# Bhawani Prasad Sahu & Ors v. State of U.P. & Ors

- **Citation:** (2023) 5 ILRA 1113
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-17
- **Case number:** Writ-A No. 4476 of 2019
- **Bench:** Dinesh Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhawani-prasad-sahu-ors-v-state-of-u-p-ors-50150
- **Pages:** 15

## Headnote

1114 INDIAN LAW REPORTS ALLAHABAD SERIES
A.
Service
Law
-
Regularization
-
Seniority - Uttar Pradesh Regularization of
Daily Wages (Appointment on Group D
Posts) Rules, 2001 - Rule 4(1)(a) - U.P.
Recruitment
of
Dependents
of
Government Servants Dying in Harness
Rules, 1974 - It is no longer res integra
that any regularization should be given
effect
prospectively.
Right
of
regularization
is
conferred
vide
Rule
4(1)(a) of Rules 2001, only against such
vacancies as were available on the date of
commencement of Rules, 2001 and not
against any vacancy occurring subsequently as
it is not a perennial source of recruitment so as
to induct a person, as and when vacancies are
available, either due to creation of post or
otherwise
on
any
date,
subsequent
to
20.12.2001. (Para 35)

Regularization Rules were framed with intent to
regularize
the
persons
engaged
prior
to
29.06.1991 through back door entry, as a one
time measure, keeping in mind that such
engagement is not illegal as concept of
regularization of service is a means to condone
and procedural irregularity and is meant to cure
only such defects, which are attributable to
notions followed while making appointments.
(Para 34)

It is also relevant to take note of the fact that
supernumerary posts 80+27 were created
vide Government Orders dated 25.06.2013
and
26.06.2013.
Regularization
of
the
petitioners could have been only against
those posts. If there was no post, their
regularization would come only from the date
of creation of post and not from the
retrospective date. (Para 44)

B. Rule 4 mandates that for the
purposes
of
Regularization
under
Rules, 2001, eligibility list would be
prepared in order of seniority. On the
basis of this eligibility list prepared as
per the seniority, the select committee
would
consider
the
cases
of
the
candidates
for regularization.
It
is
further provided that seniority of the
persons regularized under the Rules, 2001
would be counted from the date of order of
regularization. (Para 39)
Regularization of the petitioners was subject to
final outcome of the Writ Petition No.4302(SS)
of 2003 in which an order was passed on
20.08.2015 to prepare the fresh seniority list as
per law. Earlier, seniority list dated 20.06.2003
had several anomalies and the Government had
cancelled
the
said
seniority
list
dated
20.06.2003 vide order dated 05.07.2003. The
petitioners on the strength of the interim order
dated 24.07.2003 passed in WP No.4302(SS) of
2003 continued as regular employees. (Para 37,
40)

C. Having regard to the principle of Actus
curiae Neminem Gravabit (the act of the
Court shall prejudice no one) when the
statutory/constitutional right of a person
has been infringed by an order of the
Court, the Court will not hesitate to
withdraw or review such order. (Para 41)

Interim order would not confer any indefeasible
right on the petitioners to draw the benefits of
the
order
dated
20.06.2003,
which
was
cancelled by the order dated 05.07.2

## Text

_Characters 0–39,808 of 51,864. This is a partial read: ask again with offset=39808 for what follows._

5 All. Bhawani Prasad Sahu & Ors. Vs. State of U.P. & Ors.
1113
in a recent judgment in the case of The
State of West Bengal Vs. Debabrata Tiwari
and others: 2023 SCC OnLine 219, where
after submitting an application in the year
2005-06 the petitioners did nothing further
to pursue the matter for a period of ten
years. The Hon'ble Supreme Court held that
such prolonged delay in approaching the
High Court may be regarded as a waiver of
a remedy and such a delay would disentitle
the writ petitioners to the discretionary
relief under Article 226 of the Constitution
of India.

27. In the present case, the appellant
had approached this court on two occasions
earlier by filing two writ petitions i.e. Writ
Petition No. 4664 (S/S) of 2005 and Writ
Petition No. 4848 (S/S) of 2014 but she
chose not to raise her grievances of nonpayment of salary for some period between
the years 1998 to 2001, which was raised
by her in Writ A No. 6123 of 2022,
although cause of action for the same had
already accrued to her. The writ petition
filed for the reliefs which could have been
claimed by the appellant while filing the
earlier writ petitions and which were not
claimed by her, would be clearly hit by the
principles contained in Order II Rule 2 of
the Code of Civil Procedure, 1908.

