JUDGMENT Sunil Ambwani, J.
1. Heard Sri Shashi Nandan assisted by Sri L.R. Khan for petitioners in both the above writ petitions and Sri Sudhir Agarwal for respondents. I have also heard Sri A.P. Sahi appearing for Sri Ashok Kumar Singh (newly impleaded respondent No. 3) in Writ Petition No. 52753 of 2002.
2. Petitioners, in both the writ petitions, are working as ad hoc Class III employees, in the Judgeship of the newly created district of Chandauli. They have prayed for writ of certiorari for quashing order dated 31.10.2002 passed by District Judge, Chandauli terminating their ad hoc services with effect from 1.11.2002, and for a direction in the nature of mandamus to the respondents to regularise their services on the post of clerks and stenographers and to allow them to continue and to make payment of salary month to month. In Writ Petition No. 26618 of 2002 petitioner Rajesh Kumar Srivastava has also challenged an order of District Judge dated 18.5.2002 by which his representation for regularisation was rejected. A prayer has also been made to quash part of U.P. Regularisation of Ad Hoc Appointments (On Posts Outside the Purview of the U.P. Public Service Commission) Rules, 1979 as amended in 2001, which prescribes 30.6.1998 as cut off date for regularisation of services, after completion of three years. By amendment application in the second writ petition, petitioner has also prayed to quash the orders dated 31.10.2002, as aforesaid and order dated 11.11.2002 passed by Judgeship of Chandauli requesting Registrar General of High Court to allow him to continue 20 ad hoc appointees of Class III posts and 6 ad hoc Stenographers until regular selection takes place.
3. The fact giving rise to these petitions are stated as below ;
A new Revenue District by the name of Chandauli was carved out of Varanasi in the year 1998. A Sessions Division for this newly created district of Chandauli notified nine Courts including the Court of District Judge, Additional District Judge, Chief Judicial Magistrate, Additional Chief Judicial Magistrate, Civil Judge Senior Division and Civil Judge Junior Division. In order to provide these Courts clerical staff and stenographers, until regular appointments are made under U.P. Subordinate Staff Courts Ministerial Establishment Rules, 1947 as replaced by Recruitment of Ministerial Staff to the Subordinate Offices Rules of 1950 ; the High Court gave permission to the Officer on Special Duty, Chandauli by D.O. Letter No/ 17760, dated October 16, 1998 to appoint ad hoc appointees for a period of three months. In pursuance thereafter Sri Rajesh Kumar Srivastava petitioner in Writ Petition No. 26618 of 2002 was appointed as typist on ad hoc basis on 17.10.1998 for a period of three months. Petitioners' Shiva Ji Singh and others in Writ Petition No. 52755 of 2002 were appointed as clerks and stenographers on ad hoc basis initially for a period of three months between 14.7.1999 and 15.9.1999. The High Court granted permission to extend their period from time to time. Whereas petitioners No. 1 to 12 in Writ Petition No. 52755 of 2002 were appointed as clerks, petitioners No. 13 and 14 were appointed as stenographers. Steps were taken for making appointments on regular basis under the aforesaid Rules of 1950 by issuing advertisement in newspapers on 30.6.1999. A regular selection was held but appointment could not be made. This Court vide report of Registrar General of High Court dated 19.3.2001 found that the regular selections advertised on 1.10.2001 suffered from certain irregularities. The report were accepted by Hon'ble the then Chief Justice on 21.4.2001. Fresh advertisements were issued for direct recruitment on the post on the aforesaid Rules of 1950 on 1.10.2001 for which written examinations were held on 13.4.2002. In view of the progress of process of regular selections, this Court vide Letter No. 1590/7B-104/Admin. (D), dated 29.10.2002 directed that the services of ad hoc employees may not be extended beyond 31.10.2002 Consequently, District Judge Chandauli by his letter dated 31.10.2002 terminated the services of all ad hoc Class III clerks and stenographers with effect from 1.11.2002. It appears that District Judge, Chandauli found that in view of the existing vacancies for which regular appointment was not made, it was necessary in the interest of work to continue the ad hoc employees for some more time and thus he made a request to this Court on 11.11.2002 to permit him to extend the services of at least 20 class III employees and 6 stenographers. It is at this stage that the above two writ petitions were filed and that an interim order was made in the first writ petition, not to disturb the functioning of petitioners on their respective posts upto 27.1.2003. It was made clear that the interim order will not confer any rights of regularlsation to petitioners.
