1. Heard Sri Abdul Razzaque Khan, Advocate for petitioner and Sri Zafaryab Jilani, learned Additional Advocate General assisted by Sri Rahul Shukla, learned Additional Chief Standing Counsel for respondents.
2. Petitioner, Sant Kumar Pandey, was employed on daily wage basis as Registration Clerk and worked in different spells, i.e., from 01.02.1995 to 29.03.1985; 22.01.198 to 31.03.1986; and, 22.01.1987 to 31.03.1987. Thereafter he was appointed as Junior Clerk on 09.04.1990 during census operations and worked till 31.05.1991. The letter of appointment is Annexure-3 to the writ petition, which shows that appointment was made temporarily and for special work. It also provided that the incumbent is liable to be terminated at any point of time without any prior information and would suo motu end at the end of period of sanction of post. When petitioner was going to terminate, before that he moved a representation on 06.02.1991 before the District Magistrate seeking his absorption against any equivalent post. Reminder/representations dated 04.03.1991 and 12.03.1991 were also given. Thereafter he preferred Writ Petition No. 5011 (SB) of 1992, in which an interim order was passed by Division Bench on 31.07.1992 to the following effect:
"In the meantime it will be open to the opposite parties to consider the case of the petitioner if it is found that he is a retrenched employee and is entitled for the benefit under the Government orders for preference in the matter of appointment."
3. Relying on U.P. Retrenched Employees Recruitment Rules, 1967 (hereinafter referred to as the "Rules 1967") he filed another application for interim relief in Writ Petition No. 5011 (SS) of 1992, whereupon this Court passed following order on 23.01.1993:
"Learned standing counsel prays for and is granted there week's time to file counter affidavit. The petitioner shall file rejoinder affidavit within two weeks thereafter.
List for admission in the week commencing 6th march, 1995.
The claim of the petitioner is that he was working under the District Magistrate, Bahraich between the period 10.4.90 to 31.5.91. Thereafter he was retrenched. The petitioner filed this petition on the ground that he is entitled to the appointment on the vacant post of Junior Clerk, which is vacant in District Bahraich. He has placed reliance upon U.P. Retrenched Employees Recruitment Rules 1967. The definition of retrenched has been given in rule 2(b) which reads as under:-
"retrenched employee with the grammatical veriation and cognate expressions means a person who was employed in any service or any post under the rule making control the Governor, whether in a substantive official or temporary capacity and had served continuous for a period of not less than one year and whose services are whether before or after the commencement of these rules terminated or are certified as liable to termination but does not include a person who was appointed on an adhoc basis."
In case the appointment of the petitioner was not on adhoc basis he can treated as retrenched employee. Rule 4 provides for reservation in favour of retrenched employees to the extent of 50% of the total vacancies in any service or posts to be filled by direct recruitment subject to the provisions of rule 2(b) of the said Rules.
The petitioner can make representation to the District Magistrate Bahraich alongwith a certified copy of this order and true copy of the writ petition. On such representation being made he will ensure into the matter and find out as to whether the petitioner is entitled to get benefit of this rule. In case the petitioner is entitled to get benefit of this rule, he shall be taken for consideration for appointment to the vacant post in accordance with said Rules.
In case the petitioner makes the representation as stated above the District Magistrate Bahraich shall dispose of the same by a reasoned order within two months.
Certified copy of this order be given to the learned counsel for the petitioner on payment of usual charges within two days."
4. Pursuant to said interim order the District Magistrate, Bahraich passed order dated 25.03.1995 (Annexure-10 to the writ petition) observing that petitioner was engaged on a specific project work and the post itself came to and end on 31.05.1991, hence he has to cease work. Whatever provisions applicable for retrenched employees, the petitioner at the regular selection may apply for the same.
5. It is said that the petitioner thereafter got his Writ Petition No. 5011 (SS) of 1992 amended and when respondents proceeded to make a direct recruitment by publishing advertisement, he came to this Court, whereupon following interim order was passed on 17.09.1998:
"Learned standing counsel seeks and is allowed two weeks' time to obtain instructions and file objection if any.
In the meantime it is provided that appointments, on the basis of impugned advertisement dated 10.8.1998, shall not be finalized by the Collector, Bahraich, on the basis of Rule 4 of Retrenched Employees Recruitment Rules, 1987."
6. Petitioner's earlier writ petition came to be finally decided by judgment dated 25.04.2006 and this Court made following observations:
"Besides this Government itself has issued several orders on the subject for providing employment to the retrenched employees but the District Magistrate has not considered the case of the petitioner for the post of Clerk although several junior persons have been appointed. Thus the petitioner has been discriminated which is violative of Articles, 14, 16 and 39(d) of the Constitution of India.
Counter and rejoinder affidavits have been exchanged by the parties controverting the allegations made by either of the parties.
In view of the above discussions the writ petition is allowed and a writ of mandamus is issued to the opposite parties to consider the case of the petitioner for appointment on Class-III post forthwith expeditiously say within a period of two months from the date a certified copy of this order is produced before the authority concerned. No order as to costs."
7. The petitioner submitted aforesaid judgment claiming appointment on a Class-III post and having failed preferred Contempt Petition No. 1865(C) of 2006. Thereafter the District Magistrate passed order dated 24.08.2006 (Annexure-1 to the writ petition) holding that petitioner is overage and, therefore, is not eligible for appointment to the post of Clerk. It is said that benefit of absorption under Rules, 1967 have been given to some others, like, one, Anil Kumar Shukla, in whose matter a direction was issued by this Court vide judgment dated 12.12.2003 in Writ Petition No. 5510 (SS) of 2001, relying on "The Uttar Pradesh Absorption of Retrenched Employees of Government or Public Corporation in Government Service Rules, 1991" (hereinafter referred to as the "Rules, 1991"). It is also said that large number of vacancies are available whereagainst petitioner can be absorbed.
8. By way of amendment petitioner has stated in paras no. 28-B, 28-C and 28-D that the employees of some corporations etc. have been absorbed, therefore, a similar treatment should be given to him also.
9. Learned counsel for the petitioner argued before this Court that once petitioner's earlier writ petition was already allowed, he was entitled for absorption on Class-III post in Government and that could not have been denied by respondents for any reasons whatsoever. He next contended that besides Rules, 1967, petitioner was also entitled for absorption under Rules, 1991 and, therefore, denial of right of consideration is illegal. He thirdly contended that several census employees were regularized from time to time and in view thereof he is also entitled for absorption.
