Khagesh
Kumar & Ors Vs. Inspector General of Registration & Ors [1995] INSC 535
(27 September 1995)
Agrawal, S.C. (J) Agrawal, S.C. (J) Jeevan Reddy, B.P. (J) S.C. Agrawal
, J. :
CITATION:
1996 AIR 417 1995 SCC Supl. (4) 182 JT 1995 (7) 545 1995 SCALE (6)102
ACT:
HEAD NOTE:
Delay
condoned in S.L.P.(C) No. 22726-29/95 [C.C.No.3559/95].
These
petitions for special leave to appeal arise out of judgment dated February 8, 1995 passed by the Division Bench of the
Allahabad High Court in various special appeals and writ petitions involving
common questions relating to regularisation of Registration Clerks employed on
daily wage basis in the Registration Department of the Government of Uttar
Pradesh.
Under
the U.P. Registration Manual (hereinafter referred to as 'the Manual')
provision is made in paragraph 94-A for appointment to the post of Registration
Clerks in Sub-registrar's offices and in District Registrar's offices by the
District Registrar. In paragraph 95 it is provided that the strength and remuneration
of registration establishments shall vary according to the amount of work to be
performed in each office and will undergo periodical review. Under paragraph 96
power has been conferred on the Inspector General of Registration to sanction
temporary establishments within the limits of budget provision and up to a rate
of pay not exceeding Rs. 150 per mensem in each case subject to the conditions precribed
in clauses (a) to (d). The District Registrar has also been empowered to
sanction, with the previous approval of the Inspector General, the temporary
appointment of extra clerks in the Registration offices under his control up to
a rate of pay not exceeding Rs. 60 per mensem in each case but before
sanctioning the District Registrar is required to see that the permanent clerks
have been working up to the standard prescribed by the preceding rule.
Paragraph 97 requires that a list of approved candidates for the post of
registration clerks shall be maintained by each District Registrar and that
except with the previous sanction of the Inspector General, at no time the
number of enlisted candidates shall exceed the number fixed by the inspector
General for each registration district according to the needs of each district.
The said list of approved candidates is required to be revised by the District
Registrar annually in the month of January. In the said rule provision is also
made prescribing the conditions which are required to be fulfilled by
candidates for enlistment as well as the grounds on which the names of
candidates once brought on the list may be removed. It is also prescribed that
permanent appointment to the post of registration clerks shall be made from
amongst the enlisted candidates strictly by seniority and that officiating or
temporary chances of more than a month's duration shall be given to enlisted
candidates by rotation.
Apart
from the permanent and temporary establishments referred to in paragraphs 95
and 96 of the Manual, a practice was in vogue to appoint Registration Clerks on
daily wage basis for the speedy disposal of the pending arrears of documents in
the Registration offices. Such appointments were authorised by the Governor for
the particular year only subject to the condition that the posting of
Registration Clerks on daily wage basis shall in no case exceed three months in
the year. One such order is contained in G.O. dated December 23, 1987 which reads as under:
"G.O.No.
SR4353/X312(1) (O) 82 dated 23.12.87 From :
Shri Prem
Shankar Joint Secretary, Finance Stamp and Registration Section Government of
U.P., Lucknow.
To
Inspector General of Registration Uttar Pradesh, Allahabad Sub :Appointment of
daily wage clerks for purpose of disposal of arrears of documents in
Registration Offices Sir, With reference to your D.O. letter No. 85101/VA-429
dated 26.11.1987, I have been directed to inform that a result of arrear of
copying work in various Registration Offices of the State undue delay is being
caused in the return of original documents to the parties. Consequently, the
parties are being put to inconvenience the Hon'ble Governor has therefore been
pleased to sanction post of Clerks on daily wage basis @ 20/- (Rupees Twenty)
per working day for the purpose of speedy disposal of the present arrear of
documents in registration Offices on the following terms and conditions :-
(1)
The concerned District Registrar with prior permission of District Magistrate
may appoint clerks in minimum possible number in view of unavoidable necessity
and ensure in every case disposal of all documents in arrear within a period of
three months.
