Manjur Ali vs Spl. Secretary Local Bodies U.P. ...
2018 Latest Caselaw 3689 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 34
 

 
Case :- WRIT - A No. - 42790 of 2001
 

 
Petitioner :- Manjur Ali
 
Respondent :- Special Secretary (Local Bodies) U.P. State, Lucknow & Others
 
Counsel for Petitioner :- Rajiv Sharma
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Sudhir Agarwal,J.

1. Heard Sri Rajiv Sharma, learned counsel for petitioner, learned Standing Counsel for respondents and perused the record.

2. This writ petition under Article 226 of Constitution of India has been filed by Manjur Ali praying for a writ of mandamus directing respondents to regularize petitioner on the post of Peon forthwith.

3. As per own case set up by petitioner, in 1987 he was engaged on daily wage basis to work as Peon and he worked till 31.12.1988. On the application made by petitioner, his engagement was extended by 90 days vide order dated 31.12.1988 and thereafter vide order dated 01.4.1989, it was extended until further orders.

4. On 05.09.2001, petitioner submitted representation requesting Adhyaksha, Nagar Panchayat Ghosia, Sant Ravidas Nagar as well as District Magistrate to regularize him as Peon in view of Government Order dated 08.9.1992. Having failed to receive any response, present writ petition has been filed.

5. It is evident from own averments made by petitioner that his engagement was on daily wage basis and without following procedure of recruitment and advertisement of vacancies by respondent employer. Despite repeated query, learned counsel for petitioner could not place any statutory rules or regulations conferring right upon petitioner to claim regularisation and his entire case is founded on Government Order dated 08.9.1992.

6. Government Order dated 08.9.1992 in fact refers to earlier order dated 08.01.1992 and reiterates that Local Body should act in accordance with direction contained in Government Order dated 08.01.1992. Government Order dated 08.09.1992 nowhere contemplates regularization in the teeth of procedure of recruitment provided under statutory rules but says that as per Government Order dated 08.01.1992, those daily wagers who were working on 11.10.1989 and were not fulfilling condition of continuous working for three years and 240 days in each year, may not be ceased but may be allowed to continue. The aforesaid order nowhere contemplates that daily wage employee could have been regularized ignoring procedure of recruitment provided under the rules.

7. In the present case it is not in dispute that there are statutory rules under which recruitment on the post of Peon is to be made after advertisement of vacancies so as to give equal opportunity of appointment to all concern and observing principles of equal opportunity as enshrined under Article 16(1) of the Constitution. In fact before 08.9.1992, another Government Order was issued on 28.11.1991 and the same read as under:

^^fiz; egksn;]