10. The questions, which are to be examined by this Court, are:
(I) Whether the District Magistrate was right in rejecting claim of petitioner for absorption on the ground that he is not eligible on account of being overage and despite the fact that he is a retrenched employee under the definition of 2(b) of Rules, 1967, he could have been denied absorption;
(II) Whether there is any other provision applicable to retrenched employees from the service of State Government entitling petitioner to claim absorption;
(III) Whether petitioner's claim for regularization under Rules, 1991 is sustainable; and, (IV) Whether petitioner's claim for absorption is sustainable under any other provision of law or on the ground of doctrine of legitimate expectations etc.
11. Rules, 1967 was the first to be framed in this regard providing certain benefits to retrenched employees. The "retrenched employee" was defined in Rule 2(b). This Court in its judgment dated 25.04.2006 passed in petitioner's earlier Writ Petition No. 5011 (SS) of 1992 clearly held that petitioner satisfies definition of "retrenched employee" under Rule 2(b) of Rules, 1967. However, it appears that other aspect of rule has not been taken into consideration.
12. Rule-3 of Rules, 1967, however, provides that the said rules shall remain in force for a period of three years and thereafter for such period as notified by the Governor in consultation with the Commission. The said rules were applicable to all services and posts under the rule making control of the Governor, which were to be filled in wholly, or partly by direct recruitment. The aforesaid rules continued to remain in force upto October, 1971.
13. In 1975, for recruitment in Ministerial Cadre in the Subordinate Offices, statutory rules under proviso to Article 309 of the Constitution of India were framed, namely, "The Subordinate Offices Ministerial Staff (Direct Recruitment) Rules, 1975" (hereinafter referred to as "Rules, 1975") published in the Gazette dated 29.7.1975. The rule-making authority declares that the said rules are being enacted in supersession of all existing rules and orders on the subject and for recruitment of ministerial staff in the subordinate Government offices in the State. The preface of Rules, 1975, reads as under:
"In exercise of powers conferred by the proviso to Article 309 of the Constitution, and in supersession of all existing rules and orders on the subject, the Governor is pleased to make the following rules for recruitment of ministerial staff in the subordinate Government offices in the State."
14. Rule 3 of Rules, 1975, which give it overriding effect, reads as under:
"3. Effect of inconsistency with other rules.- In the event of any inconsistency between these rules and any specific service rules:
(1) the provisions contained in these rules prevail to the extent of the inconsistency in case the specific rules were made prior to the commencement of these rules; and (2) the provisions contained in the specific rules shall prevail in case they are made after the commencement of these rules."
15. Rule 4(gg) of Rules, 1975 provides the definition of "Retrenched Employee" and reads as under:
"(gg) "Retrenched Employee" means a person who was employed on a post under this rule making power of the Governor-
(i) in permanent, temporary or officiating capacity;
(ii) for a total minimum period of one year, out which at least 3 months service must have been continuous service.
(iii) whose services were or may be dispensed with due to reduction in or winding up of the establishment; and
(iv) in respect of whom a certificate of being a retrenched employee has been issued by the Appointing Authority but does not include a person employed on ad hoc basis only."
16. Rules, 1975 initially, as enacted, did not specifically contain any provision giving any relaxation to "Retrenched Employee" but Rule 13-A was inserted by Notification dated 06.07.1977 for a period of three years from the date of its commencement and it reads as under:
"13 A. Relaxation for retrenched employees.-(1) A retrenched employee shall be given exemption from the upper age-limit to the extent of the period of service rendered by him to the State Government together with the period spent without a Government job as a result of the retrenchment.
(2) A retrenched employee, who on the date of his first appointment in the service of the State Government possessed the academic qualifications prescribed on such date for the post now being applied for, shall be deemed to satisfy the requirement of academic qualifications for such post.
(3) For the purposes of this rule, the expression "retrenched employee" means a person who was employed in any service or on any post under the rule-making control of the Governor whether in a substantive, officiating or temporary capacity, and had served continuously for a period of not less than one year, and whose services are, whether before or after the commencement of these rules, terminated or liable to termination, on account of reduction of establishment, and in respect of whom a certificate of being a retrenched employee has been issued by the appointing authority concerned, but does not include a person who was appointed on an ad hoc basis.
Explanation- A person appointed in accordance with the procedure prescribed in the recruitment rules or orders applicable to the service or post concerned shall be deemed to have been appointed on an ad hoc basis."