(2)
The standard of work of clerks appointed on daily wage basis be the same as
that of regularly appointed clerks. If the output of work on any working day is
less than standard prescribed than in that case his wages shall be liable to be
reduced in the same proportion.
(3)
The disbursement of wages to the daily wage clerks will be made only after the
concerned Sub-Registrar certified that on each working day the work done by the
daily wage clerk is not less than the prescribed standard.
(4)
With a view to ensure that copying work does not fall in to arrear in future,
weekly monitoring will be done by District Registrars.
(5)
The posting of daily wage clerks shall in no case exceed three months during
the course of a financial year.
(6)
The District Registrar will prepare a list of candidates for appointment to the
post of daily wage clerks in the District and the appointment will be made on
the basis of list prepared in the last year's examination.
(7)
The District Registrar will report to the Government and to the Inspector
General of Registration, U.P., Allahabad from
time to time about the pending work in the district.
(8)
The expenditure shall be made in financial year 1987 from serial No. 81 head of
account 2030 Stamps and Registration under Non-Plan Expenditure and shall be
borne from savings. Here it is also made clear that the entire responsibility
of keeping the work in Sub Registrar Office upto-date shall be that of the
District Registrar and they will be responsible for pending work.
This
order is being issued with the consent of the Finance Department D.O. letter
No. E-4/11541/X-87 dated 23.12.1987.
Yours
faithfully, sd/- (Prem Shankar) Joint Secretary" It has been stated that
similar orders were issued in each year and that such appointments were being
made since 1983-84. The petitioners in these cases are persons who were
appointed on daily wage basis for short period/periods in an year and on the
expiry of the period their services were terminated. Some of them were
appointed on the same basis in the next succeeding year or after a gap of one
or two years.
On May
12, 1978 the Uttar Pradesh Registration Department (District Establishment)
Ministerial Service Rules, 1978 (hereinafter referred to as 'the 1978 Rules')
were published. The 1978 Rules provide for recruitment to various category of
posts in the U.P. Registration Department (District Establishment) Ministerial
Service. The post of registration clerk is a post falling in the said service. The
1978 Rules provide for appointment on the post of registration clerks by direct
recruitment and by promotion from amongst Group 'D' employees. Direct
recruitment on permanent as well as officiating or temporary vacancies was
required to be made in accordance with the procedure laid down in the
Subordinate Offices Ministerial Staff [Direct Recruitment] Rules, 1975. By
notification dated September 9, 1992 [published in the U.P. Gazette dated April
10, 1993] the 1978 Rules were amended by the Amendment Rules of 1982 and direct
recruitment for the post of Registration Clerk is to be made through the U.P.Subordinate
Services Selection Commission on the basis of competitive examination conducted
by the Commission.
In
1989 the Registration Act, 1908 was amended by the State legislature of U.P.
and Section 32- A was inserted whereby it was provided that the document
presented for registration should be accompanied by such number of true photostat
copies there of as may be prescribed by the rules under Section 69. There was a
further amendment of the Registration Act, 1908 by U.P. Act No. 27 of 1994
whereby Section 32-B was inserted. By the said provision it has been prescribed
that in such cases as may be notified by the State Government every document
and the translation of the document referred to in Section 19, presented for
registration shall be accompanied by a true copy there of which shall be neatly
and legibly printed, lithographed, type written or otherwise prepared on only
one side of the paper and that such true copy shall be laminated in accordance
with the procedure laid down in the section. It has been stated that U.P.Act
No. 27 of 1994 has been brought into force with effect from October 1, 1994 vide notification dated September 28, 1994.
