JUDGMENT Sunil Ambwani, J.
1. Heard S/Shri Narendra Mohan, V.K. Singh, N.A. Khan and Devi Prasad Mishra, learned Counsel appearing for petitioners in the above writ petitions, and learned Standing Counsels for respondents.
2. By means of these writ petitions, petitioners, working as Class-IV Employees as "Mali" on daily wages have prayed for regularisation of their services with respondents and for payment of regular wages. During the pendency of these writ petitions, a process of regularisation was undertaken in which twelve Malis, including petitioners were recommended to be regularised by a Regularisation Committee, on 7.1.2003, under the U.P. Regularisation of Daily Wages Appointment on Group 'D' Posts Rules 2001. Petitioners have also challenged the validity of the process of regularisation and the method and manner in which their seniority was determined for the purposes of regularisation.
3. The facts giving rise to these writ petitions arc that petitioners are working in the Horticulture Department at Allahabad as Malis on daily wages. Some of the petitioners arc working since 1984-85. They were mainly engaged in various gardens run by the Horticulture Department at Allahabad including Alfred Park. By Government Order dated 26th September 1987 "Uddyan Prayog Avam Prashikshan Kendra" were established under a scheme by State Government, at Lucknow, AHahabad and Jhansi. These centres were established for disseminating and providing knowledge of latest methods and techniques in Horticulture to the farmers, with special emphasis to Mango, Guava and Lemon including its various processes, selection of species, plant protection, to increase the production and to train the officers and employees in this regard. AH the petitioners were taken on daily wages in the scheme at Allahabad as Class IV employees, with its office of Khusroobagh in the year 1987-88. Initially the aforesaid Government Order sanctioned 30 posts including the Chief Horticulture specialists, Cits specialist, Pathologists etc., including three Class IV posts of Chaukudar and Peon. Financial grants were given for 34 posts of Malis. Initially 32 employees were taken from different places in the Horticulture Department on regular basis. At present, however, only 22 Malis are working and that there are 12 regular vacancies.
4. Sri Babai and five others including Amar Bahadur, Bhagi Rathi, Ram Vilas and Ram Lakhan Saroj and Bhai Lal Saroj, filed Writ Petition No. 19852 of 1989, alleging that they were working as Class-IV employees on daily wages and that they were told by the respondents that their services were no longer required after 31.10.1989. In the counter-affidavit it was stated that petitioners are working as casual daily labours. Their employment was casual and the duty discharged by them was different, from regular malis. The Court relying upon the Supreme Court decision in the State of Haryana v. Piara Singh, AIR 1992 SC 2130, found that since petitioners were working for a substantial period varying from five to twelve years, they were entitled to be regularised provided their service record are satisfactory. Accordingly, the petition was disposed of directing respondents to consider petitioner Nos, 1, 2, 3, 5 and 6 for the purposes of regularisation and to pass reasoned order within a period of eight weeks. Writ Petition No. 24918 of 1989, filed by Ram Naresh and two others namely Daya Bhan and Jag Lal; as well as Writ Petition No. 10498 of 1990, between Devi Deen Parjapati and one another namely Ram Raj Singh was also disposed of on 12.12.1995 with the same directions as in the case of Babai and others. One other Writ Petition No. 19862 of 1989 was filed in which final order was passed on 12.11.1995 with the same direction as above, to decide the matter of regularisation by reasoned within the date fixed. These orders passed as aforesaid by this Court were not complied with by the respondents on which Contempt Petition Nos. 946 of 1996 and 1204 of 1996, were filed in which notices were issued by this Court on 10.4.1996 by Hon'ble Mr. Justice G.P. Mathur (as he then was). Since the respondents came to learn about the orders passed in the above writ petitions, it is alleged by the petitioners that the respondents restrained petitioners in the contempt petitions, to perform their duties and that only in the year 1998, when this Court issued positive directions, the respondents permitted them to continue to perform their duties.
5. It is pertinent to State here in Writ Petition No. 6378 (S/S) of 1997, between Bechan Ali and Ors. v. State of U.P. and Anr., the Lucknow Bench of this Court passed an order directing respondents to pay salary to Class III and IV employees (petitioners) in, minimum of the pay scale in which other regular employees were entitled.