17. Consistent with 1975 Rules a Government Order No. 27/2/1974- Karmik-2 dated 6.7.1977 was published containing definition of "retrenched employee" and on the same date, another Government Order No. 41/2/1967- Karmik-2 dated 6.7.1977 was published for giving effect to the provisions of 1975 Rules and for guidance and clarification of the concerned officials. The aforesaid Government Order relevant for the present purpose is reproduced as under:
^^'kkŒ laŒ&[email protected]@67&dkfeZd&2] fnukad tqykbZ 6] 1977 fo"k;% jkT;k/khu lsokvksa esa oxZ&3 o 4 ds NaVuh'kqnk deZpkfj;ksa dks [kikus dh O;oLFkkA jkT;k/khu dk;kZy;ksa ds NaVuh'kqnk deZpkfj;ksa dks Hkkoh fjfDr;ksa esa [kikus ds fy, o"kZ 1967 esa ,d fu;ekoyh cukbZ xbZ Fkh] tks vDVqcj] 1971 rd izHkkoh jghA mlds i'pkr ferO;f;rk ds vk/kkj ij vf/k"Bkuksa esa deh fd;s tkus vFkok vU; iz'kklfud dkj.kksa ls jkT; ds fofHkUu dk;kZy;ksa esa oxZ 3 rFkk 4 ds deZpkfj;ksa dh NaVuh djuk vfuok;Z gks x;k rFkk Nvuh'kqnk deZpkfj;ksa dks [kikus dk iz'u 'kklu ds le{k iqu% mifLFkr gks x;kA 2- bl lEcU/k esa eq>s ;g dhus dk funsZ'k gqvk gS fd bl leL;k ij lE;d~ fopkj djus ds mijkUr NaVuh'kqnk deZpkfj;ksa dks jkT;k/khu dk;kZy;ksa ¼vizkfof/kd rFkk yksd lsok vk;ksx dh ifjf/k ds ckgj ds inksa½ esa gksus okyh fjfDr;ksa es [kikus ds fy, 'kklu us vc fuEufyf[kr fu.kZ; fy;s gSa% ¼d½ vk;q lhek ds NwV& ,sls deZpkfj;ksa us ftrus o"kZ dh lsok viuh Nvuh ds iwoZ dh gks rFkk ftruh vof/k ds fy, og Nvuh ds dkj.k lsok ls ckgj jgs gksa mrus o"kZ dh vk;q lhek ls mUgsa NwV iznku dj nh tk;A ¼[k½ 'kSf{kd ;ksX;rk ds NwV& ;fn ,sls deZpkjh viuh iwoZ fu;qfDr ds le;] ftl in ds fy, og vc vH;FkhZ gSa ml le; ml in dh fu/kkZfjr 'kSf{kd vgZrk iwjh djrs gSaA ¼x½ lqfo/kkvksa dh vof/k& mi;qZDr lqfo/kk;sa bl 'kklukns'k ds tkjh gksus ds fnukad ls 3 o"kZ ds fy, gh ekU; jgsaxhA ¼?k½ NVuh'kqnk deZpkfj;ksa dh ifjHkk"kk& NVuh'kqnk deZpkjh dh ifjHkk"kk ogh gksxh tks dkfeZd vuqHkkx&2 dh vf/klwpuk la[;k [email protected]@1974 &dkfeZd ¼2½ fnukad 6 tqykbZ] 1977 esa nh gqbZ gS vkSj tks lqyHk lnHkZ gsrq uhps m)`r dh tkrh gSA ^^NVuh fd;k x;k deZpkjh** dk rkRi;Z ml O;fDr ls gS tks jkT;iky ds fu;e cukus ds fu;U=.k esa fdlh lsok esa ;k fdlh in ij ekSfyd lhukiUu] ;k vLFkk;h :Ik ls fu;ksftr Fkk vkSj ftlus de ls de ,d o"kZ dh vof/k rd yxkrkj lsok dh gks vkSj ftldh lsok;sa bl fu;ekoyh ds izkjEHk gksus ds iwoZ ;k i'pkr vf/k"Bku esa deh fd;s tkus ds dkj.k lekIr dh tk lds vkSj ftuds lEcU/k esa lEc) fu;qfDr izkf/kdkjh }kjk NVuh fd;k x;k deZpkjh gksus dk izek.k&i= tkjh fd;k x;k gks] fdUrq blesa ,slk O;fDr lfEefyr ugha gS ftls rnFkZ vk/kkj ij fu;qDr fd;k x;k gksA Li"Vhdj.k& lEc) lsok ;k ij ij iz;ksx HkrhZ fu;ekoyh ;k vkns'kksa esa fofgr izfdz;k ds vuqlkj fu;qDr O;fDr dks rnFkZ vk/kkj ij fu;qDr fd;k x;k ugha le>k tk;sxkA 3- ,sls NVuh'kqnk deZpkjh tks oxZ 3 ¼Vice csancellor lewg x½ ds fyfid oxhZ; inksa] ftudk U;wure osrueku 200&320 :i;s gSa rFkk prqFkZ oxZ ¼vc lewg ?k½ ds os in ftudk osrueku 165&215 :i;s gSa vkSj ftl ij HkrhZ ftyk Lrjh; p;u lfefr;ksa ds ek/;e ls dh tkrh gS] esa HkrhZ ds bPNqd gksa mudks mi;qZDr lqfo/kk ds vUrxZr dsoy fu;fer p;uksa esa vgZrk nsus ds fy, NwV nh tk;sxh ijUrq mUgsa p;u esa dksbZ izkFkfedrk iznku ugha gksxhA 'kklukns'k la[;k [email protected]&1975 fnukad 22 uoEcj] 1975 esa tkjh fd;s x;s vkj{k.k lEcU/kh vkns'kksa ij dksbZ izHkko ugha iM+sxk vkSj iwoZ dh Hkkafr gh mudks dk;kZfUor fd;k tk;sxkA rn~uqlkj ^^v/khuLFk dk;kZy; fyfid oxZ ¼lh/kh HkrhZ½ fu;ekoyh] 1975** rFkk ^^prqFkZ oxZ deZpkjh lsok fu;ekoyh] 1975** esa vko';d la'kks/ku dj fn;s x;s gSaA^^
18. Rule 13-A expired after three years and so the Government Order dated 6.7.1977. In order to continue with the relaxation in age, educational qualification and other the GO No. 41/2/67-Karmik-2 dated 23.5.1981 was issued for a period of three years wherein the definition of "retrenched employee" as notified on 6.7.1977 and modified on 18.10.1979 was reiterated. For ready reference the aforesaid is being re-produced as under:
^^'kk-la- [email protected]@67&dkfeZd&2] fnukad 23 ebZ] 1981 fo"k;% jkT;k/khu lsokvksa esa oxZ 3 o 4 ds NaVuh'kqnk deZpkfj;ksa dks [kikus dh O;oLFkkA mi;qZDr fo"k;d lela[;d 'kklukns'k fnukad 6 tqykbZ] 1977 esa iznRr lqfo/kkvksa dh ekU; vof/k 5 tqykbZ] 1980 dks lekIr gks xbZ gSA 'kklu dh tkudkjh esa ;g ckr vkbZ gS fd NVuh 'kqnk deZpkfj;ksa dh leL;k dk funku iw.kZ :i ls ugha gks ldk gS vr% bl fo"k; ij iqu% fopkj fd;k x;kA 2- eq>s ;g dgus dk funsZ'k gqvk gS fd bl leL;k ij leqfpr fopkjksijkUr NaVuh'kqnk deZpkfj;ksa dks jkT;k/khu dk;kZy;ksa esa gksus okyh Hkkoh fjfDrksa ¼vizkfof/kd rFkk yksd lsok vk;ksx dh ifjf/k ls ckgj ds inksa½ esa [kikus ds fy;s 'kklu us fuEufyf[kr fu.kZ; fy;s gS% ¼d½ vf/kdre vk;q lhek ls NwV% ,sls deZpkfj;ksa us ftrus o"kZ viuh NaVuh ls iwoZ dh gks rFkk ftruh vof/k ds fy;s og NaVuh ds dkj.k lsok ls ckgj jgs gksa mrus o"kZ dh vf/kdre vk;q lhek ls mUgsa NwV iznku dj nh tk; ijUrq izfrcU/k ;g gS fd ;g vof/k fdlh Hkh n'kk esa 10 o"kZ ls vf/kd ugha gksxhA ¼[k½ 'kSf{kd ;ksX;rk ls NwV% ;fn ,sls deZpkjh viuh iwoZ fu;qfDr ds le;] ftl in ds fy;s og vc vH;FkhZ gSa] ml in dh fu/kkZfjr 'kSf{kd vgZrk j[krs Fks] rks ;g le>k tk;sxk fd os orZeku in ds fy;s fu/kkZfjr 'kSf{kd vgZrk iwjh djrs gSaA ¼x½ lqfo/kkvksa dh vof/k% mi;qZDr lqfo/kk;s bl 'kklukns'k ds tkjh gksus dh frfFk ls rhu o"kZ ds fy;s ekU; jgsxhA ¼?k½ ifjHkk"kk% NVuh'kqnk deZpkjh dh ogh ifjHkk"kk gksxh tks 'kklukns'k la[;[email protected]@67&dkfeZd&2 fnukad 6 tqykbZ] 1977 esa nh gqbZ gS vkSj lela[;d 'kklukns'k fnukad 18 vDVwcj] 1979 }kjk ;Fkk la'kksf/kr gS vkSj tks lqyHk lUnHkZ gsrq uhps m)`r dh tkrh gS% ^^NaVuh fd;k x;k deZpkjh** dk rkRi;Z ml O;fDr ls gS tks jkT;iky ds fu;e cukus ds fu;a=.k