Prior
to March 20, 1991 the appointing authority for
registration clerks under the 1978 Rules was the District Registrar but by
notification dated March
20, 1991 the rules
were amended and the Inspector General of Registration became the appointing
authority. On March 24,
1991 the Inspector
General of Registration issued a press Notification inviting applications for
appointment to the posts of Registration Clerks.
A
number of writ petitions were filed in the Allahabad High Court by persons who
had worked as registration clerks on daily wage basis in the past or who were
actually working as Registration Clerks on daily wage basis wherein the
petitioners sought regularisation of their appointment on the post of
registration clerk and prayed for quashing of the Press notification inviting
applications for appointment on the post of registration clerks. Many of these
writ petitions had been disposed of by learned single Judges of the High Court
and special appeals against these judgments were pending before the Division Bench
while other writ petitions were pending for disposal before learned single
Judges. In a large number of cases interim orders had been passed directing
that the petitioners in the writ petitions may be allowed to continue in
service during the pendency of the writ petitions. One such writ petition
(Civil Misc. Writ Petition No. 3721/90, Majeed & Ors. v. State of U.P.
& Ors.) filed at the Lucknow Bench of the High Court had been allowed by a
learned single Judge (S.H.A. Raza J.) and the special leave petition (Civil)
No. ....../93 [CC no. 121212/91] filed against the said judgment was dismissed
on the ground of delay by this Court by order dated August 10, 1993. All the special appeals and writ petitions that were
pending in the High Court at Allahabad as well at the Lucknow Bench were taken
up and were disposed of by the Division Bench of the High Court by the impugned
judgment dated February 8, 1995.
On
behalf of the petitioners, it was claimed before the High Court that they had
been regularly selected by a duly constituted Selection Committee and their
appointment should be treated as regular appointment. This claim was, however,
contested by the State. The High Court rejected the said claim of the
petitioners and held that nothing had been shown that the appointment of the
petitioners was made after selection through a Selection Committee. The other
contention that was urged on behalf of the petitioners before the High Court
was that the petitioners had been working on daily wage basis for a number of
years and, therefore, they were entitled to be regularised on the post.
The
said contention was also rejected by the High Court on the view that none of
the petitioners were either ad hoc employees or even daily wagers continuously
for one year or for 240 days as is generally claimed by the persons seeking regularisation
even in industrial establishments and, furthermore the petitioners did not fall
in any of the categories referred to by this Court in the State of Haryana v. Piara
Singh, 1992 (1) SCC 118, as entitling regularisation. The High Court has held
that in every one of the writ petitions none of the petitioners had worked even
for more than a few weeks or at best for a few months in a year and
consequently the entire edifice of the claim of the petitioners seeking regularisation
was knocked out. As regards the advertisement dated March 24, 1991 issued by
the State inviting applications for appointment on the post of Registration
Clerks it was stated on behalf of the respondents before the High Court that in
view of the amendments which have been made in the Registration Act, 1908, the
State does not need any more Registration Clerks and that no further steps have
been taken for recruitment on the basis of the said advertisement. The High
Court has held that mere advertisement in a paper about some posts lying vacant
does not confer any right whatsoever on those who may be seeking appointment in
pursuance of the advertisement and since the State has specifically come up
with the case that they do not require any one to be appointed as Registration
Clerks in pursuance of the said advertisement dated March 24, 1991 and they are
not proposing to process the said advertisement any further, the said
advertisement cannot be invoked by the petitioners to seek regularisation as
Registration Clerks. Referring to the decision of S.H.A. Raza J. in Civil Misc.
Writ Petition No. 3721/1990 against which the special leave petition was
dismissed by this Court, the High Court has observed that the fact that the
special leave petition has been dismissed against the said judgment cannot be a
precedent for permitting the petitioners in these matters to get a benefit
which they are not entitled to. The High Court has disagreed with the view of
the learned Judge in that case and has reversed the same.