vkids tuin ds ,sls LFkkuh; fudk;ksa dh lwph layXu gS ftlesa 11 vDVqcj] 1989 ds ckn vfu;fer :i ls nSfud osruHkksxh deZpkfj;ksa dh fu;qfDr;kWa dh x;h gSaaA bl izdkj fu;qfDr deZpkfj;ksa dh la[;k mu LFkkuh; fudk;ksa ds uke ds lkeus vafdr gSA ;g Li"V gS fd 'kklu ds vkns'kksa ds ckn Hkh nSfud osruHkksxh deZpkfj;ksa dh fu;qfDr;kWa djuk 'kkldh; vkns'kksa dk mYya?ku gSA bu fu;qfDr;ksa ds dkj.k iz'uxr LFkkuh; fudk;ksa ij cgqr vf/kd foRrh; Hkkj c<+k gSA LFkkuh; fudk;ksa dh vkfFkZd fLFkfr bruh ttZj gS fd vius fu;fer deZpkfj;ksa dk osru gh 'kklu dk va'knku ikus ds ckn Hkh muds }kjk fd;k tkuk lEHko ugha gks ik jgk gSA /ku ds vHkko ds dkj.k dksbZ fodkl dk;Z ugha gks ik jgk gSA lM+d -vuqnku rFkk vU; vuqnkuksa dk mi;ksx Hkh ugha gks ik jgk gS - - - - rFkkxr fudk;ksa ds deZpkfj;ksa ds osru ls dVkSrh dh xbZ Hkfo"; fuokZg fuf/k dh /kujkf'k vU; dk;ksZ esa mi;ksx dj yh xbZ gSA ,slh fLFkfr esa LFkkuh; fudk;ksa esa nSfud osruHkksxh deZpkfj;kas dh fu;qfDr vR;Ur vfu;fer dk;Zokgh gSa ;g Hkh mYys[kuh; gS fd 11-10-89 rd fofHkUu LFkkuh; fudk;ksa esa dkQh la[;k esa nSfud osruHkksxh deZpkjh dk;Zjr FksA muds fu;ferhdj.k ds fy, vkUnksyu gq,A mDr frfFk dks ftu yksxksa us 3 o"kZ dh lsok vkSj izR;sd o"kZ esa 249 fnu dk dk;Z dj fy;k Fkk muds fofu;ferhdj.k gsrq inksa ds l`tu dk izdj.k fopkjk/khu gSA ,slh fLFkfr esa mDr frfFk ds ckn dh x;h fu;qfDr dk u rks dksbZ vkSfpR; gS vkSj u gh vko';drkA - - LFkkuh; fudk;ksa ds lEeq[k vafdr gSA ftuds le{k mDr izdkj ds deZpkfj;ksa dh la[;k vafdr dh x;h gSA d`i;k bu fudk;ksa fd fLFkfr psd dj ys vkSj ;fn muesa rk0 11 vDVqcj]1989 ds ckn nSfud osru deZpkjh jD[ks x;s gksa rks mudk fooj.k Hkstsa rFkk muds laca/k esa Hkh mRrjnkf;Ro fu/kkZfjr dj 'kklu dks lwfpr djsaA

,slk izrhr gksrk gS fd O;fDrxr dkj.kksa ls O;fDrxr ykHk ds fy, ,slh fu;qfDr;ka dh x;hA bl ifjizsf{; esa ;g tkuuk vR;Ur vko';d gS fd fofHkUu LFkkuh; fudk;ksa esa ,slh fu;qfDr;ka fdlds vkns'kksa ls vkSj fdlds }kjk dh xbZ D;ksafd 'kklu ds le{k ;g izdj.k fopkjk/khu gS fd ftu yksxksa us ,slh xyr fu;qfDr;ka dh gSa muds fo:)&dBksj dk;Zokgh dh tk; vkSj muls ml /kujkf'k dh olwyh dh tk; tks osru ds :i esa mDr izdkj ds nSfud osruHkksxh deZpkfj;ksa dks nh x;h gSaA

vkils fuosnu gS fd d`i;k layXud ds vuqlkj lwph esa vafdr vius tuin dh LFkkuh; fudk;ksa ds uke ds lkeus vafdr nSfud osruHkksxh deZpkfj;ksa dh la[;k fn[kkok ys rFkk 'kklu dks vfoyEc ;g lwfpr djus dk d"V djsa fd LFkkuh; fudk;ksa&ckj ;s fu;qfDr;ka fdl vf/kdkjh @ v/;{k }kjk dh x;ha gSa vkSj muds fu;qfDr djus dk mRrjnkf;Ro fdldk gSA vki vfuok;Z :i ls 15 flrEcj] 1991 rd 'kklu dks lwpuk izkIr djk nsa vkSj ;g Li"V mYys[k djsa fd vfu;fer LFkkkuh; fudk;ksa esa mDr deZpkfj;ksa dh nSfud osruHkksxh :i esa fu;qfDr djus dk mRrjnkf;Ro fdldk gS D;ksafd ;fn ,slh fu;qfDr;ksa dk mRrjnkf;Ro lacaf/kr LFkkuh; fudk; ds fdlh vf/kdkjh ;k ftyk iz'kklu ds vf/kdkfj;ksa dk gS rks muds fo:) dBksj dk;Zokgh dh tk;sxh vksj ;fn ;g mRrjnkf;Ro LFkkuh; fudk;ksa ds v/;{k @ lnL;ksa vkfn dk gS rks bl vkjksi ij mUgsa inP;qr djus dh dk;Zokgh Hkh dh tk ldrh gSA layXud %& ;FkksDrA**

