JUDGMENT V.K. Shukla, J.
1. Petitioners, in the aforementioned bunch of writ petitions, claim that they are daily wage clerks appointed with Northern Railway Primary Cooperative Bank Ltd. Northern Railway Primary Cooperative Bank Ltd., which is an Apex level Central Co-operative Society covered under Notification dated 04.03.1972 as amended by Notification dated 07.02.1973. The provisions of U.P. Co-operative Societies Employees Service Regulation, 1975 framed by U. P. Co-operative Institutional Service Board, Lucknow, are fully applicable qua the staff and employees of said society. Petitioners are questioning the validity of cut-off date as provided in the U.P. Regularisation of Ad-hoc Appointments (On the Posts within Purview of U.P. Co-operative Institutional Service Board) (IIIrd Amendment) Regulations, 2003, wherein persons who have been appointed on ad-hoc basis on or before 30.06.1988 and have been found working on the promulgation of the said Regulations, their claim has been accepted to be considered for regularisation. Petitioners in all these writ petitions undisputedly have been appointed on daily wage basis after 30.06.1988 and as such they were not covered under the provisions of the aforementioned Regulations, and selection process was sought to be undertaken by means of advertisement dated 07.02.2004 for regular selection, then at this juncture petitioners have approached this Court.
2. In the counter affidavit, it has been sought to be contended that services of petitioners were purely on daily wage basis and no right, whatsoever, has accrued to them and cut-off date, which has been fixed, is just and proper. Even petitioners' appointment has been sought to be disputed on the ground that the appointing authority had no jurisdiction to appoint the petitioners and once appointment itself is void, then by no means appointment of petitioners could have been regularised. Amendment has been made in the leading writ petition and by means of the same paragraphs 32-A, 32-B and 32-C have been sought to be inserted challenging the validity of the cut-off date. In the supplementary counter affidavit filed in writ petition No.50122 of 2004, justification has been sought to be given that as the State Government at its level had extended the benefit to its ad-hoc employees, who were appointed on or before 30.06.1988, as such similar benefit has been sought to be extended qua the staff of Co-operative Societies, and thus, valid reason is there for fixing cutoff date.
3. After pleadings mentioned above inter se parties have been exchanged, writ petitions are being taken up for final hearing and disposal with the consent of parties.
4. Sri Hare Ram Mishra, Advocate, opened his argument by contending that the date fixed as 30.06.1988 for extending the benefit of regularisation is arbitrary and illegal, inasmuch as the said cut-off date has no rational, principle or object sought to be achieved by classifying the ad hoc appointees and the same is not at all based on any intelligible differentia, which distinguishes the persons who are grouped together from those who are left out and as such cut-off date is liable to be struck down and petitioners' claim is liable to be considered for regularisation.
5. Sri Ashok Khare, learned Senior Advocate, adopted the same argument, and supplemented the same by contending that once the Statute was being amended for regulating the situation, then in that event benefit of the same ought to have been extended qua each and every employee and making of classification at this juncture was clearly violative of Article 14 of the Constitution of India. It was also contended that petitioners had helped during crisis period and as such their claim ought to have been considered, and in case said cut-off date is permitted to stand, it will make Regulation 4 (3) redundant and meaningless, as such writ petition is liable to be allowed.
6. Sri Sudhir Agrawal, learned Additional Advocate General appearing on behalf of the State, Dr. H .N. Tripathi and Sri O.P. Singh, appearing for other co-respondents, submitted that cut-off date is not at all arbitrary or unreasonable and the said cut-off date has been fixed by the State Government by extending the same benefit of regularisation, which has been extended qua its employees. It has also been contended that petitioners are daily wagers and are not at all ad hoc employees, and as such are not at all covered within the definition of 'employee' keeping in view their nature of appointment, as such any directive for consideration of petitioners' claim would be nothing but an exercise in futility.
