# Bhagwan Din & Anr v. District Magistrate, Kaushambi & Ors

- **Citation:** (2020) 9 ILRA 104
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-04-13
- **Case number:** Writ A No. 25477 of 2003
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhagwan-din-anr-v-district-magistrate-kaushambi-ors-45913
- **Pages:** 15

## Headnote

A. Service Law - Regularisation -U.P.
Public Services (Reservation for Scheduled
Castes,
Scheduled
Tribes
and
Other
Backward Classes) Act, 1994 - Section 3 -
U.P. Commissioners and District Officers
Motor Vehicle Driver Service Rules, 1978 -
Rule 14, 15; U.P. Regularization of Daily
Wages Appointment on Group 'D' Posts
Rules, 2001- Rule 4(1).

Appointment and Payment of salary - An
in-charge
arrangement
is
neither
recognition nor is necessarily based on
seniority and therefore, no rights, equities
and expectations can be built upon it - The
distinction
between
a
situation
where
a
government servant is promoted to a higher
post and one where he is merely asked to
discharge the duties of the higher post is too
clear to require any reiteration. Asking an officer
who substantively holds a lower post merely to
discharge the duties of a higher post cannot be
treated as a promotion.

No letter of appointment has been placed on
record by petitioners appointing them as Driver.
It is claimed that petitioners were engaged as
Seasonal Collection Peon and since they knew
driving, therefore, they were allowed to drive
official vehicles but at no point of time, they
were ever appointed as Driver. In the absence
of any letter of appointment, it can be held that
petitioners were not appointed as "Driver".
(Para 16-18)

B. Regularisation - (i) U.P. Regularization
of Daily Wages Appointment on Group 'D'
Posts Rules, 2001: Rule 4(1) - As per Rule
4(1), in order to attract and consider an
incumbent for regularisation, three things are
necessary:

(i) The incumbent was directly appointed on
daily wage basis on a Group 'D' Post in a
Government
Service
before
29.6.1991;
9 All. Bhagwan Din & Anr. Vs. District Magistrate, Kaushambi & Ors.
105
(ii) is continuing in service as such on the date
of commencement of the said Rules; i.e.,
21.12.2001; and,

(iii) vacancies were available on the date of
commencement of Rules against which such
incumbent could have been considered for
regularisation. (Para 21)

In the present case, it is not the case of
petitioners that they were ever engaged as daily
wage Driver on or before 29.06.1991 and that
being so the very first condition provided in Rule
4 of Rules, 2001 remained unsatisfied. Hence,
Rules, 2001 has no applicability to petitioners.
The
petitioners,
therefore,
cannot
claim
regularization under Rule, 2001. (Para 22)

(ii)
U.P.
Commissioners
and
District
Officers Motor Vehicle Driver Service
Rules, 1978: Rule 14, 15 - No person can
claim regularization when he is not
appointed
after
following
procedure
prescribed
in
law,
unless
Rules
for
regularization are specifically applicable.

It is not in dispute that recruitment to the post
of Driver is governed by statutory rules framed
under proviso to Article 309 of the Constitution,
i.e., Rules, 1978. The procedure prescribed in
the said Rules includes determination of
vacancies
and
procedure
for
recruitment.
Admittedly, the prescribed procedure has not
be

## Text

_Characters 0–39,766 of 50,592. This is a partial read: ask again with offset=39766 for what follows._

104 INDIAN LAW REPORTS ALLAHABAD SERIES
acquittal and sending him for intensive
training, I do not find any reason or
justification to remit the mater to the
Superintendent of Police, Kannauj for
reconsideration of the matter.

32. Thus considered the writ petition
deserves to be allowed and the impugned
order dated 7.4.2007 deserves to be
quashed.

33. The impugned order dated
7.4.2007
is
hereby
quashed.
The
Respondents 1 to 3 are directed to take
necessary and further action consequent
upon quashing of the impugned order, in
the matter of the recruitment of the
petitioner for his appointment on the post
of constable if there is no other legal
impediment. The authorities shall ensure
that the petitioner is allowed to complete
the intensive training, if not already
completed. The entire exercise shall be
done within a period of three months from
the date of production of a certified copy of
this judgment before the Respondent Nos. 1
to 3.

34. The writ petition is allowed. No
orders as to costs.
----------
(2020)09ILR A104
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.04.2020

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Writ A No. 25477 of 2003

Bhagwan Din & Anr. ...Petitioners
Versus
District Magistrate, Kaushambi & Ors.
 ...Respondents

Counsel for the Petitioners:
Sri Amar Nath Tripathi, Sri Rajendra Kumar
Dubey, Sri Santosh Kumar Pandey, Sri W.A.
Siddiqui, Sri K.J. Shukla

Counsel for the Respondents:
C.S.C.

A. Service Law - Regularisation -U.P.
Public Services (Reservation for Scheduled
Castes,
Scheduled
Tribes
and
Other
Backward Classes) Act, 1994 - Section 3 -
U.P. Commissioners and District Officers
Motor Vehicle Driver Service Rules, 1978 -
Rule 14, 15; U.P. Regularization of Daily
Wages Appointment on Group 'D' Posts
Rules, 2001- Rule 4(1).