The
learned Judges have also referred to the judgmentment of another learned single
Judge (Vijay Bahuguna J.) in Civil Misc. Writ Petition No. 17634-A/1991 and has
not approved the directions given by the learned Judge in that matter and have
observed that the said directions are wholly out of bounds of Article 226 of
the Constitution of India. The learned Judges have also taken note of the
interim orders that were passed by other learned Judges [sitting singly] in
various writ petitions, both at Allahabad as well as at Lucknow, and have
observed that the said interim orders were obtained by the petitioners on the
basis of averments which were incorrect and false. The learned Judges have,
therefore, dismissed the writ petitions that were filed by the petitioners. to
in paragraphs 95 and 96 of the Manual, i.e., posts on the permanent and the
temporary strength of the establishment.
The
permanent strenght is fixed for each office on the basis of assessment made
having regard to the amount of work to be performed in the office and is
subject to periodic review.
Similarly
the temporary establishment is sanctioned by the District Registrar with the
previous approval of the Inspector General. The permanent and temporary posts
contemplated in paragraphs 94-A, 95, 96 and 97 are posts sanctioned for
appointment on regular basis. The posts of Registration Clerks on daily wage
basis on which the petitioners were appointed do not fall under these
paragraphs of the Manual. Special sanction was given by the Governor for
appointment on these posts of Registration Clerks on daily wage basis for the
purpose of disposal of the arrears of documents in Registration offices and the
District Registrar had been directed to ensure in every case disposal of all
documents in arrears within a period of three months. The sanction was given
subject to the condition that such appointment shall in no case exceed three
months during the course of a financial year. The appointment on these posts of
Registration Clerks on daily wage basis was required to be made on the basis of
a list that was to be prepared as per the directions contained in the
Government order sanctioning the posts. The said list was not the list prepared
under paragraph 97 of the Manual.
In
this context, it may also be stated that since 1978 there exist the 1978 Rules
making express provisions with regard to recruitment on the post of
Registration Clerks in the Registration Department. Rule 15 of the 1978 Rules
prescribes the procedure for the direct recruitment to the post of Registration
Clerk. Prior to the amendment introduced by the Amendment Rules of 1992 the
said Rule provided that "subject to the provisions of rule 5(2),
recruitment to the post of Registration Clerk (including against officiating or
temporary vacancies) shall be made in accordance with the procedure laid down
in the Subordinate Offices Ministerial Staff (Direct Recruitment) Rules, 1975
as amended from time to time". Rule 5(2) provided as under :
2Rule
5(2) :
Name
of the Post Source of recruitment Registration Clerk a) By direct recruitment.
(b)By
promotion to the extent of 10 per cent of the vacancies from amongst the Group
'D' employees in accordance with the provisions of the Subordinate offices
Ministerial Staff (Direct Recruitment) Rules 1975 as amended from time to time.
(2)
Notwithstanding anything contained in these rules, before direct recruitment is
made to the post of Registration Clerk, the appointment shall be made from
amongst the candidates whose names are included in the list of approved
candidates prepared under rule 97 of the Registration Manual for Uttar Pradesh,
Part II (Seventh Edition) as it stood on June, 1974 and in accordance with the
procedure laid down therein." On behalf of the petitioners it has been
urged that appointment of a candidate whose name is included in the list of
approved candidates under paragraph 97 of the Manual, as the said paragraph
stood on January 19,
1974, is to be treated
as an appointment under rule 15 of the 1978 Rules. The submission of the
learned counsel is that the words "as it stood in January 1974" refer
to paragraph 97 of the Manual. We are unable to agree. The said provision in
rule 5(2) was in the nature of a transitory provision which enabled recruitment
to be made in the initial period after the coming into force of the 1978 Rules
on the basis of the list of the approved candidates that had been prepared
under the existing provisions contained in paragraph 97 of the Manual. The
words "as it stood in January 1974" must, therefore, be construed as
referring to the list of approved candidates that had been prepared under
paragraph 97 of the Manual as that list stood in January 1974. The construction
placed by the learned counsel for the petitioners on the words "as it stood
in January 1974" would mean that even after the 1978 Rules the
appointments will have to be made on the basis of list prepared in accordance
with paragraph 97 of the Manual from time to time. This would completely
nullify the provisions relating to recruitment contained in rule 15 of the 1978
Rules. A construction which leads to such a result cannot be adopted. We are,
therefore, unable to accept the contention urged on behalf of the petitioners
that the appointment of the petitioners on the post of Registration Clerks on
daily wage basis was in the nature of a regular appointment made in accordance
with the provisions of the relevant rules. In our opinion, appointment of the
petitioners was made on the basis of the sanction given by the Governor for such
posts each year which sanction was subject to the express condition that such
an appointment shall in no case exceed three months during the course of a
financial year.