esa fdlh lsok esa ;k in ij ekSfyd] LfkkukiUu vFkok vLFkk;h :Ik ls fu;ksftr Fkk vkSj ftlus de ls de 3 ekl dh fujUrj lsok dh gks ijUrq dqy feykdj ;g QqVdj [kf.Mr lsok Hkh ,d o"kZ dh iwjh gks xbZ gks vkSj ftldh lsok;sa v/khuLFk dk;kZy; fyfid oxZ ¼lh/kh HkrhZ½ ¼prqFkZ la'kksa/ku½ fu;ekoyh] 1979 rFkk prqFkZ oxZ deZpkjh lsok ¼r`rh; la'kks/ku½ fu;ekoyh 1979 ds izHkkoh gksus ds iwoZ ;k i'pkr vf/k"Bku esa deh ds dkj.k lekIr dj nh xbZ gks ;k lekIr dj nh tk;s vkSj ftlds lEcU/k esa lEc) fu;qfDr izkf/kdkjh }kjk NVuh fd;k x;k deZpkjh gksus dk izek.k&i= tkjh fd;k x;k gks fdUrq mlesa ,slk O;fDr lfEefyr ugha gksxk ftls rnFkZ vk/kkj ij fu;qDr fd;k x;k gksA Li"Vhdj.k & lEc) lsok ;k in ij iz;ksT; HkrhZ fu;ekoyh ;k vkns'kksa esa fofgr izfdz;k ds vuqlkj fu;qDr O;fDr dks rnFkZ vk/kkj ij fu;qDr fd;k x;k ugha le>k tk;sxkA 3- ,sls NVuh'kqnk deZpkfj;ksa dks mi;qZDr lqfo/kk ds vUrxZr dsoy fu;fer p;uksa esa vgZrk nsus ds fy;s NwV nh tk;sxh ijUrq mUgsa p;u esa dksbZ izkFkfedrk iznku ugha gksxhA Lkfpo^^
19. The aforesaid government order was extended for a further period of three years vide Government Order No. 41/2/1967-Karmik-2 dated 12.4.1983, which reads as under:
^^'kkΠla[;[email protected]@1967&dkfeZd&2] fnukad 12 vizSy] 1983 fo"k;%& tux.kuk foHkkx ds NVuh fd;s tkus okys deZpkfj;ksa dks jkT;k/khu lsokvksa @inksa esa fu;qfDr gsrq fj;k;rA mi;qZDr fo"k;d lela[;d 'kklukns'k fnukad 12 Qjojh] 1982 ds dze esa eq>s ;g Li"V djus dk funs'k gqvk gS fd mijksDr 'kklukns'k esa nh xbZ lqfo/kk;s jkT; ljdkj ds v/khu dsoy mu lsokvk[email protected] ij fu;qfDr gsrq vuqeU; gksaxh ftu ij lh/kh HkrhZ yksd lsok ds ek/;e ls ugha gksrh gSA mi lfpoA^^
20. Vide Notification dated 16.3.1985 the Governor promulgated a new set of Rules, namely, The U.P. Subordinate Offices Ministerial Staff (Direct Recruitment) Rules, 1985 (in short 'Rules, 985'), in supersession of existing rules and orders on the subject as is apparent from the following:
"In pursuance of the provisions of Clause (3) of Article 348 of the Constitution, the U.P. Governor is pleased to order the publication of the following English translation of Notification No. 20/3-82-Personnel-2-85, dated March 16, 1985.
In exercise of the powers conferred by the proviso to Article 309 of the Constitution, and in supersession of all existing rules and orders on the subject, the Governor is pleased to make the following rules regulating recruitment of ministerial staff in the Subordinate Government Offices in the State."
21. Rule-3 of Rules 1985 also gives it overriding effect over any inconsistent existing rule and Rule-4(i) defines "retrenched employee" which reads as under:
"Retrenched employee" means a person-
(i) who was employed on a post under the rule making power of the Governor, in permanent, temporary or officiating capacity for a total minimum period of one year, out of which at least three months' service must have been continuous service;
(ii)whose services were or may be dispensed with due to reduction in or winding up of the establishment; and
(iii) in respect of whom a certificate of being retrenched employee has been issued by the appointing authority;
but does not include a person employed on ad hoc basis only."
22. Thereafter U.P. Procedure of Direct Recruitment for Group-C Posts (Outside the Purview of U.P. Public Service Commission) Rules, 1998 (hereinafter referred to as the "Rules, 1998") were promulgated on 9.6.1998. It would be appropriate to refer the declaration made under the aforesaid rules which was not in the same terms as it was in Rules, 1975 and Rules, 1985 that the same are being enacted in supersession of all the existing provisions and on the contrary, Rules, 1998 only makes a declaration of making of the rules by the Hon'ble Governor and reads as under:
"In exercise of the powers conferred by the proviso to Article 309 of the Constitution, the Governor is pleased to make the following rules:"
23. Rule-2 of Rules, 1998 gives these rules overriding effect over inconsistent existing rules. Rule 5(3)(c) provides weightage which is admissible to a "retrenched employee" for recruitment in Rules, 1998. Admittedly, Rules 1998 did not contain any definition of "retrenched employee". For the purposes of the case in hand, since recruitment has been made in Rules 1998, the subsequent enactment came into force on 20.8.2001 may not be necessary but since the argument has been advanced referring to the provisions of the subsequent enactment also, we may notice the same.
24. The Hon'ble Governor further promulgated another set of rules in 2001, namely, The Uttar Pradesh Procedure for Direct Recruitment for Group "C" posts (Outside the Purview of the Uttar Pradesh Public Service Commission) Rules, 2001 (in short the "Rules, 2001"). The aforesaid rules have been framed in supersession of all the existing rules and orders on the subject as is apparent from the following declaration made under the Rules:
"In exercise of the powers conferred by the proviso to Article 309 of the Constitution and in suppression existing rules and other on the subject, the Governor is pleased to make the following rules."
25. Rules, 2001, admittedly does not contain any definition of 'retrenched employee' but provides certain concessions in recruitment to a 'retrenched employee' vide Rule 6(6)(b) etc.
26. Rules, 1967, therefore, were not in operation even at the time when petitioner was appointed in census department and terminated. Therefore, his consideration under Rules, 1967 could not have yielded any right upon him for absorption whatsoever.