Appointment and Payment of salary - An
in-charge
arrangement
is
neither
recognition nor is necessarily based on
seniority and therefore, no rights, equities
and expectations can be built upon it - The
distinction
between
a
situation
where
a
government servant is promoted to a higher
post and one where he is merely asked to
discharge the duties of the higher post is too
clear to require any reiteration. Asking an officer
who substantively holds a lower post merely to
discharge the duties of a higher post cannot be
treated as a promotion.

No letter of appointment has been placed on
record by petitioners appointing them as Driver.
It is claimed that petitioners were engaged as
Seasonal Collection Peon and since they knew
driving, therefore, they were allowed to drive
official vehicles but at no point of time, they
were ever appointed as Driver. In the absence
of any letter of appointment, it can be held that
petitioners were not appointed as "Driver".
(Para 16-18)

B. Regularisation - (i) U.P. Regularization
of Daily Wages Appointment on Group 'D'
Posts Rules, 2001: Rule 4(1) - As per Rule
4(1), in order to attract and consider an
incumbent for regularisation, three things are
necessary:

(i) The incumbent was directly appointed on
daily wage basis on a Group 'D' Post in a
Government
Service
before
29.6.1991;
9 All. Bhagwan Din & Anr. Vs. District Magistrate, Kaushambi & Ors.
105
(ii) is continuing in service as such on the date
of commencement of the said Rules; i.e.,
21.12.2001; and,

(iii) vacancies were available on the date of
commencement of Rules against which such
incumbent could have been considered for
regularisation. (Para 21)

In the present case, it is not the case of
petitioners that they were ever engaged as daily
wage Driver on or before 29.06.1991 and that
being so the very first condition provided in Rule
4 of Rules, 2001 remained unsatisfied. Hence,
Rules, 2001 has no applicability to petitioners.
The
petitioners,
therefore,
cannot
claim
regularization under Rule, 2001. (Para 22)

(ii)
U.P.
Commissioners
and
District
Officers Motor Vehicle Driver Service
Rules, 1978: Rule 14, 15 - No person can
claim regularization when he is not
appointed
after
following
procedure
prescribed
in
law,
unless
Rules
for
regularization are specifically applicable.

It is not in dispute that recruitment to the post
of Driver is governed by statutory rules framed
under proviso to Article 309 of the Constitution,
i.e., Rules, 1978. The procedure prescribed in
the said Rules includes determination of
vacancies
and
procedure
for
recruitment.
Admittedly, the prescribed procedure has not
been followed with regard to appointment of
petitioners. Therefore, it cannot be said that
petitioners were ever appointed after following
the statutory rules. Hence, petitioners have no
claim on the post of Driver. (Para 22, 23)

(iii) Scope of Article 226 - The High
Courts, in exercising power u/Article 226
of
the
Constitution
will
not
issue
directions for regularization, absorption or
permanent
continuance,
unless
the
employees claiming regularization had
been appointed in pursuance of a regular
recruitment in accordance with relevant
rules in an open competitive process,
against sanctioned vacant posts. (Para 23,
31, 32)

Court is bound to insist upon the State to make
regular and proper recruitments. Adherence to
the rule of equality in public employment is a
basic feature of our Constitution and since the
rule of law is the core of our Constitution, a
Court of law and even a Court of equity would
certainly be disabled to pass an order upholding
violation of Article 14 or directing the State to
overlook the need of compliance of Article 14
read with 16 of Constitution of India and
thereby giving certain advantage to a person
who is beneficiary of such violation. Considering
the scheme of public employment in the context
of fundamental rights and in particular the right
of equal opportunity of employment, Court
would insist upon appointment to be made in
terms of the relevant rules and after a proper
competition amongst qualified persons instead
of conferring a right on non selected appointees
who have come from a channel not recognised
in law. Such appointees cannot be conferred a
valid entry being in breach of Article 14 and 16
of the Constitution. (Para 24 -27, 31)

(iv) Merely because a temporary employee
or a casual wage worker is continued for a
time beyond the term of his appointment,
he would not be entitled to be absorbed in
regular
service
or
made
permanent,
merely
on
the
strength
of
such
continuance, if the original appointment
was not made by following a due process
of selection as envisaged by the relevant
rules - There is no fundamental right envisaged
in those who have been employed on daily
wages or temporarily or on contractual basis, to
claim that they have a right to be absorbed in
service. They cannot be said to be holders of a
post, since, a regular appointment could be
made only by making appointments consistent
with the requirements of Articles 14 and 16 of
the Constitution. (Para 33-35)

C. Words & Phrases - 'Backlog Vacancies' -
Only those vacancies can be declared backlog
vacancies, within the reserved category, which
were subject-matter of advertisement but
remained unfilled because of non-availability of
suitable
candidates,
within
the
reserved
category, after selection. It is only in respect of
such vacancy that the procedure qua backlog
vacancy can be adopted. Any vacancy, which
has not been subjected to a complete process of
selection, even though vacant, cannot be
treated as a backlog vacancy. (Para 39, 40)
106 INDIAN LAW REPORTS ALLAHABAD SERIES
D. When a vacancy is not a part of backlog
vacancy, then in a recruitment 100 per
cent vacancies cannot be reserved since it
is well settled that in one selection more
than 50 per cent vacancies cannot be kept
reserved
except
the
cases
where
recruitment is in respect of backlog
vacancies. (Para 41)

