Bhawani Prasad Sahu And 26 Ors. vs State Of U.P.Thru Prin.Secy. ...
2023 Latest Caselaw 15437 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Neutral Citation No. - 2023:AHC-LKO:34123
 
Reserved								AFR	
 
1.  Case :- WRIT - A No. - 4476 of 2019 
 
Petitioner :- Bhawani Prasad Sahu And 26 Ors. 
 
Respondent :- State Of U.P.Thru Prin.Secy. P.W.D. Lucknow And Ors. 
 
Counsel for Petitioner :- Amrendra Nath Tripathi,Ashutosh Shahi 
 
Counsel for Respondent :- C.S.C. 
 
with 
 
2.  Case :- WRIT - A No. - 868 of 2012 
 
Petitioner :- Shri Prakash Mishra And 20 Ors. 
 
Respondent :- State Of U.P. Through Secy. Deptt. Of P.W.D. Lko. And Ors. 
 
Counsel for Petitioner :- Girish Chandra Verma 
 
Counsel for Respondent :- C.S.C. 
 
with 
 
3.  Case :- WRIT - A No. - 12167 of 2017 
 
Petitioner :- Om Prakash Srivastava And Another 
 
Respondent :- State Of U.P. Thru Prin.Secy. P.W.D. Civil Sectt.Lko.And Ors. 
 
Counsel for Petitioner :- Alok Singh 
 
Counsel for Respondent :- C.S.C. 
 
with 
 
4.  Case :- WRIT - A No. - 23908 of 2017 
 
Petitioner :- Zahoor Khan And 5 Ors. 
 
Respondent :- State Of U.P. Thru Prin.Secy.Lok Nirman Vibhag Lko. Ors.
 
Counsel for Petitioner :- Manoj Sahu 
 
Counsel for Respondent :- C.S.C. 
 
with 
 
5.  Case :- WRIT - A No. - 31385 of 2018 
 
Petitioner :- Munna Lal And 2 Ors. 
 
Respondent :- State Of U.P. Thru Prin. Secy. P.W.D. Lucknow And Ors. 
 
Counsel for Petitioner :- Meenakshi Singh Parihar,Ashutosh Shahi,Jai Shrinet 
 
Counsel for Respondent :- C.S.C. 
 
with 
 
6.  Case :- WRIT - A No. - 34756 of 2018 
 
Petitioner :- Vijay Bahadur Srivastava And Ors 
 
Respondent :- State Of U.P Thru Prin Secy Public Works Deptt And Ors 
 
Counsel for Petitioner :- Shyam Mohan Pradhan 
 
Counsel for Respondent :- C.S.C 
 
with 
 
7.  Case :- WRIT - A No. - 36866 of 2018 
 
Petitioner :- Laxmi Narain And Ors. 
 
Respondent :- State Of U.P.Thru Prin. Secy. P.W.D. And Ors. 
 
Counsel for Petitioner :- Ashutosh Shahi,Amrendra Nath Tripathi 
 
Counsel for Respondent :- C.S.C. 
 
with 
 
8.  Case :- WRIT - A No. - 5116 of 2019 
 
Petitioner :- Desh Raj Singh And 42 Ors. 
 
Respondent :- State Of U.P. Thru Prin. Secy. P.W.D. Lucknow And Ors. 
 
Counsel for Petitioner :- Amrendra Nath Tripathi,Ashutosh Shahi 
 
Counsel for Respondent :- C.S.C. 
 
with 
 
9.  Case :- WRIT - A No. - 5236 of 2019 
 
Petitioner :- Sunder Lal Verma And 6 Ors. 
 
Respondent :- State Of U.P. Thru Prin.Secy. P.W.D. Lucknow And Ors. 
 
Counsel for Petitioner :- Amrendra Nath Tripathi,Ashutosh Shahi 
 
Counsel for Respondent :- C.S.C. 
 
Hon'ble Dinesh Kumar Singh,J. 

1. This bunch of writ petition leading one being Writ Petition No.4476(SS) of 2019 has been preferred assailing the order dated 11.10.2018/12.10.2018 passed by the Executive Engineer, Provisional Division, Public Works Department, Lucknow (Annexure 1 to the writ petition), whereby the petitioners' regularization orders dated 25.06.2013 regularizing their services with effect from 02.07.2003 have been made ineffective and the order of regularization has been revisited as per fresh seniority list dated 21.04.2018.

