Court No. - 34
Case :- WRIT - A No. - 37725 of 2002 Petitioner :- Shyam Sunder Yadav Respondent :- State Of U.P. And Others Counsel for Petitioner :- K.M. Asthana Counsel for Respondent :- C.S.C.
Hon'ble Sudhir Agarwal,J.
1. Heard Sri K.M.Asthana, learned counsel for petitioner, learned Standing Counsel for respondents and perused the record.
2. This writ petition has been filed by sole petitioner Shyam Sunder Yadav under Article 226 of Constitution of India seeking a writ of mandamus commanding respondent not to interfere in functioning of petitioner as Jeep Driver and to pay his salary regularly on the said post including arrears of salary with effect from November, 2000 and also to absorb/regularize him on the post of Jeep Driver on which he was working since several years.
3. The brief facts stated in the writ petition are that one Mohd. Anis, attached Driver, was suspended vide order dated 28.03.1996 and therefore, Tehsildar Hata, made recommendation to take work of Driver from petitioner. It is also stated in the said recommendation that in anticipation of approval, work of Driver is taken from petitioner from 01.07.1996. The recommendation of Tehsildar was concurred by Deputy Collector, Hata and sent to Collector vide noting dated 18.12.1996. It is said that in view thereof petitioner has been continuously discharging his duties as attached Driver though no letter of appointment has been placed on record.
4. On a query, learned counsel for petitioner could give no reply whether any such letter of appointment was ever issued or not and therefore, this Court has no hesitation in inferring that no letter of appointment in writing was ever issued to the petitioner. This is fortified from the fact that petitioner was subsequently engaged as Seasonal Collection Peon, as is evident from record.
5. Annexure 4 to the writ petition shows that appointment of petitioner as Jeep Driver was not approved by Competent Authority i.e. District Magistrate, hence he was engaged as Seasonal Collection Peon and in addition to the discharge of duties of Seasonal collection Peon, he was utilized as Jeep Driver also. His period of working as Seasonal Collection Peon, mentioned in Annexure 4, are as under :
(i) From 09.6.1996 to 30.6.1997
(ii) From 14.7.1997 to 30.9.1997
(iii) From 15.2.1998 to 30.3.1998
6. Ultimately, District Magistrate vide order dated 02.4.1998 granted approval to petitioner's working as Jeep Driver for the period of 01.7.1996 to 08.6.1997, 01.7.1997 to 13.7.1997 and 01.10.1997 to 14.02.1998. Hence payment of salary was also made.
7. Subsequently, Mohd. Anis, vide order dated 16.4.2000, was awarded punishment of stoppage of two increments and a censure and subject to aforesaid punishment, he was reinstated in service. Since vacancy on the post of Jeep Driver due to suspension of Anis Ahmad ceased with reinstatement, Deputy Collector, Hata made recommendation that petitioner, who was employed to discharge duties as Jeep Driver, may be continued and Mohd. Anis be transferred to some other place.
8. Consequently, District Magistrate, Kushinagar transferred Mohd. Anees, Jeep Driver to Tehsil Padrauna.
9. Petitioner claimed that he has been working efficiently to the satisfaction of higher authorities and, therefore, is entitled to continue and also to be absorbed/regularized on the post of Jeep Driver.
10. While entertaining this writ petition, an interim order was passed on 10.9.2000 to the following effect :
“Learned standing counsel appearing for respondents prays for and is granted six weeks' time to file counter affidavit.
It is alleged that petitioner is working since 1996 as driver initially on the vacancy caused due to the suspension of Mohd. Anis. The vacancy has become substantive. The suspended employee was reinstated and has been transferred to another Tehsil. According to the learned counsel for petitioner, petitioner should be considered for regularization. However, he has not been paid salary from November, 2000. And that now he is under threat of termination.
In the facts and circumstances of the case, an interim mandamus is issued to the respondent to pay to the petitioner his salary from November, 2000 and to allow him to continue until regular selection is made or to show cause by filing counter affidavit.”