7. After respective arguments have been advanced, the question which goes to the root of the matter and which is to be answered, is as to whether cut-off date 30.06.1998, which has been prescribed in the Regulations is reasonable or whether the same is arbitrary or unreasonable. Precise statement of fact has been mentioned by the petitioners of writ petition No. 8055 of 2004 to the effect that twin conditions for fixing cut-off date are not satisfied, as the same does not satisfy the condition of fair classification, and there is no rational principle or object sough to be achieved and there is no intelligible differentia to distinguish those who are grouped together from those who are left out of the group and the differentia is not rational to the object sought to be achieved. This statement of fact has not been disputed. However, in supplementary counter affidavit filed in writ petition No.50122 of 2004, it has been sought to be explained that as similar benefit of regularisation has been extended to the State Government employees, as such similar treatment has been accorded in the matter of respondent Cooperative societies also, as such cut-off date is not at all arbitrary.
8. At this juncture, judicial trend qua the validity of cut-off date is to be seen and looked into. Hon'ble Apex Court in the case of Dr. Mrs. Sushsma Sharma v. State of Rajsthan, 1985 SC page 1367, while upholding the validity of cut-off date fixed i.e. 25.06.1975 mentioned that primary object of ordinance as well as of the Act was to provide for regularisation and absorption of temporary Lecturers of long standing in the Universities of Rajasthan, and the intention was that temporary lecturers of long standing should be screened and 25th June was taken as a convenient date as any other. The prescription of date from which the period should begin and the date on which it should end were mere incidental to the purpose and what was intended by the use of expression appointed on or before 25.06.1975, and must have continued up till 12.06.1978, the date when Ordinance came into force, was that there should have been three years experience for being eligible for absorption. Paragraphs 36, 37, 38, 42, and 43 of the said judgment, being relevant to issue, are being quoted for ready reference:
"36. The problem, for the solution of which this ordinance was passed and this Act was enacted; was to regularise the appointments through specially constituted Screening Committees for temporary teachers of long standing. There is a further fat which is important that initially it was proposed to cover thecxase of temporary lecturers appointed on or before June, 1973 but representation was made by the temporary lecturers that that would deprive many subsequent appointees and therefore the benefit was extended to those temporary teachers who were appointed on or before 25.06.1975. It appears that the intention was that those who had continued from a date prior to 1975 up to June 1978 should get the benefit Such benefit had to be fixed giving a particular period and from the mere fact that 25th June, 1975 was fixed which also happens to be the date on which emergency was clamped on he country, it cannot be said that emergency was the nexus. A certain tenure of service for the purpose of absorption was the object to be achieved and this has a rational nexus with the object. The prescripti6n of the date frlm which the period should begin and the date on which it should end were mere incidental; to the purpose. Any date perhaps could have served the purpose which took into consideration long tenure. What was intended by use of the the expression 'appointed on or before 25.6.1975' and must have continued until 12.6.1978 being the date coming into force of the Ordinance indicated that there should have been near about three years' experience for being eligible for absorption. The date was a handy date. Handy in the sense it came quickly in the minds of some people. At least there is no evidence that there was an attempt to separate or penalise pre-emergency appointees and no decision was taken by any appropriate authority and no such evidence is there to make a distinction between pre-emergency and post-emergency appointees. Being in the employment at the time of coming into operation of the Ordinance was the precondition that 12 th June, 1978. Naturally some day anterior to that date had to be indicated to ensure long tenure of experience and 25 th June, 1975 was chosen because it was as good as a date as any other.
37. It may be borne in mind that wisdom or lack of wisdom in the action of the Government or legislature is not justiciable by court. See in this connection the observations of the U.S Supreme Court in the case of Metropolis Theatre Company v. City of Chicago and Earnest J. Magerstad (1912) 57 L Ed 730. to find fault with a law is not to demlonstrate its invalidity. There the learned Judge Mr. Justice McKenna observed as follows:
"It may seem unjust and oppressive, yet be free from judicial interference. The problems of government are practical ones and may justify, if they do not require, rough accommodations, illogical, it may be, and unscientific. But even such criticism should not be hastily expressed. What is bet is not always discernible, the wisdom of any choice may be disputed or condemned. Mere errors of government are not subject to our judicial review. It is only its palpably arbitrary exercises which can be declared void...."
This passage has been quoted with approval by chief Justice Chandrachud in Prag Ice & Oil Mills v. Union of India .
