JUDGMENT Sabhajeet Yadav, J.
1. The brief facts giving rise cause of action of instant writ petition is that the petitioner was initially appointed vide order dated 5.4.1973 as Marketing Inspector in Food and Civil Supplies, Department of Govt. of Uttar Pradesh by Regional Food Controller in Ravi Procurement Scheme on temporary basis. His services were liable to be terminated at any time. Thereafter he was again appointed on 8.4.1981 under the same scheme on seasonal basis on the aforesaid post to be ended by 31st July. 1981. On 20.4.1983 he was again appointed on the aforesaid post under the said scheme for a short period of 3 months to be ended by 31.7.1983. Later on vide order dated 1 1.4.1987 the petitioner was again appointed on the post of Marketing Inspector on seasonal basis to be lasted by 31.7.1987. These orders of appointment are on record. Feeling aggrieved against such time bound temporary and seasonal appointment, the petitioner approached this court by filing above noted writ petition wherein on 17.7.1987 this Court has passed an interim order as under :-
Till further orders of the Court the petitioner's services shall not be deemed to have come to an end on 31.7.1987.
2. The learned counsel for the petitioner states that in view of the aforesaid interim order passed by this Court the petitioner is continuously working since then on the post of Marketing Inspector till now and regular payment of salary is also being made to him. The learned Counsel for the petitioner has further submitted that at the strength of the interim order passed by this Court and at the strength of letter of appointments issued from time to time referred above the petitioner has been permitted to work on the post for a period of more than 32 years. By that time while working as such the petitioner has become overage and cannot be engaged in any other service of the State Government or else where suiting to his qualification and status. Now he has to bear the heavy burden of his family responsibility also. At this stage it would be harsh and unjust to leave the petitioner in the mid stream of his life without any employment and without any job security. Therefore, the petitioner's services may be regularised having regard to the length of service rendered by him and his age in as much as other liabilities in family life ignoring the irregularities in initial appointment of the petitioners on humanitarian considerations. In support of his submission the learned counsel for the petitioner has placed strong reliance on a reported decision of Hon'ble Apex Court rendered in H.C. Puttaswami and Ors. v. The Hon'ble the Chief Justice, Karnataka High Court , wherein appointments were found contrary to the existing statutory rules and invalid but the appointees have continued in service for a period of ten years. The Hon'ble Apex Court has protected and saved their services by directing to treat their service as regular on humanitarian grounds. The submission of learned counsel for the petitioner appears to have some substance.
3. A detailed counter affidavit has been filed wherein the aforesaid facts have not been disputed by the learned standing counsel. From the perusal of record also it appears that interim order is still continuing and has not been vacated earlier by this Court. Rejoinder affidavit filed today is taken on record. The counter-Rejoinder affidavits have been exchanged between the parties and case is ripe for final disposal.
4. I have heard learned counsel for the petitioner Sri B. P. Srivastava and the learned standing counsel for the respondents.
5. Before coming to the facts of the case it is necessary to point out that in H.C. Puttaswamy case (supra), Hon'ble Apex Court in para 13,14 and 16 of the decision observed as under: -
13. There is good sense in the plea put forward for the appellants. The human problem stands at the outset in these cases and it is that problem that motivated us in allowing the review petitions. It may be recalled that the appellants are in service for the past 10 years. They are either graduates or double graduates or post graduates as against the minimum qualification of S.S.L.C. required for Second Division Clerks in which cadre they were originally recruited. Some of them seem to have earned higher qualification by hard work during their service. Some of them in the normal course have been promoted to higher cadre. They are now overaged for entry into any other service. It seems that most of them cannot gel the benefit of age relaxation under Rule 6 of the Karnataka Civil Services ((general Recruitment) Rules, 1977. One could only imagine their untold miseries and of their family if they are left at the mid stream. Indeed, it would be an act of cruelty at this stage to ask them to appear for written test and viva voce to be conducted by the Public Service Commission for fresh selection (See Lila Dhar v. State of Rajasthan ).
14. We may briefly touch some of the decisions referred to us by counsel for the appellants. A.K. Yadav v. State of Haryana WAS concerned with the selection made by the Haryana Public Service Commission for appointment to the cadre of the Haryana Civil Service by allocating 33.3 per cent for viva voce. The selection was challenged before this Court on the ground that the marks awarded for the interview was high as it would open door for arbitrariness. This Court upheld that contention and held that the marks for viva voce test would not exceed 12.2 per cent. However, the Court did not set aside the appointments, instead, directed the Public Service Commission to give one more opportunity to the aggrieved candidates to appear at the competitive examinations. In State of U.P. v. Rafiquddin , the validity of selection made by the Public Service Commission of Uttar Pradesh to the cadre of Munsifs came for consideration. Here again the Court refused to quash the appointment even though the selection was found to be contrary to the Rules of recruitment. In Miss. Shainda Hasan v. State of U.P. , the legality of appointment of a principal of a minority college was in question. The principal was overaged for appointment, but she was given age relaxation which was held to be arbitrary. Yet the Court has declined to strike down her appointment. On the contrary, the Chancellor was directed to grant the necessary approval for her appointment with effect from the date she was holding the post of the Principal. Her continuous working as Principal in the College seems to be the only consideration that weighed with this Court for giving that relief.