11. However, I find from record that petitioner earlier had also approached this Court in Writ Petition No.38400 of 2000. Therein, when he was recommended to be retained at Tehsil Hata and Mohd. Anis was recommended to be transferred by Deputy Collector, Hata, Collector passed order transferring Mohd. Anis to Tehsil Padrauna but in respect of petitioner, passed order on 31.5.2000 for his engagement only for 89 days. Challenging this order dated 31.5.2000, petitioner filed Writ Petition No.38400 of 2000. The relief sought in the said petition are as under :
“(i) issue a writ, order or direction in the nature of mandamus commanding and directing the respondent that they should regularise the service of the petitioner on the post of jeep driver against a substantive post which is still vacant in two tehsil Kasiya and Padrauna and District Kushinagar.
(ii) issue any writ, order or direction in the nature of mandamus commanding and directing the respondents that they should permit the petitioner to continue on the post of jeep driver and pay him salary regularly month to month onwards till the date of his regularisation on vacant post of jeep driver.”
12. Thus, in earlier writ petition also petitioner sought a writ of mandamus to allow him to continue on the post of Jeep Driver and also to regularize him. This writ petition was dismissed vide order dated 4.12.2013.
13. In the present writ petition, petitioner has completely concealed factum of filing of earlier writ petition before this Court though substantial relief prayed in the present writ petition is same as prayed in earlier writ petition. In my view, for this reason alone, petitioner is disentitled for any relief and the present writ petition is liable to be dismissed with costs.
14. Moreover, engagement of petitioner, allowed by District Magistrate vide order dated 31.5.2000 was only for 89 days. He was continued further under the interim order passed by this Court in the present writ petition.
15. Learned counsel for petitioner submitted that since petitioner is still continuing, he is entitled to be considered for regularization under Uttar Pradesh Regularisation of Persons Working On Daily Wages Or On Work Charge Or On Contract In Government Departments on Group 'C' and Group 'D' Posts (Outside the Purview of the Uttar Pradesh Public Service Commission) Rules, 2016 (hereinafter referred to as "Rules, 2016").
16. I have gone through the aforesaid rules and find that the same are not applicable to the petitioner. The aforesaid Rules are applicable to three categories of persons namely, (I) those who were deployed or worked on daily wage; (ii) those who were deployed or working in work charge; and (iii) those who were deployed or working on contract. The term 'Contract', 'Daily Wages' and 'Work Charge' are defined in Rule 4 (c), (d) and (g) as under :
“(c) “Contract” means legally enforceable agreement between two or more parties with mutual obligations;”
“(d) “Daily Wages” means a person who is engaged or employed or deployed on a casual work on day to day basis and whose wages/remuneration is calculated on the basis of the days he has worked.”
“(g) “Work Charge” means a person of temporary establishment or employed on the work of this nature, whose pay, for the time being, in charged directly on the work on which he is engaged.”
17. Petitioner's employment does not come within the purview of any of aforesaid categories, inasmuch as, initially he was employed in a vacancy caused due to suspension of Mohd. Anis. Thereafter, his employment was on tenure basis and thereafter pursuant to interim order dated 10.9.2002 passed in this writ petition, he is continuing. Therefore, Rules, 2016 are not applicable in the case in hand.
18. Even otherwise, in order to attract Rules, 2016 it is necessary to show that concerned person is engaged or employed or deployed or working as such on the date of commencement of Rules, 2016 i.e. 12th September, 2016. Rule 6(1) of Rules, 2016 provides such condition, which reads as under :
“6(1) Any person who-
(i) was directly engaged or employed or deployed or working on daily wages or on work charge or on contract in a Government Department on Group 'C' or Group 'D' post (outside the purview of the Uttar Pradesh Public Service Commission) on or before December 31, 2001 and is still engaged or employed or deployed or working as such on the date of the commencement of these rules; and
(ii) possessed requisite qualification prescribed for regular appointment for that post at the time of such engagement or employment or deployment on daily wages or on work charge or on contract, under the relevant service rules and, subject to the provisions of above mentioned rules 2 and 5, shall be considered for regular appointment on Group 'C' or Group 'D' post (outside the purview of the Uttar Pradesh Public Service Commission) in permanent or temporary vacancy as may be available on the date of the 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.”