The petitioners have also challenged the order dated 12.10.2018 whereby the petitioners' date of regularization has been altered/changed from 02.07.2003 to the year of 2011.

The petitioners in Writ Petition No.34756 of 2018 have also prayed for a direction in the nature of mandamus commanding the respondents to prepare a fresh seniority list taking into consideration the Government Order dated 17.04.2003 inasmuch as the State Government, in the meantime, had framed regularization rules namely Uttar Pradesh Regularization of Daily Wages (Appointment on Group D Posts) Rules, 2001.

2. The petitioners were initially engaged as Daily Wagers from time to time considering the exigency of work on the posts of Wireman, Electrician, Helper, Mate, Fire Alarm Operator, A.C. Operator etc., in the Department of Public Works Department. Some of the petitioners preferred a Writ Petition No.1427(SS) of 1997: Ram Swaroop & Anr versus State of UP with a prayer to grant them regular pay scale of Class IV post and consider them for regularization. This Court passed an interim order dated 21.02.1997 whereby direction was given for payment of minimum of pay scale to which regular employees of the category of the petitioners were being paid salary, subject to verification of length of service of the petitioners in the writ petition.

3. The State Government, in the meantime, framed rules namely Uttar Pradesh Regularization of Daily Wages (Appointment on Group D Posts) Rules 2001 (hereinafter referred to as Rules, 2001). Rule 4 of the Rules, 2001 provides that any person, who was appointed on daily wage basis prior to 29.06.1991 and is continuing in service, as such on the date of commencement of rules i.e. 21.12.2001 and possess requisite qualifications shall be considered for regularization.

4. In pursuance to the promulgation of the said rules, the State Government took a policy decision vide Government Order dated 17.04.2003 to regularize all such persons, who had been engaged prior to 29.06.1991, as daily wages/ work charge agents by preparing a combined seniority list as per the availability of the vacancies.

5. Another Government Order dated 11.06.2003 was issued in continuation of the earlier Government Order for proceeding with the intent of regularization process. Thereafter, an office memorandum dated 20.06.2003 was issued whereby combined seniority list of daily wagers, working in Public Works Department was issued.

6. A decision was taken on 02.07.2003 to regularize 54 persons from the seniority list dated 20.06.2003 trade-wise. Thereafter, vide order dated 05.07.2003, a decision was taken to cancel the seniority list dated 20.06.2003. 54 persons, who got regularized on 02.07.2003, as per the seniority list dated 20.06.2003, being aggrieved by the cancellation of the seniority list and order dated 06.07.2003 cancelling their regularization, preferred a Writ Petition No.4302(SS) of 2003: Bharat Singh & Ors vs State of U.P. & Ors before this Court. This Court vide order dated 24.07.2003 stayed the order dated 06.07.2003. On the strength of the said interim order dated 24.07.2003, aforesaid employees continued in employment as regular employees.

7. In the meantime, Writ Petition No.1427(SS) of 1997 preferred by Ram Swaroop & Ors was disposed of finally on 13.11.2003 with a direction to the respondents to consider their cases for regularization in accordance with the existing rules with effect from the date, their juniors were regularized. When no decision was taken, as directed by this Court in order dated 13.11.2003 passed in Writ Petition No.1427 (SS) of 1997, the petitioners therein preferred a contempt petition being Contempt No.1687 of 2006, and in pursuance of directions issued in the contempt petition, a decision was taken vide order dated 12.04.2007 specifically saying that no juniors to the petitioners had been regularized. Some further orders came to be passed in the contempt proceedings on 15.07.2011. In compliance thereof a decision was taken by the respondents vide order dated 28.03.2011, in pursuance to the Government Order dated 21.02.2011 and all the petitioners were regularized, however, effect of the said order was prospective in nature, thereafter, the contempt petition was dismissed vide order dated 13.01.2014.

8. The petitioners had preferred a representation before the competent authority for regularizing their services with effect from 02.07.2003, when allegedly juniors to them were allegedly regularized.

9. A decision was taken vide Government order dated 25.06.2013 to regularize the petitioners with effect from the date, juniors were regularized and the said order was a conditional order subject to outcome of the Writ Petition No.4302(SS) of 2003, and in pursuance to the same, earlier order was modified and petitioners were given benefit of the regularization retrospectively.

