1. Heard Sri R.B.Singhal, learned Senior Advocate for the petitioner and learned Standing Counsel for the respondents.
2. The petitioner has sought a mandamus commanding the respondents to permit him to join his duties and regularize his services from the date of termination and pay arrears of salary for the entire period and also to comply with the judgment dated 16.10.1992 in letter and spirit.
3. The facts in brief giving rise to the present dispute are that the petitioner, who was appointed as Senior Accounts Clerk on 26.4.1972 was terminated on 27.4.1987. Challenging the order of termination, Writ Petition No.13111 of 1987 was filed in which order of termination was stayed. Some further order was passed by the respondents on 15.7.1987 which was also stayed by this Court in the above writ petition on 28.10.1987. The above writ petition was ultimately decided finally on 16.10.1992. The Court observed that petitioners were working as Seasonal Employee since April, 1972 though not regularly but having worked for sufficiently long time, they should be considered for regularization irrespective of the fact that there has been break in every year till the date of termination i.e. 1987 relying on Apex Court decisions in U.P.Income Tax Department Vs. Union of India & Ors. AIR 1988 SC 517; Dhanbad District P.W.D. Literate Daily Wagers Employees Association Vs. State of Karnataka, AIR1990 SC 883; Jacob Vs. Kerala Water Authority & others, AIR 1990 SC 2228; Bhagwati Prasad Vs. Delhi State Mineral Corporation, 1990 SC 371; Daily Rated Casual Labour Vs. Union of India, AIR 1987 SC 2342; Karnataka State Private College Stop Gap Lecturer Association Vs. State of Karnataka, AIR 1992 SC 677 and State of Haryana Vs Piara Singh & Ors., 1992 (5) JT 179. The Court decided the aforesaid writ petition and other connected matter with the following direction:
"Accordingly I direct the opposite parties to regularise petitioners' services for the posts for which they possess requisite qualification as and when a substantive vacancy arises. Out of total number of vacancies 50% will go to other categories. They will be entitled to be regularised only against 50% of the total number of vacancies every year, as per concession made by the learned counsel for the petitioners. The process will continue until all the petitioners are absorbed."
4. It is said that pursuant to the aforesaid judgment, the petitioner was not regularized hence this writ petition.
5. The respondents have filed counter affidavit stating that judgment dated 16.10.1992 clearly said that only those will be regularized who are qualified and eligible for the post in question. It is said that, firstly the petitioner was claiming a post which could have been filled in only by promotion under Rule 5 of U.P.Civil Supplies Ministerial (Audit and Accounts) Service Rules, 1984, hence regularization on a post, where source of recruitment is only promotion, were not permissible and secondly, the petitioner did not possess requisite qualification of Commerce and Intermediate with accountancy, hence he could not have been regularized on the post in question.
6. Sri R.B.Singhal, learned counsel for the petitioner submitted that once this Court has issued direction for regularization merely for lack of qualification, petitioner could not have been denied regularization, considering the fact that he had worked for such a long time and had experience. Reliance is placed on Apex Court decision in Bhagwati Prasad & Ors. Vs. Delhi State Mineral Development Corporation, AIR 1990 SC 371. He submitted that long experience satisfy the deficiency, if any, with respect to qualification and therefore for the mere fact of lack of qualification, the petitioner could not have been denied benefit of regularization.
7. In my view, the submission advanced on behalf of petitioner lacks substance and writ petition deserve to be dismissed. It is not in dispute that petitioner does not satisfy the requirement of prescribed qualification for appointment to the post in question. The judgment of this Court clearly said that subject to the qualifications possessed by the person concerned, they shall be considered for regularization. This Court, therefore, in the earlier adjudication has not given a blanket protection that the petitioner has to be regularized irrespective of the fact whether he possess qualification or not.
8. If minimum qualification is prescribed yet an appointment has been made ignoring the same, it would be illegal. In Dr. Bhanu Prasad Panda Vs. The Chancellor, Sambalpur University & Ors., AIR 2001 SC 3324, the Court said that eligibility qualification cannot be ignored. The same view was reiterated in Mohd. Sohrab Khan Vs. Aligarh Muslim University & Ors., JT 2009(2) SC 666.
