several orders and judgments have been cited by the learned Counsel for the appellants. These orders and judgments will be discussed at a later part of this judgment. First of all, what requires consideration by the Court in this case is as to whether appellants-petitioners were entitled to be given any opportunity of hearing before the order dated 16.08.2014 was passed whereby the order of regularization was set at naught.

So far as the legal principle relating to observance of principles of natural justice in administrative actions is concerned, it is well settled that principles of natural justice cannot be formulated in any straight jacket. As to whether particular exigency requires providing opportunity of hearing depends on the facts and circumstances of a case. So far as the instant case is concerned, it has been argued by Sri Gaurav Mehrotra, learned Counsel representing respondent no. 2 and 3 that since the appellants-petitioners were not eligible at all for being regularized on their respective posts in terms of the provisions contained in any statutory Rules, Circular or Order, hence giving opportunity to them would have amounted to empty formality and thus if the appellants are able to establish before this Court that they, in any manner, are eligible for being regularized under some Rules, Circulars or Orders, their cases may be considered by this Court for regularization of their services.

The committee constituted by the District Judge, which submitted its report recommending regularization of services of the appellants comprised of three judicial officers. The said report dated 12.07.2012 is on record at page 115 of the paper-book of Special Appeal No. 444 of 2017. The report clearly indicates the respective dates of the engagement of all the appellants-petitioners initially on ad hoc basis. A perusal of the date of initial engagement of all the appellants as mentioned in the report dated 12.07.2012 clearly reveals that except one Manish Kumar Malviya whose initial date of engagement is 06.04.1998, rest all other appellants-petitioners were engaged initially on ad hoc basis after 30.06.1998. This date 30.06.1998 is relevant for the reason that it is the cut off date for the purposes of regularizing the services of ad-hoc employees as per the prescriptions available in Rule 4 of the Uttar Pradesh Regularisation of Ad-hoc Appointment (On posts outside the Purview of the Public Service Commission) Rules 1979 (hereinafter referred to as ''Regularization Rules, 1979') as amended vide the Uttar Pradesh Regularization of Ad Hoc Appointments (On Posts Outside the Purview of the Public Service Commission) (Third Amendment) Rules, 2001 (hereinafter reffered to as the ''Amending Rules, 2001'), which came into effect from 20.12.2001. The said amending Rules, 2001 were notified on 20.12.2011.

As per Regularization Rules, 1979, as amended in the year 2001, those ad hoc employees, who were directly appointed in the said capacity on or before 30.06.1998 were to be considered for regularization, provided such employees were continuing in service as such on the commencement of the Amending Rules, 2001, possessed requisite qualification prescribed for regular appointment on the date of initial appointment and had completed three years of service in ad hoc capacity. Thus in terms of Rule 4 as amended by Amending Rules, 2001, any ad hoc employee appointed in ad hoc capacity on or before 30.06.1998 was eligible for being considered for regularization of his services and thus any other ad hoc employee initially engaged in ad hoc capacity after the said cut off date of 30.06.1998, was not, at all, in any case eligible to be considered for regularization.

We at this juncture also notice the provision of Rule 8 of Regularization Rules, 1979, which is extracted herein below:

"8. Termination of Services:- The services of a person, appointed on ad-hoc basis who is not found suitable, or whose case is not covered by sub-rule (1) of Rule 4 of these rules, shall be terminated forthwith and, on such termination, he shall be entitled to receive on month's pay."

Thus, we may notice that it is not only that in terms of the scheme of Regularization Rules, 1979, those ad hoc employees who were appointed after 30.06.1998 were ineligible to be considered for regularization of their services but also that by operation of law i.e. by operation or Rule 8, their services were to be terminated forthwith. The committee though has taken the Amending Rules, 2001 into consideration but appears to have completely misread the provisions thereof as also the provisions of circular of the Court dated 05.11.2009, which finds mentioned in the report dated 12.07.2012. The circular dated 05.11.2009 issued by this Court is available on record, which is addressed to all District Judges. By the said circular, the District Judges were required to terminate/cease the services of the ad hoc employees working in the judgeship who were initially engaged in the ad hoc capacity after 31.12.2001, which is the cut off date as prescribed in Uttar Pradesh Regularization of Daily Wages Appointment on Group 'D' Posts Rules, 2001 (hereinafter referred to as the ''Group ''D' Regularization Rules, 2001'). Though it is not 31.12.2001 but 20.12.2001, which is the date of enforcement of Group ''D' Regularization Rules, 2001.