10. Another writ petition being Writ Petition No.2412(SS) of 2009 was filed by Mohsin Ali & Ors for considering their cases for regularization from the date, their juniors were regularized and said writ petition was jointly heard with the Writ Petition No.4302(SS) of 2003. This court passed the order dated 20.08.2015 directing for preparation of a seniority list as per law. Order dated 20.08.2015 passed in Writ Petition No.4302(SS) of 2003 would read as under:-

"Heard learned Counsel for the petitioner and learned Standing Counsel for the respondents.

These two writ petitions are inter-connected. The dispute relates to the consequential seniority as a result of regularization of work charge and daily wage employees in service under the Regularization of Daily Wages Rules, 2001 being carried out without determination of their comparative seniority prior to regularization.

The statuary rules provide for consideration as per seniority of the daily wage employees drawn on the basis of length of service. So far as the present case is concerned, the employees working as work charge or on daily wage basis belong to different trades and their regularization has been considered against the respective trades on the basis of disputed seniority. Necessarily, the seniority of the employees on the basis of total length of service is liable to be drawn not for the purpose of regularization but also for the purpose of determination of inter-se seniority, which is a consequence of regularization in service for other service benefits.

Learned Standing Counsel has submitted that the final seniority list could not be finalized on account of an interim order passed by this court in writ petition no. 4302(SS) of 2003 on 24.07.2003 which reads and under:-

"Notice on behalf of opposite parties has been accepted by the learned Chief Standing Counsel.

Let counter affidavit be filed within a period of four weeks. Rejoinder affidavit, if any, may be filed within three weeks.

List thereafter.

Till the date of next listing, the operation of the order dated 05.07.2003 as contained in Annexure No.1 shall remain stayed."

Having heard the parties in both the writ petitions at some length and with the consent of parties, it is provided that final seniority (combined) may be drawn and issued by the department in accordance with the rules and government orders applicable in relation to work charge/daily wage employees without disturbing their present status.

This exercises shall be completed by respondents within a period of three months form the date a certified copy of this order is filed before the competent authority. The final seniority list shall be placed on record and circulate to all concerned, in the meantime. An affidavit shall be positively filed by the concerned authority explaining the finalization of process before the next date of listing.

The promotional benefits arising out of seniority shall be open to be granted only after the seniority is finalized in accordance with law.

List immediately after three months immediately."

11. In compliance of the order dated 20.08.2015, a decision was taken on 09.01.2015 to prepare a fresh seniority list from the muster roll of all the daily wagers engaged in the department, and for the said purpose, a Committee was constituted vide order dated 27.12.2017. After inviting objections, a final seniority list dated 21.04.2018 was issued in accordance with law.

12. Writ petition filed by Shri Mohsin Ali and others being Writ Petition No.2412(SS) of 2009 was finally disposed of vide judgment and order dated 10.11.2017 with a direction to decide the representation of the petitioners in accordance with law. Representation of the petitioners of the said writ petition was duly considered and decided vide order dated 01.02.2019. Said order has been placed on record as Annexure-1 to the counter affidavit filed on behalf of the State which was passed after taking note of the several orders and judgments passed in several writ petitions preferred by the daily wagers. It was said that vide order dated 12.10.2018 question of regularizing services of the petitioner with effect from 02.07.2003 had been already decided and the workmen had been regularized as per their eligibility on the basis of their seniority list. In view thereof representation of Mohsin Ali & Ors as directed by this Court was also decided. After finalization of the seniority list dated 21.04.2018, final orders have been issued as per the seniority.

13. Anomalies in regularization orders have been rectified and fresh orders have been passed as per seniority list, which are impugned in the batch of the present writ petitions.

14. It would be important to take note of the fact that all the employees in the batch of petitions, were regularized; most of them have retired and some of them have also died.

15. Shri Amarendra Nath Tripathi and Shri Ashutosh Sahi learned counsel appearing for the petitioners have submitted that once the petitioners were regularized with effect from 02.07.2003 vide orders dated 01.07.2013 and 04.07.2013 issued in furtherance of the Government Order dated 25.06.2013 and all the benefits were granted to them, vide impugned order dated 11.10.2018 read with 12.10.2018, vested rights accrued in favour of the petitioners could not have been taken away by the impugned orders without affording an opportunity of hearing to the petitioners. The impugned orders are in violation of the principle of natural justice, and they are also arbitrary and illegal amounting to violation of the fundamental rights guaranteed under Articles 14 and 16 of the Constitution of India and, therefore, same are liable to be set aside.