19. Learned counsel for petitioner submitted that petitioner was continuously working and still working though it is true that he is working since 10th September, 2000 pursuant to interim order passed in this writ petition.
20. In my view, aforesaid continuance is not nature of continuance contemplated in Rule 6(1). In order to claim benefit of regularization under statutory provision an incumbent not only must satisfy each and every condition provided therein but where condition is that on the date of commencement of rules, the incumbent should continue to work, such condition must be in his own rights and not on the basis of an interim order passed by this Court. The Supreme Court in Committee of Management, Arya Nagar Inter College, Arya Nagar, Kanpur through its Manager and another Vs. Sree Kumar Tiwary and another (1997) 4 SCC 388 had clearly held that a candidate continuing on the strength of interim order cannot be held entitled to regularization.
21. Same view has been taken by a five Judges Bench of this Court in Special Appeal No. 280 of 2013 (Jahaj Pal Vs. District Inspector of Schools and Another) decided on 21.02.2019 wherein the Court in para 174 has held as under :
“...The above decision makes it clear that requirement of “continuously serving the Institution on the date of commencement of Section 33-B” does not refer to illegal continuance or founded on some judicial order but must be by virtue of own right of incumbent concerned and a valid continuation.”
22. The continuance of petitioner on the date of commencement of Rules, 2016 was on the basis of interim order, therefore, he cannot claim any benefit under Rules, 2016.
23. A person who has when deployed or employed without following the process of recruitment cannot claim regularization or permanence unless there are some statutory provisions under which such a right is claimed. I need not to burden this judgment referring the criticism in such kind of cases shown by the Court particularly by a Constitution Bench of Apex Court in Secretary, State of Karnataka Vs. Uma Devi, 2006(4) SCC 1, but suffice is to mention that the fundamental right of equal opportunity of employment enshrined under Article 16 of the Constitution has been held to be a basic feature of Constitution and, therefore, this Court shall never be a party to grant relief to a person who wants a relief by completely going-bye the procedure contemplated under law consistent with Article 16 of the Constitution.
24. The Apex Court in Uma Devi (supra) 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."
25. Following Uma Devi (supra), in Surinder Prasad Tiwari Vs.
U.P. Rajya Krishi Utpadan Mandi Parishad & others, 2006 (7) SCC 684, it was held:
"Equal opportunity is the basic feature of our Constitution. ...Our constitutional scheme clearly envisages equality of opportunity in public employment. .... 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.
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 regularization 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."
26. 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 the 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.
27. Apex Court in State of Rajasthan and others Vs. Daya Lal & others, 2011(2) SCC 429 following the decision in Uma Devi (supra) held as under:
"The High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularization, absorption or permanent continuance, unless the employees claiming regularization had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and Courts should not issue a direction for regularization of services of an employee which would be violative of constitutional scheme."
28. In State of U.P. and others Vs. Rekha Rani, JT 2011(4) SC 6, the Apex Court referring to its decision in Daya Lal (supra), in para 12 of the judgment, said:
"It has been held in a recent decision of this Court in State of Rajasthan vs. Daya Lal 2011(2) SCC 429 following the Constitution Bench decision of this Court in State of Karnataka vs. Umadevi (2006) 4 SCC 1 that the High Court in exercise of its power under Article 226 cannot regularize an employee. Merely because some others had been regularized does not give any right to the respondent. An illegality cannot be perpetuated."
29. In view of above, petitioner is disentitled for any relief, firstly for concealment of factum of filing of earlier writ petition which has been dismissed vide order dated 04.12.2013, and, secondly, that his claim for regularization is not referable to any statutory provisions, and Rules, 2016 are inapplicable to the case of the petitioner.
30. In view of above discussion, relief prayed for by the petitioner cannot be granted.
31. Writ petition lacks merit. Dismissed.
32. Interim order, if any, stands vacated.
Order Date :- 27.2.2019 KA