The committee while considering the aforesaid circular dated 05.11.2009 has wrongly understood that cut off date mentioned in the said circular will be relevant for the purposes of ceasing the services of Class III employees as well, who were appointed after 31.12.2001. As a matter of fact, the date 31.12.2001 occurring in the circular dated 05.11.2009 appears to have been borrowed from Group 'D' Regularization Rules, 2001, wherein provision for regularization of services of only Group ''D' employees initially appointed on ad hoc capacity can be found. The said rules have no application so far as issue of regularization of services of class III employees initially appointed on ad hoc basis is concerned. The cut off date as mentioned in the said rules, thus, is to be understood only in respect of Group D employees. We may also, at this juncture, clearly indicate that the provisions of Group ''D' Regularization Rules, 2001 are statutory in nature having been issued by the State Government in exercise of its jurisdiction vested under Article 309 of the Constitution of India and thus the circular dated 05.11.2009 issued by the Registrar General of the Court ought to have been read and understood in the light of the said statutory provisions which, without any ambiguity are applicable only to Group D employees initially engaged in ad hoc capacity and not to Class III employees.

We may also notice that the Circular dated 05.11.2009 issued by the Registrar General to the District Judges wrongly mentions 31.12.2001 as cut off date under the Group 'D' Regularization Rules, 2001, for the reason that the said rules were published in the Gazette on 20.12.2001 and as per Rule 1(2) of the said rules, they came into force at once. Thus the cut off date in the circular dated 05.11.2009 ought to have been mentioned 20.12.2001 and not 31.12.2001.

The committee constituted by the District Judge in its report dated 12.07.2012 has also referred to a judgment of this Court passed in Writ Petition No. 6219 of 1993: Arvind Kumar Yadav and others Vs. State of U.P. and others, wherein it was held that the cut off date for the purposes of regularizing the services of adhoc employees as mentioned in the rules which were under consideration in the said case was arbitrarily fixed and as a matter of fact the cut off date should be the date of commencement of the rules which were under consideration in the said case. Accordingly, the committee has treated 31.12.2001 as the cut off date for the purposes of considering the cases for regularization of Class III employees who were initially appointed on adhoc basis. The basic premise on which the committee proceeded to treat 31.12.2001 as the cut off date is completely erroneous and, as observed above, is based on complete misreading of the Regularization Rules, 1979 as amended by Amending Rules, 2001. The said premise on the basis of which the committee has proceeded while submitting its report dated 12.07.2012 is based on the provisions of Group ''D' Regularization Rules, 2001, which in case of Class III employees is inapplicable. We may further notice that the judgment rendered by Hon'ble the Single Judge in the case of Arvind Kumar Yadav (supra), which has been taken into consideration by the Committee for arriving at the conclusion regarding cut off date to be 31.12.2001, has subsequently been held to be not a good law by a Division Bench of this Court in Civil Misc. Writ Petition No.17907 of 1996, vide its judgment and order dated 24.02.1997. The judgment rendered by the Division Bench dated 24.02.1997 in the aforesaid case stands affirmed by Hon'ble Supreme Court vide judgment dated 14.11.2000 in the case of Subedar Singh and Others Vs. District Judge, Mirzapur and another, reported in (2001) 1 SCC 37.

The Committee constituted by the District Judge, has further erred in presuming that Writ Petition No. 7544 (SS) of 2003 was dismissed on 31.08.2006. As a matter of fact, the inference drawn by the Committee that the said writ petition was dismissed is based on some information available on the web-site or the computer, which reflected the said writ petition having been disposed of. However, the fact remains that on the date the Committee submitted its report i.e. on 12.07.2012, the said writ petition was still pending and even if the Committee proceeded on the basis of information available on Computer/web-site, then disposal of the petition would not necessarily mean its dismissal. In case the petition is allowed or is disposed of with certain directions, Computer/web-site in that event as well, would show the petition to be disposed of. In these circumstances, it was incumbent upon the members of the Committee to have ascertained the correct facts about the pendency or disposal of Writ Petition no. 7544 (SS) of 2003. The fact that on the date Committee submitted its report, the said writ petition was pending, has not been denied by appellants-petitioners.