38. We must bear in mind that mere errors of government are not subject to judicial review. What is best is not always discernible. It may be that 25 th June, 1975 has some odour to some people. It may be that it revised many attitudes but this is wholly irrelevant. Any other date might have been chosen. A particular period was taken to make a person eligible for being screened for absorption and regularisation and if the beginning date happens to coincide with particular date about which some peopel have some memories, the law would not become bad. It seems that would be taking too sensitive a view of human expression."
xx xxxx xxx "42. There are some cases where choice of date has not been questioned. For instance Union of India v. Parmeswaran Match Works Ltd. , wherein by Notification dated 2st July, 1967, benefit of concessional rate of duty was made available if a manufacturer of matches made a declaration that the total clearance of matches from a factory would not exceed 75 million during a financial year. There the date chosen was 21 st July, 1967. It was contended before this Court by the Union of India that the concessional rate of duty was intended for small bona fide units who were in the filed when the notification dated 4 th September, 1967 was issued. The concessional rate of duty was not intended to benefit the large units which had split up into smaller units tio earn the concession. There this Court observed at page 579(of SCR) : (at p. 2352 of AIR) as follows:
" The choice of a date as a basis for classification cannot always be dubbed as arbitrary even if no particular reason is forthcoming for the choice unless it is shown trio be capricious or whimsical in the circumstances. When it is seen that a line or a point there must be and there is no mathematical or logical way of fixing it precisely, the decision of the legislature or its delegate must be accepted unless we can say that it is very wide of the reasonable mark."
43. But as we have mentioned herein before, Nakara's case (supra) dealt with the problem of benefit to all pensioners. The choice of the date of 1st April, 1979 had no nexus with the purpose and object of the Act. The facts in the instant case are,. However, different. For the regularisation of teachers, experience was the object to be found out. Certain period of experience was necessary for the basis for making the regularisation. The period of experience would be how much and the date of experience should begin from what time are within the legislative wisdom and there is nothing in this case to indicate that the starting point i.e. To be in service on or before 25.6.1975 was an arbitrary choice."
9. Hon'ble Apex Court in the case of State of Bihar v. Ramji Prasad, noted that advertisement was published on 29.12.1987 inviting applications for making appointment on various posts in Medical Colleges and Medical College Hospitals for the post of Assistant Professor, who had worked as resident for three years were considered eligible. Date of receipt of application was fixed as 31.01.1998. This particular date was challenged on the ground that it deprived those persons who had not completed three years by the time of making application for consideration of the claim. The said cut-off date was held to be reasonable and choice of date was not held to be arbitrary merely because some other would qualify by shifting the date. Relevant paragraph 7A of the judgment is being quoted below:
"7A. In the present case as pointed out earlier the past practice was to fix the last date for receipt of application a month or one and a half months after the date of actual publication of the advertisement. Following the past practice the State Government fixed the last date for receipt of applications as 31 st Jan. 1988. those who had completed the required experience of three years by that date ere, therefore, eligible to apply for the posts in question. The respondents and some of the intervenors who were not completing the required experience by that date, therefore, challenged the fixation of the last date as arbitrary and violative of Article 14 of the Constitution. It is obvious that in fixing the last date as 31 st January, 1988, the State Government had followed the past practice and if the High Court's attention had been invited to this fact it would perhaps have refused to interfere since its interference is based on the erroneous belief that the past practice was to fix 30th of June of the relevant year as the last date for receipt of applications. Except for leaning on a past practice the High Court has not assigned any reason for its choice of the date. As pointed out by this Court the choice of date cannot be dubbed as arbitrary even if no particular reason is forthcoming for the same unless it is shown to be capricious or whimsical or wide off the reasonable mark the choice of the date for advertising the posts had to depend on several factors, e.g., the number of vacancies in different disciplines, the need to fill up the posts, the availability of candidates, etc. It is not the case of any one that experienced candidates were not available in sufficient numbers on the cut-off date. Merely because the respondents and some others would qualify for appointment if the last date for receipt of applications is shifted from 31 st Jan., 1988 to 30 th June, 1988 is no reason for dubbing the earlier date as arbitrary or irrational. We are, therefore, of the opinion that the High Court as clearly in error in striking down the Government's action of fixing the last date for receipt of applications as 31 st January, 1988 as arbitrary."