Writ petition is partly allowed to the extent that
advertisement dated 06.06.2003 is quashed. W.r.t.
other reliefs writ petition is dismissed. (E-4)

Precedent followed:
1. Smt. Vijay Rani Vs Regional Inspectress of
Girls Schools, 2007 (2) ESC 987 (Para 17)

2. Ramakant Shripad Sinai Advalpalkar Vs U.O.I.
& ors., 1991 Supple (2) SCC 733 (Para 17)

3. Secretary, St. of Karn. Vs Uma Devi, (2006) 4
SCC 1 (Para 22-25)

4. Surinder Prasad Tiwari Vs U.P. Rajya Krishi Utpadan
Mandi Parishad & ors., (2006) 7 SCC 684 (Para 25)

5. U.P.S.C. Vs Girish Jayanti Lal Vaghela, (2006)
2 SCC 482 (Para 26)

6.
St.
of
Karnataka
&
ors.
Vs
G.V.
Chandrashekhar, JT 2009 (4) SC 367 (Para 27)

7. Man Singh Vs Commissioner, Garhwal Mandal,
Pauri & ors., JT 2009 (3) SC 289 (Para 28)

8. St. of Bihar Vs Upendra Narayan Singh & ors.,
(2009) 5 SCC 65 (Para 29)

9. Pinaki Chatterjee & ors. Vs Union of India &
ors., (2009) 5 SCC 193 (Para 30)

10. St. of Raj. & ors. Vs Daya Lal & ors., (2011)
2 SCC 429 (Para 31, 32)

11. St. of U.P. & ors. Vs Rekha Rani, JT (2011)
4 SC 6 (Para 32)

12. Brij Mohan Lal Vs Union of India, (2012) 6
SCC 502 (Para 33)

13. University of Raj. & ors. Vs Prem Lata
Agarwal & ors., (2013) 3 SCC 705 (Para 34)
14. Secretary to Government, School Education
Department, Chenni & ors. Vs Thiru R.
Govindaswamy & ors., (2014) 4 SCC 769 (Para 35)

15. Upendra Singh Vs St. of Bihar & ors., (2018)
3 SCC 680 (Para 36)

16. St. of U.P. & ors.. Vs Sangam Nath Pandey
& ors., (2011) 2 SCC 105 (Para 39)

17. Dr. Narendra Singh & ors. Vs St. of U.P. &
ors., 2014 (4) ADJ 356 (Para 40)

18. Suresh Kumar & ors. Vs St. of U.P. & anr.,
2016 (10) ADJ 391 (Para 40)

19. Indra Sawheny Vs Union of India, 1992
Supp. (3) SCC 217 (Para 42)

Present petition challenges advertisement
dated 06.06.2003, published by District
Magistrate,
Kaushambi;
Advertisement
dated
19.07.2007,
issued
by
District
Magistrate, Kaushambi.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Two petitioners namely, Bhagwan
Din and Dharm Raj Singh, have filed this
writ
petition
under
Article
226
of
Constitution
of
India
challenging
recruitment
sought
to
be
made
by
respondents on the posts of Driver. They
have also sought a mandamus commanding
respondents to consider petitioners for
regularization on the posts of Driver.

2. During pendency of this writ
petition, petitioners have got writ petition
amended by inserting two more prayers
and, therefore, all prayers made by
petitioners
in
the
writ
petition
are
reproduced as under:

"(i) a writ, order or direction in
the nature of certiorari calling for the
record
and
quash
the
impugned
advertisement dated 6.6.2003 published by
9 All. Bhagwan Din & Anr. Vs. District Magistrate, Kaushambi & Ors.
107
the District Magistrate, Kaushambi as
contained in Annexure-10 to the writ
petition as it relates to the recruitment of
two posts of drivers in the officer of the
District Magistrate, Kaushambi of which
one post is reserved for Scheduled
Casts/Scheduled Tribes and the other post
is reserved for OBC category.

(i-A) a suitable writ, order or
direction in the nature of certiorari
quashing
the
advertisement
dated
19.07.2007 issued by District Magistrate,
Kaushambi (Annexure-1 to supplementary
affidavit to be treated as Annexure-11 to the
main writ petition).

(ii) a writ, order or direction in
the nature of mandamus commanding the
respondent authorities to regularise the
services of the petitioners as drivers
attached with two ambassador cars being
registration No. UP70-L 4444 and UP70-L
3333 in the official use of the District
Magistrate, Kaushambi in terms of the Rule
4 of the Uttar Pradesh Regularisation of
Daily Wags Appointment on Group D Posts
Rules, 2001 with effect from 21.12.2001
and to give all consequential benefits and
pay other allowances to the petitioners
admissible under the relevant service rules.