28. Even at the time of hearing of the
aforesaid writ petition, the learned counsel
for the appellant chose not to press for the
reliefs claimed in the writ petition and he
confined his prayer for a direction for
decision of the appellant's representation.
The representation has accordingly been
decided by a reasoned and speaking order.
We find ourselves in complete agreement
with the view taken by the Hon'ble Single
Judge that this court would not substitute
the reasoning given by the Director in the
impugned order.

29. We are also in agreement with the
reason given by Hon'ble Single Judge for
dismissing the writ petition that it had
been filed with gross delay and as such it
was liable to be dismissed for this reason
also.

30. Therefore, we are not persuaded
to take any view other than the view taken
by Hon'ble Single Judge that the writ
petition filed by the petitioner in the year
2003 regarding her grievances against nonpayment of salary for various intermittent
periods starting from the period 1998,
suffers from gross delay and latches and
also that the order under challenge in the
writ petition was a well reasoned order and
this
court
would not
substitute
the
reasoning given by the Director in the
order.

31. In view of the aforesaid
discussions, we are of the considered
opinion that the special appeal lacks merit
which is accordingly dismissed. However,
there will be no order as to the costs.
----------
(2023) 5 ILRA 1113
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.05.2023

BEFORE

THE HON'BLE DINESH KUMAR SINGH, J.

Writ-A No. 4476 of 2019
with other connected cases

Bhawani Prasad Sahu & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Amrendra Nath Tripathi, Ashutosh Shahi

Counsel for the Respondents:
C.S.C.
1114 INDIAN LAW REPORTS ALLAHABAD SERIES
A.
Service
Law
-
Regularization
-
Seniority - Uttar Pradesh Regularization of
Daily Wages (Appointment on Group D
Posts) Rules, 2001 - Rule 4(1)(a) - U.P.
Recruitment
of
Dependents
of
Government Servants Dying in Harness
Rules, 1974 - It is no longer res integra
that any regularization should be given
effect
prospectively.
Right
of
regularization
is
conferred
vide
Rule
4(1)(a) of Rules 2001, only against such
vacancies as were available on the date of
commencement of Rules, 2001 and not
against any vacancy occurring subsequently as
it is not a perennial source of recruitment so as
to induct a person, as and when vacancies are
available, either due to creation of post or
otherwise
on
any
date,
subsequent
to
20.12.2001. (Para 35)

Regularization Rules were framed with intent to
regularize
the
persons
engaged
prior
to
29.06.1991 through back door entry, as a one
time measure, keeping in mind that such
engagement is not illegal as concept of
regularization of service is a means to condone
and procedural irregularity and is meant to cure
only such defects, which are attributable to
notions followed while making appointments.
(Para 34)

It is also relevant to take note of the fact that
supernumerary posts 80+27 were created
vide Government Orders dated 25.06.2013
and
26.06.2013.
Regularization
of
the
petitioners could have been only against
those posts. If there was no post, their
regularization would come only from the date
of creation of post and not from the
retrospective date. (Para 44)

B. Rule 4 mandates that for the
purposes
of
Regularization
under
Rules, 2001, eligibility list would be
prepared in order of seniority. On the
basis of this eligibility list prepared as
per the seniority, the select committee
would
consider
the
cases
of
the
candidates
for regularization.
It
is
further provided that seniority of the
persons regularized under the Rules, 2001
would be counted from the date of order of
regularization. (Para 39)
Regularization of the petitioners was subject to
final outcome of the Writ Petition No.4302(SS)
of 2003 in which an order was passed on
20.08.2015 to prepare the fresh seniority list as
per law. Earlier, seniority list dated 20.06.2003
had several anomalies and the Government had
cancelled
the
said
seniority
list
dated
20.06.2003 vide order dated 05.07.2003. The
petitioners on the strength of the interim order
dated 24.07.2003 passed in WP No.4302(SS) of
2003 continued as regular employees. (Para 37,
40)

C. Having regard to the principle of Actus
curiae Neminem Gravabit (the act of the
Court shall prejudice no one) when the
statutory/constitutional right of a person
has been infringed by an order of the
Court, the Court will not hesitate to
withdraw or review such order. (Para 41)

Interim order would not confer any indefeasible
right on the petitioners to draw the benefits of
the
order
dated
20.06.2003,
which
was
cancelled by the order dated 05.07.2003. After
dismissal of the WP No.4302(SS) of 2003 vide
order dated 15.02.2023, order dated 05.07.2003
got revived and, therefore, there could not have
been any bar to draw the fresh seniority list in
accordance with law as directed by this Court
vide order dated 20.08.2015 passed in WP
No.4302(SS) of 2003 and even without any
order of the Court as the order dated
05.07.2003 got revived. (Para 42)

