State Of U.P. Thru Secy Deptt Of ... vs Prem Chandra Soni And Others
2022 Latest Caselaw 9612 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 2
 

 
Case :- SPECIAL APPEAL DEFECTIVE No. - 133 of 2022
 

 
Appellant :- State Of U.P. Thru Secy Deptt Of Technical Education Lko And Ors. (In Wria No.-14955 Of 2021)
 
Respondent :- Prem Chandra Soni And Others
 
Counsel for Appellant :- C.S.C.
 
Counsel for Respondent :- Raj Kumar Upadhyaya (R.K.Upadhyaya)
 

 
Hon'ble Devendra Kumar Upadhyaya,J.

Hon'ble Rajnish Kumar,J.

(C.M.Application No. 1 of 2022)

Having heard Sri Abhinav N. Trivedi, learned Chief Standing Counsel representing the appellants-State authorities, Sri S.K. Verma, learned counsel representing the respondent No.1 and gone through the averments made in the application seeking condonation of delay, we are satisfied that the delay has sufficiently been explained.

Accordingly, the application is allowed and the delay in preferring the Special Appeal is hereby condoned.

(Order on Special Appeal)

The proceedings of the instant Special Appeal under Chapter VIII Rule 5 of the Rules of the Court have been instituted challenging the judgment and order dated 06.09.2021, passed by the learned Single Judge in Writ Petition No.14955(SS) of 2021 whereby the writ petition has been allowed and the order/communication under challenge in the writ petition which is dated 31.12.2020, passed by the Joint Secretary of the Department concerned has been set aside.

The appellants-State authorities sought review of the said judgment and order dated 06.09.2021, however, the same has also been rejected by the learned Single Judge by means of order dated 22.04.2022. This order dated 22.04.2022, passed by the learned Single Judge in Civil Misc. Review Application No. 97 of 2022 is also under appeal before us in this case.

It has been argued by learned Chief Standing Counsel appearing on behalf of the appellants that learned Single Judge while passing the judgment and order under appeal herein has not appropriately appreciated the facts of the case as also the law relating to regularization of services of adhoc employees which under the rules governing regularization of such adhoc employees is not permissible to be given effect to retrospectively. It has been argued in this regard that since the services of the respondent No.1-petitioner were regularized w.e.f. 10.02.2010, hence subsequent order dated 11.12.2018 whereby regularization in service of the respondent No.1-petitioner was held to be applicable with retrospective effect was not tenable.

Per contra, Sri S.K.Verma, learned counsel representing the respondent No.1-petitioner has submitted that having regard to the overall facts and circumstances of the case, the judgment and order passed by the learned Single Judge, which is under appeal herein, need not be interfered with for the reason that respondent No.1-petitioner was entitled to be given benefit of regularization in service from a prior date and the said benefit was earlier denied to him wrongly. It has thus been argued by Sri Verma that by passing the order dated 11.12.2018, the State Government had corrected its mistake and has rightly granted benefit of regularization in service to the respondent No.1-petitioner w.e.f. 01.04.2004. It has also been argued by Sri Verma that the said order dated 11.12.2018 whereby the regularization in service of the respondent No.1-petitioner was made effective from retrospective date was passed on the recommendation of the Review Selection Committee. On these counts, it has thus been argued on behalf of the respondent No.1-petitioner that the Special Appeal deserves to be dismissed at its threshold.

We have given our anxious consideration to the rival submissions made by the learned counsel representing the respective parties and have also perused the record available before us on this Special Appeal.

It is not in dispute that initial appointment of the petitioner on the post of lecturer was made purely on adhoc basis by means of order dated 24.09.1987. His claim for regularization was considered by the State Government under the provisions of the U.P. Regularization of Adhoc Appointments (On Posts Within the Purview of the Public Service Commission) Rules, 1979, as amended by third amendment, 2001, which was notified on 20.12.2001. The State Government thus regularized the services of the respondent No.1-petitioner by means of order dated 10.02.2010 with immediate effect.

So far as regularization in service of the respondent No.1-petitioner is concerned, learned Chief Standing Counsel appearing for the appellants does not dispute that he was rightly regularized in terms of the provisions contained in Regularization Rules, 1979 as amended in the year 2001.

The State Government, however, considered the representation made by the respondent No.1-petitioner whereby a prayer was made by him that he should be regularized with retrospective date. The State authorities appear to have constituted a Review Selection Committee which met on 24.09.2018 and made recommendation to regularize the services of the respondent No.1-petitioner with retrospective date i.e. with effect from 21.04.2004. In the meantime, respondent No.1-petitioner was promoted to the post of Head of Department on 03.08.2016 and also retired from service of the State Government on 31.12.2019 on his attaining the age of superannuation. After retirement, it appears that respondent No.1-petitioner made some application/representation to the State authorities praying therein that he may be given the benefit of personal promotional pay-scale w.e.f. 01.04.2004. The said representation was made to the Director, Technical Education, who forwarded the same to the State Government. The State Government in the Department of Technical Education sought advise of the Finance Department and this advise was communicated by the State Government to the Director by means of order/letter dated 31.12.2020 whereby the State Government required the Director to ensure further action in accordance with the advise tendered by the Finance Department. It is this communication/order dated 31.12.2020 which was made subject matter of challenge in the writ petition filed by the respondent No.1-petitioner.