The
next contention that has been urged by learned counsel for the petitioners is with
regard to their regularisation on the post of Registration Clerks. It has been
submitted that in letters dated July 6, 1985 and September 20, 1985 from the
Inspector General of Registration to the State Government it was pointed out
that in June 1985, the number of documents which were pending clearance were
about 11,28,000 and as per the requirement prescribed in the Manual about 700
Registration Clerks were required over and above 900 sanctioned posts of
Registration Clerks existing in the Department. It has also been submitted that
as per letter dated December 22, 1993 from the Inspector General of
Registration in November 1993 the total number of documents pending clearance
was about 9,12,696 and that, if the certified copies of the documents and the
memos of enquiry were to be taken into account, the said number would increase
to about 15,00,000 and about 920 Registration Clerks were required for that
purpose. It has been urged that against the said requirement only 272 posts of
Registration Clerks were created between 1985 and 1994 and that at present
there are only 1247 sanctioned posts of Registration Clerks out of which 147
posts were vacant in December 1993 and by July 31, 1994 the number of vacant
posts had increased to 214 on account of promotion and retirement. On behalf of
the respondents it has been submitted that a requisition for selection for 128
posts of Registration Clerks was sent to the Subordinate Services Selection
Commission and the same is pending and that in view of the insertion of
Sections 32A and 32B in the Registration Act in the State of U.P., additional
hands are not needed and the Government was thinking of withdrawing the
requisition. We do not propose to go into the question whether there is need
for appointment of Registration Clerks against the existing vacancies. We will
deal with the contention urged by the learned counsel of the petitioners on the
basis that there are vacancies on the post of Registration Clerks and examine
whether the petitioners can claim regularisation on such posts. In this regard,
it may be stated that in the State of U.P. provisions with regard to regularisation
are contained in the U.P. Regularisation of Ad hoc Appointments (on posts
outside the purview of the Public Service commission) Rules, 1979. (hereinafter
referred to as 'the Regularisation Rules'). Rule 4(1) of the Regularisation
Rules provides; as follows :
"Rule
4. Regularisation of ad hoc appointments- (1) Any person who- (i) was directly
appointed on ad hoc basis before January 1, 1977 and is continuing in service
as such on the date of commencement of these rules;
(ii)
possessed requisite qualifications prescribed for regular appointment at the
time of such ad hoc appointment; and (iii) has comp leted or, as the case may
be, after he has completed three years continuous service, shall be considered
for regular appointment in permanent or temporary vacancy as may be available
on the basis of his record and suitability before any regular appointment is
made in such vacancy is accordance with the relevant service rules or
orders." By the Amendment Rules notified vide notification dated August 7, 1989 the Regularisation Rules were
amended and Rule 10 was inserted which provides that :
"Rule
10. Extension of the Rules - The provisions of these Rules shall apply, mutatis
mulandis, also to any person directly appointed on ad hoc basis on or before
October 1, 1986 and continuing in service as such, on the date of commencement
of the Uttar Pradesh Regularisation of Adhoc Appointments (On posts outside the
purview of the Public Service Commission) (Second Amendment) Rules, 1989."