D. Regularization cannot be given effect to
retrospectively.
It
is
ordinarily
be
prospective so that seniority of all those,
who are in regular service, should not be
disturbed or affected. If the ad hoc service is
regularized from the back date in this manner, it
will disturb the seniority of regularly appointed
employees
in
the
cadre
and,
therefore,
ordinarily the regularization must take effect
prospectively and not retrospectively. Ad hoc
appointees,
casual
labour
and
daily-rated
persons are not subject to strict discipline of
service, and it is a matter of common
experience that their attendance is very often
not regular and at times they do not even meet
the qualification for appointment since they are
taken on ad hoc basis. These deficiencies are
overlooked by way of granting relaxation and,
5 All. Bhawani Prasad Sahu & Ors. Vs. State of U.P. & Ors.
1115
therefore, care must be taken to see that they
do not upset the seniority of regular appointees.
(Para 43)

E. Regularization is not a mode of
appointment. If appointment is made
without following the Rules, the same
being
a
nullity,
the
question
of
confirmation of an employee upon the
expiry
of
the
purported
period
of
probation would not arise. (Para 44)

Any appointment made in violation of the
Recruitment Rules as also in violation of
Articles 14 and 16 of the Constitution
would be a nullity. (Para 45)

Regular recruitment should be insisted upon and
only in a contingency can an
ad
hoc
appointment be made in a permanent vacancy,
but the same should soon be followed by a
regular recruitment and that appointments to
non-available posts should not be taken note of
for
regularisation.
The
cases
directing
regularisation have mainly proceeded on the
basis that having permitted the employee to
work for some period, he should be absorbed,
without really laying down any law to that
effect,
after
discussing
the
constitutional
scheme for public employment. (Para 45)

F. The State does not enjoy a power to
make appointments in terms of Article 162
of the Constitution.

The appointment to any post under the State
can only be made after a proper advertisement
has been made inviting applications from
eligible candidates and holding of selection by a
body of experts or a specially constituted
committee whose members are fair and
impartial through a written examination or
interview or some other rational criteria for
judging the inter se merit of candidates who
have applied in response to the advertisement
made. A regular appointment to a post under
the State or Union cannot be made without
issuing advertisement in the prescribed manner
which may in some cases include inviting
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 u/Article 16 of the Constitution. (Para
45)

G.
The
High
Courts
in
exercise
of
jurisdiction
u/Article
226
of
the
Constitution of India 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. (Para 46)

Since some of the petitioners are retired or they
are on the verge of retirement, taking away the
benefit which has been conferred on them
because of the interim order dated 24.07.2003
would not be justified and, therefore, it is
provided that while implementing the impugned
orders Government should ensure that the
benefit already conferred on the petitioners or
similarly situated
persons should not be
withdrawn except that they should be treated to
have been regularized w.e.f. the respective
dates
as
per
impugned
order
dated
11/12.10.2018. (Para 47)

Writ petitions dismissed. (E-4)

Precedent followed:

1. St. of U.P. & ors. Vs Putti Lal, (1998) 1
UPLBEC 313 (Para 34)

2. Secretary, St. of Karn. & ors. Vs Uma Devi (3)
& ors., (2006) 4 SCC 1 (Para 34)

3. Registrar General of India Vs Thippa Setty,
1998 (8) SCC 690 (Para 35)

4. National Fertilizers Ltd. & ors. Vs Somvir
Singh, (2006) 5 SCC 493 (Para 44)

5. Secretary, St. of Karn. Vs Umadevi, (2006) 4
SCC 1 (Para 46)

Present writ petitions challenge the order
dated 11.10.2018/12.10.2018, passed by
the
Executive
Engineer,
Provisional
Division,
Public
Works
Department,
1116 INDIAN LAW REPORTS ALLAHABAD SERIES
Lucknow,
whereby
the
petitioners'
regularization orders dated 25.06.2013
regularizing
their
services
w.e.f.
02.07.2003 have been made ineffective
and the order of regularization has been
revisited as per fresh seniority list dated
21.04.2018. Also challenged order dated
12.10.2018, for the reason that the
petitioners' date of regularization has
been altered/changed from 02.07.2003 to
the year of 2011.

(Delivered by Hon'ble Dinesh Kumar
Singh, J.)

1. This bunch of writ petition leading
one being Writ Petition No.4476(SS) of
2019 has been preferred assailing the order
dated 11.10.2018/12.10.2018 passed by the
Executive Engineer, Provisional Division,
Public
Works
Department,
Lucknow
(Annexure 1 to the writ petition), whereby
the petitioners' regularization orders dated
25.06.2013 regularizing their services with
effect from 02.07.2003 have been made
ineffective and the order of regularization
has been revisited as per fresh seniority list
dated 21.04.2018.

The petitioners have also challenged
the order dated 12.10.2018 whereby the
petitioners' date of regularization has been
altered/changed from 02.07.2003 to the
year of 2011.

