JUDGMENT Ashok Bhushan, J.
1. Heard Sri H.S.N. Tripathi, counsel for the petitioner and Sri Ram Prakash Rai, learned standing counsel appearing for the respondents.
2. Counter and rejoinder-affidavits have been exchanged. Both the parties have agreed that writ petition itself be finally disposed of at this stage.
3. By this writ petition, the petitioner has prayed for quashing the order dated 2nd July, 2001 (Annexure-13 to the writ petition) by which petitioner's claim for regularisation in service has been rejected. Further prayer has been made seeking a writ of mandamus commanding the respondents not to deny the continuity of service and payment of regular salary on the post of clerk in the office of respondent No. 2 and to release withheld salary to the petitioner for the period between April, 1991 to 21st January, 1993.
4. The facts of the case briefly stated are ; petitioner was appointed by order dated 2nd January, 1991 of Inspector General (Registration), U. P., Allahabad as daily wage clerk. The appointment was purely temporary and for a limited period. The daily wage appointment was further extended by the orders dated 13th March, 1991 and 29th April, 1991. The order dated 29th April, 1991 provided that petitioner is appointed on consolidated wages of Rs. 1,000 per month and his appointment is extended till 31st October, 1991. The petitioner has further stated that he was not paid salary from April, 1991 and he submitted a representation on 18th December, 1991 to the Inspector General (Registration) praying that there are vacant posts in the department and several other persons have been regularised and has also prayed for payment of his wages from April, 1991. The petitioner thereafter filed Writ Petition No. 21077 of 1992 seeking a writ of mandamus to regularise the services of the petitioner and pay salary along with the other emoluments with effect from April, 1991. This Court on 6th June, 1992 passed the following order :
"Learned standing counsel is granted one month time to file a counter-affidavit.
List on 25.7.1992.
Until further orders, the respondents are directed to allow the petitioner to continue as clerk in the office of respondent and to pay the salary to the petitioner."
After the interim order, the petitioner was allowed to join only on 21st January, 1993 as clerk and thereafter continued to function. Writ Petition No. 21077 of 1992 was disposed of by the judgment dated 25th April, 1996 of Division Bench which is extracted below :
"Disposed of.
For orders, see order of the date on Writ Petition No. 31615 of 1990."
The petitioner claims to have filed a representation for his regularisation in pursuance of direction of Division Bench of this Court given in judgment dated 25th April, 1996, which according to the petitioner remained pending but the services of the petitioner by an order dated 28th March, 2001 were terminated. In the order dated 28th March, 2001, it was stated that since the petitioner was allowed to work in pursuance of the interim order dated 16th June, 1992, which interim order has come to an end after disposal of the writ petition, hence there is no justification for allowing him to continue. The petitioner filed Writ Petition No. 15295 of 2001 challenging the said order which writ petition was disposed of on 23rd April, 2001, directing consideration of the claim of the petitioner for regularisation. The petitioner filed a special appeal, which was dismissed with observation. The petitioner thereafter submitted a detailed representation on 2nd June, 2001, which representation was decided by the impugned order dated 2nd July, 2001.
5. It has been held in the order impugned that petitioner between the date of commencement of the U. P. Regularisation of Daily Wages Appointment on Group-C Posts (Outside the Purview of Uttar Pradesh Public Service Commission) Rules, 1998, i.e., 9th July, 1998 was appointed upto 31st October, 1991 and there has been break of fifteen months with effect from 1st November, 1991 to 21st January, 1993. It was further stated that after 21st January, 1993, the services of the petitioner were under the interim order passed in Writ Petition No. 21077 of 1992 and accordingly the petitioner was not entitled for regularisation. It was stated that on account of break of fifteen months and services of only ten months, the petitioner is not entitled for regularisation under 1998 Rules, with the above reason, the claim was rejected.