27. In 1991 when petitioner was terminated from census department, Rules, 1985 were operating but instead of giving any right of absorption it only provides certain kind of relaxation in the matter of age limit and that too was confined only to the extent the incumbent has served at the time of retrenchment. The petitioner despite of giving this benefit of one year service rendered in census department, still was overage and, therefore, under existing rules as applicable at the time of his termination he was rightly found overage. Even when the impugned order was passed the concessions under Rules, 2001 were also to the same extent.
28. The history and the effect of rules pertaining to retrenched employees have been considered in detail by a Division Bench of this Court in Sayed Mohammd Mahfooj Vs. State of U.P. and others, 2007(2) ALJ 628 and a Single Judge judgment of this Court in Ajit Raizada & Others Vs. State Of U.P. Thru' Secy. & Others, 2011(6) ADJ 511 and I find the view taken hereinabove in conformity to the aforesaid binding precedents.
29. Then comes the question of application of Rules, 1991. The aforesaid Rules apparently are applicable to retrenched employees as defined in Rule 2(c) of Rules, 1991, which reads as under:
"2(c) "retrenched employee" means a person who was appointed on a post under the Government or a public corporation on or before October 1, 1986 in accordance with the procedure laid down for recruitment to the post and was continuously working in any post under the Government or such corporation upto the date of his retrenchment due to reduction in, or winding up of, any establishment of the Government or the public corporation, as the case may be and in respect of whom a certificate of being a retrenched employee has been issued by his appointing authority."
30. In the present case the petitioner's alleged continuous appointment for one year and more was not prior to 01.10.1986. It commences in 1991, therefore, he does not come within the definition of "retrenched employee" under Rules, 1991. This has been noticed by a Division Bench of this Court in Javed Akhtar Vs. State Public Service Tribunal and others, 2012(1) UPLBEC 784 as under:
"11. Admittedly, employment of the petitioner is prior to the aforesaid cut off date i.e. 1.10.1986 neither he was working against a post under the Government or Public Corporation nor was he appointed in accordance with the procedure laid down for recruitment to the post and this being so, the petitioner cannot stake any claim for absorption as 'retrenched employee' under the aforesaid 1991 Rules."
31. The Court declined to extend benefit of absorption under Rules, 1991 to an employee of census department, who was engaged on 01.08.1991 to 31.12.1992 and then from 06.07.2000 to 31.05.2000.
32. Moreover, Rules, 1991 were rescinded by U.P. Absorption of Retrenched Employees of Government or Public Corporations in Government Service (Rescission) Rules, 2003 (hereinafter referred to as the "Rules, 2003") and U.P. Absorption of Retrenched Employees of Government or Public Corporations in Government Service (Rescission of Rules) Act, 2009 (hereinafter referred to as the "Act, 2009").
33. The aforesaid Rules and Act, i.e., Rules, 2003 and Act, 2009 have been considered by a Division Bench of this Court in State of U.P. through Principal Secretary (Karmik) Vs. Sunil Kumar Verma and others, 2010 (127) FLR 515 and in paras 61 to 65 the Court said:
"61. The provisions of Rule 3 of the Rescission Rules 2003 as well as Section 3 of the 2009 Act have to be considered in the light of the principles as enunciated by the Apex Court in the aforesaid cases.
62. Present is a case where the 1991 Rules have been repealed by the Rescission Rules 2003 and side by side new provisions have been enforced. When repeal is followed by fresh legislation on the same subject, the Court has to look into the provisions of the new enactment for the purposes of determining whether they indicate a different intention. The question is not whether the new Act expressly keeps alive old right and liabilities but whether it manifests an intention to destroy them. A perusal of Rule 3 of the Rescission Rules 2003 provides for rescission of the 1991 Rules and consequences of such rescission. Rule 3(1)(i) of the Rescission Rules 2003 expressly provides that the right of retrenched employees to be considered for absorption accrued under the 1991 Rules stands terminated for those who have not been absorbed till the date of commencement of the Rescission Rules 2003. Thus the right for consideration for absorption under the 1991 Rules accrued to a retrenched employee stands specifically terminated by Rule 3(1)(i) of the Rescission Rules 2003.
63. In view of the above, we are unable to accept the submission of learned counsel for the writ petitioners that even after the rescission of the 1991 Rules by the Rescission Rules 2003 the right of consideration which was acquired before rescission of the 1991 Rules continues and even after the Rescission Rules 2003 the employees are entitled for absorption since they had acquired the right prior to the Rescission Rules 2003. The said submission is specifically nullified by the express intendment of the Rescission Rules 2003 as manifested by Rule 3(1)(i).
64. The provisions of Section 3 of the 2009 Act is to the same effect. By the 2009 Act, the 1991 Rules have been rescinded with effect from 9th May, 1991, i.e., retrospectively. Section 3(a) of the 2009 Act specifically provides that retrenched employees except those who were absorbed during the period May 9, 1991 to April 8, 2003 shall have no claim with regard to their absorption under the said absorption rules or under any Government orders issued in regard thereto and their right regarding absorption accrued under the Absorption Rules shall be deemed terminated.
65. In view of Rule 3 of the Rescission Rules 2003 and Section 3 of the 2009 Act making express provisions for terminating the right of consideration of retrenched employees accrued under the 1991 Rules, there is no enforceable right in the retrenched employees to seek mandamus directing the State Government to consider their case for absorption."
34. At this stage, learned counsel for the petitioner submitted that he has also assailed the vires of Section 3 of Act, 2009 by seeking a writ of certiorari to declare the same as ultra vires. It is contended that under Rules, 1991 petitioner has a right of absorption which could not have been taken away by aforesaid provision rescinding Rules, 1991 by giving effect retrospectively.
35. So far as Rules, 1967 are concerned, I have already noticed that said Rules were not in operation after October, 1971. Therefore, question of taking any right thereunder does not arise. So far as Rules, 1991 are concerned, the same did not confer any right upon incumbent to claim absorption. The words used in Rules 3 of Rules, 1991 was an enabling provision, i.e., providing for consideration for absorption and not a right for absorption. This aspect also came to be considered before this Court in Sunil Kumar Verma (supra) where an attempt was made that the word 'may' used in Rules, 1991 should be read as 'shall'. This aspect has been discussed by Court from para 67 onwards and thereafter in para 78 the Court said:
"In view of the principles laid down by the Apex Court in the aforesaid cases, we are of the view that the word "may" used in Rule 3 of the 1991 Rules cannot be read as word "shall" but we hasten to add that Rule 3 which gave enabling power to the State to consider for absorption also intended a corresponding right in the employee that his case for consideration for absorption be considered by the State till the 1991 Rules were in force."