6. Writ Petition No. 37176 of 1999, between Babai and nine others was filed 30.8.1999. An interim order was passed by Hon'ble Mr. O.P. Garg, on 30.9.1999 directing respondents to give the salary to the petitioners, in the regular pay scale as is payable to the Employees of the same category in which petitioners are situate or to show cause by the next date fixed. A counter-affidavit of Sri Atul Kumar Singh was filed on 30.11.1999 stating that the Khusroobagh is under Horticulture Department. Persons of different trade are engaged for different purposes on seasonal basis. They are paid daily wages as prescribed by the Government and their engagement comes to an end when the work required is accomplished. It was denied that the petitioners are entitled salary equal to Group-'D' employees. A supplementary-affidavit was filed in the writ petition annexing therewith a copy of the order of the Director, Horticulture dated 17.2.2001 by which the petitioner in the Writ Petition No. 6378 (S/S) of 1997, Bechan Ali v. State of U.P. and Ors. ; Petitioners in the Writ Petition No. 49 of 2000 (S/S), 50 of 2000, 2717 of 1999 (S/S) and in Contempt Petition No. 883 of 2000 (all matters filed at Lucknow Bench) named in the order namely 15 persons in Group-C posts and 16 persons in Group T) posts on daily wages; were given regular pay scale of Rs. 3050-3990/- in the minimum pay scale of 3050/- with effect from 12.5.2000, in respect of Group 'C employees and in the scale of 2550-3200/- in the minimum pay scale of 2550/- with effect from 12.5.2000, in respect of Group 'D' employees. Similar order passed by this Court in the subject writ petitions for payment of minimum of pay scale and allowances was however not complied with by the respondents.
7. In Writ Petition No. 10130 of 2000, between Ram Bilas and one another namely Bachcha Lal, interim order was passed on 28.2.2000, directing respondents to give minimum pay scale to the petitioner which is payable to Class 'IV' employees. In the counter-affidavit of Shri Atul Kumar Singh, it was stated that petitioners were engaged on casual daily wages employment and were paid at Rs. 47.00 per day. It was denied that petitioners were entitled to regular pay scale.
8. The Mukhya Udhyan Vishesak Adhikari, Pariyojna and Pratisthan Kendra, Khusrubagh, Allahabad, finally, partly complied with orders of this Court dated 12.12.1995 to consider petitioners for regularisation and in pursuance of orders passed in Writ Petition No. 19852 of 1989, No. 22870 of 1989, No. 22876 of 1989, No. 23582 of 1989, No. 24817 of 1989, No. 10498 of 1990, No. 8560 of 1996 and No. 22491 of 1990 and in Contempt Petitions No. 946 of 1996 and No. 1204 of 1996, in which 49 daily wagers were included, passed, an order on 3rd May, 1999 rejecting their claims for regularisation on the ground that by Government Order dated 13.1.1999, the matter of regularisation has been treated to be a policy matter in which concerned department takes a decision after advice of personal department and that the further proceedings in the matter are only possible after directions are given by the said department and in the aforesaid circumstances and the applications of the petitioners were rejected.
9. In Writ Petition No. 24826 of 2000, Asharfi Lal challenged the said order dated 3rd May, 1999, on the ground that he has been continuously working for last 12 years and is entitled for regularisation and that the decision of the respondents is against principle of regularisation established by this Court as well as Hon'ble Supreme Court and claimed, regular wages in the pay scale of Rs. 2550-3200. In Writ Petition No, 37136 of 2002, Lallan Prasad and two others namely Ram Ajor and Ram Bahadur, prayed for regularisation in pursuance of Government Order dated 31.12.2001 and for payment of regular salary, this Court passed following interim order in the matter on 2.9.2002 :
"Connect with Writ Petition No. 37136 of 1999.
It is contended that petitioners are working as Class-IV employees in the Horticulture Department under respondent No. 3 since 1984, 1979 and 1980 respectively, however, they have neither been considered for regularisation, nor paid their salary inspite of the fact that they are working and performing their duties regularly without any break. It is further contended that after filing earlier writ petition, the U.P. Regularisation of Group 'D' employees on Daily Wage Rules, 2001, have come into force with effect from 21.12.2001, providing that all Group-D employees on daily wages working on, or before 29.6.1991 are entitled to be considered for regularisation by the Selection Committee.
Learned Standing Counsel has accepted notice on behalf of all the respondents. He prays for and is granted six weeks time for filing counter-affidavit. List immediately thereafter for admission/hearing.
As an interim measure, respondent No. 3 is directed to consider regularisation of the services of petitioners and all similarly situated employees working under him for regularisation in accordance with the aforesaid Rules of 2001, as expeditiously as possible and in the meanwhile until further orders, respondent No. 3 is directed to allow petitioners to continue to work and to pay them their entire arrears of salary within one month and continue to pay their salary at the rate it is payable to a regular employee, with all allowance month by month as and when it falls due."