Members of the Committee appeared to have been mislead by the circular of the court dated 05.11.2009. The said circular talks about restoring back the procedure for appointment of Class III and Class IV employees under the judgeship. It further refers to Uttar Pradesh Regularization of Daily Wages Appointment on Group 'D' Posts Rules, 2001, however, the circular does not clearly states that it shall be applicable only in respect of ad hoc Group ''D' employees.

As observed above, the Committee while submitting its report has considered the the Uttar Pradesh Regularisation of Ad hoc Appointments (On Posts Outside the Purview of the Public Service Commission) (third amendment) Rules, 2001, which came into effect with effect from 20.12.2001 and the cut off date mentioned in the said third Amendment Rules, 2001 is 30.06.1998, however, without taking into account the statutory provisions contained in third Amendment Rules, 2001 applicable to Class III employees, the Committee came to the conclusion that cut off date for regularization of Class III and Class IV employees is 31.12.2001. As a matter of fact, 31.12.2001 was the date mentioned in the circular of the Court for the purposes of requiring the ad hoc employees to cease to work and not for the purposes of consideration of their cases for regularization of their services.

The order regularizing the services of the petitioners dated 09.11.2012 was passed by the District Judge, Ambedkar Nagar, on the basis of the report dated 12.07.2012 submitted by the Committee constituted by him. Since the report of the committee itself is absolutely erroneous, illegal and against the statutory prescriptions available in the Regularization Rules, 1979 as amended in the year 2001 hence the order of regularization is also completely erroneous and illegal and thus the District Judge while passing the order dated 16.08.2014 has rightly held the regularization of services of the appellants-petitioners to be no-nest and inoperative in the eyes of law.

When confronted with the aforesaid facts and legal position, learned Counsel for the appellants-petitioners could not satisfy the Court as to how the report of the Committee dated 12.07.2012 was in conformity with the Regularization Rules, 1979 as amended in the year 2001 or in conformity with any other statutory prescriptions or Rule or Order or Circular. In fact, in the facts and circumstances of the case, the appellants-petitioners do not have any material to establish their claim for consideration of their case for regularizing their services.

At this juncture, it may be noticed that out of all the appellants-petitioners, only one, namely, Manish Kumar Malviya, was engaged on ad hoc basis as a class III employee before the cut off date mentioned in Regularization Rules 1979 as amended in the year 2001 i.e. before 30.06.1998. The said employee i.e. Manish Kumar Malviya, was initially engaged in ad hoc capacity on 06.04.1998 and as such he is the only one amongst the appellants-petitioners, who was eligible to be considered for regularization of his services, of course, subject to fulfillment of other requirements as envisaged under the Regularization Rules, 1979 as amended in the year 2001.

Having regard to the aforementioned indisputable facts and legal position, we are of the opinion that it is a case where even if the appellants-petitioners were given an opportunity of hearing by the District Judge before passing the order dated 16.08.2014, the same would have been a futile exercise as they have utterly failed to show before us any material which entitled them to be considered for regularization, except in case of Manish Kumar Malviya.

Hon'ble Single Judge in the judgment and order under appeal has discussed in detail citing various judgment of Hon'ble Supreme Court as to under what circumstances principles of natural justice need not be observed. We are, thus, in agreement with the finding rendered by Hon'ble Single Judge that in the instant case, insistence for compliance for principles of natural justice before passing the order dated 16.10.2014 was unwarranted and uncalled for.

The first submission made by learned Counsel for the appellant, thus, merits rejection.

