# Arvind Kumar Rai and others v. State of U.P. and others

- **Citation:** (2001) 2 ILRA 279
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2001
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/arvind-kumar-rai-and-others-v-state-of-u-p-and-others-39909
- **Pages:** 6

## Text

2All] Arvind Kumar Rai and others V. State of U.P. and others
279
all would frustrate the very purpose for
which Government order for out of turn
promotion
has
been
issued.
The
Government order cannot be reduced to a
farce and cannot be banked upon for
normal promotion.

11. The power of judicial review
does not extend to interfering with a
policy
providing
for
out
of
turn
promotion. This court is not in a position
to say that which particular person has to
be granted out of turn promotion and
which one has to be denied. Ultimately,
departmental wisdom has to prevail. The
past
antecedents
of
the
employee
concerned are also to be looked into. If an
employee is not having neat past, or his
service record is not up to the mark, he
would perhaps be denied the benefit of
out
of
turn
promotion
howsoever
exemplary courage or bravery he might
have exhibited. There have to be certain
parameters which have to be adopted in
granting out of turn promotion.

12. As said above, since the case of
the petitioner was earlier recommended
for out of turn promotion, his case
undoubtedly
was
required
to
be
considered by the Committee. It was
necessary to record reasons for denying
the benefit of out of turn promotion to the
petitioner
as
his
case
had
been
recommended at all the levels. If the
individual role of the petitioner is not, in
any manner, inferior to the role played by
Jitendra Kumar Singh, Sub Inspector,
who has been granted out of turn
promotion and all other things remaining
the same, then certainly, the petitioner
would also be entitled for out of turn
promotion. All the above facts can well be
taken
into
consideration
by
the
departmental
authorities.
To
ensure
fairness and equable treatment, the case of
the petitioner needs reconsideration.

13. In the conspectus of the above
facts, the writ petition is finally disposed
of with the direction that the Deputy
Inspector General of Police, Karmik, U.P.
Police
Headquarters,
Allahabad
-
respondent no. 5 shall place the necessary
material before the committee formed
under
the
Government
order
dated
3.2.1994 for consideration of the matter of
the
petitioner
in
the
light
of
the
observations made above. The committee
shall meet for the purpose within a period
of six months from the date of production
of a certified copy of this order before the
respondent no. 5.

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INDIAN LAW REPORTS ALLAHABAD SERIES [2001
280
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By the Court

1. Petitioner nos. 1 to 9 are seeking
regularisation of their service on the post
of Junior Engineers (Civil) while
Petitioner no. 10 is seeking regularisation
of his services on the post of Junior
Engineer (Mechanical). Besides this the
petitioners are seeking the quashing of the
selection proceedings undertaken by the
U.P.
Public
Service
Commission,
Allahabad for these posts.
2. The petitioners allege that they
are working as Junior Engineers in the
Irrigation Department of the State of U.P.
on daily wages under the respondents at
least for the last about ten years. The
details as regards the dates since when
they started working are given below:

1DPH
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1. A. K. Rai
18.3.1989
Flood
Works
Division, Alld.
2. A. Narian
1.3.1990
--do--
3. M. Kushwaha
1.1.1991
Bagla
Canal
Division, Alld.
4. V. K. Arora
1.1.1984
Irrigation Divn,
Rudrapur
5. J. S. Visht
16.8.1986
K. N. Khand-2,
Ramnagar
6. A. K. Singh
1.11.1987
M. K. Bandh
Prakhand,
Varanasi
7. H. S. Pandey
20.9.1989
--do--
8. R. Kaushik
1.11.1985
Upari
Ganga
Nahar, Aligarh
9. P. Pandey
1.11.1985
T.S.
Khand,
Nainital
10. Lalji Pandey
01.1.1990
Flood
Works
Division, Alld.

3. The State Government has framed
various rules in regard to regularisation of
Class III posts. They are as under:-
(i) The Uttar Pradesh Regulation of
Adhoc Appointment (On Posts Within the
Purview of Public Service Commission)
Rules, 1979

(ii) The Uttar Pradesh Regulation of
Ad-hoc Appointments (On Post Outside
the Purview of the Public Service
Commission) Rules, 1979

(iii) The
U.P.
Regularisation
of
Daily Wages Appointment on Group-C
Post (Outside the purview of U.P.P.S.
Commission) Rules, 1998.
2All] Arvind Kumar Rai and others V. State of U.P. and others
281
4. The posts of Junior Engineers
(Civil) and (Mechanical) come within the
purview of Public Service Commission. A
person who is selected by the Public
Service
Commission
is
entitled
for
appointment
to the post of Junior
Engineer.
The
contention
of
the
petitioners is that the post of junior
engineer in the Irrigation Department was
a post which was excluded from the
purview
of
U.P.
Public
Service
Commission by Notification dated 25-111989 and the same was with in the
purview of U.P. Subordinate Services
Selection Commission Act, 1998. The
U.P.
Subordinate
Service
Selection
Commission Act, 1998 has been repealed
by
the
U.P.
Subordinate
Services
Selection Commission (Repeal) Act,1998.