10. In Writ Petition No. 50218 of 2002, between Ram Singh and another namely Smt. Sunita also prayed for similar directions as in the Writ Petition No. 37136 of 1999. On 25.11.2002, this Court passed an order directing respondent No. 3 to consider petitioners, for regularisation and all the similarly situated employees working under him in accordance with the Rules of 2001, as expeditiously as possible and until further orders respondent No. 3 was directed to allow petitioners to continue to work and pay them entire arrears of salary within two months and to continue to pay their salary at the rate it is payable to the regular employees, with all allowances month to month as and when it falls due.
11. In pursuance of aforesaid interim order dated 2.9.2002 and dated 25.11.2001 and after a contempt petition was filed complaining that the orders were not complied with, a process of regularisation was initiated and a Committee was constituted. The Committee drew a list of seniority of 22 persons working on daily wages in the Centre at Khusroobagh and taking into account and determining their seniority with effect from the date when the Centre was established, on the basis of the number of days, they have worked, determined their seniority and thereafter made a recommendation on 7.1.2003 to regularise 12 persons in order of their seniority, keeping in view Rules of reservation.
12. Writ Petition No. 16842 of 2003 and Writ Petition No. 16909 of 2003, have been filed challenging the process of regularisation and the method and manner of determination of the seniority.
13. By a Gazette Notification dated 21st December, 2001 the State Government in exercise of powers conferred by the Proviso to Article 309 of Constitution made Uttar Pradesh Regularisation of Daily Wages Appointments on Group-'D' Posts Rules, 2001, which provide for regularisation of employees appointed on daily wages on Group-'D' posts in the Government before June 29, 1991 and who are continuing in service as such on the date of commencement of these Rules i.e., 21st December, 2001 and possess requisite qualification under the Service Rules at the time of their appointments, on the basis of their records and suitability. Rule 4(2) provides for applying the Rules of reservation in making such appointment. Sub-rule (4) provides that Appointing Authority shall prepare eligibility list of the candidates appointed in order of seniority as determined from the date of order of appointment on daily wage basis. The Selection Committee is required to consider the cases of these candidates on the basis of their records and prepare a list of selected candidates under Sub-rules (6) in order of seniority and forward the same to the Appointing Authority. The Appointing Authority under Rule 5, shall subject to provisions of sub-rule (2) of Rule 4 make appointment from the list prepared under Sub-rule (6). These appointments under Rule 6 are . deemed to be relevant Service Rules.
14. Twelve clear vacancies were required to be filled in by regularisation from out of 22 employees working on daily wages. In the counter-affidavit of Shri Atul Kumar Singh, Mukhya Udhyan Vishcsakh, Khusrubagh, Allahabad, filed in Writ Petition No. 16842 of 2003, between Jaglal and three Ors.
v. Director of Horticulture, Civil Secretariate, U.P. Government, Lucknow and Ors., it is stated in Paragraph 4, that out of 34 posts sanctioned at the Centre at Allahabad, 22 regular employees were working and that at present 12 vacant posts are available. The Selection Committee consisting of Kit Vishesakh Khusroobagh, Allahabad; Mukhya Udhyan Veshesakh, Khusroobagh, Allahabad and Land Scape Architect Udhan Bhawan, Lucknow, considered 22 daily wagers for regularisation. It found that candidates at Serial No. 15 namely Sri Rameshwar has worked with a break of one year at the Centre; candidate at SI. No. 16 Shri Lallan, SI. 18 Jag Lal, SI. 19 Ramesh Chandra and SI. 20 Shri Daya Bhan have worked with a break of two years at the Centre and candidates at Serial Nos. 21 and 22 namely Bal Singh and Sri Devi Din have worked with breaks of five years and that since under Rule 4(1) of the Rule of 2001, only those who were appointed prior to 20th June, 1981 and were continuing in service on the date of enforcement of Rule are entitled, only the candidates from SI. Nos. 1 to 14 and 16 could be considered by the Committee. Taking into account the roster under the reservation Rule six persons in general category, three persons in other backward classes and three persons in scheduled castes were considered and thus, Shri Ram Singh, Shri Babai, Smt. Bagwati, Shri Ram Vilas, Sri Asharfi Lal and Shri Chote Lal were considered suitable in general category, Sri Ram Bahadur, Sri Daroga and Sri Ram Abilash Singh were found suitable in other backward classes and Smt. Meena and Ram Ajor and Sri Bacha Lal in the category of scheduled castes. They were recommended to be regularised in order of their seniority.