As regards the second limb of argument in support of these special appeals as advanced on behalf of the appellants to the effect that order dated 16.08.2014 amounted to reviewing the earlier order of regularizing the services of the appellants-petitioners dated 09.11.2012, we may only observe that the District Judge in a district judgeship is not only the appointing authority of Class III and Class IV employees but he is also the administrative incharge of the district judgeship and if any apparent illegality comes to his notice, he is bound to correct the same as and when he notices it. We have already held above that the report submitted by the three members' committee constituted by the District Judge recommending regularization of services of the appellants-petitioners is absolutely illegal and is based on complete misreading of the statutory prescriptions as also the circular of the court dated 15.11.2009. The decision to regularize the services of the appellants-petitioners was in fact completely no-nest in the eyes of law and as such in case any such decision which is void ab initio is noticed by the District Judge and he takes corrective measures for declaring such a decision to be inoperative, in our considered opinion, it cannot be said that he is not authorized to do so. Submissions made by learned Counsel for the appellants-petitioners in this regard that in absence of any direction by any superior authority or by this Court, there was no occasion for the District Judge to have re-visited the decision relating to regularization of services of the appellants-petitioners, hence, is also not tenable. On the contrary, we have no hesitation to hold that if at any subsequent occasion and by any means the District Judge notices the illegality or mistake or any flaw in administrative decisions/actions, he is rather duty bound to rectify the same. Regard being had to the facts of this case as discussed above, we are of the considered opinion that District Judge did not commit any illegality in revisiting the decision of regularizing the services of the appellants-petitioner by passing the order dated 16.08.2014.

The second argument raised on behalf of the appellants -petitioners, thus, also does not hold any ground which accordingly is untenable.

We now proceed to consider the next submission made by the learned counsel appearing for the appellants-petitioners according to which irrespective of the fact whether the appellants-petitioners were/are eligible for regularization in services or whether their regularization in services was made lawfully or not, they will still be entitled to continue to work in ad-hoc capacity. In this regard certain orders passed by this Court and Hon'ble Supreme Court have been referred to emphasise that in similar circumstances certain other ad-hoc employees in other judgeships have been permitted to continue to work in ad-hoc capacity.

It has been stated that in Writ Petition No. 6291 of 2009 (Anjani Kumar Dubey and others Vs. High Court judicature at Allahabad others, learned single judge has considered the case of the petitioners therein, where re-appointment to the petitioners on ad-hoc basis was refused. The said writ petition was dismissed on 04.01.2010 by Hon'ble the Single Judge. Against the said order dated 04.01.2010 passed by the learned Single Judge, a special appeal was preferred, namely, Special Appeal No. 65 of 2010 wherein vide order dated 21.01.2010 a division bench of this court had stayed the operation of the order dated 04.01.2010 passed by the learned Single Judge.

We, however, may observe that the said case of Anjani Kumar Dubey has a distinguishing feature for the reason that the petitioners therein were Class-IV (Gropup ''D') employees whereas in the instant case the appellants-petitioners are Class III employees.

It is also noticeable that Special Appeal No. 65 of 2010 has subsequently been dismissed by a bench of three Hon'ble Judges of this court vide judgment dated 04.01.2013. The matter in the case of Special Appeal No. 65 of 2010 appears to have been taken to Hon'ble Supreme Court and the learned counsel appearing for the appellants-petitioners has referred to an order dated 05.03.2013 passed by Hon'ble Supreme court in SLP (Civil) No. 9192 of 2013 whereby the judgment impugned therein has been stayed. The said order dated 05.03.2013 has been ordered to be continued until further orders by Hon'ble Supreme court on 16.01.2017, however, as stated above, the said mater pertains to Class-IV employees and not Class-III employees and accordingly, the orders passed in the said matter do not come to the rescue of the petitioners.

It has been further submitted by the learned counsel for the appellant that since the SLP (C.) 9192 of 2013 is pending consideration before Hon'ble the Supreme Court wherein certain questions of law are engaging attention of the Hon'ble Apex Court, it would be appropriate that petitioners may be permitted to continue on ad-hoc basis till any decision is rendered in the aforesaid SLP. This submission is also of no avail to the appellants-petitioners for the reason that the said matter pertains to Group-D employees with whom appellants-petitioners cannot claim any parity on account of the fact that for regularizing the services of ad-hoc employees working in Group-D posts and the ad-hoc employees working as Class-III employees, the statutory rules for regularizing their services are different. Continuance of the appellants-petitioners at this stage even in ad-hoc capacity is impermissible keeping in view the provisions of Rule-8 of the 1979 Regularization Rules, according to which, if an ad-hoc employee is not found suitable to be regularized under the said rules or whose case is not covered by Sub Rule 1 of Rule 4 of the said Rules, his services are to be terminated forthwith. In the instant case except the case one of the appellant-petitioner namely, Manish Kumar Malviya, the case of none of the appellants-petitioners can be said to be covered by Regularizing Rules-1979 as amended in the year 2001. Thus, except Manish Kumar Malviya, no other appellant-petitioner can be said to be entitled to continue, even on ad-hoc basis.