10. Full Bench of Delhi High Court in the case of Manju Bala v. Union of India, 2002, ESC 889 considered the challenge of cut-off date for appointment on the post of Assistant Teacher and therein it was mentioned that every cut-off date is bound to create difficulty to some one, and the submitted dates are prone to criticism. Paragraphs 7, 8 and 11 of the said judgment are being quoted for ready reference:
"7. The authorities who conduct the recruitment are best suited to fix the various dates and the time schedule. In the present case it is the SSC which was conducting the recruitment. The SSC has been undertaking task for various organisation year after year and has lot of experience in the matter. One can reasonable take it that the dates fixed by the Commission in this behalf are based on past experience in conducting the recruitments. In such matters the question of mala fides does not arise and, therefore, past experience is the best guide. The SCC has filed an affidavit in the present case, the relevant portion is reproduced as under;
"In this writ petition, the petitioner has challenged the cutoff date of 1.1.1993 fixed by the respondent No. 2 for making a person eligible to appear in the selection test of Assistt. Teachers (Gen &Urdu) and Nursery Teachers for the M.C.D. On the ground that this cut-off date is unreasonable and arbitrary and she should be declared as an eligible candidate for this selection in spite of the fact that her result of B.Ed was declared by M.D. University, Rohtak on 15.01.1993. The petitioner has been by virtue of ad interim order of this Hon'ble Court, permitted to appear in the interview test. However, the result of the same has not been declared as yet.
It may be pertinent to mention here that before 1987; the Staff Selection Commission Viz respondent No. 2 had for the purpose of determination of educational qualification of a candidate, fixed the last date of application for a particular examination/interview/selection process, as the date of eligibility for appearing in that particular examination/interview/selection.
However since there were number of representations received from various quarters that this restricted the area of selection and moreover some of the Universities declare their result late, on account of this reason the candidates who otherwise would have been eligible, are made ineligible on account of closure of the eligibility on the last date of application. In this context the entire matter was studied and a conscious decision was taken for determining the eligibility on education qualification of candidate. This was accordingly brought in line with the norms fixed regarding the determination of age of a candidate, by the Government of India. Department of Personnel and Administrative Reforms. The Government of India vide its Office Memorandum No. 42013/1/79-Estt.(D) dated 4 th Dec. 1979 1979, fixed the following cut-off dates for the purpose of determining the age of candidate to appear in a particular examination.
(a) 1 st January of the year, in which the examination is held, if the examination is held in the first half of the year, and
(b) 1 st August of the year in which the examination is held in the first half of the year and The cut-off date as prescribed above is being strictly applied in all the open competitive examination held by Staff Selection Commission since July, 1987 and this system is working smoothly. In the circumstances it is not considered necessary to make any change in the cut-off date.
Coming back to the facts of the present case, the respondent No. 2 has accordingly fixed the eligibility conditions as on 01.01.1993 in case examination is held in the first half of a calendar year and 01.08.1993 as the cutoff date in case the examination is held in the later half of the calendar year, This has been done keeping in view the fact that some of the Universities declare their results late. This classification is reasonable and meets and the tests laid down under Article 14 of the Constitution and cannot be said to be arbitrary in any manner. For these reasons, the cutoff date of 01.01.1993 fixed by the respondent No. 2 is perfectly legal and justified and hence the petition deserves dismissed."
8. A perusal of the above statement made on behalf of the SSC shows that there was a basis for fixing 1 st January, 1993 as the cut-off date. The date coincides with the cut-off date with respect to age of the candidates. If one fixes any other date, the same will also be open to challenge on same or similar grounds. In matters of fixing cut-of dates there may not be any hard and fast rule and the decision of the recruitment agency based on past experience is best. The affidavit of the SSC referred to above contains ample justification for adoption the date in question as the cut-off date.
11. The learned counsel for the petitioners contended that the cut of date should have been either of the following three:-
(i) the last date of submission of application forms
(ii) the date of written examination for recruitment
(iii) the date for interview.