15. Sri Narendra Mohan and Sri V.K. Singh and Sri N.A. Khan have challenged the process of regularisation. Their objections are mainly concerned with the process added by the Mukhya Uddyan Vishesakh, drawing up the seniority list. It is contended that the seniority list was drawn taking into account the number of man days i. e., the days on which they actually worked with effect from 1987-88 when the Centre was established. They submit that the past services for the petitioners in the same department have been illegal and arbitrarily ignored. It is further contended that Rule 4(1) provides for consideration of all though employees working on daily wages on Group 'D' posts in Government Service before June 29, 1981 and is continuing in service as such on the date of commencement of these Rules. According to them the words "Continuing in Service" excludes any break in service whether artificial or otherwise from June 29, 1981, the cut-off date fixed by the Rules and the date of the commencement of the Rules mainly 21st December, 2001 and that the same has to be ignored. They submit that respondents erred in law in refusing to consider Sri Rameswar, Sri Lallan, Sri Jag Lal, Sri Ramesh Chand, Sri Gaya Din, Sri Bhola Singh and Sri Devi Din on the basis of break in the continuation of their service. It is contended that those petitioners who were left out for consideration on the basis of break in service were and have been willing to work but they were not allowed to work on account of the contempt petitions filed by them to enforce the order passed in their favour in the year 1995. They will subsequently allow to join in pursuance of the order passed in these contempt petitions and thus, they could not have been excluded for consideration. Petitioners have also relied upon the judgments of Supreme Court Thiru A Balakrishnan and Anr. v. Government of T.N. and Ors., 1995 Special (4) Supreme Court Cases 108, in which the Supreme Court held while interpreting the regularisation Rule, Nos. 10(a)(1), Rule 3 of Tamilnadu State and Subordinate Service Rules 1955, that the past services rendered from the date of their initial appointment cannot' be ignored. They have also relied upon the judgment of Supreme Court in Banaras Hindu University, Varanasi v. Dr. Indrapratap Singh, AIR 1997 Supreme Court 780, which has laid down that under the merit promotion scheme of the University Grant Commission, the expression eight years of contiguous service should be understood in a reasonable manner, having regard to the underlying aim and object. The interval may be of a day, a week or a month. What is relevant is not the length of the interval or the break, but its nature and that one must take into consideration in the reason and the circumstances in which the break occurred. Petitioner have also prayed that since the State Government had accepted payment of regularisation wages to the daily wages of Horticulture Department by order of the Director, Horticulture dated 17.2.2001, in pursuance of the order passed by Lucknow Bench and that similar order were passed by the Court in the present writ petition, the petitioner in these writ petitions have continued worked and are also entitled to minimum pay scale of 2550-3200, with all allowances admissible with effect from 17.2.2001,
16. Learned Standing Counsel on the other hand submits that the Centre was established at Allahabad by the Government Order dated 26th September, 1987 and since the petitioners are to be regularised in the Centre their past services in the department at other establishments cannot be considered. He had laid emphasis upon the words in Rule 4(1) of the Hindi Text of the notification, which reads, "Is Niyamawali Ke Prarambh Ke Dinank Ko Is Roop Me Niranter Sevarat Ho" and has justified the exclusion of those who have not worked for one year or more. He submits that the petitioners who have been left out did not object-to the determination of seniority. Only two persons namely Jag Lal and Ramesh Chand objected. The objections of Ramesh Chand for counting period of service from 1979 to 1987 was not accepted as the Centre was established from 1988. The objections of Jag All for counting period from 1989-90 was, however, accepted as . he had worked in Sri Daya Deen Horticulture Centre, in its sub-centre at Alipur and thus, the seniority list was finalised. He submits that since there were long break in service of all the petitioners the number of days for which they had worked at the Centre was taken as the basis of their seniority and that there was no error, as the Rules were silent in the regard. In the end he submits that some of the petitioners, who have been regularised are not entitled to press their writ petition and that regular salary cannot be paid to all of them, The daily wages however as fixed by the Government are being paid to those who were not regularised.