16. The precedents apart, the circumstances of this case justify an humanitarian approach and indeed, the appellants seem to deserve justice ruled by mercy. We also lake note of the fact that the writ petitioners also would be appointed in the High Court as stated by learned Advocate General of the State.
6. Thus from a close analysis of the observations made by Hon'ble Apex Court it is clear that in the aforesaid case as well as in the cases noticed by Hon'ble Apex Court in the aforesaid decision the selections and appointments under considerations were found faulty and irregular and contrary to the existing rules of recruitment but Hon'ble Apex Court either regularised the appointment and granted other consequential relief to the persons whose selections and appointment was under consideration or afforded one more opportunity to the aggrieved candidates to appear in fresh selection but in H.C. Puttaswamy's case and Rafiquddin's case the Hon'ble Apex Court has declined to dislodge illegally selected and appointed persons from their posts rather permitted them to continue on their post thus by regularizing their appointment on humanitarian considerations due to continuity of their service for a long spell of time. It is no doubt true that such observation made by Hon'ble Apex Court in peculiar facts and circumstances of the case cannot be treated to be ratio of the decision having effect of binding precedents as held by Hon'ble Apex Court itself in several reported decisions need not to be referred to avoid bulkiness of the judgment yet the same can furnish sufficient guidelines to decide cases like present one.
7. Now coming to facts of the case it is not in dispute that the petitioner's engagement was made first time in the year 1973 on seasonal basis against Ravi Procurement Scheme for a short duration as referred earlier hereinbefore and his appointment was made from time to time and lastly on 11.4.87 to be ended by 31st July. 1987. From the perusal of the record it transpires that on 17.7.1987 while entertaining the writ petition this Court has issued an interim mandamus directing that until further orders of the court the petitioner's services shall not be deemed to have come to an end on 31.7.1987. Learned counsel for the petitioner has stated that at the strength of the aforesaid interim order the petitioner is permitted to continue in service on the post of Marketing Inspector and he is still continuing on his post. The petitioner has also been paid salary regularly from month to month in compliance of the interim order granted by this Court. In given facts and situations it is no doubt true that the petitioner's engagement was made to cater the need of the department for short duration from time to time since 1973 till 1987 and thereafter he continued on the post at the strength of the interim order granted by this Court for about more than 18 years and now he has become over age and cannot get any employment suiting to his status and qualification. He has also liability of his family on his shoulder, therefore, after a long lapse of time about 32 years it would not be just and proper humanitarian approach in a welfare state to compel the petitioners to leave the job in the mid stream of his life without any employment. It is no doubt true that his appointment was irregular and contrary to the existing statutory service rules of recruitment, but it was made to cater the need of department
8. In this connection it is also noteworthy to mention that from the perusal of interim order dated 17.7.87 passed by this Court in the instant writ petition there is nothing to indicate that the respondents were restrained from terminating the services of the petitioner in accordance with the provisions of law, but the respondents have not terminated the services of the petitioner rather permitted him to continue on his post and since then a period of more than 18 years have passed. The services rendered by the petitioner in this period cannot go into vain and cannot be ignored by the respondents on one pretext or other. However, it shall be open for the respondents to treat the aforesaid period of 18 years continuous service as adhoc service and such services shall not be counted for the purpose of length of service for determination of seniority even after the regularisation of the petitioner. However, till the regularisation of the petitioners is considered and made according to the scheme of regularisation framed by the State Government the petitioner's services shall not be dispensed with except as disciplinary measure. While framing the scheme for regularisation and considering the claim for regularisation, it shall be open for the respondents to be satisfied that as to whether at the time of his initial appointment, the petitioner was eligible and qualified for the post in question according to the existing statutory rules of recruitment or not. Therefore, in view of enunciation of law by Hon'ble Apex Court in H.C. Puttaswamy's case (supra) wherein Hon'ble Apex Court regularised the services of persons who were appointed contrary to the existing statutory rules of recruitment, the petitioner's services are liable to be regularised.
9. Thus in given facts and circumstances of the case it would be just and proper that a direction may be issued to the State Government to consider the claim of regularisation of the petitioners if he is not already regularised in service under any existing rules of regularisation of State Government. If there exist no rule of regularisation to regularise the services of the petitioner, the State Government shall frame a scheme of regularisation of the petitioner who have put in more than 18 years service at the strength of interim order granted by this Court till such regularisation is considered according to observation made herein before the petitioner shall continue in service and his service shall not be terminated except in a disciplinary measure. Thus in view of discussion and observation made herein before the State Government is directed to take appropriate step to consider the regular appointment/regularisation of the petitioner within three months from the date of production of a certified copy of the order passed by this Court.
10. With the aforesaid observation and direction this petition stands disposed off finally. There shall be no order as to costs.