"Dear Sir,

Enclosed herewith a list of those local bodies of your district wherein daily wage employees have been appointed in an irregular manner post 11th October, 1989. In this way, the numbers of appointed employees are mentioned against the names of those local bodies. It is clear that appointing daily wage employees despite the government orders amounts to violating such orders. Due to these appointments, financial burden on the local bodies in question has considerably increased. The financial condition of the local bodies is so much in tatters that it is becoming impossible for them even to pay salaries to their regular employees even after receiving government's contribution. For paucity of funds, no development is getting underway. Even the road grant and other grants are not being utilized..... curtailments were made from the salaries of employees of the said bodies and the amounts of provident funds were used in other tasks. In such a situation, the appointment of daily wage employees in local bodies is an extremely irregular action. It is also pertinent to mention that a sizeable number of daily wage employees were working in several local bodies till 11.1089 and agitations were launched for their regularization. The matter is under consideration for creation of posts for those who had put in 3 years of service with 249 days' working in each year on the said date. In such a situation, there is neither justification nor requirement for appointments which were made subsequent to the said date. ....is mentioned against the local bodies against which the numbers of such employees have been mentioned. Please check the condition of these bodies, and if daily wage employees have been appointed with them after 11th October, 1989 then send their details, and also inform the government after fixing responsibility in this respect.

It appears such appointments have been made for personal benefits and for personal reasons. In this context, it is very important to know under whose orders and by whom such appointments have been made in several local bodies because it is under consideration with the government to take stringent action against those who have made such wrong appointments and amounts be recovered from them which have been paid as salaries to such daily wage employees.

You are requested to kindly get checked the numbers of daily wage employees against the names of local bodies in your district as mentioned in the enclosed list and inform the government without delay as to by which officer/chairman these appointments have been made in the local bodies and who is responsible for their appointments. You must inform the government on this count without fail by 15th September, 1991, clearly mentioning who is responsible to appoint such employees as daily wagers in irregular daily bodies; because in the event of responsibility for such appointments resting with any officer of the concerned local body or officers of the district administration, stringent action shall be taken against them; and in case of chairman/members etc. of the local bodies being responsible for this then an action may be taken even for their removal on this allegation. (emphasis added) (English translation by Court)

8. Having gone through the aforesaid Government Order, I do not find anything therein which entitle petitioner to claim regularization on the post of Peon. It says that daily wage employees engaged in various local bodies upto 11.10.1989 have agitated the matter for claiming regularization and government was considering creation of posts in respect to such daily wages who have completed three years of service and have worked 240 days in every year upto 11.10.1989. Thereafter there is any justification for engagement of daily wager nor necessity nor it was proper. It therefore, required Mukhya Nagar Adhikari of various Nagar Palikas and District Magistrates to inform the number of daily wagers who were appointed upto 11.10.1989 and had completed three years of service and 240 days in every year so that question of creation of requisite number of posts may be considered by Government. The aforesaid Government Order, nowhere says or confers any right upon daily wagers for regularization. Thus the aforesaid Government Order does not confer any right whatsoever, even otherwise, entitling petitioner for regularization. Moreover, petitioner was appointed in 1987. He had not completed three years of service upto 11.10.1989 hence also was not covered by the aforesaid Government Order, at all.

9. The next obstruction is that, if a service is governed by statutory rules and there is no provision for regularization, such claim cannot be founded on an executive order so as to cause an appointment in the teeth of statutory rules. It is well settled that an executive order cannot override statutory rules.

10. It is well settled that the statutory rules cannot be modified or amended by executive orders. 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 does not mean that the rule stood obligated. So long as the 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 be conflicted with the statutory rules of 1977. Hence, in any case Tribunal could not have directed to follow Government Order dated 11.10.1989 ignoring statutory Rules. Moreover, in absence of any provision, claim of regularization is impermissible.

11. Now a Constitution Bench of Apex Court in Secretary, State of Karnataka Vs. Uma Devi, 2006(4) SCC 1, has settled law that no person can claim regularization when the appointment is illegal.