17. In the State of Haryana and Ors. v. Piara Singh and Ors., AIR 1992 SC 2130, the Supreme Court observed that ordinarily the creation and abolition of a post is the prerogative of the Executive. It is Executive again that lays down the conditions of service, subject, of course, to a law made by appropriate Legislature and that the Court comes into picture only to ensure observance of fundamental rights, statutory provisions, Rules and other instructions, if any, governing the conditions of service. The Supreme Court further observed : (in Para 10 at Page 2139):
"The main concern of the Court in such matters is to ensure the Rule of Law and to see that the executive acts fairly and gives a fair deal to its employees consistent with the requirements of Articles 14 and 16. It also means that the State should not exploit its employees nor should it seek to take advantage of the helplessness and misery of either the unemployed persons of the employees, as the case may be. As is often said, the State must be a model employer. It is for this reason, it is held that equal pay must be given for equal work, which is indeed one of the directive principles of the constitution. It is for this very reason, it is held that a person should not be kept in a temporary or ad-hoc status for long. Where a temporary or ad-hoc appointment is continued for long the Court presumes that there is need and warrant for a regular post and accordingly directs regularisation."
18. In Dharwad Distt. P.W.D Literate Daily Wages Employees Association and Ors. v. State of Karnataka and Anr., AIR 1990 SC 883, about 50,000 workers employed in different Government establishments, though many of them had put in 16 to 20 years of continuous service had not been regularised. Considering the scheme formulated for the regularisation by the authorities, the facts and circumstances of the case and the submission of the parties the Supreme Court directed in Para 32.2 at Page 890, that from amongst the casual and daily wages employees who have completed ten years of service from 31.12.1989 to 18.6.2000, shall immediately be regularised with effect from 1.1,1990, on the basis of seniority or suitability. The Supreme Court fixed ten years period for regularisation.
19. In the State of U.P. thousands of employees were languishing under uncertain working conditions, as they were appointed on daily wages. They were hired and fired at the will and whim and fancy of Appointing Authorities and replaced by other workers. The departments continued to engage them without observing the Rules of appointment and the State continued to fund their salaries. Some of these were paid daily wages at the minimum rates fixed by the State Government and other were paid according to fancy of the Appointing Authorities. In the year 1989 statutory Rules were framed to regularise ad-hoc Class III appointments, however, Class-IV employees were not given the benefits of Rules of regularisation. Between 1985 to 1995 a number of orders were passed by this Court based on cither 240 days of continuous employment in a year or otherwise for regularising these Class-IV employees. The Supreme Court, however, stepped in and held that regularisation cannot be directed by the Court except in accordance with the Rules framed either by Executive or by Legislature. The position of law as laid down by Supreme Court for regularising long standing ad-hoc and daily wage appointments in Narendra Chadda v. Union of India, AIR 1986 SC 638; Haryana Board of School Education, Ranveer Singh v. Board of School Education, 1989 Supp. (2) SCC 301; Jacob M. Puthu Parambil v. Kerala Water Authority, AIR 1990 SC 2228, was deviated in State of Haryana v. Piara Singh (supra) in the year 1992 and in subsequent decision in J and K Public Service Commission v. Dr. Narendra Mohan, (1994) 2 SCC 360; Union of India v. Moti Lal, (1996) 7 SCC 481; Union of India v, Mahendra Singh, (1997) 1 SCC 245; Suraj Prakash Gupta v. State of J and K, (2000) 7 SCC 561; Subedar Singh v. Distt. Judge, Mirzapur, (2001) 1 SCC 37; Municipal Council, Ambala v. Balwinder Singh, (2001) 9 SCC 394. The shift in law is obvious and now regularisation of ad-hoc and daily wages employee is not permissible except in accordance with Rules made under Article 309 of Constitution or under Executive orders.
20. The State Government ultimately realised the plight of daily wagers working in the lowest order in its various departments on Group-'D' posts and made and published Uttar Pradesh Regularisation of Daily Wages Appointments on Group-'D' Posts Rules, 2001, on 21st December, 2001; these Rules are quoted as below :
"1. Short title and commencement.-(1) These Rules may be called the Uttar Pradesh Regularisation of Daily Wages Appointments on Group 'D' Posts Rules, 2001.
(2) They shall come into force at once.
2. Overriding effect.-These Rules shall have effect notwithstanding anything to the contrary contained in any other Rules or orders.
3. Definitions.-Unless there is anything repugnant in the subject or context:-
(a) "Appointing Authority" in relation to a Group 'D' post, means the authority empowered to make appointment on such post under the relevant Service Rules.
(b) "Governor" means the Governor of Uttar Pradesh.