5. Those petitioners who are covered
by the U.P. Regularisation of Ad-hoc
Appointment (On Post Within the
Purview of Public Service Commission)
Rules, 1979 (In short 1979 Rules) can be
considered
for
regularisation
of
appointments under Rule 4 which reads as
under:-

"4.Regulation
of
adhoc
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 completed or, as the case may be,
after he has completed three years
continuous
service;
and
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 in accordance
with the relevant service rules or orders.

(2) In making regular appointment under
these rules, reservation for the candidates
belonging
to
the
Scheduled
Castes,
Scheduled Tribes, Backward Classes and
other categories, shall be made in
accordance with the orders of the
Government in force at the time of
recruitment.

(3) For the purpose of sub-rule (1), the
appointing authority shall constitute a
Selection Committee and consultation
with the Commission shall not be
necessary.

(4) The
appointing
authority
shall
prepare
an
eligibility
list
of
the
candidates, arranged in order of seniority
as determined, from the date of order of
appointment and if two or more persons
are appointed together, from the order in
which their names are arranged in the said
appointment order. The list shall be
placed before the Selection Committee
along with their character rolls and such
other records, pertaining to them, as may
be considered necessary to judge their
suitability.

(5) The
selection
Committee
shall
consider the cases of the candidates on the
basis of their records referred to in subrule (4).

(6) The
Selection
Committee
shall
prepare a list of selected candidates, the
names in the list being arranged in order
of seniority, and forward it to the
appointing authority."
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
282
6. Rule 10, however, was added to
1979
Rules
by
Notification
dated
7.8.1989 providing that these rules shall
apply mutatis mutandis 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 U.P. Regularisation
of
Ad-hoc
Appointments
(On
Post
Outside the Purview of the Public Service
Commission (Second Amendment) Rules.
1989.

7. The question, however, remains
as to whether the petitioners who are
working on daily wages can be treated to
have been appointed on adhoc basis. A
person who is appointed on daily wages
cannot normally be treated to have been
appointed on ad-hoc basis. Rule 4 has,
however, to be interpreted in the context
and nature of the appointment and the
work on which a person is employed.

According
to
the
Welster's
Encyclopedic Unabridged of Dictionary
of English Language 'Ad-hoc' means "for
this (special purpose); with respect to this
(subject or thing.)"

According to Words and Phrases
(Permanent Edition) Volume 2 'Ad-hoc'
means "The word 'spread' as used in
relation to the appointment of special
curator, has very much the same meaning
as the words 'Ad-hoc', which is the
original while special is the translation.

According to the Law lexicon by P.
Ramanath Aiyar 'Ad-hoc' means "for
particular purpose made, established,
acting or concerned with particular end or
purpose."

8. The Supreme Court in the Case of
Khagesh Kumar Vs Inspector General of
Registration, reported in 1995 Supp.(4)
SCC
182
has
applied
the
1979
Regularisation Rules for regularizing the
services of daily wages employees of the
Registration Department of the State. This
decision was followed in Ajai Kumar
Misra Vs Secretary, U.P. Shasan &
others,
1999
(1)
U.P.L.B.E.C.140,
wherein it has been held that the
Registration Clerk appointed on or before
1.10.1986 on daily wages, in view of the
sanction given by the Government for
such post, would be deemed to be taken
ad-hoc employees within the meaning of
Rule 4 of the U.P. Regularisation of Adhoc Appointment (On post Outside the
Purview
of
the
Public
service
Commission) Rules, 1979.

9. Petitioner nos.4, 5 and 9 who are
claiming to have been working since prior
to 01-10-1986, can be considered for
regularisation under the 1979 Rules
referred to above. The respondent no.1
shall consider them for regularisation
within two months from the date of
production of a certified copy of this
order.

As regards other petitions, since they
are working on daily wages after 1-11986 they are not covered by the 1979
Rules.