The petitioners in Writ Petition
No.34756 of 2018 have also prayed for a
direction in the nature of mandamus
commanding the respondents to prepare
a
fresh
seniority
list
taking
into
consideration the Government Order
dated 17.04.2003 inasmuch as the State
Government, in the meantime, had
framed regularization rules namely Uttar
Pradesh Regularization of Daily Wages
(Appointment on Group D Posts) Rules,
2001.

2. The petitioners were initially
engaged as Daily Wagers from time to time
considering the exigency of work on the
posts of Wireman, Electrician, Helper,
Mate, Fire Alarm Operator, A.C. Operator
etc., in the Department of Public Works
Department. Some of the petitioners
preferred a Writ Petition No.1427(SS) of
1997: Ram Swaroop & Anr versus State of
UP with a prayer to grant them regular pay
scale of Class IV post and consider them
for regularization. This Court passed an
interim order dated 21.02.1997 whereby
direction was given for payment of
minimum of pay scale to which regular
employees of the category of the petitioners
were
being
paid
salary,
subject
to
verification of length of service of the
petitioners in the writ petition.

3. The State Government, in the
meantime, framed rules namely Uttar
Pradesh Regularization of Daily Wages
(Appointment on Group D Posts) Rules
2001 (hereinafter referred to as Rules,
2001). Rule 4 of the Rules, 2001 provides
that any person, who was appointed on
daily wage basis prior to 29.06.1991 and is
continuing in service, as such on the date of
commencement of rules i.e. 21.12.2001 and
possess requisite qualifications shall be
considered for regularization.

4. In pursuance to the promulgation of
the said rules, the State Government took a
policy decision vide Government Order
dated 17.04.2003 to regularize all such
persons, who had been engaged prior to
29.06.1991, as daily wages/ work charge
agents by preparing a combined seniority
list as per the availability of the vacancies.

5. Another Government Order dated
11.06.2003 was issued in continuation of
the
earlier
Government
Order
for
5 All. Bhawani Prasad Sahu & Ors. Vs. State of U.P. & Ors.
1117
proceeding with the intent of regularization
process. Thereafter, an office memorandum
dated 20.06.2003 was issued whereby
combined seniority list of daily wagers,
working in Public Works Department was
issued.

6. A decision was taken on
02.07.2003 to regularize 54 persons from
the seniority list dated 20.06.2003 tradewise.
Thereafter,
vide
order
dated
05.07.2003, a decision was taken to cancel
the seniority list dated 20.06.2003. 54
persons,
who
got
regularized
on
02.07.2003, as per the seniority list dated
20.06.2003,
being
aggrieved
by
the
cancellation of the seniority list and order
dated
06.07.2003
cancelling
their
regularization, preferred a Writ Petition
No.4302(SS) of 2003: Bharat Singh & Ors
vs State of U.P. & Ors before this Court.
This Court vide order dated 24.07.2003
stayed the order dated 06.07.2003. On the
strength of the said interim order dated
24.07.2003, aforesaid employees continued
in employment as regular employees.

7. In the meantime, Writ Petition
No.1427(SS) of 1997 preferred by Ram
Swaroop & Ors was disposed of finally on
13.11.2003
with
a
direction
to
the
respondents to consider their cases for
regularization in accordance with the
existing rules with effect from the date,
their juniors were regularized. When no
decision was taken, as directed by this
Court in order dated 13.11.2003 passed in
Writ Petition No.1427 (SS) of 1997, the
petitioners therein preferred a contempt
petition being Contempt No.1687 of 2006,
and in pursuance of directions issued in the
contempt petition, a decision was taken
vide order dated 12.04.2007 specifically
saying that no juniors to the petitioners had
been regularized. Some further orders came
to be passed in the contempt proceedings
on 15.07.2011. In compliance thereof a
decision was taken by the respondents vide
order dated 28.03.2011, in pursuance to the
Government Order dated 21.02.2011 and
all
the
petitioners
were
regularized,
however, effect of the said order was
prospective in nature, thereafter, the
contempt petition was dismissed vide order
dated 13.01.2014.

8. The petitioners had preferred a
representation
before
the
competent
authority for regularizing their services
with
effect
from
02.07.2003,
when
allegedly juniors to them were allegedly
regularized.

9. A decision was taken vide
Government order dated 25.06.2013 to
regularize the petitioners with effect from
the date, juniors were regularized and the
said order was a conditional order subject
to
outcome
of
the
Writ
Petition
No.4302(SS) of 2003, and in pursuance to
the same, earlier order was modified and
petitioners were given benefit of the
regularization retrospectively.