16. Learned counsel appearing for the petitioners have further submitted that act of changing/altering date of regularization from 02.07.2003 to the year 2011 vide impugned order dated 12.10.2018 without affording any opportunity of hearing is an infarction of Article 14 of the Constitution of India, therefore, is liable to be set aside.

17. Learned counsel appearing for the petitioners has further submitted that impugned orders dated 11.10.2018 and 12.10.2018 have annulled the order dated 01.07.2013 and 04.07.2013, which were passed in pursuance to the decision of the State Government dated 25.06.2013. Said decision was taken in compliance of the directions issued by this Court in the writ petition, and on the basis of which, the contempt proceedings were dropped and, therefore, orders dated 1.07.2013 and 04.07.2013 had attained finality, which could not have been revisited by the impugned orders and, therefore, the impugned orders are liable to be quashed.

18. Effect of the impugned order dated 11.10.2018 is reopening of the issue of regularization of the petitioners, which was set at rest in earlier round of litigation, and, therefore, impugned orders amount to overriding the various judgments and orders passed by this Court in earlier writ petitions.

19. It has been further submitted by the learned counsel appearing for the petitioners that the impugned orders have been passed on the basis of the impugned seniority list dated 20.04.2018. Seniority list dated 20.04.2018 is against Rule 4(4) of the Rules, 2001, which contemplates preparation of eligibility list for the purpose of regularization in accordance with the date of initial engagement. It is settled proposition of law that where a Statute requires a particular act to be done in a particular manner, the act has to be done in that manner.

20. Sri Amarendra Nath Tripathi has further submitted that impugned seniority list has been allegedly prepared in furtherance of the interim direction of this Court dated 20.08.2015 passed in Writ Petition No.2412(SS) of 2009, however, in the said interim order, this Court had specifically provided for drawing of seniority list "without disturbing their present status." Said interim order dated 20.08.2015 stood merged with the final judgment and order dated 10.11.2017, and, therefore, interim order dated 20.08.2015 had lost its enforceability.

21. It has been further submitted that no opportunity of hearing was given to the petitioners before finalization of the seniority list, and, therefore, even on this ground the seniority list is bad in law.

22. Sri Amarendra Nath Tripathi, learned counsel appearing for the petitioners has further submitted that respondents had given benefit of regularization to the writ petitioners in Writ Petition No.2073(SS) of 1997 namely Late Ramesh Chandra and Mool Chandra by not challenging their date of regularization with effect from 02.07.2003 and gave appointment to their wards under The U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 by treating late Ramesh Chandra and Moolchand as regular employees, who died on 10.04.2008 and 5.03.2011 respectively whereas petitioners' date of regularization has been changed by the impugned order, which amounts to hostile discrimination.

23. Sri Shyam Mohan Pradhan, learned counsel appearing for the petitioners in Writ Petition No.34756(SS) of 2018 has submitted that vide Government Order dated 17.04.2003 read with Rules, 2001, it was provided that eligibility list of daily wagers employees working in the Public Works Department of the Government of Uttar Pradesh would be prepared from the date of initial appointment and Rule 4(4) of 2001, Rules, also prescribes that the appointing authority shall prepare the eligibility list of candidates in order of seniority as determined from the date of order of appointment on daily wage basis, and after the eligibility list would be prepared, the selection committee shall consider the case of the workmen in order of seniority for regularization from the eligibility list so prepared.

24. It has been submitted by Sri Shyam Mohan Pradhan, learned counsel that seniority list has not been prepared from the date of order of appointment or engagement on daily wage basis or from the date of appointment in the trade. Eligibility list for the purpose of regularization is required to be prepared from the date of initial appointment and when the seniority list dated 20.06.2003 was issued considering the date of order of appointment in the cadre/trade and not from the date of initial appointment on daily wage basis, the petitioners filed their objections and the State Government vide order dated 05.07.2003 cancelled the seniority list after examining the same on the ground that it had not been prepared from the date of initial appointment on daily wage basis. The Government also took the view that the candidates, who had been appointment on daily wage basis on 29.06.1991, were also included though they were not eligible for regularization under the rules. There were other discrepancies regarding some of the employees' date of initial appointment. The Government cancelled the said seniority list vide order dated 05.07.2003, which was stayed by this Court vide order dated 24.07.2003 passed in Writ Petition No.4302(SS) of 2003. The said writ petition got dismissed. Government order dated 16.07.2003 provided for the preparation of eligibility cum seniority list for the purpose of regularization from the date of initial appointment on daily wage basis.