6. The counsel for the petitioner challenging the aforesaid judgment submitted that order refusing regularisation is erroneous and contrary to the provisions of 1998 Rules. The counsel for the petitioner submitted that there was no break of fifteen months as stated in the impugned order. He has submitted that petitioner after 31st October, 1991, has continuously represented for permitting him to work and this Court issued an interim order on 16th June, 1992, directing the respondents to allow the petitioner to continue as clerk in the office of respondents and to pay the salary to the petitioner. The counsel for the petitioner further submitted that after passing of the aforesaid order, it is not open to the respondents to say that there was break in service and with effect from 16th June, 1992, the petitioner was entitled to continue and the respondents cannot take benefit of their own lapse in not complying with the aforesaid interim order. It has further been submitted that working of the petitioner from 21st January, 1993 till 28th March, 2001, cannot be ignored for consideration for purposes of regularisation since the petitioner's writ petition was disposed of and an order passed by Division Bench for consideration of petitioner's claim of regularisation. The counsel for the petitioner further submitted that several daily wagers similarly situated as the petitioner were allowed to continue and have also been sanctioned regular pay scale. Reference has been made of Vijai Shanker Srivastava and Abhinandan Mishra in paragraphs 20 and 21 of the writ petition.
7. Learned standing counsel refusing the submission of counsel for the petitioner contended that petitioner's claim has rightly been rejected for regularisation under 1998 Rules. It was submitted by learned standing counsel that petitioner's working in pursuance of the impugned order passed in Writ Petition No. 21077 of 1992 cannot be taken into consideration in view of dismissal of the writ petition and no error has been committed by the respondents authority in ignoring the aforesaid claim. It has further been contended that there being break of fifteen months, the petitioner is not entitled for consideration under 1998 Rules. It has further been stated that petitioner was only a daily wage appointee, subsequently sanctioned consolidated salary which continued only upto 31st October, 1991, hence the petitioner has no claim for regularisation.
Both the counsels have referred to and relied on various decisions in support of their contentions, which will be referred and dealt with while considering the respective contentions.
8. From the submissions raised by counsel for the parties, two main issues arise for consideration in the present writ petition. Firstly, whether the petitioner was not entitled for consideration for regularisation in accordance with 1998 Rules on account of there being break from 1st November, 1991 till 21st January, 1993 and secondly, wherever the services rendered by the petitioner after passing the interim order by this Court in Writ Petition No. 21077 of 1992 can be taken into consideration for considering the claim for regularisation.
9. The question of regularisation of daily wage clerk working in the Regularisation Department of the State came for consideration before the Apex Court in Khagesh Kumar and Ors. v. Inspector General of Registration and Ors., 1995 Suppl (4) SCC 182. The Apex Court in the aforesaid decision held that daily wage clerks appointed in the registration department are entitled for consideration for regularisation in accordance with the provisions of U. P. Regularisation of Ad-hoc Appointment (On Post Outside the Purview of Public Service Commission) Rules, 1979. The aforesaid 1979 Rules provided conditions for regularisation of the ad hoc appointment. The Division Bench of this Court vide judgment dated 25th April, 1996, has also provided for such consideration in the petitioner's matter. After issuance of the termination order dated 28th March, 2001, the petitioner again came to this Court by means of Writ Petition No. 15295 of 2001 which writ petition was disposed of vide order dated 23rd April, 2001. The relevant portion of the judgment is extracted below :
"It would appear from the order impugned herein that while deciding the representation, the Inspector General of Registration has not taken notice of the direction given by the Apex Court in Civil Appeal No. 7500 of 1996, Inspector General of Registration, U. P. and Anr. v. Awdhesh Kumar and Anr., decided on March 12, 1996, nor has he taken into reckoning the U. P. Procedure of Direct Recruitment for Group C Posts (outside the Purview of the U. P. Public Service Commission) Rules, 1998.
In my opinion, the question needs to be reconsidered and decided afresh after taking into reckoning the decision of the Supreme Court in Khagesh Kumar v. Inspector General of Registration, 1996 (1) AWC 69 (SC) : 1996 (1) UPLBEC 23 and Civil Appeal No. 7500 of 1996, Inspector General of Registration, U. P. and Anr. v. Awdhesh Kumar and Ors., decided on 12th June, 1996, besides regularisation rules aforestated. Decision in this regard shall be taken within two months from the date of production of certified copy of this order. Parties shall maintain status quo as on date in the meanwhile.
The writ petition is disposed of accordingly."