10. Another writ petition being Writ
Petition No.2412(SS) of 2009 was filed by
Mohsin Ali & Ors for considering their
cases for regularization from the date, their
juniors were regularized and said writ
petition was jointly heard with the Writ
Petition No.4302(SS) of 2003. This court
passed the order dated 20.08.2015 directing
for preparation of a seniority list as per law.
Order dated 20.08.2015 passed in Writ
Petition No.4302(SS) of 2003 would read
as under:-

"Heard
learned
Counsel
for
the
petitioner and learned Standing Counsel for
the respondents.
1118 INDIAN LAW REPORTS ALLAHABAD SERIES

These two writ petitions are interconnected. The dispute relates to the
consequential seniority as a result of
regularization of work charge and daily
wage employees in service under the
Regularization of Daily Wages Rules, 2001
being carried out without determination of
their
comparative
seniority
prior
to
regularization.

The
statuary
rules
provide
for
consideration as per seniority of the daily
wage employees drawn on the basis of
length of service. So far as the present case
is concerned, the employees working as
work charge or on daily wage basis belong
to different trades and their regularization
has been considered against the respective
trades on the basis of disputed seniority.
Necessarily, the seniority of the employees
on the basis of total length of service is
liable to be drawn not for the purpose of
regularization but also for the purpose of
determination of inter-se seniority, which is
a consequence of regularization in service
for other service benefits.

Learned
Standing
Counsel
has
submitted that the final seniority list could
not be finalized on account of an interim
order passed by this court in writ petition
no. 4302(SS) of 2003 on 24.07.2003 which
reads and under:-

"Notice on behalf of opposite parties
has been accepted by the learned Chief
Standing Counsel.

Let counter affidavit be filed within a
period of four weeks. Rejoinder affidavit, if
any, may be filed within three weeks.

List thereafter.

Till the date of next listing, the
operation of the order dated 05.07.2003 as
contained in Annexure No.1 shall remain
stayed."

Having heard the parties in both the
writ petitions at some length and with the
consent of parties, it is provided that final
seniority (combined) may be drawn and
issued by the department in accordance
with the rules and government orders
applicable in relation to work charge/daily
wage employees without disturbing their
present status.

This exercises shall be completed by
respondents within a period of three
months form the date a certified copy of
this order is filed before the competent
authority. The final seniority list shall be
placed on record and circulate to all
concerned, in the meantime. An affidavit
shall be positively filed by the concerned
authority explaining the finalization of
process before the next date of listing.

The promotional benefits arising out
of seniority shall be open to be granted
only after the seniority is finalized in
accordance with law.

List immediately after three months
immediately."

11. In compliance of the order dated
20.08.2015, a decision was taken on
09.01.2015 to prepare a fresh seniority list
from the muster roll of all the daily wagers
engaged in the department, and for the said
purpose, a Committee was constituted vide
order dated 27.12.2017. After inviting
objections, a final seniority list dated
21.04.2018 was issued in accordance with
law.

12. Writ petition filed by Shri Mohsin
Ali
and
others
being
Writ
Petition
No.2412(SS) of 2009 was finally disposed
of
vide
judgment
and
order
dated
10.11.2017 with a direction to decide the
representation
of
the
petitioners
in
accordance with law. Representation of the
petitioners of the said writ petition was
duly considered and decided vide order
dated 01.02.2019. Said order has been
placed on record as Annexure-1 to the
5 All. Bhawani Prasad Sahu & Ors. Vs. State of U.P. & Ors.
1119
counter affidavit filed on behalf of the State
which was passed after taking note of the
several orders and judgments passed in
several writ petitions preferred by the daily
wagers. It was said that vide order dated
12.10.2018
question
of
regularizing
services of the petitioner with effect from
02.07.2003 had been already decided and
the workmen had been regularized as per
their eligibility on the basis of their
seniority list. In view thereof representation
of Mohsin Ali & Ors as directed by this
Court was also decided. After finalization
of the seniority list dated 21.04.2018, final
orders have been issued as per the
seniority.

13. Anomalies in regularization
orders have been rectified and fresh orders
have been passed as per seniority list,
which are impugned in the batch of the
present writ petitions.

14. It would be important to take note
of the fact that all the employees in the
batch of petitions, were regularized; most
of them have retired and some of them
have also died.

15. Shri Amarendra Nath Tripathi and
Shri
Ashutosh
Sahi
learned
counsel
appearing
for
the
petitioners
have
submitted that once the petitioners were
regularized with effect from 02.07.2003
vide
orders
dated
01.07.2013
and
04.07.2013 issued in furtherance of the
Government Order dated 25.06.2013 and
all the benefits were granted to them, vide
impugned order dated 11.10.2018 read with
12.10.2018, vested rights accrued in favour
of the petitioners could not have been taken
away by the impugned orders without
affording an opportunity of hearing to the
petitioners. The impugned orders are in
violation of the principle of natural justice,
and they are also arbitrary and illegal
amounting to violation of the fundamental
rights guaranteed under Articles 14 and 16
of the Constitution of India and, therefore,
same are liable to be set aside.

