Hon'ble Mahendra Dayal,J.
1. Heard Dr. L.P. Mishra, learned counsel for the petitioners and learned standing counsel for the respondents.
2. The petitioners are medical officers, who have prayed for a mandamus that they should be treated as substantively appointed and to reckon their period of services since 1989, prior to the enforcement of the U.P. Employees State Insurance Scheme, Labour Medical Services Rules, 1993 with all service benefits. It is virtually praying for treating their service to be continuous with effect from their date of initial appointment even prior to the enforcement of the Rules.
3. The petitioners had been appointed prior to the 1993 Rules, after the services were created under the Government Order dated 10.06.1985. This separate directorate with regard to the labour medical services was brought under the Labour Department of the State Government and it was stipulated that separate Rules would be framed in future. For the time being option was sought from other State Government employees, who were willing to join the said cadre. Fresh appointments were to be made within three years, in the event the employees were not available by way of option.
4. An advertisement was issued on 30.01.1986 inviting applications for appointment against the post of Medical Officers. This was further authorized by an office memorandum issued in the name of His Excellency The Governor that since no service rules have been framed, appointment should be routed through a Selection Committee as indicated in the said Government Order dated 05.04.1986.
5. All the petitioners appear to have been appointed under the Government Order dated 17.03.1989 that notified that their appointments on purely adhoc and temporary basis and this document is on record. It is thereafter that the Rules were notified on 26.01.1993.
6. The petitioners have also said in one of their affidavits that they were extended the benefit of regularization, the petitioners no. 5 to 7 vide order dated 20.04.2006 and the petitioners no. 1 to 4 vide order dated 24.07.2009.
7. Dr. Mishra submits that any omission on the part of State to reckon part of such services has to be read in the light of the phraseology used in Rule 3(i) of the 1993 Rules which according to him should mean to include such service rendered by the petitioners prior to the enforcement of the Rules.
8. The submission, therefore, is that word "substantive" used in the 1993 Rules should be read so as to include that period of service which is being claimed by the petitioners which deserves to be included for the said purpose.
9. There is no dispute on facts between the parties relating to the nature of the appointment of the petitioners in the service in which they are continuing.
10. There is yet another argument of Dr. Mishra apart from this that not only the said services are liable to be included but also that the respondents themselves to similarly situated employees prior to the enforcement of the Rules, had extended the benefits of such period of appointment as involved in the present case, for which, reliance has been placed on paragraph 5 of the supplementary affidavit dated 28.01.2014 to which a reply has been filed by the State, namely a supplementary counter affidavit dated 21.03.2014. Dr. L.P. Misra has further relied on the decision of the Apex Court reported in 2002 Volume 4 SCC Page 710 - The Collector of Central Excise, Meerut vs. M/s Kapri International (P) Ltd.
11. Dr. Mishra submits that if the petitioners and some other officers of the same category have been extended such benefits and which are service benefits to the same cadre of employees, then denial thereof merely on account of words substantively having been defined in rules promulgated later on, cannot be allowed to operate against the petitioners and that would amount to a hostile discrimination thereby violating Article 14 of the Constitution of India.
12. Learned standing counsel, on the other hand, submits that so far as the petitioners are concerned, they were well aware of their status of substantive appointment on regularization and also confirmation which were never challenged. The words substantive having been categorically defined under the 1993 Rules, the petitioners are not entitled any such benefits.
13. He further submits that so far as the second part of the argument is concerned, even though Paragraph 6 of the supplementary counter affidavit does indicate the extension of such benefits, yet it is not clear as to whether the same category of employees were granted such benefits or not. He, therefore, submits that the argument of Article 14 of the Constitution of India raised by the petitioners does come to their aid.
14. Having considered the submissions raised at the bar and the aforesaid facts, we find that words substantively having been categorically defined leave no room for doubt that the same defines all such employees, who have been appointed under the Rules to have been substantively appointed. It is for this reason that the words which have been conjunctively used in the phraseology employed in Rule 3(i) clearly indicate the exclusion of both the categories from the benefits of the word substantive. We are supported in our view contained in the commentary in "the celebrated treatise Law of Principles of Statutory Interpretation by Justice G.P. Singh (11th Edition) in Chapter-5 Synopsis 7" describing the usage of word 'and' conjunctively with the grammatical imposition of the comma as used in the phraseology of the Rule in question. The said commentary has discussed the judgments of the Apex Court as also of various High Courts to come to the conclusion that whenever the word 'and' has been used, it has a cumulative impact as used in the aforesaid phraseology of Rule 3(i) which defines the petitioner's status for being excluded from the definition of substantive appointment prior to the enforcement of the Rules.