(ii-A) since both the petitioners
were working as driver of two Ambassador
Car
sanctioned
as
per
G.O.
dated
11.6.1997 ever since creation of new
District Kaushambi continuously till date
the said two post of Drivers are still vacant
and not filled, as such without prejudice to
other
grounds
in
writ
petition
the
petitioners are entitled for declaration that
they be treated as regularized as drivers,
w.e.f. 11.6.1997 with pay scale of post of
driver and all benefit and increments in
terms of U.P. Daily Wages Regularization
Rules, 2001 w.e.f. 21.12.2001 and to pay all
arrears of pay increments allowance and
benefits till date and in future too.

(iii) a writ, order or direction in
the nature of mandamus/ declaration
declaring the cut-off date 29.6.1991 as
arbitrary,
unconstitutional
and
illegal
inasmuch as two ambassador cars which
both the petitioners are driving and which
posts of driver was sanctioned by the
government order dated 11.6.1997 and as
such the cut-off date "instead of 29.6.1991"
be read as "on or after 11.6.1997" in the
Daily Wages Rules of 2001.

(iv) a writ, order or direction in
the nature of mandamus commanding the
respondents restraining the respondents not
to take any step in respect of the
recruitment proceedings in terms of the
impugned advertisement dated 6.6.2003
(Annexure-10 to the writ petition. "

3. Facts in brief giving rise to present
writ petition are that District Kaushambi was
newly created as a Revenue District vide
Government Order dated 04.04.1997. For the
New District, vide Government order dated
11.06.1997 posts of District Magistrate was
created. The aforesaid Government Order also
created attached posts with the Office of
District
Magistrate
temporarily
upto
28.02.1998. It included two posts of Drivers in
the pay scale of Rs. 950-1500/-. It also
permitted to purchase two Ambassador Cars
besides other vehicles. Petitioner-1 was
required to work as Driver with effect from
05.09.1997 on a fixed pay of Rs. 1200/- per
month. Petitioner-2 was already working as
Driver
with
Sub-Divisional
Magistrate,
Manjhanpur in District Allahabad with effect
from 02.08.1995. After creation of new
District he was attached and appointed to work
as Driver to run second Ambassador Car
purchased for District Kaushambi.

4. Having worked for sometimes,
petitioners made a representation dated
10.04.2002 requesting District Magistrate,
108 INDIAN LAW REPORTS ALLAHABAD SERIES
Kaushambi to regularize them. Additional
District Magistrate, Kaushambi vide letter
dated 09.07.2002 made recommendation
for consideration of petitioners to be
appointed as Driver on regular basis
referring to U.P. Commissioners and
District Officers Motor Vehicle Driver
Service Rules, 1978 (hereinafter referred to
as "Driver Rules, 1978"). By letter dated
17.07.2002 District Magistrate requested
Secretary,
Board
of
Revenue,
U.P.,
Lucknow, to allow relaxation in the matter
of appointment of Drivers who were
already working to run two Ambassador
Cars purchased in District Kaushambi.
Secretary, Board of Revenue by letter dated
31.07.2002
directed
all
the
District
Magistrates in State of U.P. to fill up
backlog vacancies in Group-C and D, in
reserved category. Consequently, District
Magistrate,
Kaushambi
published
advertisement
dated
06.06.2003
for
recruitment on the post of Drivers in
Category D in the Office of District
Magistrate, Kaushambi in accordance with
Driver Rules, 1978 wherein one post was
reserved for Scheduled Caste and another
for
OBC.
This
advertisement
was
challenged by petitioners in the present writ
petition seeking a further mandamus to
consider them for regularization.

5. While entertaining the writ petition,
this Court passed following interim order
on 12.06.2003:

"Learned standing counsel has
accepted notices on behalf of respondent
nos. 1 to 3. He prays for and is granted
three weeks time to file counter affidavit.
The learned counsel for the petitioner shall
have one week thereafter for filing
rejoinder affidavit.

List in the week commencing 14th
July, 2003.

The contention of the petitioner is
that in the newly created District of
Kaushambi, there were only two sanctioned
posts of Driver and the petitioners have
been working on the said posts since 1997.
The
petitioner
has
challenged
the
advertisement issued for recruitment of two
Drivers on several grounds including that
both the posts could not have been
reserved, in view of the decision of the Apex
Court. The further contention is that after
promulgation of the regularization rules of
2001, no direct selection could be made
without first considering the case of the
petitioner.

The selection in pursuance of the
impugned advertisement may go on but
the result shall not be declared till 14th
July, 2003." (emphasis added)

6. However, during pendency of writ
petition,
another
advertisement
dated
19.07.2007 was published by District
Magistrate, Kaushambi for recruitment of
one Driver on one of two posts already
sought to be filled in. Hence, challenging
the
aforesaid
advertisement
dated
19.07.2007, amendment was made and
aforesaid advertisement has also been
challenged.

7. Heard Sri Amar Nath Tripathi,
learned Senior Advocate, assisted by Sri
K.J. Shukla, Advocate, for petitioner and
learned Additional Chief Standing Counsel
for respondents.