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 qualification 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 Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 and the Uttar Pradesh Public Services (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 arc arranged in the said appointments 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 it 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. Appointments.-The Appointing Authority shall, subject to the provisions of Sub-rule (2) of Rule 4, make appointments from the list prepared under Sub-rule (6) of the said Rule in the order in which their names stand in the list.
6. Appointments be deemed to be under the relevant Service Rules etc.-Appointments made under these Rules shall be deemed to be appointments under the relevant Service Rules or Orders, if any.
7. Seniority.-(1) A person appointed under these Rules shall be entitled to seniority only from the date of order of appointment after selection for regualarisation 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 arc appointed together, their seniority inter se shall be determined in the order mentioned in the order of appointment.
8. Termination of service.-The services of a person appointed on daily wage basis who is not found suitable, after consideration under these Rules, shall be terminated forthwith and on such termination he shall be entitled to received one month's wages.
9. Exceptions.-Notwithstanding anything contained in these Rules, where any scheme for rcgularisation of a daily wage employee in any department has been presented before any Court in pursuance of an order of the Court, the concerned department shall obtain the orders of the Court in the matter and shall act accordingly."
21. The object and purpose of the above quoted Rules of 2001, is to obtain regularisation of the appointees, directly appointed on daily wages basis on a Group 'D' posts in the Government service before June 29, 1991 and is continuing in service as such on the date of commencement of the Rules. The Hindi version of the Rules uses the words "Is Niyamawali Ke Prarambh Ke Dinank Ko Is Roop Me Niranter Sevarat Ho" in Rule 4(1 )(a) where as English Gazette notification mentions the words "continuing in service as such on the date of commencement of these Rules" in the same Rules in Rule 4(1 )(a). There is apparently a difference in the expression. Whereas "Nireantar Sevarat Ho" means that such appointee has been in continuous employment on the date of commencements of the Rules, the English version means that he is continuing in service as such on the date of commencement of the Rules. Article 348(3) of the Constitution of India provides that the translation of the order, Rule, Regulation or bye-law of the same in English language published under the authority of the Governor of the State in the Official Gazette of the State shall be deemed to be the authoritative text thereof. In Niiyanand Sharma v. State of Bihar, (1996) 3 SCC 576 and in Vinay Prakash v. State of Bihar, (1997) 3 SCC 406, the Supreme Court relied upon notification in English to be authoritative text where there was ambiguity in such text with the text of the language of the State.
22. The principles of purposive construction of interpretation of statutes also supports the language used in English text. Daily wage appointments have no right or control over their appointments. They are hired and fired at will. Many a times their engagements are ceased, to allow other favoured persons to be accommodated and on other occasions they are not allowed to work either on account of temporary cessation of work, displeasure of the Appointing Authority, or due to some delay or gap in receiving the financial grants for payment of salaries. In the present case as we have seen above the daily wage services of some of the petitioners were ceased by the Appointing Authority as soon as they filed contempt petitions to enforce the order passed by this Court on 12.12.95. They were subsequently taken back in daily wage service. The nature of their casual engagement did not give them any permanency in service. The English Text, thus, rightly uses the words continuing in service as such on the date of commencement of the Rules, as an essential condition for consideration for regularisation. The Rules obviously ignore any artificial breaks in service of daily wages appointees, beyond their control. At this place it may be clarified that this Court is not considering any such case, where an employee may have voluntarily given up employment or had taken employment of permanent nature some where else. There is nothing on the record to show that the petitions were not willing to work or that they had given up or abandoned their daily waged employment. All the petitioners were appointed on daily wage basis before 29th June, 1991 and were continuing in service on the date of commencement of the Rules i.e., on 21st December, 2001. In the circumstances I find that the respondents were not justified and have acted illegally and arbitrarily in ignoring the claims of those daily waged petitioners who were not allowed to work for different periods. The Selection Committee erred in law in ignoring their claims.