The relevant Rule in English and Hindi are extracted hereinunder :-
3(i) "substantive appointment" means an appointment, not being an ad hoc appointment on a post in the cadre of the service made after selection in accordance with the rules and, if there are no rules in accordance with the procedure prescribed for the time being by executive instructions issued by the Government;"
Þ3¼>½ ÞekSfyd fu;qfDrÞ dk rkRi;Z lsok ds laoxZ esa fdlh in ij ,slh fu;qfDr ls gS tks rnFkZ fu;qfDr u gks vkSj fu;eksa ds vuqlkj p;u ds i'pkr dh x;h gks] vkSj] ;fn dksbZ fu;e u gks rks ljdkj }kjk tkjh fd, x;s dk;Zikyd vuqns'kksa }kjk rRle; fofgr izfØ;k ds vuqlkj dh xbZ gks]Þ The English version leaves no room for doubt that the word has been used to denote a cumulative sense requiring fulfillment of the words "not being". The word "and" is, therefore, to be read conjunctively to include all the categories of employees referred to after the aforesaid words in a single composite manner. The entire phrase, therefore, if read together would clearly mean that any appointment on adhoc basis under the 1993 Rules would stand excluded from the definition substantive appointment, and also such appointments which have been made in the absence of Rules under any executive instructions. In the instant case, the appointment of the petitioners was under the executive instructions as narrated hereinabove. The appointments were clearly on adhoc and temporary basis against the advertisement that had been issued on 30.06.1986 and under the Order dated 17.03.1989. The Rule framing authority was, therefore, cautious of the status of the petitioners and it is for this reason has clearly defined the words "substantive appointment". The words "not being" have been negatively used right at the beginning, and in such circumstances, there is no ambiguity in the language so as to accept the arguments on behalf of the petitioners.
The word "substantive" has been defined and interpreted in the Apex Court's decision reported in (1980) 4 Supreme Court Cases 226 - Baleshwar Dass and others vs. State of U.P. And others, Para 31 extracted hereinabove.
"31. What, in the context, is a substantive capacity vis-a-vis an appointment to a post? In our view, the emphasis imparted by the adjective "substantive" is that a thing is substantive if it is "an essential part or constituent or relating to what is essential". We may describe a capacity as substantive if it has "independent existence" or is of "considerable amount or quantity". What is independent in a substantial measure may reasonably be described as substantive. Therefore, when a post is vacant, however designated in officialese, the capacity in which the person holds the post has to be ascertained by the State. Substantive capacity refers to the capacity in which a person holds the post and not necessarily to the nature or character of the post. To approximate to the official diction used in this connection, we may well say that a person is said to hold a post in a substantive capacity when he holds it for an indefinite period especially of long duration in contradistinction to a person who holds it for a definite or temporary period or holds it on probation subject to confirmation."
15. We are, therefore, unable to accept the submission of Dr. Mishra that the words substantive appointment does not exclude the petitioner's erstwhile services from the said definition clause for the aforesaid purpose.
16. So far as the second argument is concerned, we find from the supplementary affidavit and supplementary counter affidavit that the State Government has proceeded to grant all service benefits to its employees, presumably of the same category.
17. In our considered opinion if this is the position on facts, then the petitioners cannot be discriminated as that would violate Article 14 of the Constitution of India. Consequently, the State Government is required to delve into this factual aspect and in the event it is established that the petitioners belong to the same category of employees prior to the enforcement of the Rules, and if other employees have been extended the service benefits in a similar fashion, then there is apparently no reason to discriminate the petitioners for extension of such benefits.
Consequently, we dispose of this writ petition with the aforesaid observations and a direction is issued to the State Government to consider the claim of the petitioners in the light of observations made herein above and pass appropriate orders within three months from the date of production of a certified copy before the competent authority.
With the aforesaid directions, the writ petition is disposed of.
Order Date :- 22.7.2014 Muk