8. Sri Tripathi, learned Senior
Advocate, contended that petitioners are
working for a long time and, therefore,
entitled to be considered for regularization
under U. P. Regularization of Daily Wages
Appointments on Group 'D' Posts Rules,
2001 (hereinafter referred to as the "Rules,
2001"). He further contended that since
9 All. Bhagwan Din & Anr. Vs. District Magistrate, Kaushambi & Ors.
109
petitioners are discharging duties as Driver
but are being paid only fixed salary, hence
they should be given salary in minimum of
pay scale of Driver. He also contended that
for the purpose of District Kaushambi,
since it was created on 04.04.1997
therefore, the said date should be treated as
cut-off date and right of petitioners should
be considered accordingly.

9.

Petitioners
filed
a
Misc.
Application No. 174996 of 2004 seeking a
direction to the respondents to pay salary to
petitioners since July, 2003 and onwards
since they are working to discharge duties
as Driver, but salary was not paid to
petitioners after filing writ petition.

10. On the said application, this Court
passed order dated 22.11.2004, corrected
on 07.12.2004, which reads as under:

"Vide order dated 12-6-03 the
learned Standing Counsel was granted time
to file counter affidavit and certain other
conditions were also imposed by the
aforesaid order, and the interim order has
also been granted unless it is vacated or
modified earlier.

It has been stated by the counsel
for the petitioners that a short counter
affidavit has been filed though in view of
the order dated 12-6-03 a detailed counter
affidavit
stating
the
fact
regarding
sanctioned posts had to be clarified by the
respondents.

Learned Standing Counsel prays
for and is granted a month's time to file
counter affidavit.

In view of the direction issued by
this Court dated 12-6.03 the petitioners
have filed an application no. 174996 of
2004 in which the petitioner have submitted
that in spite of the order of this Court
salary of the petitioners from July 2003
which was being paid to the petitioners has
not yet been paid, and the petitioners are
still working.

In view of the aforesaid facts the
respondent
no.
1-District
Magistrate,
Kaushambi is directed to pay the salary of
the petitioners for which they are entitled
or to show cause."

11. Supplementary Counter Affidavit
sworn by Sri Dhirendra Kumar, Tehsildar,
Manjhanpur has been filed stating that
there was ban on appointment of Drivers,
and, in any case, District Kaushambi was
dismantled
on
13.01.2004,
therefore,
petitioners have no cause of action
surviving. He also stated that petitioners
were not appointed as 'Driver' but were
engaged as Seasonal Collection Peon and
allowed to drive the Vehicles. With respect
to advertisement, it is said that same was
published for filling in backlog vacancies
of reserved category candidates.

12. The period of engagement of
petitioners as Seasonal Collection Peon was
given in the form of chart as SCA-1 and
SCA-2 which reads as under:

Periods of engagement of
petitioner-1

Periods of engagement of
petitioner-2
From
11.08.1998
to
31.08.1998
From
15.02.1996
to
29.02.1996
From
23.11.1998
to
31.12.1998
From
01.03.1996
to
31.03.1996
From
01.09.1998
to
30.09.1998
From
01.05.1996
to
30.06.1996
From
01.01.1999
to
31.01.1999
From
05.08.1996
to
31.08.1996
From
13.02.1999
to
31.03.1999
From
01.09.1996
to
30.09.1996
From
09.04.1999
to
29.04.1999
From
14.11.1996
to
31.12.1996
From
07.08.1999
to
30.09.1999
From
16.12.1997
to
31.01.1998
110 INDIAN LAW REPORTS ALLAHABAD SERIES
From
11.02.2000
to
31.03.2000
From
10.02.1998
to
28.02.1998
From
12.07.2000
to
30.09.2000
From
08.03.1998
to
31.03.1998
From
24.10.2000
to
30.12.2000
From
11.08.1998
to
31.08.1998
From
10.01.2001
to
31.03.2001
From
23.11.1998
to
31.12.1998
From
01.05.2001
to
30.06.2001
From
01.01.1999
to
31.01.1999
From
01.08.2001
to
31.08.2001
From
13.02.1999
to
31.03.1999
From
01.09.2001
to
29.09.2001
From
09.04.1999
to
29.04.1999
From
07.11.2001
to
31.01.2002
From
07.08.1999
to
30.09.2000
From
13.06.2003
to
30.06.2003
From
11.02.2000
to
31.03.2000
From
01.07.2003
to
31.07.2003
From
12.07.2000
to
30.09.2000
 -
From
24.10.200
to
30.12.2000
 -
From
10.01.2001
to
31.03.2001
 -
From
01.05.2001
to
30.06.2001
 -
From
01.08.2001
to
31.08.2001
 -
From
01.09.2001
to
29.09.2001
 -
From
07.11.2001
to
31.01.2002
 -
From
13.06.2003
to
30.06.2003
 -
From
01.07.2003
to
31.07.2003

13. During the pendency of Writ
Petition, on 06.02.2018 a further interim
order was passed as under:

"An interim order was passed on
12.6.2003, whereby this Court permitted
selection
in
pursuance
of
impugned
advertisement to go on, but it was provided
that the result would not be declared. Sri A.
N.
Tripathi,
learned
senior
counsel
appearing on behalf of the petitioners
submitted that the petitioners have been
continuously working as driver since 1997
and are entitled for their services being
regularised under the Regularisation Rules.