12. In our view all the above dates are prone to some criticism or the other. As observed by the Supreme Court in the judgment noted above the test jis as to whether the cut-off date fixed is too much off the mark or is whimsical. The cut-off date fixed in the present case can neither be said to be whimsical or it can be said to be too much off the mark. The cut-off date in question coincides with the cut-off date with respect to age. It is based on past experience and has been fixed after taking into consideration the complaints of the candidates in the previous years. It is widely known that so far as the SSC is concerned, the cut-off dates are normally fixed as 1st August or 1st January each year. It has become a matter of general knowledge with the candidates aspiring to participate in such recruitments held year after year. The counter-affidavit filed on behalf of the SSC, to which reference has been made hereinabove, leaves no scope for the contention that the cut-off date in question is arbitrary or whimsical. So far as Kanta Rani's case (supra) is concerned, we have already observed that the cut-off date held to be arbitrary in the said case was not the same which is in question ion the present batch petitions. In that case the cut-off date was a date which was even prior to the date of advertisement for recruitment and the last date of submission of the applications as per the advertisement . Ist August, 1988 was held to be arbitrary in that background in Kanta Rani's case. When all the relevant dates and their sequence is different in the present batch of cases, the judgment in Kanta Rani's case cannot be said to be a precedent for holding Ist January, 1993 as an arbitrary cut-off date. In the facts of the present case, we are of the view that Ist January, 1993 as a cut-off date cannot be found fault with. It cannot be said to be an arbitrary cut-off date."
11. Division Bench of this Court in the case of Subedar Singh v. District Judge, Mirzapur , 1997 (1) ESC 655 took the view that benefit of regularisation policy crystallized in statutory rules cannot be extended by judicial pronouncement, since its extension would amount legislation which would not fall within the jurisdiction of the Court. Paragraph 22 of the said judgment being relevant is being quoted below:
"22. In our view the benefit of regularisation policy crystallised in statutory rules cannot be extended by judicial pronouncement, since its extension would amount legislation which would not fall within the jurisdiction of the Court. We are, with respect. Accordingly, of the view that the decision in Adya Prasad Misra v. State of U.P. also did not lay down the law correctly."
12. Similar view has been taken by Division Bench of this Court in case of Chandracharu Mishra v. State of U.P., 2003 (IV) ESC. 1939. Paragraph 4 of the aforesaid judgment being relevant are being quoted below:
"4. Admittedly, the petitioner retired on 30.06.2001 and hence he was not governed by the said G.O. Learned counsel for the petitioner submitted that the cut- off date i.e.01.07.2001 is ultra vires Article 14 of the Constitution. We do not agree. Cut-off dates have been upheld in several decisions of the supreme Court e.g. All India Reserve Bank Retired officers Association v. Union of India, ; State of Punjab v. J.L. Gupta, 2000 (3) SCC 736; Multi-purpose Health Workers Association v. State of Haryana, ; Dr. Ami Lal Bhat v. State of Rajasthan, ; Union of India v. Sudhir Kumar Jaiswal, , etc. It has been held by the Supreme Court in State of Bihar v. Ramjee Prasad, ; Union of India v. Sudhir Kumar Jaiswal, , etc. that even if no reason has been given for the basis of a cut-off date, the Court cannot interfere in such matters. It is for the administration to fix the cut-off date and the Court should not interfere in such administrative matters as held in the aforesaid decisions. Some persons are bound to have a grievance by a cut-off date, but that would not make it arbitrary, vide Dr.Arni Lal Bhat v. State of Rajasthan (supra)"
13. Now on the touchstone of the principles enunciated above, it has to be found out as to whether the cut-off date prescribed is well within the reasonable mark or not. Here, in the present case, State government has come out with the precise reason that as benefit of regularisation has been extended to State Government employees, who fulfilled the conditions and had been appointed on or before 30.06.1988, as such similar benefit has also been sought to be extended to the employees of Cooperative societies. Thus reason has been indicated by the State Government in the present case that in order to avoid discrimination to the ad-hoc employees of the corporation functioning on ad hoc basis, analogous provision extending benefit of regularisation has been sought to be made. The validity of the provisions