25. It has been further submitted that interim order dated 20.08.2015 passed in Writ Petition No.4302(SS) of 2003 provided that necessarily seniority list of the employees was to be prepared on the basis of total length of service not only for the purpose of regularization but also for the purpose of determination of inter se seniority. Impugned seniority list dated 20.04.2018 had been prepared not on the basis of initial date of appointment on daily wage basis but again from the date of entry in the cadre in a trade. Initial appointment of petitioner No.2 in the in Writ Petition No.34756(SS) of 2018 has been shown in the seniority as 28.03.1997 instead of 01.04.1994 though same was mentioned in Government Order dated 05.04.2003 while cancelling the earlier seniority list.

26. It has been further submitted that prior to the year 1997 all persons appointed on Daily Wage/Work Charge establishment were not appointed against any post but were given employment as Helper, and all were getting Rs.437/- per month salary. It is only on 18.03.1997, an order was passed by this Court for minimum of pay scale to such daily wager/work charge employee. The said writ petition was decided on 13.11.2003 with a direction for regularization in accordance with Rules from the date their juniors and similarly situated daily wagers were regularized. It has been, therefore, submitted that impugned seniority list dated 20.04.2018 is illegal and liable to be quashed.

27. Sri Prafulla Kumar Yadav, learned Additional Chief Standing Counsel appearing for the State has submitted that regularizing the petitioners with retrospective effect with effect from 02.07.2003 was not done by the competent authority. This Court had stayed the order dated 05.07.2003 vide an interim order dated 24.07.2003 passed in Writ Petition No.4302(SS) of 2003. At that time exercise for regularization the Daily Wager of different trades was under process as per the seniority list dated 20.06.2003. However, in the meantime, the State Government took a policy decision for creation of supernumerary posts for regularization of those employees, who were engaged on 29.06.1991 or before and were not regularized due to non availability of the sanctioned posts. Hence, vide Government Order dated 21.02.2011, 9189 supernumerary posts were sanctioned in different trades for regularization of the workmen, who were appointed on or before 29.06.1991, and, thereafter, services of those employees who were engaged on 20.06.1991 or before and were working on the date of promulgation of the rules were regularized. These supernumerary posts were created subject to adjustment in future regular vacancies.

28. Sunder Lal & Ors had filed Writ Petition No.2073(SS) of 1997 and this Court allowed the writ petition vide order dated 13.11.2003. In compliance of the order dated 13.11.2003 passed in Writ Petition No.2073(SS) of 1997, Executive Engineer, Provisional Division Lucknow took a decision on the representation of the petitioners vide order dated 12.04.2007, and accordingly compliance affidavit was submitted in the contempt petition. During the pendency of the said contempt petition, the Government issued an order dated 26.06.2013 by means of which 87 more supernumerary posts were created subject to final decision of the Writ Petition No.4302(SS) of 2003 (Bharat Singh & Ors vs State of U.P.) and against the supernumerary posts, services of the petitioners of Writ Petition No.2073(SS) of 1997 were regularized and G.P.F., Time Scale and consequential benefits were provided with effect from 02.07.2003 though no juniors to the petitioners were regularized with effect from 02.07.2003.

29. As mentioned above that Ram Swaroop & Ors filed Writ Petition No.1427(SS) of 1997 before this Court, and this Court passed the order dated 13.11.2003 in favour of the petitioners and the said writ petitioners filed a contempt petition being Criminal Misc. Case No.1687(C) of 2006: Bhawani Prasad & Ors vs Satish Chandra Agarwal, Principal Secretary & Ors.

30. During the pendency of the aforesaid contempt petition, the Government issued an order dated 25.06.2013 by means of which 27 more supernumerary posts were created subject to final decision of the Writ Petition No.4302(SS) of 2002, and against the supernumerary posts, services of the writ petitioners of Writ Petition No.1427(SS) of 1997 were regularized with effect from 02.07.2003 and other benefits like G.P.F., Time Scale and consequential benefits were provided from the date of their juniors but actually no junior to the petitioners was regularized.