Sri Amit Manohar, learned Addl.
Chief Standing Counsel is not in a position
to dispute that in case petitioners have been
working since 1997, they are at least
entitled
for
being
considered
for
regularisation of their services under the
Regularisation Rules, 2001.

Accordingly, the respondents are
directed to consider the petitioners for
regularisation under the U.P. Daily wages
Regularisation Rules, 2001, within a
period of three months from the date of
production of a certified copy of this order
before the first respondent.

List
the
matter
after
three
months." (emphasis added)

14. Since petitioners also initiated
contempt proceedings for non compliance
of aforesaid interim order, an order was
passed by District Magistrate, Kaushambi
on
19.04.2018
rejecting
claim
of
regularization. Copy of this order has been
filed
as Annexure-1
to
affidavit
of
compliance filed by Sri Jitendra Kumar
Srivastava, Deputy Collector, Kaushambi.

15. In short, the issues up for
consideration in this writ petition are; (1)
whether petitioners were ever appointed as
Driver in District Kaushambi or at any
other place; (2) whether appointment of
petitioners was made in accordance with
Rules; (3) whether petitioners were entitled
to be considered for regularization under
Rules, 2001; (4) whether petitioners were
entitled for payment of salary on the post of
Driver; and (5) whether respondents are
justified
initially
by
making
direct
recruitment on the two posts of Drivers
9 All. Bhagwan Din & Anr. Vs. District Magistrate, Kaushambi & Ors.
111
treating the same to be backlog reserved
vacancies
and
in
the
subsequent
advertisement by direct recruitment.

16. The first question relates to
appointment of petitioners as Driver and
right to claim salary of Driver. No letter of
appointment has been placed on record by
petitioners appointing them as Driver.
Respondents claim that petitioners were
engaged as Seasonal Collection Peon and
since they knew driving, therefore, they
were allowed to drive official vehicles but
at no point of time, they were ever
appointed as Driver. In the absence of any
letter
of
appointment
showing
that
petitioners were ever appointed on the post
of Driver, I have no hesitation in holding
that petitioners were not appointed as
"Driver".

17. If the petitioners were not
appointed as "Driver", whether they can
claim salary on the post of Driver? Similar
issue has been considered by this Court in
Smt. Vijay Rani Vs. Regional Inspectress
of Girls Schools 2007 (2)ESC 987, and it
has been held:

" ... the Petitioner-Appellant was
only required to look after and discharge
the duties of the officiating Principal but
was never promoted/appointed on the said
post. In other words, it can be said that the
Petitioner-Appellant was given only current
duty charge in addition to her substantive
post and this arrangement did not result in
promotion to the post of which, the current
duty charge was handed over. In State of
Haryana Vs. S.M. Sharma AIR 1993 SC
2273, the Chief Administrator of the Board
entrusted Sri S.M. Sharma, with the current
duty charge of the post of Executive
Engineer,
which
was
subsequently
withdrawn as a result of his transfer to
other post. He challenged the said order
stating that it amounts to reversion. The
Apex Court held that Sri Sharma was only
having current duty charge of the Executive
Engineer and was never promoted or
appointed to the aforesaid post and
therefore, on transfer to some other post, it
did not result in reversion from the post of
Executive Engineer.

A somewhat similar situation
occurred in Ramakant Shripad Sinai
Advalpalkar Vs. Union of India and
others, 1991 Supple (2) SCC 733 and the
Apex Court observed as under:-

"The
distinction
between
a
situation where a government servant is
promoted to a higher post and one where
he is merely asked to discharge the duties
of the higher post is too clear to require
any reiteration. Asking an officer who
substantively holds a lower post merely to
discharge the duties of a higher post
cannot be treated as a promotion."
(emphasis added)

18. It was further held that such
situations are contemplated where exigencies
of
public
service
necessitate
such
arrangements and even consideration of
seniority do not enter into it sometimes.
However the person continues to hold
substantive lower post and only discharges
duties of the higher post essentially as a spotgap arrangement. A further contention was
raised that if such an arrangement continued
for a very long period it would give some
kind of right to continue on the post but
negativing such contention, it was held that
an
in-charge
arrangement
is
neither
recognition nor is necessarily based on
seniority and therefore, no rights, equities and
expectations can be built upon it.