23. Even if Hindi text is taken into consideration, we arrive at the same conclusion. In Banaras Hindu University, Varanasi and Ors. v. Dr. lndra Pratap Singh, AIR 1992 SC 780, Supreme Court was considering the U.G.C. evolved scheme called a "Merit Promotion Scheme" with a view to provide incentive to Teachers to prevent stagnation and to improve their efficiency. One of the condition which a lecturer was required to satisfy for promotion, was eight years continuous service. The respondent in the said case had a break in service between 1.4.1980 to 20.7.1980 and was found by the University not to have satisfied the requirement. The Supreme Court relied upon the meaning of the phrase, "Continuous Employment" in "Words and Phrase" Volume 9 as follow1' it means working with reasonable regularity and work does not cease to be "continuous" because of interruptions in occupation due to periods of temporary illness, such are incident to people of normal health". Continuous service has been defined in the same volume as containing in the collective bargaining agreement is to be viewed in light of terms of agreement which provided for work schedule. The report further relied upon the case of Budge Budge Municipality v. P.R. Mukherjee, AIR 1953 SC 58, as follows :
"The same words may mean one thing in one context and another in different context. This is the reason why decisions on the meaning of particular words or collection of words found in other statutes arc scarcely of much value when we have to deal with a specific statute of our own, they may be helpful but cannot be taken as guides or precedents"........"Continuous service" in the context of the scheme of gratuity framed by the Tribunal in the earlier reference postulates the continuance of the relationship of master and servant between the employer and his employees. If the servant resigns his employment service automatically comes to an end. If an employer terminates the service of his employee that again brings the continuity of service to an end if the service of an employee is brought to end by the operation of any law that again is another instance where the continuance is disrupted; but it is difficult to hold that merely because an employee is absent without obtaining leave that itself would bring to an end the continuity of his service."
The aforesaid decision holds that if any break in service does not cease employment and bring it to an end by severing relationship of master and servant, such break should be ignored. In cases, where the employee suffers from any illness or is absent without leave, his service docs not come to an end. Similarly, if an employee is not allowed to work for reasons not attributable to him and is subsequently allowed to resume duties, the continuous nature of his engagement does not cease. The Selection Committee has to examine whether such cessation brought the employment to an end. If he is allowed to resume duty subsequently, it cannot be said that he was not in continuous service. I am, therefore, in agreement with the Counsel for petitioner that the Selection Committee could not have ignored the service of Sri Rameshwar, Sri Lallan, Sri Jaglal, Sri Ramesh Chandra, Sri Gaya Din, Shri Bhola Deen and Sri Devi Din.
24. The next submission of the Counsel for the petitioner is that Committee adopted a wholly illegal approach in refusing to count the past service of the petitioners prior to 1987-88 when the Centre was established. The Government Order dated 26th September, 1987 establishing Training Centres at Lucknow, Allahabad and Jhansi did not established a separate department. These Centres were part of the Horticulture Department and that the officers and employees of the Centre shall be deemed to be the employees of the Horticulture Department. It has come on record from the averment and the counter-affidavit filed in Lucknow Bench of this Court as well as writ petition filed by the petitioner in the year 1989, that most of the petitioners were working from before 1987-88 and some of them since 1984-85 in different gardens and schemes of the Horticulture Department on daily wages. In judgment and order dated 12.12.1995 deciding Writ Petition No. 19852 of 1989, filed by Babai, Amar Bahadur, Bhagirathi, Ram Vilas, Ram Lakhan Saroj and Bhai All Saroj; Writ Petition No. 24817 of 1989, filed by Ram Viias, Gaya Din and Jag La! and Writ Petition No. 10498 of 1990, filed by Devi Din Parjapati and Ram Ajor, Devi Din and Writ Petition No. 19862 of 1989, it was found that some of the petitioner were working since 1984-85. AH the petitioners were working in the same department. The Centre of the Department is not an independent or autonomous establishment. It does not have any independent administrative control over its employees. The posts are sanctioned by the department and the Centre receives its grant from the State Government with the grant of Department of Horticulture. The respondents, therefore, could not have ignored the past services rendered by the petitioners in the Horticulture Department on daily wages. In Thiru A. Balakrishnan and Ors. v. Government of Tamilnadu and Ors. , 1995 Supp. (4) SCC 108, the Supreme Court held that in the absence of specific provision under the Rule or the order the service rendered prior to the date of regularisation cannot be excluded. In Sub-rule (4) of Rule 4 the Appointing Authority is, having regard to the provisions of Sub-rule (1) is required to prepare an eligibility list of candidates, arranged in order of seniority as determined from the date of order of appointment on daily wage basis. The Rule is, therefore, specific that the inter se seniority of the appointees who are candidates for regularisation has to be determined from the date of order of appointment, on daily wages basis and not on any artificial date they came to work in any of the Centres, or under the particular scheme of the same department. Their services as such have to be counted from the date of their appointment on daily wages basis. In the present case, the Appointing Authority erred in refusing to give a credit to the past service prior to the arrangement of the Centre. This method not only violated the provisions of Sub-rule (4) of Rule 4 but also discriminated petitioners who were working prior to 1988 and violated their rights and the Articles 14 and 16 of the Constitution of India. The Appointing Authority thereafter committed another mistake in counting the seniority of the 22 eligible candidates on the basis of a number of days they had worked in the Centre. As found above a daily waged employment does not depend upon the choice of such appointee. He may not be allowed to work on account of illness, some urgent work for which he has not given leave, want of financial sanction or grant and other reasons. Their seniority, therefore, cannot be counted on the basis of number of days they have worked. Such an approach is also not contemplated or warranted under the Regularisation Rules, 2001. It appears that the Appointing Authority faced with a situation where all the candidates were working from the date of establishment of the Centre fixed their seniority and adopted in method of determining such seniority of counting the number of days they had worked. This approach was wholly illegal and was against the Rules and also violated Articles 14 and 16 of the Constitution of India.