When we peruse the said communication dated 31.12.2020, what we find is that the State Government in the Department of Technical Education had only communicated the advise tendered by the Finance Department to the Director, Technical Education, according to which the order regularizing the services of the respondent No.1-petitioner, dated 11.12.2018 with retrospective date is irregular as the respondent No.1-petitioner was regularized by means of earlier order dated 10.02.2010 with immediate effect and that the respondent No.1-petitioner is not entitled to the benefits of any ACP (Assured Career Progression).

Learned Single Judge has allowed the writ petition and has quashed the commutation dated 31.12.2020 primarily on the ground that once the order dated 11.12.2018 was passed by the State Government giving benefit of regularization in service retrospectively to the respondent No.1-petitioner, in absence of any power of review the said order dated 11.12.2018 could not have been reviewed.

Perusal of the order under appeal herein passed by the learned Single Judge, thus, clearly reveals that learned Single Judge has proceeded on the basic premise as if by means of communication dated 31.12.2020, the order dated 11.12.2018 has been reviewed. On this count, it has thus been held that the Joint Secretary of the Department did not have any power under Regularization Rules to have reviewed the earlier decision of the State Government.

When we consider the reason indicated by the learned Single Judge in the judgment and order under appeal whereby writ petition has been allowed and the communication dated 31.12.2020 has been set aside, what we find is that (i) 31.12.2020 is not a decision or order which reviews the earlier order dated 11.12.2018, (ii) entire issue involved in the matter has to be looked at from a correct prospective and the prospective is as to whether any adhoc employee whose services are regularized under rules is entitled to be given the benefit of regularization of service from retrospective date in absence of any such provisions under rules under which regularization of service takes place.

As observed above, services of respondent No.1-petitioner were regularized under the provisions of Regularization Rules, 1979 as amended in the year 2001, according to which any person who was directly appointed on adhoc basis before a particular cut- of date and possessed the requisite qualification applicable for regular appointment at the time of such adhoc appointment and had completed three years continuous service, is to be considered for regular appointment on the basis of his records and suitability. The Rules of 1979 further contemplate that appointing authority has to constitute a Selection Committee and consultation with the Public Service Commission will not be necessary. Selection Committee is thus required to consider the cases of the candidates on the basis of their records and has to prepare a list of the selected candidates arranged in order of seniority and forward the same to the appointing authority. The appointing authority thus has been required to make appointment from the list prepared by the Selection Committee.

As per the provision of Rule 6 of 1979 Rules, the appointment made under 1979 Rules is to be treated as appointment under relevant Service Rules. Rule 7 provides that a person appointed (regularized) under 1979 Rules is entitled to seniority only from the date of order of appointment after selection. This rule further provides that such a person shall, in all cases, be placed below the persons appointed in accordance with Service Rules. Rule 7 of 1979 Rules is extracted herein below :

"7. Seniority.- (1) A person appointed under these rules shall be entitled to seniority only from the date of order of appointment after selection in accordance with these rules and shall, in all cases, be placed below the persons appointed in accordance with the relevant service rules, or as the case may be, the regular prescribed procedure, prior to the appointment or such person under these rules.

(2) If two or more persons are appointed together, their seniority inter se shall be determined in the order mentioned in the order of appointment."

Thus, any adhoc employee whose services are regularized under 1979 Rules, is to be given the seniority from the date on which order of regularization is passed by the appointing authority on the recommendation of the Selection Committee. It is well established principle of Service Jurisprudence that seniority of an employee is reckoned from the date of substantive/regular appointment. Since in terms of the provisions contained in Rule 6 of 1979 Regularization Rules any person regularized under the said rules is to be treated to have been appointed under relevant Service Rules, regularization under 1979 Rules is, in fact, substantive appointment and accordingly such substantive appointment will take its effect only from the date appointment order (in this case order of regularization) is passed and not from any retrospective date.

