JUDGMENT S.R. Singh, J.
1. The question that stems for consideration in these petitions listed for admission under the heading "IG Registration Bunch, is as to whether the petitioners were entitled to be regularised in service as Registration Clerk qua the directions given by the Supreme Court in Khagesh Kumar and Ors. v. Inspector General of Registration, U.P. and Ors. JT 1995 (7) SC 542 : (1996) 1 UPLBEC 23 (SC). In some of the writ petitions, a further question has been brought to bear that in any case the petitioners were entitled to continue on daily wages till regular selections were made in the light of the directions given by the Apex Court in I.G. Reg v. Avdhesh Kumar JT 1996 (5) SC 365 : (1996) 3 UPLBEC 1744 (SC). Since the petitions are knit together by reason of common question of law being involved therein and also by reason of the facts being identical these petitions were grouped together and heard accordingly for a convenient disposal by a common judgment.
2. It brooks no dispute that the petitioners were appointed registration clerk on daily wages on the basis of sanction given by the Governor each year subject to the postulates that the appointments would, in no case, exceed three years during the course of a financial year. Earlier when the matter came up before this Court at the instance of a large number of Daily rated Registration clerks, seeking regularisatioin, the High Court held that Daly rated employees were not entitled to consideration for regularisation under the provisions of the U,P Regularisation of the Adhoc Employees on Posts (Outside the Purview of the Public Service Commission) Rules, 1979 (hereinafter referred to as the "Rules") as the Rules and amended from time to time. Disagreeing with that view taken by the High Court, the Apex Court held in Khagesh Kumar (supra), that in the fact-situation of the case, the Registration clerks appointed on or before 1.10.1986 on daily wage basis in view of the sanction given by the Governor for such posts, would be deemed to be ad hoc appointees within the meaning of the Rules aforesaid. The Apex Court, however, held that while counting three years continuous service for the purposes of regularisation, artificial break in service for short period/periods created by the employer would be ignored but "if three is a gap of more than three months between the period of termination and re-appointment, that period may be excluded in the computation of three months 'period as held in Bhagwati Prasad v. Delhi State Mineral Development Corporation, JT 1989 (4) SC 541. In view of the said decision, it was categorically held by the Apex Court in Khagesh Kumar (supra), that "for computing three years period of corrtinauus service for the purpose of Rule 4 (1) (iii) of the Regularisation Rules, the period of break in service which was longer than three months has to be excluded and only the period during which the petitioners actually worked can be counted." It was further held that in case any of the petitioners was employed as a registration clerk on Daily wage basis prior to October 1, 1986 and after excluding the periods of breaks in service which are longer than three months, he has put in three years service he would be entitled to seek regularisation under Rule 4 (1) of the Regularisation Rules provided he fulfills the requirements of clause (ii) of the said Rules. The Apex Court observed that for this purpose, the candidate may move the appropriate authority for such regularisation. The authority was directed to pass appropriate orders after checking on the correctness of the claim of such individual. It was pursuant to the said directions that representations were preferred by the petitioners seeking regularisation and which representations came to be rejected by orders impugned in these writ petitions. In I.G. Registration v. Avdhesh Kumar, JT 1995 (5) SC 365 : (1996) 3 UPLBEC 1744 (SC), the Apex Court extended the benefit of the directions given in Khageh Kumar {supra), even to those daily rated registration clerks who were appointed subsequent to 1.10.1986 and directed that such appointees would continue till regular selections were made in the light of the directions given in Khagesh Kumar's case. Subsequently however, it was clarified by the Supreme Court that directions to continue till regular selection could be availed of only by those who were continuing on the date of judgment in Avdhesh Kumar's case (supra), i.e. on 12.6.1996.
3. On the findings of fact recorded by the I.G. Registration in each case, it is evident that the petitioners failed to make out a case for regularisation within the meaning of Rule 4 (1) (iii) of the Rules in that they could not complete three years period of continuo service. To exemplify, in Writ Petition No. 4894 of 1998, Bhupendra Singh Bhadouri and Ors. v. State of U.P. and Ors., the representation preferred by the petitioners seeking regularisation in terms of the directions contained in Khgesh Kumar (supra), came to be rejected by the Inspector General of Registration Uttar Pradesh vide impugned order dated 31.12.1997.The finding of the fact recorded in the impugned order is that Bhupendra Singh Bhadaura, petitioner No. 1 worked on Daily wage basis for 48 days in the year 1.985, 48 days in 1986, 55 days in 1987, 33 days in 1988, and 44 days in 1990-91. Similarly the 2nd Petitioner Mayashanker Vishwakarama worked for 44 days in 1986, 58 days in 1987, 20 days and 41 days in 1990-91. In addition to the service so rendered on Daily wage basis, petitioner-Bhupendra Singh Bhadauria worked from May,. 1991 to 16.4.1994 and Maya Shanker Vishwakarma from May, 1992 to 6.1.1994 on the dint of the interim orders passed by this Court. Similar findings have been recorded in other cases as well.