4. One Sri Nagrendra Kumar Srivastava, a candidate for direct recruitment filed Writ Petition No. 9514 of 2003 challenging the process of selection by advertisement on the ground that it was contrary to Rules 6 (2) of the Rules of 1947 as substituted by Rules, 1950. It was alleged that the written examination required candidates to appear for two papers in English whereas only one paper of English of 50 marks was provided under the Rules. The selection was stayed by this Court on 28.2.2003. However, the interim order has been vacated on 9.7.2003, and it has been made open to the District Judge, Chandauli to declare result of the examination and to make appointments.
5. In the aforesaid backdrop, petitioners have insisted that this Court may decide their rights to be regularised under U.P. Regularisation of Ad Hoc Appointments (on Posts Outside the Purview of U.P. Public Service Commission) Rules, 1979, as amended by its, amendment by notification dated 20.12.2001. Sri Shashi Nandan appearing for petitioners submits that petitioners are eligible to be appointed as Class III employees and Stenographers, and were appointed on the dates given as above and that each of petitioners had completed three years of continuous service on or before 30.10.2002. Each of them is, therefore, entitled to be regularised under the aforesaid Rules of 1979, as amended by its third amendment. He submits that this Court by its Circular Letter No. 70/Admin. (D), dated 24th December. 1992 has accepted the applicability of the aforesaid Rules of 1979 for regularisation of ad hoc employees of subordinate courts. After the third amendment of the Rules, this Court has accepted the applicability of the said amendment and the right of regularisation of ad hoc employees under the aforesaid amended rules introducing cut off date as 30.6.1998 and the Circular Letter No. 18/VIII B-114/Admin. (D), dated 8.5.2002 has been issued by which the notification dated 20.12.2002 notifying third amendment to the rules had been adopted by the High Court.
6. It is submitted that although petitioners were appointed after the cut off date, i.e., 30.6.1998, they are entitled to be regularised as they had completed three years of continuous service on 20.11.2001 when the third amendment to the Rules of 1979 came into force. He has also challenged the cut of date given in the rules on the ground that it is grossly arbitrary, and has no statable purpose to achieve. Relying upon B. Brabhakar Rao v. State of Andhra Pradesh, AIR 1986 SC 210 (Paragraph 18) ; D.S. Nakara v. Union of India, AIR 1983 SC 130 and University Grants Commission v. Smt. Sadhana Chaudhari, (1996) 10 SCC 536, it was submitted that the normally choice of date should be accepted unless it is very wide of the original mark. In the present case, it is submitted that the Rules of 1979 were amended on three occasions. The Rules of 1979 were initially notified on 14.5.1979 providing the cut of date in Rule 4 as January 1st, 1977. Since some appointees appointed after 1.1.1977 had not completed three years of service on 14.5.1979, Sub-rule (3) provided that a person who had completed or as a case may be after he has completed three years of service shall be considered for regular appointment. By the First Amendment, Rule 9 was inserted on 22.3.1984 and the cut of date was amended as 1.5.1983. There was a gap of one year and forty days and thus the period of completing three years of continuous service for regularisation was made. The Rule was amended for second time on 7.8.1989 by inserting Rule 10 providing cut off date as 1.10.1986. There was a gap of about two years three months and seven days, the Rule provided for three years period of service. The third amendment in the Rules of 2001 came into force on 20.12.2001 amending Rule 4 (1) by providing a cut off date as June 30, 1998 with a gap of more than three years. Sub-rule (3) of Rule 4 provides that such persons who have completed, or as case may be, after he has completed three years of service shall be considered for regular appointment. According to Sri Shashi Nandan, all the persons who were appointed on or before 30th June, 1998 have rendered more than three years of service on the date of enforcement of the amended Rules and thus there was no justification for providing an event in Sub-rule (3) which contemplates completion of three years of service. In order to harmonize Sub-rules (1) and (3) and in order to avoid ambiguity and arbitrariness, Sub-rule (1) should be read in isolation and thus all the persons who had completed three years of service on 20.12.2001 or thereafter must be given the benefit of regularisation. He further points out that Sub-rule (3) provides for two distinct classes of persons who are