In view of the aforesaid judgment dated 23rd April, 2001, the consideration in accordance with 1998 Rules has to be made by the respondents and the respondents have purported to consider the claim of the petitioner in accordance with 1998 Rules.
10. The first issue which needs determination is duration of the break and the effect of such break in considering regularisation. There is no dispute between the parties that petitioner was allowed to work up to 31st October, 1991 and thereafter he was not allowed to continue although petitioner has been representing for his continuance claiming that several persons similarly situated are allowed to continue and there are vacancies in the department. In paragraphs 20 and 21 of the writ petition. It has been pleaded that Vijai Shanker Srivastava and Abhinandan Mishra were also daily wage employees and are still continuing in service and they were also granted benefit of regular pay scale. The appointment letters of daily wagers as of Vijai Shanker Srivastava and Abhinandan Mishra are on the record as Annexures-11 and 12 to the writ petition which clearly shows that their appointments were also on the same terms and for fixed period. The petitioner had filed Writ Petition No. 21077 of 1992 in which direction was passed by this Court on 16th June, 1992, which has been extracted above directing the respondents to allow the petitioner to continue. From the date when the order was passed by this Court, it was not open to the respondents to not continue the petitioner or to claim that there is break. The break at best can be treated only from 1st November, 1991 to 16th June, 1992. The question further to be considered is as to what is the consequence of aforesaid break from 1st November, 1991 to 16th June, 1992. Rule 4 Sub-rule (1) of 1998 Rules provides :
"4. Regulation of daily wage appointment on Group 'C' posts.--(1) Any person who--
(i) was directly appointed on daily wage basis on Group 'C' posts 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 for 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."
The key words in Rule 4 (1) are "is continuing in service as such on the date of commencement of these Rules". There is no dispute that on 9th July, 1998, when the aforesaid 1998 Rules were enforced, the petitioner was continuing in service since termination was effected on 28th March, 2001.
11. In Khagesh Kumar's case (supra), the similar phrase occurring in Rule 4 of 1979 Rules came for consideration. Rule 4 of 1979, Rules is extracted for ready reference :
"4. Regularisation of ad hoc appointments.--(1) Any person who--
(i) was directly appointed on ad hoc basis before 1.1.1997 and is continuing in service as such on the date of commencement of these rules ;
(ii) possessed requisite qualifications prescribed for regular appointment at the time of such ad hoc appointment ; and
(iii) has completed or, as the case may be, after he has completed three years' continuous service, shall be considered for regular appointment in permanent or temporary vacancy as may be available 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."
12. In paragraph 17 of the judgment in the case of Khagesh Kumar (supra), the Apex Court has laid down :
"17. The petitioners can claim regularisation only if they satisfy the requirements of the said provisions. They should have been directly appointed on ad hoc basis before 1.10.1986, they should have possessed the requisite qualifications prescribed for regular appointment at the time of such ad hoc appointment and they should have completed three years' continuous service. It has been urged on behalf of the petitioners that some of the petitioners had been working as registration clerks on daily wage basis since much before 1.10.1986 and they would be entitled to be considered for regularisation under the Regularisation Rules. These provisions are applicable only to an appointment made on ad hoc basis. Though the High Court has held that the appointment of the petitioners on daily wage basis was not an ad hoc appointment, we are not inclined to take that view and we will proceed on the basis that the appointment of the petitioners was such an appointment. The question which survives is whether any of the petitioners who had been appointed as registration clerk on daily wage basis prior to 1.10.1986 can be regarded as having completed three years continuous service. Since the order of the Governor sanctioning appointment on the posts of registration clerks on daily wage basis imposes a limitation that such appointment shall in no case exceed three months during the course of a financial year, there are long breaks between the various periods during which the petitioners were employed as registration clerks on daily wage basis. In Bhagwati Prasad v. Delhi State Mineral Development Corporation, this Court has laid down that for the purpose of counting three years' continuous service for the purpose of regularisation artificial break in service for short period/periods created by the employer could be ignored but (S.C.C. page 364 para 6) :
"If there is a gap of more than three years between the period of termination and re-appointment that period may be excluded in the computation of three years' period."