19. Questions-(1) and (4), therefore,
are answered against petitioners.
112 INDIAN LAW REPORTS ALLAHABAD SERIES

20. Now coming to question-(3),
contention of petitioners' counsel is that
engagement of petitioners should be treated
as daily wage Driver and, therefore,
petitioners are entitled to be considered for
regularization under Rules, 2001; I find that
apparently
aforesaid
Rules
have
no
application to petitioners' case. Rule 4(1) of
Rules, 2001 reads as under:

"4.
Regularisation
of
daily
wages appointments on Group ''D' posts.-
(1) Any person who-

(a)was directly appointed on
daily wage basis on a Group ''D' post in the
Government service before June 29, 1991
and is continuing in service as such on the
date of commencement of these rules; and

(b)possessed
requisite
qualification
prescribed
for
regular
appointment for that post at the time of
such appointment on daily wage basis
under the relevant service rules, shall be
considered for regular appointment in
permanent or temporary vacancy, as may
be available in Group ''D' post, on the
date of commencement of these rules 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
appointments
under
these
rules,
reservations for the candidates belonging
to the Scheduled Castes, Scheduled Tribes,
Other Backward Classes of citizens and
other
categories
shall
be
made
in
accordance with the Uttar Pradesh Public
Services
(Reservation
for
Scheduled
Castes,
Scheduled
Tribes
and
Other
Backward Classes) Act, 1994, and the
Uttar Pradesh Public Services (Reservation
for Physically Handicapped, Dependents of
Freedom Fighters and Ex-servicemen Act,
1993 as amended from time to time and the
orders of the Government in force at the
time of regularisation under these rules.

(3) For the purpose of sub-rule
(1)
the
Appointing
Authority
shall
constitute
a
Selection
Committee
in
accordance with therules, 2001 relevant
provisions of the service rules.

(4) The Appointing Authority
shall, having regard to the provisions of
sub-rule (1), prepare an eligibility list of
the candidates, arrange in order of
seniority as determined from the date of
order of appointment on daily wage basis
and if two or more persons were 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
such relevant records pertaining to the
candidates,
as
may
be
considered
necessary, to assess their suitability.

(5) The Selection Committee shall
consider the cases of the candidates on the
basis of their records referred to in sub-rule
(4), and if it considers necessary, it may
interview the candidates also.

(6) The Selection Committee shall
prepare a list of selected candidates in
order of seniority, and forward the same to
the
Appointing
Authority."
(emphasis
added)

21. A bare perusal thereof shows that
in order to attract and consider an
incumbent for regularisation, three things
are necessary:

(i) The incumbent was directly
appointed on daily wage basis on a Group
'D' Post in a Government Service before
29.6.1991;

(ii) is continuing in service as
such on the date of commencement of the
said Rules; i.e., 21.12.2001; and,
9 All. Bhagwan Din & Anr. Vs. District Magistrate, Kaushambi & Ors.
113

(iii) vacancies were available on
the date of commencement of Rules against
which such incumbent could have been
considered for regularisation.

22. In the present case, it is not the
case of petitioners that they were ever
engaged as daily wage Driver on or before
29.06.1991 and that being so the very first
condition provided in Rule 4 of Rules,
2001 remained unsatisfied. Hence, Rules,
2001 has no applicability to petitioners.
The petitioners, therefore, cannot not claim
regularization
under
Rule,
2001.
A
Constitution Bench in Secretary, State of
Karnataka Vs. Uma Devi 2006 (4) SCC 1
has clearly held that unless Rules for
regularization are specifically applicable,
no person can claim regularization when he
is not appointed after following procedure
prescribed in law. It is also not in dispute
that recruitment to the post of Driver is
governed by statutory rules framed under
proviso to Article 309 of the Constitution,
i.e., Rules, 1978. The procedure prescribed
in the said Rules includes determination of
vacancies and procedure for recruitment; as
under:

"14.
Determination
and
communication
of
the
number
of
vacancies.- The appointing authority shall
determine and intimate to the local or the
concerned
Employment
Exchange
in
accordance with the rules and orders for
the time being in force the number of
vacancies to be filled during the course of
the year, as also the number of vacancies to
be reserved for candidates belonging to the
Scheduled Castes/Schedules Tribes and
other categories under rule 6.

15. Procedure of recruitment.-
(1) For the purpose of recruitment, there
shall be constituted a Selection Committee
comprising.-

(i) the appointing authority or an
officer not below the rank of A.D.M.
Nominated by it;

(ii) an officer not below the rank
of Deputy Collector nominated by the
appointing authority; and

(iii) the District Employment
Officer.

(2) The Selection Committee shall
scrutinise the applications received and
require all the eligible candidates to appear
for interview before it.

(3) The Selection Committee shall
prepare a list of candidates in order of
merit as disclosed by the marks obtained in
the interview. If two or more candidates
have obtained equal marks the Selection
Committee shall arrange their names in
order of merit on the basis of their general
suitability for the post. The number of
candidates in the list shall be a little larger
but not larger by more than 25 per cent
than the number of vacancies."

23.

Admittedly,
the
aforesaid
procedure has not been followed with
regard to appointment of petitioners.
Therefore, it cannot be said that petitioners
were ever appointed after following the
statutory rules. Hence, also petitioners have
no claim on the post of Driver, as held by
Constitution Bench in Secretary, State of
Karnataka
Vs.
Uma
Devi
(supra)
observing:

"The High Courts acting under
Article 226 of the Constitution, should not
ordinarily issue directions for absorption,
regularization or permanent continuance
unless the recruitment itself was made
regularly and in terms of the Constitutional
Scheme."