16. Learned counsel appearing for the
petitioners have further submitted that act
of changing/altering date of regularization
from 02.07.2003 to the year 2011 vide
impugned order dated 12.10.2018 without
affording any opportunity of hearing is an
infarction of Article 14 of the Constitution
of India, therefore, is liable to be set aside.

17. Learned counsel appearing for the
petitioners has further submitted that
impugned orders dated 11.10.2018 and
12.10.2018 have annulled the order dated
01.07.2013 and 04.07.2013, which were
passed in pursuance to the decision of the
State Government dated 25.06.2013. Said
decision was taken in compliance of the
directions issued by this Court in the writ
petition, and on the basis of which, the
contempt proceedings were dropped and,
therefore, orders dated 1.07.2013 and
04.07.2013 had attained finality, which
could not have been revisited by the
impugned
orders
and,
therefore,
the
impugned orders are liable to be quashed.

18. Effect of the impugned order
dated 11.10.2018 is reopening of the issue
of regularization of the petitioners, which
was set at rest in earlier round of litigation,
and, therefore, impugned orders amount to
overriding the various judgments and
orders passed by this Court in earlier writ
petitions.

19. It has been further submitted by
the learned counsel appearing for the
petitioners that the impugned orders have
been passed on the basis of the impugned
1120 INDIAN LAW REPORTS ALLAHABAD SERIES
seniority list dated 20.04.2018. Seniority
list dated 20.04.2018 is against Rule 4(4) of
the Rules, 2001, which contemplates
preparation of eligibility list for the purpose
of regularization in accordance with the
date of initial engagement. It is settled
proposition of law that where a Statute
requires a particular act to be done in a
particular manner, the act has to be done in
that manner.

20. Sri Amarendra Nath Tripathi has
further submitted that impugned seniority
list
has
been
allegedly
prepared
in
furtherance of the interim direction of this
Court dated 20.08.2015 passed in Writ
Petition No.2412(SS) of 2009, however, in
the said interim order, this Court had
specifically provided for drawing of
seniority list "without disturbing their
present status." Said interim order dated
20.08.2015 stood merged with the final
judgment and order dated 10.11.2017, and,
therefore, interim order dated 20.08.2015
had lost its enforceability.

21. It has been further submitted that
no opportunity of hearing was given to the
petitioners
before
finalization
of
the
seniority list, and, therefore, even on this
ground the seniority list is bad in law.

22. Sri Amarendra Nath Tripathi,
learned
counsel
appearing
for
the
petitioners has further submitted that
respondents
had
given
benefit
of
regularization to the writ petitioners in Writ
Petition No.2073(SS) of 1997 namely Late
Ramesh Chandra and Mool Chandra by not
challenging their date of regularization with
effect
from
02.07.2003
and
gave
appointment to their wards under The U.P.
Recruitment of Dependants of Government
Servants Dying in Harness Rules, 1974 by
treating
late
Ramesh
Chandra
and
Moolchand as regular employees, who died
on 10.04.2008 and 5.03.2011 respectively
whereas petitioners' date of regularization
has been changed by the impugned order,
which amounts to hostile discrimination.

23. Sri Shyam Mohan Pradhan,
learned
counsel
appearing
for
the
petitioners in Writ Petition No.34756(SS)
of
2018
has
submitted
that
vide
Government Order dated 17.04.2003 read
with Rules, 2001, it was provided that
eligibility list of daily wagers employees
working in the Public Works Department
of the Government of Uttar Pradesh would
be prepared from the date of initial
appointment and Rule 4(4) of 2001, Rules,
also prescribes that the appointing authority
shall
prepare
the
eligibility
list
of
candidates
in
order
of
seniority
as
determined from the date of order of
appointment on daily wage basis, and after
the eligibility list would be prepared, the
selection committee shall consider the case
of the workmen in order of seniority for
regularization from the eligibility list so
prepared.