of U.P. Regularisation of Ad-hoc Appointments on posts outside purview of U.P. Public Service Commission) Rules, 1979 as amended by Notification dated 20.12.2001, has been upheld by this Court in fixing cut-off date as 30.06.1998 in writ petition No.5277 of 2002, Shivaji Singh and Ors. v. High Court of Judicature at Allahabad. Argument which has been sought to be advanced in respect of fixing of cut-off date as 30.06.1988 being arbitrary, capricious and off the mark has been repelled in the said judgment dated 08.08.2003 rendered in the aforementioned writ petition. Special appeal No.705 of 2003 preferred against the said judgment has also been dismissed by Special appeal Bench on 13.10.2003. Thus, the validity of cut-off date 30.06.1988 qua Government servants has been upheld by single Judge of this Court, thereafter confirmed by Division Bench, and as the State Government in its turn has adopted the same policy qua the employees of the Cooperative Department, as such fixation of cutoff date for extending similar benefit to the employees of the Cooperative Department cannot be dubbed to be arbitrary or unreasonable. Much reliance has been placed by the petitioners on the Division Bench judgment of this Court in the case of Jai Kishun and Ors. v. U.P. Co-operative Bank Ltd. and Ors., 1989 (2) UPLBEC 144. In the said case claim of State Government was not accepted as the State Government had failed to show rational principle or object sought to be achieved by classifying ad-hoc appointees by fixing a particular date, viz. 01.05.1983 and making benefit of regularisation rules available to those who were appointed prior to 01.05.1983 and as the State Government had failed to furnish any justification, the said cut-off date was held to be arbitrary and unreasonable. Here reasons are available on record, as such said Division Bench judgment will not come to the rescue of the petitioner.
14. Reliance has also been placed on the judgment of Hon'ble apex court in the case of B Prabhakar Rao and Ors. v. State of Andhra Pradesh, 1985 (Supp) SCC 432, for the proposition that legislations which are meant to remedy the wrongs, it should not exclude from its purview few of the wronged persons. In the said judgment of Hon'ble Apex Court, Government of Andhra Pradesh took decision to reduce age of superannuation from 58 to 55 years. Said reduction was challenged before Hon'ble Apex Court During pendency of the said proceeding sunder Article 32, Andhra Pradesh Government realised that serious wrong has been done and grave injustice has been caused to its employees, then it resolved to reverse the decision, but added a rider that verdict of Apex Court was not delivered for long, Ordinance No. 24 of 1984 and Act No. 3 of 1985 was passed by substituting 58 years for 55 years, and therein employees who had retired in between Feb 28, 1983 and August 23, 1984, had been led out. In this background Hon'ble Apex Court held that all effected persons hit by afte formed a class, and no sooner kit was realised that injustice has been done, steps were taken to remedy the situation, then there was no occasion to pick and chose from the class who deserved the same treatment. Here in the present case, situation is all together different. All the petitioners have entered into employment without undertaking any process of selection, fully aware of the fact that they are daily wagers, with no right to the post. State Government, at no point of time had taken any decision, doing away with any of their subsisting right and meting injustice to them. Cases qua extending the benefit of regularisation has to be seen and tested on different footing, as it involves various factors, to be taken into account while extending the benefit of regularisation, such as existence of vacancies, requirement of work, financial feasibility, and such policy decision, cannot be dubbed arbitrarily merely because some have been left out from being extended the benefit of the same. Reliance has also been placed on the decision of Hon'ble Apex Court in the case of Prabodh Verma and Ors. v. State of U.P. 1984 931 for the proposition that petitioners have served in crisis period, as such benefit be extended to them also. In the said case, all the teachers who had performed during strike period, were treated as separate distinct class and preferential treatment meted to them was upheld. Here, on their own petitioners had applied and had been offered appointment, as such petitioners cannot equate themselves with Reserve Pool Teachers. Both these cases have been decided on the facts of the said case, and would not come to the rescue of the petitioner.
15. For the reasons stated above, and for the fact that petitioners have been accorded relaxation in the matter of direct recruitment, no interference is warranted, writ petitions are dismissed