10. Shri Ashok Khare, Learned
counsel for the petitioners, submitted that
the cut off date mentioned under Rule 10
of the 1979 Rules is arbitrary. He has
referred to the U.P. Regularisation of
Daily Wages Appointment on Group C
Posts (Outside the Purview of Public
Service Commission) Rules, 1998 where
under
the
daily
wages
employees
2All] Arvind Kumar Rai and others V. State of U.P. and others
283
appointed on or before 29.06.1991are
entitled to be regularized. A person
cannot
claim
parity
in
respect
of
regularisation relying upon the provisions
of Rules, which are not applicable in the
case of the petitioners. It is for the State
Government to consider as to whether an
employee is to be regularized or not under
the Rules framed by it.
11. The next contention of the
learned counsel for the petitioners is that
if the petitioners are not entitled to be
regularized under 1979 Rules then they
will be entitled to be regularized under the
general principles of reasonableness and
fair play. He has referred to the decision
rendered in Arun Kumar Rout & Others
Vs State of Bihar & Others, A.I.R. 1998
S.C. 1477, wherein the Hon'ble Supreme
Court held that if after appointments the
services were terminated on the ground
that initial appointments were irregular,
unless it is shown that the employees
concerned had committed fraud, they
should be regularized taking sympathetic
consideration. In Urmila Devi & Others
Vs State of Bihar & Others, 1999 S.C.C.
(L & S) 642, it has been held by the
Hon'ble Supreme Court that the persons
working on daily wages basis in the State
of Bihar for a long period may be
considered for regularisation in absence
of statutory right of regularisation. These
cases have no application to the facts of
the present case.

12. One view is that the post are to
be filled in accordance with the rules for
appointment to the posts and a person
cannot be brought in regular service
merely
because

he
was
given
employment on daily wages for one
reason or the other. If the person who was
given appointment on daily wages or on
ad-hoc basis, is entitled to participate in
the selection for the post but if he keeps
himself out from the selection process, he
cannot turn up and say to regularize his
service merely because he had worked on
daily wages. The other view is that the
persons who are working for a long
period should not be thrown out, rather
they should be regularized in service.

13. In State of Himanchal Pradesh
Vs Suresh Kumar Verma & another, 1996
(2) S.L.R.321 (S.C.) it was held that the
appointment is to be made in accordance
with the rules and the State is bound to
follow the same and to have the selection
of the candidates made as per recruitment
rules. The Court observed that the
appointment of persons on daily wages
cannot be a conduit pipe for regular
appointments which would be a back door
entry, detrimental to the efficiency of
service
and
would
breed
seeds
of
nepotism and corruption.

14. In Dr. Arundhati Ajit Pargaonkar
Vs State of Maharasthra & another,
(1995) 1 U.P.L.B.E.C. 93, the appellant
claimed regularisation on the ground that
she had worked on a permanent post for
about nine years but her contention was
repelled
on
the
ground
that
the
recruitment was to be made in accordance
with the rules and a person appointed
temporarily
was
not
entitled
for
regularisation. The claim of the appellant
for regularisation was also rejected on the
ground that the post was within the
purview
of
the
Public
Service
Commission
and
the
Temporary
Government Service Regularisation Rules
issued by the Government in 1975 could
not be made applicable in the larger
interest to such persons who are not
covered by the Rules. The Court referred
to the observations made in the decision
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
284
rendered in Dr. M.A. Haque Vs Union of
India, 1993 (2) S.C.C. 213 (219) as
follows.

"....We cannot lose sight of the fact
that the recruitment rules made under
Article 309 of the Constitution have to be
followed strictly and not in breach. If a
disregard of the rules and the by passing
of the Public Service Commission are
permitted, it will open a back- door for
illegal recruitment without limit. In fact
this Court has of late, been witnessing a
constant violation of the recruitment rules
and a scant respect for the constitutional
provisions requiring recruitment to the
services through the Public Service
Commission. It appears that since this
Court has in some cases permitted
regularisation of the irregularly recruited
employee,
some
Governments
and
authorities
have
been
increasingly
resorting to irregular recruitment. The
result has been that the recruitment rules
and the Public Service Commissions have
been kept in cold storage and candidate
dictated by various considerations are
being recruited as a matter of course."

15. A person who is appointed on
daily wages cannot claim a better position
from those persons who were appointed
on ad-hoc or on temporary basis. If a
person appointed on temporary basis
cannot be regularized in service under the
regularisation rules, a person working on
daily wages can also not be regularized
unless there is any rule for regularisation
of his services.

16. It is, however, made clear that if
the Government frames any scheme for
regularisation
in
respect
of
Junior
Engineers, the petitioners other than
petitioner nos. 4, 5 and 9 may be
considered for regularisation under the
said scheme.

17. The petitioners have challenged
the selection process undertaken by the
U.P.
Public
Service
Commission,
Allahabad for the post of Junior Engineers
in
pursuance
of
the
Advertisement
No.3/98-99 on the ground that unless they
are regularized, no further appointments
be made. The selection has already taken
place and the appointments have also
been made. It is made clear that if
petitioner nos. 4, 5, and 9 are regularized
in service they shall be absorbed on the
substantive posts, which were notified by
advertisement no. 3/98-99.

The writ petition is disposed of with
the above observations.

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