In view of the said decision for computing three years' period of continuous 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. In case any of the petitioners was employed as a registration clerk on daily wage basis prior to 1.10.1986 and, after excluding 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 fulfils the requirement of Clause (ii) of the said Rule. He can move the appropriate authority for such regularisation and the said authority will pass appropriate orders after verifying the correctness of the claim of such a petitioner. The petitioners who do not fulfil the said condition of three years' service contained in Rule 4 (1) (iii) cannot claim regularisation on the basis of the Regularisation Rules."
It is to be noted that in the aforesaid judgment, it was held that if the gap is more than three months, the same may be excluded in computation of three years period, thus even the gap of three months in working of registration clerk was not treated to the disentitlement of his consideration under Rule 4. However, three years period was required to be completed even after excluding the gap periods of more than three months. The only difference in Rule 4 of 1979 Rules and Rule 4 of 1998 Rules is to the effect that under 1979 Rules there was requirement of having completed three years continuous service whereas Rule 4 of 1998 does not talk of completion of three years period. It is well known that daily wage appointment is not a continuous appointment nor they are allowed to work for 365 days of an year. Apex Court had occasion to consider the phrase "continuous service", the Apex Court had taken the view that breaks in service can be ignored. The Apex Court in Banaras Hindu University, Varanasi and Ors. v. Dr. Indra Pratap Singh, 1992 Suppl (2) SCC 2, had occasion to consider the words "eight years of continuous service". The Apex Court held that during service there is bound to be some interval. The interval may be of a day, week or a month but what is relevant is not the length of interval or break, as it may be called, but its nature. In paragraph 9 of the aforesaid judgment, the Apex Court laid down :
"9. We agree with the learned counsel for the respondent that the expression "eight years of continuous service" in para 2 (a) of the scheme should be understood in a reasonable manner having regard to the underlying aim and object. Para 2 (a) itself expressly recognises that the eight years' service, may be in more than one institution, the only requirement being a minimum of four years service in the institution where he is being considered for promotion under the scheme. In case of shift from one University to other - or from one institution to other - it can reasonably be presumed that there is bound to be some interval. The interval may be of a day, a week or a month. What is relevant is not the length of the interval or break, as it may be called, but its nature. We do not mean to say that length of such interval is totally irrelevant, what we mean, however, is that one must take into consideration the reason for which break - or the circumstances in which such break - has occurred. Another factor to be taken into consideration in understanding and construing the said expression is the object underlying the said requirement. According to us, the object is to ensure eight years' teaching experience. It is true that there is a break of three months 20 days in the respondent's service and teaching experience. We also take note of the fact that it was not the vacation time for academic institutions. But this circumstance must be weighed against a countervailing circumstance in favour of the respondent viz., his re-appointment on a permanent basis in a very same department in the University in the year 1982."
It was observed by the Apex Court in the aforesaid judgment that length of such interval is not totally irrelevant but one must take into consideration the reason for break or the circumstances in which such break has occurred. A break in service on account of person taking employment elsewhere may disentitle a person for consideration of regularisation even if the break is for less than three months. Termination of service by express order may also amount to break disentitling the person for consideration for regularisation. Thus, before coming to a decision as to whether the particular break in service is liable to be ignored or not, the cause of the break and nature of break has to be looked into. However, the period of break, which is claimed to be ignored in a particular case, has to be a reasonable break, if the break is unreasonably long, it cannot be claimed to be ignored, for example if a person has not worked even for few months in a year, he cannot claim that the break be ignored and he be treated in a continuous service.
13. In facts of the present case, I am of the view that looking to the nature of the break in service, the same is liable to be ignored while considering the claim of the petitioner for regularisation. The petitioner's services prior to aforesaid break were not terminated by any express order nor the break was result of any act on the part of the petitioner. Further persons similarly situated continuing on daily wage employment were allowed to continue. In view of the aforesaid reasons as well as in the facts of the present case, it is held that the said break did not disentitle the petitioner for consideration of his regularisation.
