STATE OF UTTAR PRADESH & ORS. versus MOHD. SULEMAN SIDDIQUI on 12 February 2019

1. A learned Single Judge of the High Court of Judicature atAllahabad, by a judgment dated 18 April 2014 allowed a Writ Petitioninstituted by the respondent under Article 226 of the Constitution. TheGSingle Judge set aside an order passed by the Inspector General(Registration) rejecting a representation for regularisation, submitted bythe respondent and directed the grant of consequential benefits. TheDivision Bench declined to condone a delay of 96 days in filing a SpecialAppeal as a consequence of which the order of the learned Single JudgeHhas been maintained.

2. On 7 February 1991, the Inspector General (Registration),Jhansi Division constituted a Selection Committee inter alia for selectionof candidates for the Registration Department. On 24 February 1991,vacancies were notified to the Local Employment Exchange. Candidateswere interviewed. The minutes of the meeting of the DepartmentalSelection Committee dated 24 February 1991 indicate that six posts wereavailable for selection against regular vacancies, of which one post wasreserved for Scheduled Caste and Scheduled Tribe candidates. TheDepartmental Selection Committee selected six candidates in order ofmerit against the regular vacancies. In addition, two more candidateswere recommended for appointment against vacancies which were likelyto fall vacant before the expiry of the recruitment year.

3. Besides selecting the above eight candidates against existingand probable vacancies falling within the recruitment year in the officeof the District Registrar, the Committee noted that registration clerkswere working in the office of the Deputy Registrar, Jhansi as daily wagers.Considering the requirement of registration clerks on a daily wage basis,a list of the incumbents was prepared for appointment as registrationclerks on daily wage basis. The name of the respondent was amongeleven such candidates.

4. On 27 May 1991, the Inspector General (Registration)addressed a communication to all the District Registrars stating that adecision had been taken to terminate the services of all the daily wageemployees who had been engaged for dealing with pending work in theestablishments under their control. The services of the respondent weredispensed with together with other daily wage employees.

5. Following the dispensation of their services, the daily wageemployees moved the Allahabad High Court. An interim order stayingtermination was passed on 1 July 1991. Adverting to the interim orderof the High Court, the District Registrar, Jhansi, issued a circular dated19 July 1991 directing that the eleven daily wage employees would bepermitted to work as before on the same terms and conditions. TheWrit Petition before the Allahabad High Court was dismissed on8 February 1995. Proceedings were initiated before this Court underArticle 136 of the Constitution. On the grant of special leave, thatproceeding, which was numbered as Civil Appeal No.9136 of 1995, wasdisposed of by a two Judge Bench of this Court on 27 September 1995.

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A6.Before this Court, a submission was made on behalf of thedaily wage employees, who were the appellants, that they had not beenemployed as registration clerks on a daily wage basis, but had been dulyselected by the Departmental Selection Committee constituted underthe Rules and had been appointed on a regular basis by the DistrictRegistrar, Jhansi. On behalf of the State, it was urged that theBappointments were made without complying with the provisions of Rule22 of the Subordinate Offices Ministerial Staff (District Recruitment)Rules 1985[1], as a result of which the selection was void ab initio.

7. Since this question was not examined by the High Court, theproceedings were remitted back to the High Court for a decision afresh.COn remand, a Division Bench of the High Court, by its judgment dated9 September 1999, set aside the orders that were impugned in the writpetitions. The State was directed to give consequential benefits. TheDivision Bench of the High Court held that under Rule 22 of the Rules,vacancies were required to be notified to the Employment Exchange.DMoreover, it was open to the appointing authority to invite applicationsdirectly from persons registered with the Employment Exchange forwhich purpose an advertisement was required to be issued in the dailynewspaper. The High Court held that since the appointing authority didnot call for applications directly from candidates, there was no need to publish an advertisement in the newspapers. The High Court observedEthat since the vacancies had been notified to the Employment Exchange,Rule 22 of the Rules was, in substance, complied with. Though thecandidates in question had not been sponsored by the EmploymentExchange, but had directly applied for appointment, in the view of theHigh Court, this was not prohibited by Rule 22. The directions of theFHigh Court are extracted below :

“...The judgment of the learned Single Judge is liable to be setaside and the orders impugned in the writ petitions are liable to bequashed, in such view of the matter the question of issuing adirection to the concerned authority to consider the case of theGappellants for regularization in accordance with the judgment ofthe Apex Court in Khagesh Kumar (supra) does not arise.