4. The learned Counsel, appearing for the petitioners canvassed that die orders passed by the Inspector General, Registration proceed upon misconstruction of the directions given by the Apex Court in Khagesh Kumar (supra),. The learned Counsel urged that the observations "period of break in service which was longer than three months has to be excluded" made by the Supreme Court in Khagesh Kumar (supra), is intended to mean that even if the break of service was more than three months it will not result in discontinuity in service for such break in service is to be ignored for the purposes of computing three years period of service. I am afraid the submissions made by the learned Counsel has no substance. In my opinion, what is meant by the observation "period of break of service which was longer than three months, has to be excluded" made by the Supreme Court in Khagesh Kumar (supra), is that any break in service for a period less than three months at a time between termination and re- employment will not result in discontinuity in service but break in service for a period longer than three months will result in discontinuity and -appointment after break in service for a period longer than three months would be treated to be a fresh appointment and the appointee would not be entitled to get benefit of previous service rendered by him for the o purposes of computing three years period of continuous service referred to in Rule 4 (1) (iii) of the Rules. In my opinion therefore, it cannot be countenaneed that the I.G. Registration has misconstrued and misapplied the law laid down by the Supreme Court in Khagesh Kumar (supra) and I am of the considered view that on the findings of fact recorded by the I.G. Registration in the orders impugned in respect of the total period of service tendered by the petitioners, case for the regularisation under Rule 4. (1) (iii) of the Rules is not made out.
5. The learned Counsel for the petitioners then submitted that the petitioners are entitled to be regularised in view of the latest notification dated July 9, 1998 issued by the Governor making Rules known as the 1 Uttar Pradesh Regularisatio of Daily Wage Appointments on Group 'C Posts (Outside the Purview of Uttar Pradesh Public Service Commission) Rules, 1998 in exercise of power under Article 309 of the Constitution. The Rules have overriding effect and Daily rated employee working on group 'C posts would be entitled to be regularised notwithstanding anything to the contrary contained in. any other rules or orders in case, they fulfill the requisite conditions of regulsisatiion stipulated in the Rules. Rule 4 in so far as it is relevant may be abstracted below :
"4. (1) Any person who-
(i) was directly appointed on daily wage basis on Group 'C' 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
(ii) possessed requisite qualifications prescribed for regular appointment or that post at the time of such appointment under the relevant service Rules on daily wage basis, shall be considered for regular appointment on group 'C' post in permanent or temporary vacancy as may be available 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.
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx (3) For the purpose of sub-rule (1) the appointing authority shall constitute a Selection Committee an 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 and if two or more persons are 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 their character rolls and such other records, pertains to them 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 it considers necessary, it shall interview the candidates also to assess their suitability."
6. It is evident from the provisions aforestated that in order to get benefit of the regularisation Rules,' a daily rated employee must have been directly appointed on Group 'C ' 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 must also possess the requisite qualifications prescribed for regular appointment for the post at the time of such appointment under the relevant Service Rules on daily wage basis, Rules were notified on July 9, 1998 i.e. during the pendency of the writ petition. The petitioners were no-doubt appointed before June 29, 1991, and in view of the findings of fact recorded by I.G. Registration it is evident that the petitioner Bhupendra Singh Bhaduaria worked from May 1991, to 16.4.94 and Maya Shankar Vishuvarama from May 1991 to 6.12.94 on the basis of interim orders passed by the Court, but prima facie, nothing has been brought on record showing that the petitioners were continuing in service as daily rated Registration clerk on the date of commencement of the Regularisation Rules, 1998 i.e. July 9, 1998. However, since Rules aforestated were made during the pendency of the writ petition. I consider it appropriate to leave it own to the petitioners to stake their claims regularisation, if so advised, on the basis of the Uttar Pradesh Regulation of Daily Wages Appointment on Group 'C' Posts (Outside the Purview of the Uttar Pradesh Public Service Commission) Rules, 1998. In case, any such claim is made, the I.G. Registration shall take appropriate decision in the matter in accordance with law. In so far as petitioners, claim regarding continuance on daily wage basis till the regular selections are made, in the case aforestated was decided by the Apex Court vide order dated November.8, 1996 passed on Interlocutory Application No. 6 of 1996 in Civil Appeal No. 7500 of 1996, I.G. Registration and Anr. v. Avdhesh Kumar and Ors., which reads as under :
"While disposing of the appeal on April 12, 1996 we had directed that though their appointments were not valid in law and cannot be regularised, all the working daily wage employees working would be continued termporarily all the regularly selected candidates are appointed. This order would be applicable to those candidates who would be working on daily wage basis on the date. It is seen on the facts in this case that the respondents were continuing on the day when the High Court had passed the order. When the matter was being disposed of by this Court finally, they were terminated. We have clarified on the earlier occasion than in the event of their succeeding (sic) in the main matter their cases would be considered as we have already directed that temporary candidates containing as on the date of the order will continue on daily wage basis till regularly selected candidates are appointed. The benefit of the order would also go the respondents.
The IA is accordingly clarified and this order of benefit will not be applicable to Any other person."
7. Learned counsel appearing for the petitioners failed to make out a case for continuance on daily wage basis till regular selections are made inasmuch as it could not be established that the petitioners were, in fact, working as on 12.4.1996.
8. In the result, the petition fails and is dismissed subject to course, to the observation aforestated.