12. The Apex Court in Uma Devi (supra) very categorically held:

"The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularization or permanent continuance unless the recruitment itself was made regularly and in terms of the Constitutional Scheme."

13. Following Uma Devi (supra), in Surinder Prasad Tiwari Vs. U.P. Rajya Krishi Utpadan Mandi Parishad & others, 2006 (7) SCC 684, it was held:

"Equal opportunity is the basic feature of our Constitution. ...Our constitutional scheme clearly envisages equality of opportunity in public employment. .... This part of the constitutional scheme clearly reflects strong desire and constitutional philosophy to implement the principle of equality in the true sense in the matter of public employment.

In view of the clear and unambiguous constitutional scheme, the courts cannot countenance appointments to public office which have been made against the constitutional scheme. In the backdrop of constitutional philosophy, it would be improper for the courts to give directions for regularization of services of the person who is working either as daily-wager, ad employee, probationer, temporary or contractual employee, not appointed following the procedure laid down under Articles 14, 16 and 309 of the Constitution."

14. Elaborating the procedure of regular appointment, in Union Public Service Commission Vs. Girish Jayanti Lal Vaghela 2006 (2) SCC 482, Court observed that regular appointment to a post under the State or Union cannot be made without issuing advertisement in the prescribed manner, which would include inviting of applications from the employment exchange where eligible candidates get their names registered. 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 candidates get a fair chance to compete would violate the guarantee enshrined under Article 16 of the Constitution.

15. In State of Rajasthan and others Vs. Daya Lal & others, 2011(2) SCC 429, following the decision in Uma Devi (supra), Court has held:

"The 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."

16. In State of U.P. and others Vs. Rekha Rani, JT 2011(4) SC 6, Court referring to its decision in Daya Lal (supra), in para 12 of the judgment, said:

"12. It has been held in a recent decision of this Court in State of Rajasthan vs. Daya Lal 2011(2) SCC 429 following the Constitution Bench decision of this Court in State of Karnataka vs. Umadevi (2006) 4 SCC 1 that the High Court in exercise of its power under Article 226 cannot regularize an employee. Merely because some others had been regularized does not give any right to the respondent. An illegality cannot be perpetuated."

17. So far as contention with respect to regularization of other similarly situated persons is concerned, in Union of India & another Vs. Kartick Chandra Mondal & another (2010) 2 SCC 422, the Court has gone to the extent that even if some other persons similarly placed have been absorbed, that cannot be a basis to grant a relief by the Court which is otherwise contrary to statute. In para 25 of judgment, Court has said:

"Even assuming that the similarly placed persons were ordered to be absorbed, the same if done erroneously cannot become the foundation for perpetuating further illegality. If an appointment is made illegally or irregularly, the same cannot be the basis of further appointment. An erroneous decision cannot be permitted to perpetuate further error to the detriment of the general welfare of the public or a considerable section. This has been the consistent approach of this Court. However, we intend to refer to a latest decision of this Court on this point in the case of State of Bihar v. Upendra Narayan Singh and Ors. (2009) 5 SCC 65, the relevant portion of which is extracted hereinbelow:

"67. By now it is settled that the guarantee of equality before law enshrined in Article 14 is a positive concept and it cannot be enforced by a citizen or court in a negative manner. 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 ..."

18. In State of Karnataka & others Vs. Gadilingappa & others (2010) 2 SCC 728, the Court reiterated that it is well settled principal of law that even if a mistake is committed in an earlier case, the same cannot be allowed to be perpetuated.

19. This Court find that aforesaid Government Order dated 28.11.1991 has also been considered by Division Bench of this Court in Service Bench No.1443 of 2001 (Kanpur Nagar Nigam through Mukhya Nagar Adhikari Kanpur Vs. U.P. State Public Services Tribunal Lko) decided on 12.4.2016 and the view taken by this Court is duly fortified by above judgment.

20. In view thereof relief prayed for by the petitioner cannot be granted.

21. Writ petition lacks merit. Dismissed.

22. Interim order, if any, stands vacated.

Order Date :- 15.11.2018

KA