In view of the above discussion the appeals succeed and areallowed. The judgment under challenge are set aside and theorders impugned in the writ petitions are quashed. The H1“the Rules”

STATE OF UTTAR PRADESH v. MOHD. SULEMAN SIDDIQUI[DR DHANANJAYA Y CHANDRACHUD, J.]

respondents are directed to give consequential benefits to theappellants.”

8. The respondent was in the meantime involved in a criminalcase, following which he was prevented from discharging his duties. Arepresentation was addressed by the respondent to the Inspector General(Registration) on 8 August 2011. This was following the order of theAllahabad High Court in another writ petition[2] instituted by him. TheHigh Court, in its order dated 12 May 2011, observed that one of thegrievances of the respondent was that he had been prevented fromdischarging his duties due to the pendency of the criminal case. Therespondent stated that the criminal case had ended in acquittal, as aresult of an order passed by the High Court in a criminal revision. Thesecond grievance of the respondent was that other similarly placedemployees had been given the benefit of regularization. The AllahabadHigh Court directed the Inspector General to deal with the representation.On 16 August 2011, the representation was rejected.

9. A case had been registered against the respondent underSections 498A, 323, 504 and 506 of the Indian Penal Code. He wasconvicted by the Additional Chief Judicial Magistrate, Jhansi on 28 June2000 and sentenced to six months’ simple imprisonment. In appeal, theconviction was confirmed by the Sessions Judge. However, on13 September 2006, in the course of the hearing of Criminal Revision721 of 2001, the High Court was informed that the complainant and therespondent –accused had entered into an agreement out of Court. Basedon the purported compromise, the High Court allowed the CriminalRevision and set aside the judgment of conviction. Based on these facts,the representation submitted by the respondent was rejected by theInspector General (Registration). The respondent was held unfit forjoining government service. He was also found unfit for regularisationand grant of consequential service benefits.

10. The respondent once again instituted a Writ Petition[3] beforethe Allahabad High Court. The relief which was sought was the quashingof the order dated 16 August 2011 rejecting his representation. Duringthe pendency of the Writ Petition, by an interim order dated 21 May2011, the State was directed to permit the respondent to continue inservice pending further orders.

2 WP 60259 of 2009

3 [Civil Miscellaneous Writ Petition 67599 of 2011]

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A11.The Writ Petition was allowed by a learned Single Judge ofthe High Court, by the impugned order dated 18 April 2014. The learnedSingle Judge, while allowing the Writ Petition and setting aside the orderdated 16 August 2011, granted all consequential benefits. The learnedSingle Judge of the High Court, during the course of the judgment tooknote of the fact that Writ Petition 19357 of 2001 instituted by theBrespondent had been disposed of on 11 May 2004. During the pendencyof the Writ Petition, there was an interim direction to allow the respondentto continue. Against the final judgment dated 11 May 2004, SpecialAppeal 385 of 2005 had been filed, which was pending. The learnedSingle Judge held that:

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(i) The order of conviction had been set aside by the High Court in aCriminal Revision;

(ii) The services of the respondent had never been terminated;

(iii) The selection of the respondent was on a regular basis and theDtermination was found to be illegal and was set aside on9 September 1999; and

(iv) There was no order of termination in accordance with law.

12. A Special Appeal was dismissed by a Division Bench on23 September 2014 on the ground of delay.

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13. Learned counsel appearing on behalf of the appellants submitsthat the basis of the judgment of the High Court is flawed. The Minutesof the Departmental Selection Committee indicate that the respondentwas appointed on a daily wage basis. As against six regular vacancies,the Departmental Selection Committee recommended eight candidates.FThis list did not include the name of the respondent. Learned counselsubmitted that consequent upon his termination being set aside by theHigh Court on 9 September 1999, the respondent was taken back towork. However, learned counsel has adverted to the fact that againstthe judgment of the learned Single Judge dated 11 May 2004, a SpecialAppeal was filed by the State being Special Appeal 385 of 2005. ThatGSpecial Appeal, together with a batch of appeals, was disposed of by aDivision Bench of the High Court on 5 October 2017, as a result ofwhich the plea for regularization of daily wagers who were engaged asregistration clerks has been rejected. Learned counsel submitted thatthe pendency of the Special Appeal 385 of 2005 was noticed in paragraph H

7 of the impugned judgment of the learned Single Judge. Since theSpecial Appeal has been disposed of, it was submitted that the respondentcannot be considered for regularization.