Hon'ble Supreme Court in the case of Registrar General of India and another Vs. V. Thippa Setty and others, reported in (1998) 8 Supreme Court Cases 690 has considered that regularization in service should ordinarily be prospective so that seniority of those incumbents who are already in regular service dows not get affected. Paragraph-2 of the said judgment in the case of Registrar General of India (supra) is quoted herein below :

"2. We have heard counsel for both sides and perused the orders of the Tribunal dated 16-12-1991 and 19-2-1993. By the previous order, the Tribunal's direction was to regularise the respondents with effect from the date of promulgation of the recruitment rules or from the date of their appointment, depending on the seniority list. That was a direction which was a flexible one leaving it to the management to consider from what date regularisation should take effect. In pursuance of the said direction, on the new recruitment rules being promulgated on 11-5-1985, the regularisation was given effect from that date. However, in the subsequent order passed by the Tribunal on 19-2-1993, the Tribunal has directed that they should be treated as having been conferred regular status with effect from 5-2-1981, that is, the date of their entry into service as Investigators. It must be remembered that they had entered as ad hoc appointees and the question was whether they should be regularised in service since they had worked as ad hoc employees for a sufficiently long time. If the ad hoc service is regularised from the back date in this manner, it will disturb the seniority of regularly appointed employees in the cadre and, therefore, ordinarily the regularisation must take effect prospectively and not retrospectively. It must also be borne in mind that ad hoc appointees, casual labour and daily-rated persons are not subject to strict discipline of service and it is a matter of common experience that their attendance is very often not regular and at times they do not even meet the qualification for appointment since they are taken on ad hoc basis. These deficiencies are overlooked by way of granting of relaxation and, therefore, care must be taken to see that they do not upset the seniorities of regular appointees. Whether they qualify in a given case or not is not relevant but what is relevant is that regularisation should be prospective and not retrospective as the chances of their upsetting the seniorities cannot be overlooked. The Tribunal must take care to see that when they pass orders of regularisation from retrospective dates, those who are likely to be affected on account of that order are not before that court and unwittingly their careers are not adversely affected. Ordinarily, therefore, the regularisation must be prospective."

The aforesaid judgment of Hon'ble Supreme Court in the case of Registrar General of India (supra) has subsequently been followed by Hon'ble Apex Court in the case of Union of India and others Vs. Sheela Rani, reported in (2007) 15 Supreme Court Cases 230.

What we, thus, find is that the law enunciated by the Hon'ble Supreme Court in the case of Registrar General of India(supra) and Union of India and others (supra) in fact finds embodied in Rule 7 of 1979 Regularization Rules which permits seniority of an adhoc employee, who is subsequently regularized, be counted from the date of order of appointment (regularization) under the said Rules. If an adhoc employee whose services are regularized under 1979 Rules is not entitled to be given seniority from any retrospective date but w.e.f. the order of regularization, it is difficult to comprehend as to how regularization made under the said rule can be made effective retrospectively.

Accordingly, we are of the considered view that opinion of the Finance Department which is mentioned in the communication of the State Government in the Department of Technical Education to the Director, Technical Education, dated 31.12.2020 does not suffer from any legal flaw. If by mistake the order dated 11.12.2018 was passed giving the benefit of regularization in service to the respondent No.1-petitioner with retrospective date, it was always open to the State Government to have correct such mistake, otherwise if the order dated 11.12.2018 is allowed to be sustained, the same shall run contrary to the law laid down by Hon'ble Supreme Court, as discussed above, as also contrary to the statutory provisions contained in 1979 Regularization Rules which have been framed under Article 309 of the Constitution of India.

So far as the reason assigned by the learned Single Judge that by issuing order/communication dated 31.12.2020, the earlier order dated 11.12.2018 has been reviewed, though there was no such authority with the State Government to review the same, is concerned, we may only notice that on such logic and reasoning even order dated 11.12.2018 will not sustain for the reason that said order definitely reviewed the earlier order dated 10.02.2010, whereby the services of the respondent No.1-petitioner were regularized w.e.f. the date of issuance of said order i.e. 10.02.2010. It is true that in absence of any specific power vested in an authority any decision taken or order passed cannot be reviewed, however, this principle will have no application in case any decision or order has been taken or passed by the authority concerned inadvertently, by mistake or in ignorance of law.

In the present case, the legal position as already explained above, is that any order regularizing the services of an adhoc employee cannot be made effective retrospectively for the reason that such a decision or order shall run contrary to the provisions of 1979 Rules.

For the reasons aforesaid, we have no hesitation to hold that the learned Single Judge while passing the judgment and order under appeal has not laid his hands on the provisions of Rule 7 of 1979 Regularization rules and its purport and meaning.

The issue as to whether the benefit of regularizing the services of adhoc employee can be extended with retrospective date has also not been considered by learned Single Judge, though it was the most crucial issue which arises in the facts of the present case. Non-consideration of this issue and the legal principle that order of regularization cannot be made effective retrospectively, vitiates the judgment and order which is under appeal before us in this case.

The Special Appeal is, this, allowed and the judgment and order dated 06.09.2021, passed by the learned Single Judge in Writ Petition No.14955(SS) of 2021 and the order dated 22.04.2022, passed in Civil Misc. Review Application No. 97 of 2022 are hereby set aside.

However, there will be no order as to costs.

Order Date :- 8.8.2022

Sanjay