31. Sri Prafulla Yadav, learned Standing Counsel has further submitted that in both orders dated 25.06.2013 and 26.06.2013, the date of creation of post was 02.07.2003 on the basis of holding the post of work agent. In such a situation only Sri Pawan Kumar Pandey and Sri Tez Bahadur Singh, who were Senior Work Agents were entitled for regularization from the date but without considering this aspects, against the sanctioned supernumerary posts 27 + 87 = 114 posts, the services of the writ petitioners were regularized in their respective divisions by the Executive Engineers at their own level. Aforesaid regularization was not done on the basis of seniority and eligibility, however, same had been done under the pain of the contempt proceedings.

32. Sri Prafulla Yadav, learned Standing Counsel has further submitted that power of regularization is vested in State Government. State Government has taken a decision for regularizing those employees who were engaged in the Department on or before 29.06.1991 as per the provisions of Regularization Rules but some employees have filed Writ Petitions before this Court claiming that juniors employees were regularized and they were entitled for regularization from the date on which their juniors were regularized.

33. After finalizing of the seniority list on 21.04.2018, final orders have been passed as per seniority list, and the anomalies have been rectified and fresh orders have been passed in accordance with law, which are impugned in the present writ petition. Writ Petition No.4302(SS) of 2003 has been dismissed on 15.02.2023. Earlier orders of regularization were conditional subject to outcome of the Writ Petition No.4302(SS) of 2003 by which order dated 05.07.2003 was stayed and after dismissal of the writ petition order dated 05.07.2003 got revived by which earlier seniority list dated 20.06.2003 was cancelled. Present seniority list has been issued strictly in compliance of the order dated 20.08.2015, which does not require any interference by this Court.

34. Regularization Rules were framed after the judgment in the case of State of U.P. & Ors. Vs. Putti Lal, [(1998) 1 UPLBEC 313 with intent to regularize the persons engaged prior to 29.06.1991 through back door entry, as a one time measure, keeping in mind that such engagement is not illegal as concept of regularization of service is a means to condone and procedural irregularity and is meant to cure only such defects, which are attributable to notions followed while making appointments and the concept has been duly clarified in a landmark judgment namely Secretary, State of Karnataka & Ors. Vs. Uma Devi (3) & Ors., (2006) 4 SCC 1.

35. Right of regularization is conferred vide Rule 4(1)(a) of Rules 2001, only against such vacancies as were available on the date of commencement of Rules, 2001 and not against any vacancy occurring subsequently as it is not a perennial source of recruitment so as to induct a person, as and when vacancies are available, either due to creation of post or otherwise on any date, subsequent to 20.12.2001. It is no longer res integra that any regularization should be given effect prospectively as held in the case of Registrar General of India vs V.Thippa Setty : 1998(8) SCC 690.

36. The question which falls for consideration is that whether the petitioners, who were regularized vide order dated 20.06.2003 on the basis of the seniority list, which was cancelled vide order dated 05.07.2003, had perfected their right inasmuch as the order dated 05.07.2003 whereby the seniority list dated 20.06.2003 was stayed by this Court vide order dated 20.06.2003 passed in Writ Petition No.4302(SS) of 2003 stands vacated as the said writ petition has been dismissed.

37. Regularization of the petitioners was subject to final outcome of the Writ Petition No.4302(SS) of 2003 in which an order was passed on 20.08.2015 to prepare the fresh seniority list as per law.

38. It would be apt to reproduce relevant provisions of Rules, 2001 under which the petitioners are claiming benefit and their regularization orders were passed as under:-

"4. Regularisation of daily wages appointments on Group 'D' posts.-(1) Any person who -

(a) was directly appointed on daily wage basis on a Group 'D' post in the Government service before June 29, 1991 and is continuing in service as such on the date of commencement of these rules; and

(b) possessed requisite qualifications prescribed for regular appointment for that post at the time of such appointment on daily wage basis under the relevant service rules, shall be considered for regular appointment in permanent or temporary vacancy, as may be available in Group 'D' post, on the date of commencement of these rules on the basis of his record and suitability before any regular appointment is made in such vacancy in accordance with the relevant service rules or orders.