9. In Mohd. Sartaj & Anr. Vs. State of U.P. & Ors. AIR 2006 SC 3492 the Court said "It is settled law that the qualification should have been seen which the candidate possessed on the date of recruitment and not at a later stage unless rules to that regard permit it." There the candidate lack training qualification on the date of appointment but subsequently acquired it. The Court declined to give any benefit on account of subsequent acquiring of qualification and held the appointment illegal since on the date of appointment, the incumbents lack requisite qualification of training.
10. Same is the view reiterated in Ashok Kumar Sonkar Vs. Union of India & ors., 2007(4) SCC 54 and Pramod Kumar Vs. U.P. Secondary Education Services Commission and Ors. 2008(7) SCC 153.
11. So far as decision of Apex Court in Bhagwati Prasad & Ors. (supra) is concerned, therein the employees were not claiming benefit under a statutory provision for regularization by simultaneously violating the requirement which constitute condition precedent for that benefit under that statute. Similar was a case in Budhi Nath Chaudhary and others (supra) which also has no application to the present case.
12. Moreover, in Bhagwati Prasad & Ors. (supra) giving benefits of experience acquired by worker during the course of service, the Apex Court issued direction to consider them for regularisation. These directions have been held overruled by the Apex Court in Secretary, State of Karnataka and others Vs. Uma Devi and others, JT 2006 (4) SC 420 and this has been noticed in State of Rajasthan Vs. Daya Lal and others in 2011 (2) SCC 429 where in para 12 of the judgment the Court said:
"The decision relied upon by the High Court namely the decision in Anshkalin Samaj Kalyan Sangh of the High Court no doubt directed the state government to frame a scheme for regularization of part-time cooks and chowkidars. It is clear from the said decision, that such scheme was intended to be an one-time measure. Further said decision was rendered by the High Court prior to Uma Devi, relying upon the decision of this Court in Daily Rated Casual Labour vs. Union of India [1988 (1) SCC 122], Bhagwati Prasad vs. Delhi State Mineral Development Corporation [1990 (1) SCC 361] and Dharwad District PWD Literate Dalit Wage Employees Association vs. State of Karnataka [1990 (2) SCC 396]. These directions were considered, explained and in fact, overruled by the Constitution Bench in Uma Devi. The decision in Anshkalin Samay Kalyan Singh is no longer good law. At all events, even if there was an one time scheme for regularisation of those who were in service prior to 1.5.1995, there cannot obviously be successive directions for scheme after scheme for regularization of irregular or part-time appointments. Therefore the said decision is of no assistance."
13. Learned counsel for the petitioner also drew attention of Court to the decision of this Court dated 16.5.2003 in Writ Petition No.37542 of 1993 (Amar Pal Singh Vs. Food Commissioner & Ors.) who was employed as Seasonal Clerk as on 06.05.1980 and retrenched on 26.7.1980 but was again employed on 30.4.1984. During the period of working, he acquired the qualification of M.Com. from Meerut University. Sri Amar Pal Singh filed writ petition No.13173 of 1987 claiming regularization/absorption. The writ petition was decided on 16.10.1992 directing for regularization on the post for which the petitioner possess requisite qualification. Sri Amar Pal Singh was absorbed by the Department on 4.6.1993 but thereafter regularization order was revoked on the ground that petitioner did not possess requisite qualification of graduation degree in Commerce from recognized University with Accountancy, as one of the subject. However, he was allowed to continue but subsequently, on 25.9.1993, an order of termination was passed whereagainst he filed the above writ petition No.37542 of 1993. This Court held that once it is admitted that Amar Pal Singh has passed Post Graduation examination with Accountancy and various other subjects, it cannot be said that he did not possess graduation degree of Commerce with Accountancy as one of the subject and in these peculiar facts and circumstances the Court came to the conclusion that termination of Amar Pal Singh was not justified and the same was set aside. The Special Leave Petition Against the aforesaid judgment was also dismissed by the Apex Court on 05.7.2004.
14. From the facts, as discussed above, it is evident that the aforesaid judgment has no application to the facts of this case. Reliance is also placed on Apex Court decision in Vimal Chand Pandey & Anr. Vs. Engineer in Chief, Public Works Department & Ors., 2000 (1) UPLBEC 240. Having gone through the aforesaid judgment, I do not find that the same has application to the facts of this case particularly when the matter has been considered subsequently by larger Bench of Apex Court, as already discussed above, and the judgments of the larger Bench are binding on this Court.
15. In view of the above discussion, the writ petition lacks merit.
16. Dismissed.
17. Interim order, if any, stands vacated.
Order Date :- 2.4.2012 KA