14. Opposing these submissions, it has been urged on behalf ofthe respondent that there was no issue as to the regularization of therespondent nor did he seek regularisation. The contention which hasbeen urged on behalf of the respondent is that the appointment in thefirst instance was in accordance with Rule 22 of the Rules. This wasaccepted in the judgment of the High Court dated 9 September 1999.Hence, it was urged that as a matter of fact the submission of the Stateis misconceived. Learned counsel submits that the Writ Petition filed bythe respondent was tagged with a group of petitions which were heardby a learned Single Judge. Even the Special Appeal by the State washeard together with a batch of connected matters. Though by thejudgment of the Division Bench dated 5 October 2017, the plea forregularization has been rejected, it was urged that the case of therespondent not being one of regularization, the matter was distinct fromthe connected cases which were disposed of by the Division Bench.

15. We have heard learned counsel appearing on behalf of thecontesting parties and, with their assistance, perused the record.

16. The record indicates that the initial appointment of therespondent in pursuance of the proceedings of the Departmental SelectionCommittee held on 24 February 1991, was on a daily wage basis. TheMinutes (Annexure P-1) categorically indicate that against the six postsavailable for selection against regular vacancies, the Committee selectedsix candidates and indicated the names of two more candidates havingregard to the probable vacancies which were likely to arise during therecruitment year. However, the Selection Committee noted that theoffice of the District Registrar had engaged daily wagers as registrationclerks. Eleven such persons were engaged, including the respondent.Before this Court, in the judgment which was delivered on 27 September1995, it was asserted by the State that the respondent was not engagedon a regular basis. The respondent contended that his appointment wason a regular basis and not as a daily wager. This Court remanded theproceedings to the High Court for considering whether the appointmentwas made in a manner consistent with Rule 22 of the Rules. The HighCourt, by its judgment dated 9 September 1999, concluded that the AB

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Aappointment was not in breach of Rule 22 of the Rules. Consequently,the order of termination was set aside with a direction for grant ofconsequential benefits. There is no finding of fact to the effect that theappointment of the respondent was on a regular basis. The record clearlyindicates that the initial engagement was only on a daily wage basis.

B17. The services of the respondent were discontinued due to thependency of a criminal case. This led the respondent to institute freshproceedings, in which, as we have noted, there was an interim order inhis favour. However, the significant fact which emerges from the recordis that, firstly, the engagement of the respondent at all material timeswas only as a daily wager and, secondly, there is no order by which heCwas treated to be in the regular service of the District Registrar.

18. The order by which the respondent was disengaged waschallenged before the High Court. That has culminated in the judgmentof the Division Bench dated 5 October 2017 in State of U P v RajKumar Srivastava[4]. In that batch of cases, Special Appeal 385 ofD2005 pertained to the respondent. This was noticed in paragraph 7 ofthe judgment of the learned Single Judge dated 18 April 2014. The pleafor regularization was specifically negatived.

19. The status of the respondent at all material times has been ofa daily wage employee. He has not been appointed on a regular basis.EHe has no vested right to claim regularization in service. The plea forregularisation has in fact been rejected in the judgment of the DivisionBench in Special Appeal 385 of 2005. The order of the learned SingleJudge, quashing the rejection of the representation of the respondentdated 16 August 2011, will not amount to a mandamus to regularize theFrespondent or to treat him in the regular employment of the State. Allthat the High Court will be construed to have held is that once therespondent was reinstated in service following the earlier order dated 9September 1999, his services could not have been dispensed with withoutan order of termination in accordance with law. In the absence of anorder of termination, the respondent may be treated to be in theGemployment of the State, albeit on a daily wage basis.

20. We have noted the submission of the respondent that thoughSpecial Appeal 385 of 2005 instituted by the State was tagged with abatch of appeals which was disposed of by the High Court on 5 October H4 Special Appeal No.767 of 2004

STATE OF UTTAR PRADESH v. MOHD. SULEMAN SIDDIQUI[DR DHANANJAYA Y CHANDRACHUD, J.]

2017, the respondent was not raising an issue of regularization and, hence,that judgment ought not to apply to his case. As at present the judgmentof the Division Bench concludes the Special Appeal instituted by theState against the order of the learned Single Judge in the Writ Petitionfiled by the respondent.

21. For the above reasons, we dispose of the appeals by holdingthat the engagement of the respondent is as a daily wage employee.The respondent has not been appointed on a regular basis in the servicesof the State of Uttar Pradesh. Any arrears of wages that are due andpayable to the respondent on that basis shall be computed and paid overto him within a period of three months from today. The respondentwould be entitled to arrears with effect from the date of the institution ofCivil Miscellaneous Writ Petition 67599 of 2011 before the learned SingleJudge of the High Court of Judicature at Allahabad. However, thereshall be no order as to costs. Pending applications stand disposed of.

Nidhi Jain

Appeals disposed of.

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