36. In view thereof the very basis to challenge the vires of Section 3 of Act, 2009 disappear and, therefore, the attempt to assail vires of aforesaid provision also fails.
37. The claim of regularisation of census employees in the aforesaid facts and circumstance has specifically been rejected by two Division Bench judgments of this Court in Sunil Kumar Verma (supra) and Javed Akhtar (supra) and learned counsel for the petitioner could not place anything before this Court either to distinguish the aforesaid judgments or to pursue this Court to take any other view so as to refer the matter for considering the issues by a Larger Bench.
38. Then learned counsel for the petitioner placed reliance on an Apex Court's decision in Union of India and others Vs. Dinesh Kumar Saxena and others, 1995(3) SCC 401, which pertains to census employees also.
39. However, I do not find that any such direction has been issued thereunder that the employees of census department must be absorbed. The directions contained in para 18 of the judgement read as under:
"18. The facts of the present case are closer to those of Sandeep Kumar and others etc. v. State of Uttar Pradesh and others etc., (supra) than the other cases cited earlier. Here also the respondents have been temporarily employed to handle work which is of a limited duration. It is not possible, therefore, to direct the framing of any scheme for their being regularised in the Census Department since there is not enough work of a permanent nature to keep these extra employees busy throughout. We also do not see how these employees, who have been engaged on a contract basis for a limited and fixed duration and on a fixed pay, can be directed to be absorbed in any other department of the Government. Ends of justice will be met if the Directorate of Census Operations, U.P. is directed to consider those respondents, who have worked temporarily in connection with 1981 and/or 1991 census operations, and who have been subsequently retrenched, for appointments in any regular "vacancies which may arise in the Directorate of Census Operations and which can be filled by direct recruitment, if such employees are otherwise qualified and eligible for these posts. For this purpose the length of temporary service of such employees in the Directorate of Census Operations should be considered for relaxing the age bar, if any, for such appointment. Suitable rules may be made and conditions laid down in this connection by the appellants. The appellants and/or the Staff Selection Commission may also consider giving weightage to the previous service rendered by such employees in the Census Department and their past service record in the Census Department for the purpose of their selection to the regular posts. It is directed accordingly. The appellants have, in their written submissions, pointed out that as of now, 117 posts are vacant to which direct recruits can be appointed. They have also submitted that out of these posts, there were 88 vacant posts of Data Entry Operator, Grade B, which had been advertised for being filled up only from amongst the retrenches of 1981, 1984 and 1991. As per recruitment rules, only those retrenches were eligible to apply who were graduates and had a speed of 8000 key depressions per hour of data entry. Although approximately 800 retrenches applied, only 476 appeared in the test conducted by the NIC of the Lucknow Unit and only two applicants qualified. Out of these, only one could be appointed, since the other person was over-age even after allowing for age relaxation. Whatever may be the difficulties in giving regular appointments to such retrenched employees in the past, the appellants, namely, the Union of India and the Directorate of Census Operations, U.P. are directed to consider these retrenched employees for direct recruitment to regular posts in the Directorate of Census Operations, U.P. in the manner hereinabove stated. The retrenched employees will, however, have a right to be considered only if they fulfill all other norms laid down in connection which the posts in question under the recruitment rules and/or in other departmental regulations/circulars in that behalf."
40. I also finds that aforesaid judgment has been considered by this Court in Ajit Raizada (supra) and it would be appropriate to reproduce paras 41 to 57 of the aforesaid judgment as under:
"41. An attempt was made time and again by certain Census employees, similarly placed with petitioners, sometimes relying on 1991 Rules and sometimes on the Apex Court's decisions in Union of India and others Vs. Dinesh Kumar Saxena and others, 1995 All. L.J. 1346 but in vein.
42. In Writ Petition No. 12171 of 2002 (Subodh Kumar Kaushik Vs. State of U.P. and others), decided on 07.10.2005 this aspect was considered. Subodh Kumar Kaushik was an employee engaged in 2001 Census in District Jhansi. He was appointed by letter dated 05.10.2000 as Junior Clerk in the pay scale of Rs. 3050-4590 on temporary basis up to 31.05.2001. This Court having considered various submissions, said:
"From a perusal of the counter affidavit, it is clear, that the Absorption Rules of 1991 has been rescinded on 8.4.2003. In any case, the State Government by G.O. dated 20.8.2001 made it clear, that a person who was appointed on a temporary post, on a temporary basis, for the census work, would not fall under the definition of a retrenched employee and would not be given the benefit of any absorption in the service of the Government.
In Union of India and others vs. Dinesh Kumar Saxena and others, 1995 ALJ 1346, the Supreme Court held that the employees working in the Census department had been engaged on a contract basis for a limited duration and, therefore, cannot be absorbed in any other department of the Government. The Supreme Court, however, directed the Director of Census Operation, U.P. to consider those employees for an appointment in a regular vacancy which may arise in the Directorate of Census Operation.
Subsequently the Supreme Court in the case of Government of Tamil Nadu and another vs. G. Ammeenudeen and others, 1999(7)SCC 499, issued directions to the State Government of Tamil Nadu to frame a scheme in order to absorb the employees working in the Census department. The said direction was passed because the Supreme Court felt that on the commencement of Census operations persons who were registered in the Employment Exchange got a job in the Census department and their employment came to an end when the project came to an end thereby loosing both the employment and their position in the queue in the Employment Exchange and, therefore, in view of the peculiar circumstances, the Supreme Court directed the State Government to work out a proper scheme.
In Rajesh Kumar Gaur and others vs. Union of India (Writ Petition No.12537 of 2002), decided on 11.7.2005 a Single Judge of this Court held, that there was no conflict between the judgment of the Supreme Court in the case of Union of India vs. D.K.Saxena (S.C.) and in the case of Government of Tamil Nadu and another vs. G. Ammeenudeen and others (supra). The Court further held that the employees engaged as compliers in the Census operations were not entitled to be absorbed under the Absorption Rules of 1991.
In view of the aforesaid, it is clear that the petitioner having been given a fixed term appointment was not entitled to be absorbed under the Absorption Rules of 1991. In any case, the said Rules has been rescinded and therefore, the benefit of those Rules is no longer available to the petitioner. In view of the clear dictum laid down by the Supreme Court in the aforesaid two judgments, the petitioner is not entitled to be absorbed as an employee in the Government service. However, since the Supreme Court directed the State Government of Tamil Nadu to frame a scheme for absorption of the Census employees, in my opinion, similar direction should also be given to the State Government of U.P.
In view of the aforesaid, the impugned order does not suffer from any error of law. At the present moment, no mandamus can be issued to the respondents to absorb the petitioner in the Government employment. However, a direction is issued to the State Government to frame a scheme to absorb the employees appointed in the Census operations within six months and consider the case of the petitioner and other similarly situated persons.