The petitioners can claim regularisation only if they satisfy the requirements
of the said provisions. They should have been directly appointed on adhoc basis
before October 1, 1986, they should have possessed the
requisite qualifications prescribed for regular appointment at the time of such
adhoc appointment and they should have completed three years continuous
service. It has been urged on behalf of the petitioners that some of the
petitioners had been working as Registration Clerks on daily wage basis since
much before October 1,
1986 and they would be
entitled to be considered for regularisation under the Regularisation Rules.
These provisions are applicable only to an appointment made on adhoc basis.
Though the High Court has held that the appointment of the petitioners on daily
wage basis was not an adhoc appointment, we are not inclined to take that view
and we will proceed on the basis that the appointment of the petitioners was
such an appointment. The question which survives is whether any of the
petitioners who had been appointed as Registration Clerk on daily wage basis
prior to October 1,
1986 can be regarded
as having completed three years continuous service. Since the order of the
Governor sanctioning appointment on the posts of Registration Clerks on daily
wage basis imposes a limitation that such appointment shall in no case exceed
three months during the course of a financial year, there are long breaks between
the various periods during which the petitioners were employed as Registration
Clerks on daily wage basis. In Bhagwati Prasad v. Delhi State Mineral
Development Corporation, 1990 (1) SCC 361, this Court has laid down that for
the purpose of counting three years' continuous service for the purpose of regularisation
artificial break in service for short period/periods created by the employer
could be ignored but "if there is a gap of more than three months between
the period of termination and re-appointment that period may be excluded in the
computation of the three years period". (at p. 364). In view of the said
decision for computing three year period of continuous service for the purpose
of Rule 4(1)(iii) of the Regularisation Rules, the period of break in service
which was longer than three months has to be excluded and only the period
during which the petitioners actually worked can be counted. In case any of the
petitioners was employed as a Registration Clerk on daily wage basis prior to
October 1, 1986 and, after excluding periods of breaks in service which are
longer than three months, he has put in three years service, he would be
entitled to seek regularisation under Rule 4(1) of the Regularisation Rules
provided he fulfils the requirement of clause (ii) of the said rule. He can
move the appropriate authority for such regularisation and the said authority
will pass appropriate orders after verifying the correctness of the claim of
such a petitioner. The petitioners who do not fulfil the said condition of
three years service contained in Rule 4(1)(ii) cannot claim regularisation on
the basis of the Regularisation Rules.
It has
been urged on behalf of the petitioners that many of them have rendered
continuous service for more than 240 days in a year and that they are entitled
to be regularised. We find no merit in this contention. In Delhi Development
Horticulture Employees' Union v. Delhi Administration, Delhi & Ors., 1992
(4) SCC 99, this Court has not accepted the principle that an employee can seek
regularisation only on the ground that he has put in work for 240 or more days.
Similarly, in the State of Haryana v. Piara
Singh & Ors. (supra) this Court, while setting aside the direction of the
High Court that all those adhoc/temporary employees who had continued for more
than a year should be regularised, has observed :
"None
of the decisions relied upon by the High Court justify such wholesale,
unconditional orders. Moreover, from the mere continuation of an adhoc employee
for one year, it cannot be presumed that there is need for a regular post. Such
a presumption may be justified only when such continuance extends to several
years. Further, there can be no 'rule of thumb' in such matters.
Condiytions
and circumstances of one unit may not be the same as of the other. Just because
in one case, a direction was given to regularise employees who have put in one
year's service as far as possible and subject to fulfilling the qualifications,
it cannot be held that in each and every case such a direction must followirrespective
of and without taking into account the other relevant circumstances and
considerations." [p. 142] In that case, this Court has, however, observed
:
"If
a casual labourer has continued for a say two or three years - a presumption may
arise that there is a regular need for his services and in such a situation it
becomes obligatory for the authority concerned to examine the feasibility of
his regularisation." [p. 153] Regularisation in service in the State of U.P. is governed by the Regularisation Rules which
prescribes a period of three years continuous service. We cannot say that the
said period of three years prescribed under the Regularisation Rules is
unreasonable. In these circumstances, it must be held that unless the
petitioners fulfil the requirement of the Re Regularisation Rules, they cannot
be regularised.