entitled to be considered for regularisation name (1) persons appointed on ad hoc basis on or before June 30, 1998 and continuing on 20.12.2001, and have completed three years of services on 20.12.2000, and (2) persons in service on 20.12.2001 but not completing three years of service. It is submitted that cut of date is not applicable to the second category of persons. With the aforesaid suggested interpretation, it is submitted that firstly cut of date is not relevant for purpose of regularisation of petitioners' services, and in the alternative it must be held to be arbitrary, vague and with no purpose to achieve, and thus it must be declared to be ultra vires of Articles 14 and 16 of the Constitution of India. Lastly, he submits that cut off date is not something which is so sacrosanct that it cannot be scrutinized by the Court. He submits that a choice of the date is wholly unreasonable, whimsical, burdensome and capricious and relies upon the Division Bench judgment of this Court in Jai Kishun v. State of U.P., (1989) 2 UPLBEC 144. The submission is that the cut off date has no reasonable nexus with the purpose to achieve and these employees appointed after the cut off date and fulfilling the requisite qualifications of three years of continuous services cannot be deprived of the benefit of regularisation. Sri Shashi Nandan has also relied upon Division Bench judgment of this Court in Arvind Kumar Yadav v. State of U.P., Writ Petition No. 6219 (S/S) of 1993, decided on 8.10.1993 holding the cut of date of 1st October, 1996 be ultra vires.
7. Sri Sudhir Agarwal appearing for both District Judge, Chandauli and the High Court denies petitioner's claim to be regularised. He submits that Sessions Division of Chandauli was created in the year 1998 and in order to ensure proper functioning of the Courts in the Judgeship at Chandauli, the Officer on Special Duty and thereafter the District Judge was required to appoint eligible persons as ad hoc employees only for a fixed period of three months by way of interim arrangement. Petitioners were not appointed by adopting any process of selection. Their appointments was extended from time to time. They were clearly informed that their appointment is purely ad hoc till regular selections. The selections in pursuance of the advertisement made on 30.6.1999 were found to suffer from various irregularities and was cancelled by the High Court on 13.4.2001. Fresh advertisements have been issued on 1.10.2002 in pursuance of which the selections are in progress. Written examinations have been held. The result of stenographer have been declared in which two petitioners have been selected as stenographer. He submits that petitioners' services were rightly terminated as regular selection was in progress. None of petitioners were appointed on or before 30.6.1998, and thus they are not entitled to be regularised under the Rules of 1979, as amended by third amendment, which has been adopted by this Court by its Circular Letter dated 8.5.2002. The judgment in Arvind Kumar Yadav case (supra), was expressly overruled by Division Bench Judgment of this Court in Subedar Singh v. D.J., Mirzapur, (1997) 1 ESC 655 and that Subedar Singh's case, has been approved by Hon'ble Supreme Court in Subedar Singh's case v. District Judge, Mirzapur, 2001 (1) AWC 287 (SC) : 2001 (1) ESC 7. He also relied upon a single Judge judgment of this Court in Sita Ram v. State of U.P., 20O3 ALJ 1249, where the validity of cut off date as 1.5.1983 as amended on 22.3.1984 was held to be valid. In this decision the Court relied upon the judgment in D.C. Bhatia v. Union of India, (1995) 1 SCC 104 ; State of Haryana v. Rai Chandra Jain, (1997) 5 SCC 167 and State of Bihar v. Ram Jee Prasad, (1996) 3 SCC 368. Sri Agarwal submits that fixing a cut off date is a matter of executive policy of the State. It is for the Legislature to decide and to classify the date. If there is some indication between object sought to be achieved and the classification, the Legislature cannot be said to have acted in improper exercise of its powers. The classification may result in some hardship but a statutory discretion cannot be set aside. The Court can only consider whether classification has been done on rationale basis and cannot question the validity on the ground of lack of legislative wisdom. It is for petitioners to show that there was no object sought to be achieved and that the cut off date is so wide off, the mark of such objective that it can be held to be arbitrary. Sri Sudhir Agarwal has tried to explain the basis and reason of fixing the cut off dates. He submits that executive policy of beginning of recruitment year from 1st January when the 1979 Rules were made, was changed and now the recruitment