24. It has been submitted by Sri
Shyam Mohan Pradhan, learned counsel
that seniority list has not been prepared
from the date of order of appointment or
engagement on daily wage basis or from
the date of appointment in the trade.
Eligibility
list
for
the
purpose
of
regularization is required to be prepared
from the date of initial appointment and
when the seniority list dated 20.06.2003
was issued considering the date of order of
appointment in the cadre/trade and not
from the date of initial appointment on
daily wage basis, the petitioners filed their
objections and the State Government vide
order dated 05.07.2003 cancelled the
seniority list after examining the same on
5 All. Bhawani Prasad Sahu & Ors. Vs. State of U.P. & Ors.
1121
the ground that it had not been prepared
from the date of initial appointment on
daily wage basis. The Government also
took the view that the candidates, who had
been appointment on daily wage basis on
29.06.1991, were also included though they
were not eligible for regularization under
the rules. There were other discrepancies
regarding some of the employees' date of
initial
appointment.
The
Government
cancelled the said seniority list vide order
dated 05.07.2003, which was stayed by this
Court vide order dated 24.07.2003 passed
in Writ Petition No.4302(SS) of 2003. The
said
writ
petition
got
dismissed.
Government
order
dated
16.07.2003
provided for the preparation of eligibility
cum seniority list for the purpose of
regularization from the date of initial
appointment on daily wage basis.

25. It has been further submitted that
interim order dated 20.08.2015 passed in
Writ
Petition
No.4302(SS)
of
2003
provided that necessarily seniority list of
the employees was to be prepared on the
basis of total length of service not only for
the purpose of regularization but also for
the purpose of determination of inter se
seniority. Impugned seniority list dated
20.04.2018 had been prepared not on the
basis of initial date of appointment on daily
wage basis but again from the date of entry
in the cadre in a trade. Initial appointment
of petitioner No.2 in the in Writ Petition
No.34756(SS) of 2018 has been shown in
the seniority as 28.03.1997 instead of
01.04.1994 though same was mentioned in
Government Order dated 05.04.2003 while
cancelling the earlier seniority list.

26. It has been further submitted that
prior to the year 1997 all persons appointed
on Daily Wage/Work Charge establishment
were not appointed against any post but
were given employment as Helper, and all
were getting Rs.437/- per month salary. It
is only on 18.03.1997, an order was passed
by this Court for minimum of pay scale to
such daily wager/work charge employee.
The said writ petition was decided on
13.11.2003
with
a
direction
for
regularization in accordance with Rules
from the date their juniors and similarly
situated daily wagers were regularized. It
has
been,
therefore,
submitted
that
impugned seniority list dated 20.04.2018 is
illegal and liable to be quashed.

27. Sri Prafulla Kumar Yadav,
learned Additional Chief Standing Counsel
appearing for the State has submitted that
regularizing
the
petitioners
with
retrospective
effect with effect from
02.07.2003 was not done by the competent
authority. This Court had stayed the order
dated 05.07.2003 vide an interim order
dated 24.07.2003 passed in Writ Petition
No.4302(SS) of 2003. At that time exercise
for regularization the Daily Wager of
different trades was under process as per
the
seniority
list
dated
20.06.2003.
However, in the meantime, the State
Government took a policy decision for
creation
of
supernumerary
posts
for
regularization of those employees, who
were engaged on 29.06.1991 or before and
were not regularized due to non availability
of the sanctioned posts. Hence, vide
Government Order dated 21.02.2011, 9189
supernumerary posts were sanctioned in
different trades for regularization of the
workmen, who were appointed on or before
29.06.1991, and, thereafter, services of
those employees who were engaged on
20.06.1991 or before and were working on
the date of promulgation of the rules were
regularized. These supernumerary posts
were created subject to adjustment in future
regular vacancies.
1122 INDIAN LAW REPORTS ALLAHABAD SERIES

28. Sunder Lal & Ors had filed Writ
Petition No.2073(SS) of 1997 and this
Court allowed the writ petition vide order
dated 13.11.2003. In compliance of the
order dated 13.11.2003 passed in Writ
Petition No.2073(SS) of 1997, Executive
Engineer, Provisional Division Lucknow
took a decision on the representation of the
petitioners vide order dated 12.04.2007,
and accordingly compliance affidavit was
submitted in the contempt petition. During
the pendency of the said contempt petition,
the Government issued an order dated
26.06.2013 by means of which 87 more
supernumerary posts were created subject
to final decision of the Writ Petition
No.4302(SS) of 2003 (Bharat Singh & Ors
vs
State
of
U.P.)
and
against
the
supernumerary posts, services of the
petitioners of Writ Petition No.2073(SS) of
1997 were regularized and G.P.F., Time
Scale and consequential benefits were
provided with effect from 02.07.2003
though no juniors to the petitioners were
regularized with effect from 02.07.2003.

29. As mentioned above that Ram
Swaroop & Ors filed Writ Petition
No.1427(SS) of 1997 before this Court, and
this
Court
passed
the
order
dated
13.11.2003 in favour of the petitioners and
the said writ petitioners filed a contempt
petition
being
Criminal
Misc.
Case
No.1687(C) of 2006: Bhawani Prasad &
Ors vs Satish Chandra Agarwal, Principal
Secretary & Ors.