It has
been submitted by the learned counsel for the petitioners that even though
under the Governor's sanction appointment on the post of Registration Clerks on
daily wage basis could be made for a maximum period of three months during the
course of a financial year, a practice was prevailing in the Registration
Department to avail the services of Registration Clerks appointed on daily wage
basis by treating them as Apprentices but they were not paid any emoluments for
the period they worked as Apprentices. It is stated that this was done by
invoking the provisions of paragraph 101 of the Manual which provided as under
:- "101 : Employment of unpaid Apprentice The employment of unpaid
Apprentice in registration offices is strictly prohibited, except in special
cases, and with the previous sanction, in writing of the District Registrar of
the District or the Inspector General of Registration, which sanction can be at
any time withdrawn. It should at the same time, be clearly understood that as
the employment of unpaid Apprentice can only be regarded as a convenience of
the Sub- Registrar himself, such services will not be recognised as giving any
claim of appointment." On behalf of the respondents it has been submitted
that the said provision contained in paragraph 101 of the Manual has been
superseded and instructions have been issued by the Inspector General of
Registration from time to time not to engage any person under paragraph 101. Shri
D.V. Sehgal has very fairly stated that if any petitioner was required to work
without payment as an Apprentice under paragraph 101, he will be paid
emoluments on daily wage basis for the said period. In view of this statement
if any of the petitioners or other similarly placed persons was required to
perform the duties of Registration Clerk as an Apprentice under paragraph 101
of the Manual he can submit a representation setting out the particulars about
such employment and the concerned authority, after verifying the correctness of
claim, would pass the necessary order for payment of emoluments on daily wage
basis for the period he is found to have so worked on the post of Registration
Clerk. The said period during which he is found to have worked as Apprentice
under paragraph 101 of the Manual shall be also counted as a part of his
service as Registration Clerk on daily wage basis for the purpose of computing
the period of three years continuous service for the purpose of regularisation.
It has
been next urged on behalf of the petitioners that even if the petitioners are
not entitled to seed regularisation, they should be given preference in the
matter of appointment on the post of Registration Clerk whenever regular
appointment is made on that post and reliance has been placed on the decision
of this Court in Prabodh Verma & Ors. vs. State of Uttar Pradesh & Ors., 1985 (1) SCR 216. In
that case nearly 90 per cent of teachers in recognised institutions who were
members of the Uttar Pradesh Madhyamik Shikshak Sangh went on an indefinite
strike. The said strike was declared as illegal by the State Government and the
services of the striking teachers were terminated. Fresh appointments on
temporary basis were made on the posts of teachers whose services were
terminated.
Thereafter
a settlement took place between the striking teachers and the State Government
and the services of the newly appointed teachers were terminated. Thereafter,
the Governor of Uttar Pradesh promulgated an ordinance which provided for the
absorption of certain teachers in the institutions recognised under the
Intermediate Education Act, 1921 and for that purpose a provision was made for
maintaining a register of "reserve pool teachers" consisting of
persons who were appointed as teachers during the period of the strike and it
was further provided that where any substantive vacancy in the post of a
teacher in an institution recognised by the Board of High school and
Intermediate Education was to be filled by direct recruitment, such post should
at the instance of the Inspector be offered by the management to the teacher
whose name was entered in the said register. The validity of the said ordinance
was challenged before the Allahabad High Court by some of the applicants who were
not in the reserve pool. The said ordinance was declared as invalid by the High
Court on the ground that it was violative of the right to equality guaranteed
under Article 14 of the Constitution.