years begins from 1st July each year and thus the cut off date was fixed on 30th June, 1998. He has co-related these dates which certain amendment in the Rules for promotion made by U.P. Public Service Commission with which we are not much concerned. In the present case he submits that petitioners appointed on ad hoc basis, took the appointment on specific condition that their appointments are subject to regular selections. Even if they have completed three years of service, no benefit of consideration for regularisation can be given to them unless they are covered by the statutory rules. In Subedar Singh's case (supra) the Supreme Court has expressly laid down that appointments de hors the rules do not confer any right upon petitioners except those who are protected by statutory rules.
8. The judgment of this Court in Arvind Kumar Yadav's case (supra) was overruled by Division Bench in Subedar Singh v. District Judge, Mirzapur (supra). It was held that all the ad hoc employees do not form one class. Those who have rendered services for long are a class different from those who have not rendered for service for such longer period to make them eligible or regularisation. In paragraph 20 this Court held that the cut off date, 1.10.1986, under the 1979 Rules as amended by second amendment Rules 1989, is valid and the decisions in Arvind Kumar Yadav's case did not lay down correct law. This Division Bench decision has been approved by the Supreme Court. Apparently petitioners were appointed after the cut off date, i.e., 30.6.1998. The only question to be considered by this Court is whether the cut off date is arbitrary and provides unfair discrimination between two recognizable and distinct groups of persons, without any object to be achieved, and is thus violative of Articles 14 and 16 of the Constitution of India. The second question to be examined is whether Sub-rules (3) and (4) can be interpreted in a manner to create a category of persons, who may not have been appointed on or before 30.6.1998, but are entitled to be regularised under the said Rules on the basis that they have completed three years of continuous service on the date of enforcement of the Rules, i.e., 20.12.2001.
9. The legal position with regard to fixing a cut off date for giving certain benefits in service has been considered in State of Bihar v. Ram Jee Prasad, AIR 1990 SC 1300. In this case an advertisement was published by State of Bihar on 29.12.1987 Inviting applications for appointments to various posts of teacher in medical colleges and medical colleges and hospitals. For the post of Assistant Professor, the Officer who had worked as resident for three years were considered eligible. The date of receipt of application was fixed as 31.1.1998. This date was challenged on the ground that it deprived those persons who have not completed three years by that time for making application and consideration for the post. The Supreme Court held that earlier past practice was to fix the last date of receipt of the applications, a month or half month after the date of actual publication of the advertisement. In continuation with the past practice, the State Government had fixed the date. It was held that choice of date cannot be dubbed as arbitrary even if any particular reason is not forthcoming for the same, unless it is shown to be capricious and whimsical or far wide off the reasonable mark. The choice of date for advertising the post depends upon special factors, i.e., the number of vacancies in different disciplines, the need to fill up the post and availability of candidates. Mainly because the respondents or some others will qualify by shifting the date is no reason for dubbing the earlier date as arbitrary or irrational. In Manju Bala v. Union of India, 2000 (2) ESC 889, a Full Bench of Delhi High Court considered the challenge of cut off date for eligibility for appointment on the post of assistant teachers and nursery teachers in Municipal Corporation of Delhi. It was held that any of the suggested dates are prone to some criticism. The Delhi High Court relied upon Union of India v. Permeswarn Match Works, (1975) 1 SCC 305, where the principle that cut off date is valid unless is so capricious or whimsical so as to be wholly unreasonable was accepted. The burden that the cut off date is capricious, whimsical and wide off the mark is, therefore, upon the petitioners who allege it to be so. In order to appreciate the submission, the dates of the notifications and the cut off date of the Rules and its amendments is set out as below :