14. The second question for consideration is as to whether the petitioner's services with effect from 23rd January, 1993 and up to 28th March, 2001, can be ignored while considering his case for regularisation. It is to be noted that the Interim order was passed by this Court in Writ Petition No. 21077 of 1992 on 16th June, 1992, which writ petition was disposed of on 25th April, 1996. From the order dated 25th April, 1996 of Division Bench delivered in bunch of cases, it is clear that the Court has held that none of the petitioners have completed three years of service and entitled for regularisation under 1979 Rules. However, the Division Bench permitted the petitioners to file representation before the competent authority for regularisation and the direction was issued to consider the claim of regularisation in accordance with Apex Court's judgment in Khagesh Kumar's case (supra). The said order was passed on 25th April, 1996. Admittedly the petitioner's services were not dispensed with by the department and he was allowed to function admittedly till 28th March, 2001. Thus, it cannot be said that on 9th July, 1998, when the 1998 Rules came, the petitioner was continuing on the strength of any interim order. It appears that since the direction was issued for consideration of regularisation and the claim of regularisation of the petitioner was not considered by that time, the respondents allowed the petitioner to continue and discharge his duties. The interim order passed in Writ Petition No. 21077 of 1992 merged with the final order passed on 25th April. 1996 and it cannot be said that petitioner was continuing on the strength of such interim order. It is to be noted that relevant date for purposes of 1998 Rules is 9th July, 1998 and since the petitioner was continuing on that date as daily wage employee although the interim order which was passed in Writ Petition No. 21077 of 1992 had merged with the final order, it cannot be said that petitioner was not entitled for consideration on 9th July, 1998. The petitioner's entitlement for consideration according to 1998, Rules arose since on the relevant date he was continuing in service and the said continuance was not on the basis of any interim order. The 1998 Rules conferred right of consideration to any person who was continuing on 9th July, 1998. In this view of the matter, it cannot be said that petitioner's continuance from 21st January, 1993 to 28th March, 2001, cannot be taken into consideration for regularisation.
15. Reliance has been placed by the learned standing counsel on the Apex Court's judgment in Committee of Management, Arya Nagar Inter College v. Sri Amar Tiwari and Anr., 1997 (4) SCC 388, for the proposition that person continuing under interim order is not entitled for consideration for regularisation. From the facts of the Apex Court judgment, it is clear that writ petition in which interim order was granted was dismissed on merits whereas in the present case, in the writ petition of the petitioner, direction was issued for consideration of regularisation in accordance with 1998 Rules. The direction to consider the claim for regularisation in accordance with 1998 Rules clearly meant that even if a person becomes entitled for regularisation on the date of passing of order by Division Bench, he has to be considered. It cannot be said that if a person was continuing during period of pendency of writ petition, the said period be ignored for consideration. In view of the aforesaid direction for consideration in the Division Bench judgment dated 25th April, 1996, it cannot be held that Court intended to ignore the period of continuance of a petitioner during pendency of the writ petition. In view of the above, I am of the view that the period during which the petitioner worked during the pendency of the writ petition cannot be ignored for purposes of his consideration.
16. In view of the foregoing discussions, both the reasons given in impugned order dated 2nd July, 2001, cannot be sustained. The order dated 2nd July, 2001, cannot be sustained and is hereby quashed. Respondent No. 2, is directed to consider the case of the petitioner for regularisation in accordance with 1998 Rules in the light of the observation as made above. Necessary consideration and order to that effect be made by respondent No. 2 within a period of two months from the date of production of a certified copy of this order.
17. The second prayer in the writ petition for payment of salary from April, 1991 to 21st January, 1993, is also to be considered. It has been admitted in the counter-affidavit that petitioner has worked upto 31st October, 1991, on daily wage basis. The said admission has been made in paragraph 5 of the counter-affidavit. In view of the order dated 29th April, 1991, it is clear that petitioner was continued from 1st May, 1991 to 31st October, 1991. The petitioner is at least entitled for his emoluments upto 31st October, 1991, since the petitioner has not worked after 31st October, 1991, I am not inclined to issue any direction for payment of emolument upto January, 1993. However, the respondents are directed to pay the wages of the petitioner upto 31st October, 1991, within above period of two months if the same has not already been paid.
18. In the result, the writ petition succeeds and is allowed with the directions as made above.