2. In making regular appointments under these rules, reservations for the candidates belonging to the Scheduled Castes, Scheduled Tribes, Other Backward Classes of citizens and other categories shall be made in accordance with the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994, and the Uttar Pradesh Public Service (Reservation for Physically Handicapped, Dependents of Freedom Fighters and Ex-Servicemen) Act, 1993 as amended from time to time and the orders of the Government in force at the time of regularisation under these rules.

3. For the purpose of sub-rule (1) the appointing authority shall constitute a Selection Committee in accordance with the relevant provisions of the service rules.

4. The appointing authority shall, having regard to the provisions of sub-rule (1), prepare an eligibility list of the candidates, arranged in order of seniority as determined from the date of order of appointment on daily wage basis and if two or more persons were appointed together, from the order in which their names are arranged in the said appointment order. The list shall be placed before the Selection Committee along with such relevant records pertaining to the candidates, as may be considered necessary, to assess their suitability.

5. The Selection Committee shall consider the cases of the candidates on the basis of their records referred to in sub-rule (4), and if if considers necessary, it may interview the candidates also.

6. The Selection Committee shall prepare a list of selected candidates in order of seniority, and forward the same to the appointing authority."

5. The appointing authority shall, subject to the provisions of sub-rule (2) of Rule 4, make appointments from the list prepared under sub-rile (6) of the said rule in the order in which their names stand in the list.

7. (1) A person appointed under these rules shall be entitled to seniority only from the date of order of appointment after selection for regularisation 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 of such persons 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."

39. Rule 4 mandates that for the purposes of Regularization under Rules, 2001, eligibility list would be prepared in order of seniority. On the basis of this eligibility list prepared as per the seniority, the select committee would consider the cases of the candidates for regularization. It is further provided that seniority of the persons regularized under the Rules, 2001 would be counted from the date of order of regularization.

40. Earlier, seniority list dated 20.06.2003 had several anomalies and the Government had cancelled the said seniority list dated 20.06.2003 vide order dated 05.07.2003. The petitioners on the strength of the interim order dated 24.07.2003 passed in Writ Petition No.4302(SS) of 2003 continued as regular employees.

41. Having regard to the principle of Actus curiae Neminem Gravabit (the act of the Court shall prejudice no one) when the statutory/constitutional right of a person has been infringed by an order of the Court, the Court will not hesitate to withdraw or review such order.

42. Interim order would not confer any indefeasible right on the petitioners to draw the benefits of the order dated 20.06.2003, which was cancelled by the order dated 05.07.2003. After dismissal of the Writ Petition No.4302(SS) of 2003 vide order dated 15.02.2023, order dated 05.07.2003 got revived and, therefore, there could not have been any bar to draw the fresh seniority list in accordance with law as directed by this Court vide order dated 20.08.2015 passed in Writ Petition No.4302(SS) of 2003 and even without any order of the Court as the order dated 05.07.2003 got revived.

43. Regularization cannot be given effect to retrospectively. It is ordinarily be prospective so that seniority of all those, who are in regular service, should not be disturbed or affected. The Supreme Court in the case of Registrar General of India vs V.Thippa Setty : (1998) 8 SCC 690 has held that if the ad hoc service is regularized from the back date in this manner, it will disturb the seniority of regularly appointed employees in the cadre and, therefore, ordinarily the regularization must take effect prospectively and not retrospectively. 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 relaxation and, therefore, care must be taken to see that they do not upset the seniority of regular appointees. 

44. It is also relevant to take note of the fact that supernumerary posts 80+27 were created vide Government Orders dated 25.06.2013 and 26.06.2013. Regularization of the petitioners could have been only against those posts. If there was no post, their regularization would come only from the date of creation of post and not from the retrospective date. The Supreme Court in the case of National Fertilizers Ltd., & Ors. vs Somvir Singh: (2006) 5 SCC 493 has held that regularization is not a mode of appointment. If appointment is made without following the Rules, the same being a nullity, the question of confirmation of an employee upon the expiry of the purported period of probation would not arise.