10. The gaps between the notification and the cut off date are not relevant for the purpose of considering the submission of petitioners as in every case, it was necessary that a person should have completed three years of continuous service or completes three years of service. Subsequent to the date of notification in each case there were person appointed on ad hoc basis and working before the cut off dates and that the qualifying services of three years was necessary for consideration for regularisation. The seniority of a person has to be determined from the date when he was appointed and this date of appointment in the Rule 7 is not the date of actual appointment, but the date on which the substantive vacancies became available to him for appointment. The consideration for regular appointment is to be made after person fulfils the eligibility and after his selection by the selection committee from amongst the list prepared by the selection committee from when a permanent or temporary vacancy as the case may be becomes available for such appointments. There may be difference between the date when a person is to be considered for regular appointment and the date with effect from which he may be appointed in such vacancies. The fixation of cut off date, therefore, has no relevance to the date of appointment, to be given by selection committee.
11. The submission that the cut off date is arbitrary only on the ground that there was a gap of more than three years between the notification of the third amendment and the cut off date cannot be accepted. The fact that some of the persons may have been appointed after 30th June, 1998 and have completed three years of continuous service cannot be a ground to keep such person in separate classes for the purpose of consideration of regularisation. The three conditions must be satisfied, namely, that the person was eligible to be regularly appointed on the date of such ad hoc appointment ; has completed three years of service and was appointed on ad hoc basis on or before the cut off date provided in the Rules. He should be in continuous service on the date of commencement of the Rules. If any of these three conditions is not fulfilled, the person is not entitled to be considered for regularisation. In almost all the service rules in the State of U.P., the recruitment year begins from 1st July and thus fixing cut off date to be 30th June, 1998, i.e., prior to the recruitment year 1999-2000 appears to be a valid criteria. No suggestion has been made that this date was fixed to benefit a person or a class of persons and that the date was taken out of hat, or had any other purpose to achieve. It is true that some of the persons may have been appointed after 30th June, 1998 and are eligible and have completed three years of service before the date of notification of the third amendment to the Rules but that by itself does not give them a right to be considered for regularisation in the present case, as against the persons who were appointed on ad hoc basis before 30.6.1998. In the present case, all the ad hoc appointments were made after 30.6.1998 and thus there is no discrimination inter se between ad hoc appointees in the Judgeship at Chandauli.
12. Rule 4 cannot be interpreted in a manner as suggested by the counsel for petitioners. It does not create two classes of persons. It creates only one class of person who possess requisite qualifications for regular appointments at the time of ad hoc appointments ; was directly appointed on ad hoc basis on or before 30.6.1998, and is continuing in service as such on 20th December, 2001, and has completed three years of service. His appointment has to be given with effect from the date when a permanent or temporary post becomes available. Thus only one class of person has been visualised for consideration for regularisation and i.e., a person who fulfils all three conditions given in Rule 4.
13. All petitioners were appointed without following any procedure of appointment, and without inviting applications from the open market and all of them were aware of the fact that their ad hoc appointment is only for a period of three months and in any case until the regular selections. Each of them got opportunity to apply in regular selections. Petitioners' appointments were, therefore, made in a particular exigencies of service for specific periods and that with express condition that it will be terminated on regular appointment. They cannot, therefore, invoke equity in law only on the ground that they have completed three years of service.
14. For the aforesaid reasons, I do not find any merit in both the writ petitions. The cut off date provided in the Rules is held to be valid. All the petitioners were appointed subsequent to this date and thus they are not entitled to be considered for regularisation. Both the writ petitions are consequently dismissed with no order as to costs.