Writ petition is disposed of with the aforesaid directions."
43. In Writ Petition No. 12537 of 2002 (Rajesh Kumar Gaur and five others Vs. Union of India and others), decided on 11.07.2005 this aspect came to be considered in a similar claim of Clerical employee of 1991 Census. This Court dismissed the writ petition holding:
"In the counter affidavit filed on behalf of Director of Census, the right for absorption has been denied. In Subodh Kumar's case the Court had relied upon the rules of absorption of the Rules of 1991 which gave this benefit to the retrenched employment of Public Sector and Corporations. These rules have since been rescinded. In the counter affidavit of Sri Basant Lal Gupta, Additional Tehsildar, Azamgarh it is stated that in the recruitment of Group C employees, made in the year 2001, the retrenched employees were given weightage by providing them 10% additional marks. The petitioners, however, did not apply to take the benefit of the weightage. Further I find that none of the petitioners applied for the vacancies advertised by State Government. They have just made a general application to the District Magistrate for absorbing them in any available vacancies or the vacancies which arise in future.
The employment in the State Government is regulated by the statutory rules. The petitioners cannot claim benefit for absorption in violation of these Rules. I do not find any conflict between the judgment in Union of India Vs. D.K. Saxena, 1995 ALJ 1346 and the judgment in Government of Tamil Nadu Vs. G. Mohamed Ameenudeen and others, JT 1999(9) SC 173. In the matter of census employees of the Government of U.P. the Supreme Court did not find it appropriate to either to State Government to frame a scheme or to provide them any such right of absorption. The judgment in D.K. Saxena's case is squarely applicable to this case.
The writ petition is consequently dismissed."
44. A similar argument was advanced in this case came to be considered by the Apex Court in State of Orissa and others Vs. Prasana Kumar Sahoo, JT 2007(6) SC 182. The Apex Court while observing that the State is bound by constitutional scheme to treat all persons equally in the matter of grant of public employment as envisaged under Article 14 and 16 of the Constitution, further observed in paras 13, 14, 17, 18, 19 and 20 as under:
"13. Even a policy decision taken by the State in exercise of its jurisdiction under Article 162 of the Constitution of India would be subservient to the recruitment rules framed by the State either in terms of a legislative act or the proviso appended to Article 309 of the Constitution of India. A purported policy decision issued by way of an executive instruction cannot override the statute or statutory rules far less the constitutional provisions.
In A. Umarani v. Registrar, Cooperative Societies and Ors. (2004) III LLJ 780 SC, this Court has held:
45. No regularisation is, thus, permissible in exercise of the statutory power conferred under Article 162 of the Constitution if the appointments have been made in contravention of the statutory rules."
14. The circular letter dated 21.3.1995 even does not purport to lay a policy decision relating to regularisation or absorption of the census employees. It only provided for relaxation of age. Such relaxation was also subject to strict compliance of the recruitment rules. If by reason of some misconception or otherwise, the Tribunal had granted some relief in favour of some census employees, the same by itself, in our opinion, would not confer any legal right upon a person for being absorbed in State services without compliance of the mandatory provisions of the recruitment rules and the constitutional scheme adumberated under Article 16 of the Constitution of India.
17. Regularisation as is well known is not a mode of recruitment. A policy decision to absorb a person who is not in employment of the State without following the recruitment rules, would not confer any legal right on him. A Constitution Bench of this Court in Secretary, State of Karnataka and Ors. v. Umadevi and Ors. (2006) II LLJ 722 SC, categorically held that any appointment made in violation of the constitutional provisions would be a nullity. See also Gurbachan Lal v. Regional Engineering College, Kurukshetra and Ors. 2007 (4) SCALE 1.
18. We may notice that in a large number of decisions, Uma Devi (supra) has been followed by this Court. e.g. State of U.P. and Ors. v. Desh Raj 2006 Cri LJ 2108, Punjab Water Supply & Sewerage Board v. Ranjodh Singh and Ors. (2007) 2 LLJ 1052 SC and National Institute of Technology and Ors. v. Niraj Kumar Singh (2007) II LLJ 23 SC, Punjab State Warehousing Corporation Chandigarh v. Manmohan Singh and Anr. (2007) 2 LLJ 519 SC. Furthermore, a direction to grant relaxation in respect of the age must also receive strict compliance of other conditions specified therein. See Kendriya Vidyalaya Sangathan and Ors. v. Sajal Kumar Roy and Ors.
19. It may be that some other persons similarly situated have been appointed. But Article 14 as is well known contains a positive concept. A Writ of Mandamus can be issued by the High Court only when there exists a legal right in the Writ Petitioner and corresponding legal obligation in the State. Only because an illegality has been committed, the same cannot be directed to be perpetuated by a court of law.
20. It is also well settled that there cannot be equality in illegality. See Sushanta Tagore and Ors. v. Union of India and Ors. AIR 2005 SC 1975, State, CBI v. Sashi Balasubramanian and Anr. [2007] 289 ITR 8(SC) and U.P. State Sugar Corporation Ltd. and Anr. v. Sant Raj Singh and Ors. (2006) III LLJ 509 SC."
The Apex Court has set aside the judgment of the High Court and Tribunal in the above case.
45. One thing is quite clear from what I have stated above that the State Government as a matter of policy has not decided anywhere and at any point of time to absorb the ex-employees of Census department in other vacancies of Government. It has also not framed any statutory provision granting relaxation of rigor of procedure of recruitment for Class-III or Class-IV post governed by statutory rules framed under proviso to Article 309 of the Constitution. In the exigency, at some stage, relaxation in the matter of age has been given to the extent the incumbent has worked in Census department but for all other purposes the incumbent has to compete with others and to participate in the selection which is to be made according to relevant statutory rules.
46. It is also thus evident that regularisation is not a mode of recruitment. The exposition of law is almost settled. It can be claimed only if so provided by the statutory provision and not otherwise.
47. In Secretary, State of Karnataka Vs. Uma Devi 2006(4) SCC 1 and after review of the entire law on the subject and discussing the matter at length, the Apex Court has held that a sovereign government or its instrumentality, considering economic situation in the Country and the work got to be done is not precluded from making temporary appointments or engaging workers on daily wages, but whenever a regular vacancy occur, it has to be filled in as per the Constitutional scheme by giving equal opportunity of employment to all concerned persons. The Court has rejected the approach of taking a lenient view and term it as a misplaced equity and sympathy to the handful people, who have approached the Court with a claim of equity ignoring the equity of teeming millions of the country seeking employment and a fair opportunity of competing for employment. The Court, categorically held that adherence to Article 14 and 16 of the Constitution is a must in the process of public employment and also stressed that adherence to the rule of equality in public employment is a basic feature of our constitution. It held :
43. Thus it is clear that adherence to the rule of equality in public employment is a basic feature of our constitution and since the rule of law is the core of our constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. ...................."