45. Paras 20 to 22 and 26 of the aforesaid judgment is extracted hereinbelow:-

"20. The Constitution Bench opined that any appointment made in violation of the Recruitment Rules as also in violation of Articles 14 and 16 of the Constitution would be a nullity. The contention raised on behalf of the employees that those temporary or ad hoc employees who had continued for a fairly long spell, the authorities must consider their cases for regularisation was answered, thus: [Umadevi (3) case [(2006) 4 SCC 1 : (2006) 4 Scale 197] , SCC p. 29, para 26]

"26. With respect, why should the State be allowed to depart from the normal rule and indulge in temporary employment in permanent posts? This Court, in our view, is bound to insist on the State making regular and proper recruitments and is bound not to encourage or shut its eyes to the persistent transgression of the rules of regular recruitment. The direction to make permanent--the distinction between regularisation and making permanent, was not emphasised here--can only encourage the State, the model employer, to flout its own rules and would confer undue benefits on a few at the cost of many waiting to compete. With respect, the direction made in para 50 (of SCC) of Piara Singh [(1992) 4 SCC 118 : 1992 SCC (L&S) 825 : (1992) 21 ATC 403] is to some extent inconsistent with the conclusion in para 45 (of SCC) therein. With great respect, it appears to us that the last of the directions clearly runs counter to the constitutional scheme of employment recognised in the earlier part of the decision. Really, it cannot be said that this decision has laid down the law that all ad hoc, temporary or casual employees engaged without following the regular recruitment procedure should be made permanent."

21. It was furthermore opined: [Umadevi (3) case [(2006) 4 SCC 1 : (2006) 4 Scale 197] , SCC p. 32, para 33]

"33. It is not necessary to notice all the decisions of this Court on this aspect. By and large what emerges is that regular recruitment should be insisted upon, only in a contingency can an ad hoc appointment be made in a permanent vacancy, but the same should soon be followed by a regular recruitment and that appointments to non-available posts should not be taken note of for regularisation. The cases directing regularisation have mainly proceeded on the basis that having permitted the employee to work for some period, he should be absorbed, without really laying down any law to that effect, after discussing the constitutional scheme for public employment."

22. Taking note of some recent decisions of this Court, it was held that the State does not enjoy a power to make appointments in terms of Article 162 of the Constitution. It further quoted [ Umadevi (3) case, SCC pp. 33-34, para 38] with approval a decision of this Court in Union Public Service Commission v. Girish Jayanti Lal Vaghela [(2006) 2 SCC 482 : 2006 SCC (L&S) 339 : (2006) 2 Scale 115] in the following terms: (SCC p. 490, para 12)

"The appointment to any post under the State can only be made after a proper advertisement has been made inviting applications from eligible candidates and holding of selection by a body of experts or a specially constituted committee whose members are fair and impartial through a written examination or interview or some other rational criteria for judging the inter se merit of candidates who have applied in response to the advertisement made. A regular appointment to a post under the State or Union cannot be made without issuing advertisement in the prescribed manner which may in some cases include inviting 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."

It was clearly held: [Umadevi (3) case [(2006) 4 SCC 1 : (2006) 4 Scale 197] , SCC p. 35, para 41]

"These binding decisions are clear imperatives that adherence to Articles 14 and 16 of the Constitution is a must in the process of public employment."

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26. It is true that the respondents had been working for a long time. It may also be true that they had not been paid wages on a regular scale of pay. But, they did not hold any post. They were, therefore, not entitled to be paid salary on a regular scale of pay. Furthermore, only because the respondents have worked for some time, the same by itself would not be a ground for directing regularisation of their services in view of the decision of this Court in Umadevi (3) [(2006) 4 SCC 1 : (2006) 4 Scale 197] .

46. The Supreme Court in the case of Secretary, State of Karnataka vs Umadevi : (2006) 4 SCC 1 it has been specifically observed that the High Courts in exercise of jurisdiction under Article 226 of the Constitution of India 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. 

47. Thus, I find that the impugned orders do not violate in any manner the statutory prescription or any judgment of this Court or the Supreme Court. So far as challenge to the impugned orders is concerned, I find no merit in the present writ petitions, which are hereby dismissed. However, since some of the petitioners are retired or they are on the verge of retirement, taking away the benefit which has been conferred on them because of the interim order dated 24.07.2003 would not be justified and, therefore, it is provided that while implementing the impugned orders Government should ensure that the benefit already conferred on the petitioners or similarly situated persons should not be withdrawn except that they should be treated to have been regularized with effect from the respective dates as per impugned order dated 11/12.10.2018.

(Dinesh Kumar Singh, J.)

Order Date:-17.05.2023

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