Reversing
the said view of the High Court, this Court upheld the said ordinance and held
that there was an intellingile differential which distinguishes the teachers
put in the reserve pool from other applicants for posts of teachers in recognised
institutions inasmuch as the reserve pool teachers were those who had come
forward at a time when the teachers employed or a large majority of such
teachers, in the recognised institutions, had gone on an indefinite strike and
had continued the strike even after it had been declared illegal and had the
strike continued almost all the recognised institutions in the State would have
had to close down putting the students to great hardship and suffering and
causing a break in their education and that it was in these difficult and
trying times that the reserve pool teachers came forward to man the recognised
institutions. It has also been observed that the reserve pool teachers joined
the recognised institutions during the period of the strike in circumstances in
which they exposed themselves to great hostility from the striking teachers and
that they did so running a certain amount of risk for there was always a
possibility of a strike turning violent and that almost all those who applied
for these posts and were not in the reserve pool and were seeking to challenge
the validity of the ordinance must have qualified to be appointed to the post
of teachers in the recognised institutions during the pendency of strike and
none of these applicants, however, came forward to join a recognised
institution during that period as the reserve pool teachers did and, therefore,
they stood in a different class from the reserve pool teachers.
We
find it difficult to appreciate how the petitioners can claim preference in the
matter of regular appointment on the post of Registration Clerk on the basis of
this decision. It cannot be said that the petitioners had to undergo any risk
when they joined as Registration Clerks on daily wage basis.
They
joined the posts of their own free will knowing fully well that the said
appointment was for a very short duration and would not exceed three months
during the course of a financial year. We are, therefore, unable to hold that
the petitioners who had worked as Registration Clerks on daily wage basis form
a separate class and are entitled to claim preferential treatment in the matter
of appointment on the post of Registration Clerks as and when recruitment is
made for the said post.
We
are, however, of the view that in the event of the recruitment being made on
the post of Registration Clerks on regular basis, the petitioners or other
similarly placed persons should be given one opportunity of being considered
for such appointment and they be given relaxation in age requirement provided
for such appointment under the rules.
During
the process of selection weightage may be given for their experience to the
Registration Clerks who have worked on daily wage basis and suitable guidelines
may be framed for that purpose by the Subordinate Services Selection
Commission.
For
the reasons aforementioned, the impugned judgment of the High Court is upheld
with the following directions :- (1) The petitioners or other similarly placed
persons who were employed as Registration Clerks on daily wage basis prior to
October 1, 1986 shall be considered for regularisation under the provisions of
rule 4 of the Regularisation Rules provided they fulfil the reguirements of
rule 4(1)(ii) and they have completed three years continuous service. The said
period of three years service shall be computed by taking into account the actual
period during which the employee had worked as Registration Clerk on daily wage
basis. The period during which such an employee has performed the duties of
Registration Clerk under paragraph 101 of the Manual shall be counted as part
of service for the purpose of such regularisation.
(2) In
the event of appointment on regualr basis on the post of Registration Clerks,
the petitioners or other similarly placed persons who had worked as
Registration Clerks on daily wage basis may be given one opportunity of being
considered for such appointment and they be given relaxation in the matter of
age requirement prescribed for such appointment under the Rules.
(3)
The Subordinate Services Selection Commission while making selection for
regular appointment to the posts of Registration Clerks shall give weightage
for their experience to the Registration Clerks who have worked on daily wage
basis and shall frame suitable guidelines for that purpose.
(4) If
any of the petitioners or other similarly placed person was required to perform
the duties of Registration Clerk as an Apprentice under paragraph 101 of the
Manual, he may submit a representation to the appropriate authority setting out
the full particulars of such employment within three months and the concerned authority,
after verifying the correctness of the said claim, shall pass the necessary
order for payment of emoluments on daily wage basis for the period he is found
to have so worked on the post of Registration Clerk. The said payment shall be
made within a period of three months from the date of submission of the
representation.
The
Special Leave Petitions are disposed of accordingly.
No
costs.
Back