Accordingly, we do not find any force in the aforesaid submission made by learned counsel appearing for the appellants-petitioners.

In view of the discussions made above, we do not find any illegality or error in the judgment and order passed by the learned Single Judge, which is under appeal herein, however, there are three further aspects of the entire issue in this case which needs to be noted by us before parting with this case.

The first aspect is in relation to the right of one of the appellants-petitioners namely, Manish Kumar Malviya for consideration of his case for regularizing his services under the Regularizing Rules, 1979 as amended in the year 2001 for the reason that he was admittedly engaged on ad-hoc basis prior the cut-off date mentioned in Regularizing Rules, 1979 as amended in the year 2001, i.e. prior to 30.06.1998. Manish Kumar Malviya was initially engaged on ad-hoc basis on 06.04.1998 as such he was/ is eligible to be considered for regularization of his services in terms of the statutory prescriptions available in the Regularizing Rules, 1979 as amended in the year 2001.

The second aspect which also needs consideration is with regard to the order dated 16.08.2014 whereby certain recoveries have been ordered to be made from the appellants-petitioners. Having regard to the overall facts and circumstances of the case and also taking into account the fact that while the case of the petitioners was considered by the committee constituted by the District Judge for regularization of their services, they had not misrepresented or suppressed any material information or fact and further that since they have worked and discharged their duties all along, it will be appropriate to direct that no recovery from the appellants-petitioners of the emoluments paid to them should be made pursuant to the order dated 16.08.2014 passed by the District Judge.

The third aspect which also needs to be considered is the imposition of cost as ordered by the learned Single Judge in the judgment under appeal. In our considered opinion, regard having been given to the facts and circumstances of the case as discussed above, it does not appear appropriate to us to saddle the appellants-petitioners with the cost as imposed by the learned Single Judge.

In view of the aforesaid, these special appeals are disposed of in the following terms.

A) There is no illegality or error in the judgment and order passed by the learned Single Judge which is under challenge herein so far as it holds that the initial order of regularization of the services of the appellants-petitioners dated 09.11.2012 was illegal.

B) We are also in agreement with the finding given by the learned Single Judge that the District Judge did not commit any error or illegality while passing the order dated 16.10.2014 whereby the order of regularization of services of the appellants-petitioners dated 09.11.2012 has been held to be non-est and in-operative.

C) However, having said as above, so far as the claim of one of the appellants-petitioners namely, Manish Kumar Malviya for regularizing his services is concerned, we find it appropriate to direct the learned District Judge to consider the same strictly in accordance with the provisions contained in The Uttar Pradesh Regularisation of Ad-hoc Appointment (On Post within the Purview of the Public Service Commission) Rules, 1979 read with The Uttar Pradesh Regularisation of Ad-hoc Appointment (On Post Outside the Purview of the Public Service Commission) (Third Amendment) Rules, 2001 and take his decision within two months from the date of production of certified copy of this order.

In the meantime, he shall be engaged on ad-hoc basis forthwith, however, his continuance in ad-hoc capacity shall abide the outcome of consideration of his case for regularizing of his services to be made under this order.

District Judge concerned is directed accordingly.

D) We, further, direct that no recovery of any amount already paid to the appellants-petitioners shall be made from them pursuant to the order dated 16.08.2014.

E) It is also directed that in case any regular recruitment process or selection against Class III posts takes place in future, the appellants-petitioners may be permitted to participate in the same at the discretion of the Court and for the said purpose the Court will consider grant of relaxation in age and also grant of preference to them by giving some benefit of length of service rendered by them in ad hoc capacity by taking a decision in this regard at an appropriate level.

F) The appellants -petitioners shall also not be liable to cost as imposed by the learned Single Judge.

Order Date :- 09.07.2018

Rahul/Ashish