30. During the pendency of the
aforesaid
contempt
petition,
the
Government
issued
an
order
dated
25.06.2013 by means of which 27 more
supernumerary posts were created subject
to final decision of the Writ Petition
No.4302(SS) of 2002, and against the
supernumerary posts, services of the writ
petitioners of Writ Petition No.1427(SS) of
1997 were regularized with effect from
02.07.2003 and other benefits like G.P.F.,
Time Scale and consequential benefits were
provided from the date of their juniors but
actually no junior to the petitioners was
regularized.

31. Sri Prafulla Yadav, learned
Standing Counsel has further submitted that
in both orders dated 25.06.2013 and
26.06.2013, the date of creation of post was
02.07.2003 on the basis of holding the post
of work agent. In such a situation only Sri
Pawan Kumar Pandey and Sri Tez Bahadur
Singh, who were Senior Work Agents were
entitled for regularization from the date but
without considering this aspects, against
the sanctioned supernumerary posts 27 +
87 = 114 posts, the services of the writ
petitioners
were
regularized
in
their
respective divisions by the Executive
Engineers at their own level. Aforesaid
regularization was not done on the basis of
seniority and eligibility, however, same had
been done under the pain of the contempt
proceedings.

32. Sri Prafulla Yadav, learned
Standing Counsel has further submitted that
power of regularization is vested in State
Government. State Government has taken a
decision for regularizing those employees
who were engaged in the Department on or
before 29.06.1991 as per the provisions of
Regularization Rules but some employees
have filed Writ Petitions before this Court
claiming that juniors employees were
regularized and they were entitled for
regularization from the date on which their
juniors were regularized.

33. After finalizing of the seniority
list on 21.04.2018, final orders have been
passed as per seniority list, and the
5 All. Bhawani Prasad Sahu & Ors. Vs. State of U.P. & Ors.
1123
anomalies have been rectified and fresh
orders have been passed in accordance with
law, which are impugned in the present
writ petition. Writ Petition No.4302(SS) of
2003 has been dismissed on 15.02.2023.
Earlier orders of regularization were
conditional subject to outcome of the Writ
Petition No.4302(SS) of 2003 by which
order dated 05.07.2003 was stayed and
after dismissal of the writ petition order
dated 05.07.2003 got revived by which
earlier seniority list dated 20.06.2003 was
cancelled. Present seniority list has been
issued strictly in compliance of the order
dated 20.08.2015, which does not require
any interference by this Court.

34. Regularization Rules were framed
after the judgment in the case of State of
U.P. & Ors. Vs. Putti Lal, [(1998) 1
UPLBEC 313 with intent to regularize the
persons engaged prior to 29.06.1991
through back door entry, as a one time
measure, keeping in mind that such
engagement is not illegal as concept of
regularization of service is a means to
condone and procedural irregularity and is
meant to cure only such defects, which are
attributable to notions followed while
making appointments and the concept has
been duly clarified in a landmark judgment
namely Secretary, State of Karnataka &
Ors. Vs. Uma Devi (3) & Ors., (2006) 4
SCC 1.

35. Right of regularization is
conferred vide Rule 4(1)(a) of Rules 2001,
only against such vacancies as were
available on the date of commencement of
Rules, 2001 and not against any vacancy
occurring subsequently as it is not a
perennial source of recruitment so as to
induct a person, as and when vacancies are
available, either due to creation of post or
otherwise on any date, subsequent to
20.12.2001. It is no longer res integra that
any regularization should be given effect
prospectively as held in the case of
Registrar General of India vs V.Thippa
Setty : 1998(8) SCC 690.

36. The question which falls for
consideration
is
that
whether
the
petitioners, who were regularized vide
order dated 20.06.2003 on the basis of the
seniority list, which was cancelled vide
order dated 05.07.2003, had perfected their
right
inasmuch
as
the
order
dated
05.07.2003 whereby the seniority list dated
20.06.2003 was stayed by this Court vide
order dated 20.06.2003 passed in Writ
Petition No.4302(SS) of 2003 stands
vacated as the said writ petition has been
dismissed.

37. Regularization of the petitioners
was subject to final outcome of the Writ
Petition No.4302(SS) of 2003 in which an
order was passed on 20.08.2015 to prepare
the fresh seniority list as per law.

38. It would be apt to reproduce
relevant provisions of Rules, 2001 under
which the petitioners are claiming benefit
and their regularization orders were passed
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 qualifications
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
1124 INDIAN LAW REPORTS ALLAHABAD SERIES
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
Service
(Reservation for Physically Handicapped,
Dependents of Freedom Fighters and ExServicemen) 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
the 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, arranged 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.