24. The above issue in the light of
decision in Uma Devi (supra) has been
114 INDIAN LAW REPORTS ALLAHABAD SERIES
considered in a catena of decisions and
following Uma Devi (supra), Court has
held that regularisation is not a source of
recruitment and if initial appointment was
made
without
complying
with
the
requirement of Article 16 (1) of the
Constitution,
regularisation
is
not
permissible particularly in absence of any
statutory provision. I do not propose to give
an exhaustive list of all such precedents,
but it would be appropriate to place on
record, in brief, as to how the matter, of
late, has been treated by Supreme Court in
the light of the law laid down by the
Constitution Bench in Uma Devi (supra).

25. Following Uma Devi (supra), in
Surinder Prasad Tiwari Vs. U.P. Rajya
Krishi Utpadan Mandi Parishad &
others, 2006 (7) SCC 684, it was held:

"Equal opportunity is the basic
feature
of
our
Constitution.
...Our
constitutional scheme clearly envisages
equality
of
opportunity
in
public
employment.
....
This
part
of
the
constitutional
scheme
clearly
reflects
strong desire and constitutional philosophy
to implement the principle of equality in the
true sense in the matter of public
employment.

In
view
of
the
clear
and
unambiguous constitutional scheme, the
courts cannot countenance appointments to
public office which have been made against
the constitutional scheme. In the backdrop
of constitutional philosophy, it would be
improper for the courts to give directions
for regularization of services of the person
who is working either as daily-wager, ad
employee,
probationer,
temporary
or
contractual
employee,
not
appointed
following the procedure laid down under
Articles
14,
16
and
309
of
the
Constitution."

26. Elaborating the procedure of
regular appointment, in Union Public
Service Commission Vs. Girish Jayanti
Lal Vaghela 2006 (2) SCC 482, the Court
observed that regular appointment to a post
under the State or Union cannot be made
without issuing advertisement in the
prescribed manner, which would include
inviting
of
applications
from
the
employment
exchange
where
eligible
candidates get their names registered. Any
regular appointment made on a post under
the State or Union without issuing
advertisement inviting applications from
eligible candidates and without holding a
proper
selection
where
all
eligible
candidates get a fair chance to compete
would violate the guarantee enshrined
under Article 16 of the Constitution.

27. Deprecating the practice of the
State to make appointment in ad hoc
manner without caring to the recruitment in
accordance with rules, Supreme Court in
State of Karnataka & others Vs. G.V.
Chandrashekhar JT 2009 (4) SC 367 said
that the State Government should not allow
to depart from the normal rule and indulge
in temporary employment in permanent
posts. Court is bound to insist upon the
State
to
make
regular
and
proper
recruitments. The Court is also bound not
to encourage or shut its eyes to the
persistence transgression of the rules of
regular recruitment. Any direction to the
State
to
consider
the
persons
for
regularisation even though they have not
been recruited in accordance with rules
would only encourage the State to flout its
rules and to confer undue benefits on a
selected few at the cost of many waiting to
complete. Adherence to the rule of equality
in public employment is a basic feature of
our Constitution and since the rule of law is
the core of our Constitution, a Court of law
9 All. Bhagwan Din & Anr. Vs. District Magistrate, Kaushambi & Ors.
115
and even a Court of equity would certainly
be disabled to pass an order upholding
violation of Article 14 or directing the State
to overlook the need of compliance of
Article 14 read with 16 of Constitution of
India and thereby give certain advantage to
a person who is beneficiary of such
violation. Considering the scheme of public
employment in the context of fundamental
rights and in particular the right of equal
opportunity of employment, this Court
would insist upon appointment to be made
in terms of the relevant rules and after a
proper
competition
amongst
qualified
persons instead of conferring a right on non
selected appointees who have come from a
channel not recognised in law. Such
appointees cannot be conferred a valid
entry being in breach of Article 14 and 16
of
the
Constitution.
In
G.V.
Chandrashekhar (supra), Court also said:

"If
it
is
a
contractual
appointment, the appointment comes to an
end at the end of the contract, if it were an
engagement or appointment on daily wages
or casual basis, the same would come to an
end when it is discontinued. Similarly, a
temporary employee could not claim to be
made permanent on the expiry of his term
of appointment. It has also to be clarified
that merely because a temporary employee
or a casual wage worker is continued for a
time beyond the term of his appointment, he
would not be entitled to be absorbed in
regular service or made permanent, merely
on the strength of such continuance, if the
original appointment was not made by
following a due process of selection as
envisaged by the relevant rules. It is not
open to the court to prevent regular
recruitment at the instance of temporary
employees whose period of employment has
come to an end or of ad hoc employees who
by the very nature of their appointment, do
not acquire any right. The High Courts
acting
under
Article
226
of
the
Constitution, should not ordinarily issue
directions for absorption, regularisation, or
permanent
continuance
unless
the
recruitment itself was made regularly and
in terms of the constitutional scheme.
Merely because an employee had continued
under cover of an order of the court, which
we
have
described
as
"litigious
employment" in the earlier part of the
judgment, he would not be entitled to any
right to be absorbed or made permanent in
the service."

28. The same view has been reiterated
in
Man
Singh
Vs.
Commissioner,
Garhwal Mandal, Pauri & others JT
2009 (3) SC 289.

29. In State of Bihar Vs.