25. Repeated directions were given by this Court in the order dated 12.12.1995, as well as subsequent orders passed in these writ petitions to give petitioners regular wages in the minimum of the pay scale and allowances. Respondents violated the orders and are facing action in contempt. The same Horticulture Department of the State Government, however, accepted the orders passed by the Lucknow Bench of this Court in group of cases led by Writ Petition No. 6378 (S/S) of 1997, between Bechan All and Ors. v. Government of U.P., and that the Director of Horticulture by his order dated 17.2.2001 annexed in Annexure-I in Writ Petition No. 37136 of 1999, directed payment of minimum of pay scale to the daily wages in the department. These petitioners were, however, arbitrarily discriminated. Having accepted similar orders passed by Lucknow Bench the Department could not have ignored the claims of the petitioners supported by similar orders. All the petitioners are, therefore, entitled to regular pay scale with effect from 17.2.2001 i.e., the date when State Government accepted the claims of similarly situated employees.
26. On the aforesaid discussion, I find that the petitioners arc entitled to be considered for regularisation in accordance with the provisions of U.P. Regularisation of Daily Wages Appointments on Group 'D' Posts Rules, 2001 and are also entitled to regular wages in the regular pay scale with effect from 17.2.2001. I also find that the Appointment Authority erred in law and acted against the Rules of 2001, and ignoring the services rendered by the petitioners on daily wages in the same department prior to the establishment of the Centre and adopted a wholly illegal approach, de horse the Rules in fixing their seniority on the basis of number of days of work. The Appointing Authority further erred in law in ignoring the claims of six persons who had artificial breaks in service, although they were continuing in services on the date of commencement of the Rules. The candidature of such persons could not have been ignored by the respondents. The writ petitions arc thus allowed and in the aforesaid fact and circumstances, determination of petitioners' seniority by the Appointing Authority as well as the recommendations of regularisation made by the Selection Committee on 7.1.2003 are declared to be illegal, inoperative and are set-aside. The respondents are directed to re-determine the seniority of the 22 candidates for regularisation and to consider them for regularisation afresh in accordance with the Rules of 2001, for which the Court gives the following conditions:
(1) The Appointing Authority shall prepare an eligibility list of all the 22 candidates and arrange their seniority from the date of order of their appointment on daily wage basis in the Horticulture Department, irrespective of the fact that they were working at any other place in the department prior to the establishment of the Central. Their seniority shall be determined on the basis of the date of order of appointment on daily wages with effect from the year they were appointed and not on the basis of the number of days they have worked on daily wages.
(2) The Selection Committee shall consider all the candidates for regularisation who were appointed and working before June 29, 1991 and were continuing in service on the date of commencement of the Rules, i.e., 21st December, 2001. Any break in service, in between or after which they were allowed to work shall be ignored. Since, it is admitted by respondents, that all the petitioners were in service as daily wagers before 29th June, 1991 and were continuing in service on 21st December, 2001, all of them irrespective of any break or breaks in service shall be considered for regularisation and their seniority will be determined from the date of initial appointment as directed above.
(3) The aforesaid process of preparation of eligibility list in order of seniority shall be completed within a period of eight weeks and the regularization made on the twelve vacant posts subject of Rules of Reservation, within next four weeks.
(4) All the remaining petitioners whose service are not regularised shall be allowed to continue on the minimum of the pay scale alongwith all allowances subject to availability of work.
(5) All the petitioners shall be paid minimum of the pay scale and ail allowances in the pay scale of Rs. 2250-3200/- with effect from 17.2.2001. The entire arrears shall be paid within next eight weeks.
(6) There shall be no order as to costs.