48. It further held that the High Courts, acting under Article 226 of the Constitution should not ordinarily issue directions for absorption/regularization or permanence unless the recruitment itself was made in a regular manner consistent with the Constitutional scheme. The Apex Court very categorically held:
"The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularization or permanent continuance unless the recruitment itself was made regularly and in terms of the Constitutional Scheme."
49. The Apex Court also cautioned the Courts that they must be careful in ensuring that they do not interfere unduly with the economic arrangement of the affairs of the State or its instrumentalities or lend themselves as instrument to facilitate the bypassing of the constitutional and statutory mandates.
50. Following Uma Devi (supra), in Surinder Prasad Tiwari Vs. U.P. Rajya Krishi Utpadan Mandi Parishad & others, 2006 (7) SCC 684, in para-35, 37 and 38, it was held :
"35. Equal opportunity is the basic feature of our Constitution. Public employment is repository of the State power. Certain status and powers emanate from public employment.
37. Our constitutional scheme clearly envisages equality of opportunity in public employment. The Founding Fathers of the Constitution intended that no one should be denied opportunity of being considered for public employment on the ground of sex, caste, place of birth, residence and religion. This part of the constitutional scheme clearly reflects strong desire and constitutional philosophy to implement the principle of equality in the true sense in the matter of public employment.
38. In view of the clear and unambiguous constitutional scheme, the courts cannot countenance appointments to public office which have been made against the constitutional scheme. In the backdrop of constitutional philosophy. It would be improper for the courts to give directions for regularisation of services of the person who is working either as daily-wager, ad employee, probationer, temporary or contractual employee, not appointed following the procedure laid down under Articles 14, 16 and 309 of the Constitution. In our constitutional scheme, there is no room for back door entry in the matter of public employment."
51. Elaborating the procedure of regular appointment, in Union Public Service Commission Vs. Girish Jayanti Lal Vaghela 2006 (2) SCC 482, the Court observed that regular appointment to a post under the State or Union cannot be made without issuing advertisement in the prescribed manner, which would include inviting of applications from employment exchange where eligible candidates get their names registered. Any regular appointment made on a post under the State or Union without issuing advertisement inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would violate the guarantee enshrined under Article 16 of the Constitution. This view has been referred and approved in Uma Devi (supra) and reiterated in National Fertilizers Ltd. Vs. Somvir Singh 2006 (5) SCC 493 observing that the "State" within the meaning of Article 12 of the Constitution is bound to comply with the constitutional mandate under Article 14 and 16.
52. Again a question cropped up as to whether by issuing executive order, or certain guidelines, a regularization is permissible where recruitment is not consistent with Article 16, and, replying the same in Accounts Officer (A&I) APSRTC and others Vs. P Chandra Sekhara Rao & others 2006(7) SCC 488, it was held that no regularization is permissible even in exercise of powers conferred under Article 162 of the Constitution if the appointment has been made in contravention of the statutory rules or Article 16 of the Constitution. Earlier even in State of Haryana and others Vs. Piara Singh & others AIR 1992 SC 2130, the Apex Court declining to accept the contention that general directions can be issued by the Court for regularization observed as under :
"The court cannot obviously help those who cannot get regularized under these details, for their failure to satisfy the conditions prescribed therein. Issuing general declaration of indulgence is no part of our jurisdiction. In case of such persons we can only observe that it is for the respective Governments to consider the feasibility of giving them appropriate relief, particularly in cases where persons have been continuing over a long number of years, and were eligible and qualified on the date of their ad hoc appointment and further whose record of service is satisfactory."
53. This Court in Writ Petition No. 62806 of 2005 (Qazi Amaramullah Vs. District Magistrate, Deoria and others), decided on 01.03.2007 while considering almost similar arguments and also the law laid down by the Apex Court in Uma Devi (Supra) etc. said as under:
"In view of the above discussed authoritative pronouncements, it is too late in the day to uphold the general direction of framing a scheme for regularization and to regularize the employees engaged on daily basis or on contract or temporary but without complying the requirement of Article 16 of the Constitution and the procedure for regular appointment.
Thus in the absence of any statutory provision and also in view of the admitted factual position that the petitioner's initial recruitment was not in accordance with the constitutional scheme enshrined under Article 16 of the Constitution, it cannot be said that the petitioner is entitled for regularization/absorption. Moreover, the letter dated 28.6.2004 issued by respondent no.2 would not be of any help to the petitioner inasmuch as the court of law cannot issue a mandamus commanding the respondents to do something which is illegal and unconstitutional. Therefore, no mandamus can be issue to the respondents as prayed for. The writ petition is, therefore, dismissed. No order as to costs."
54. In respect to the employees of Election Commission who had also worked in similar manner for certain period from time to time whenever the election work was undertaken the matter came to be considered by a Division Bench in State of U.P. and others Vs. Sanjay Kumar Pandey and others, 2004(4) ESC 2470=2005 ALJ 1006. The Division Bench consisting of Hon'ble M. Katju (as His Lordship then was) and Hon'ble Umeshwar Pandey, J.J. held that no regularisation or absorption contrary to rules can be claimed. It followed an earlier Division Bench decision in State of U.P. Vs. Rajendra Prasad, 2004(54) ALR 85.
55. The decisions relied on by petitioners, i.e., Smt. Sushila Chaurasia (supra) and Devi Charan Saraswat (supra) etc. did not decide any question laying down a binding precedent on this Court. I have quoted the entire orders. What is binding is a law on certain issues and not mere directions issued by this Court without considering various legal issues raised in the matter. Before this Court Sri G.C. Saxena, learned counsel appearing for respondent no. 2 has vehemently contended that neither the petitioners are retrenched employees under Rules nor otherwise are entitled for absorption. It is in the light of this contest by the respondents and in view of the law as discussed above, I have considered the entire matter at length and find that beside the fact that petitioners are guilty of gross abuse of the process of law, even otherwise, are not entitled for any relief as sought in the writ petition. The authorities themselves have allowed the maximum concession, i.e., relaxation in age but the petitioners have not opted to contest with other aspirants in a process of recruitment under statutory rules so as to compete for a public employment in accordance with Constitutional scheme of equal opportunity of employment to all.
56. In the overall facts and circumstances of the case I, therefore, find no merit in this writ petition."
41. The aforesaid exposition of law laid down in Ajit Raizada (supra) squarely apply to the fact of present case. In the ultimate discussion I have no hesitation in holding that petitioner is not entitled for any relief.
42. The writ petition is devoid of merit. Dismissed with cost of Rs. 25,000/-.
Order Date :- 21.08.2014 AK