# Mukesh Kumar v. State of U.P. & Ors

- **Citation:** (2020) 2 ILRA 1239
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-10
- **Case number:** Writ-A No. 50149 of 2005
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mukesh-kumar-v-state-of-u-p-ors-45650
- **Pages:** 6

## Headnote

C.S.C.

A.
Regularization
of
appointment
-
regularization
is
not
a
source
of
recruitment and if initial appointment
was made without complying with the
requirement of Article 16(1) of the
Constitution,
regularization
is
not
permissible particularly in absence of any
statutory provision
Writ Petition Rejected.

List of cases cited:

## Text

2 All. Mukesh Kumar Vs. State of U.P. & Ors.
1239
It did not stipulate the appointment coming
into effect from some retroactive date.
That
prescription
in
the
order
of
appointment was duly accepted without
demur or protest. It is not permissible for
the petitioners to now and at this point of
time to renege from that concession.

29. Insofar as the issue of the
interim orders passed on the Special
Appeals preferred by certain other
selected
candidates
are
concerned,
suffice it to note that the State to some
extent
appears
to
be
justified
in
submitting that it could not proceed on
the assumption that the order of restraint
had come to an end or had expired by
efflux
of
time.
In
any
case
the
justification or otherwise for the delay
that occurred in implementation of the
judgment of 4 September 2003 is not an
issue on which this Court is called upon
to rule. As is manifest from the reliefs
which are framed, the sole question
which this Court is called upon to decide
is the entitlement of the petitioners to
seek coverage of the Old Pension
Scheme. Viewed in that context it really
does not fall for this Court to rule on the
justifiability or otherwise of the delay
which was allegedly caused in the
ultimate implementation of the judgment
of 04 September 2003. The claim in any
case must fall in light of Rule 2(3) of the
1961 Rules. The Court finds no legally
justifiable basis to either ignore its
unambiguous command or dilute its
rigor by virtue of the alleged delay in
conferment
of
appointment
to
the
petitioners for reasons aforenoted. In
view of the aforesaid, the challenge to
the impugned order fails.

30. The writ petition is dismissed.
----------
(2020)02ILR A1239

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.02.2020

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.

Writ-A No. 50149 of 2005

Mukesh Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Lallan Prasad Pal

Counsel for the Respondents:
C.S.C.

A.
Regularization
of
appointment
-
regularization
is
not
a
source
of
recruitment and if initial appointment
was made without complying with the
requirement of Article 16(1) of the
Constitution,
regularization
is
not
permissible particularly in absence of any
statutory provision
Writ Petition Rejected.

List of cases cited:

1. Secretary, State of Karnataka V. Uma Devi
(2006) 4 SCC 1 (followed)

2. Surinder Prasad Tiwari V. U.P. Rajya Krishi
Utpadan Mandi Parishad & ors, 2006 (7) SCC
684(followed)

3. Union Public Service Commission V. Girish
Jayanti Lal Vaghela 2006 (2) SCC 482(followed)

4.
State
of
Karnataka
&
ors
V.
G.V.
Chandashekhar JT 2009(4) SC 367(followed)

5. Man Singh V. Commissioner, Garhwal
Mandal, Pauri & ors JT 2009 (3) SC
289(followed)
1240 INDIAN LAW REPORTS ALLAHABAD SERIES
6. State of Bihar V. Upendra Narayan Singh &
ors (2009) 5 SCC 65(followed)

7. Pinaki Chaterjee & ors V. UOI & ors 2009 (5)
SCC 193(followed)

8. State of Rajasthan and ors V. Daya Lal & ors
2011(2) SCC 429(followed)

9. State of U.P. and ors V. Rekha Rani JT
2011(4) SC 6(followed)

10. Brij Mohan Lal V. UOI (2012) 6 SCC
502(followed)

11. University of Rajasthan and ors V. Prem
Lata
Agarwal
and
ors
(2013)
3
SCC
705(followed)

12. Secretary to Government, School Education
Department, Chennai and ors V. Thiru R.
Govindaswamy
and
ors
(2014)
4
SCC
769(followed)

13. Upendra Singh V. State of Bihar and ors
(2018) 3 SCC 680(followed)
(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Herard Sri Lallan Prasad Rai,
Advocate, for petitioner and learned
Standing Counsel for respondents.

2. The only relief sought in the writ
petition is that respondents be directed to
regularize the petitioner.

3. It is clear that petitioner is
discharging duties as operator since
11.11.1995.
He
was
appointed
by
Executive
Officer,
Nagar
Panchayat,
Pahasu,
District
Bulandshahar.
It
is
contended that petitioner is entitled to be
considered
for
regularization
in
accordance with U.P. Regularisation of
Persons Working on Daily Wages or On
Work
Charge
or
On
Contract
in
Government Departments on Ground "C"
and Group "D" Posts (Outside the Purview
of the Uttar Pradesh Public Service
Commission) Rules, 2016 (hereinafter
referred to as "Rules, 2016") but when
questioned that the aforesaid Rules are
applicable to Government Servants having
been framed under proviso to Article 309
and not applicable to Local Bodies, like,
Nagar Panchayat etc., learned counsel for
petitioner could not show any provision
which are applicable to Nagar Panchayat
so as to entitle petitioner to claim
consideration
for
regularization.
In
absence of any such provision, no
direction for regularization can be issued
in view of law laid down by Constitution
Bench of Apex Court in Secretary, State
of Karnataka Vs. Uma Devi (2006) 4
SCC
1
wherein
the
question
was
considered as to whether regularization
can be allowed to a person simply because
he has worked for a long time. While
considering the said question, fundamental
right of equal opportunity of employment
enshrined
under
Article
16
of
the
Constitution has been held to be a basic
feature of Constitution. The Apex Court in
Uma
Devi
(supra),
therefore,
very
categorically cautioned the High Courts as
under :

"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."

4. The above question in the light of
decision in Uma Devi (supra) has been
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
2 All. Mukesh Kumar Vs. State of U.P. & Ors.
1241
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 the exhaustive list of all such cases,
but it would be appropriate to place on
record as to how the matter, of late, has
been treated by the Apex Court in the light
of the law laid down by the Constitution
Bench in Uma Devi (supra).

5. 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 dailywager,
ad
employee,
probationer,
temporary or contractual employee, not
appointed following the procedure laid
down under Articles 14, 16 and 309 of the
Constitution."

6. 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.

7. Deprecating the practice of the
State to make appointment in ad hoc
manner without caring to the recruitment
in accordance with rules, the Apex 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 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
1242 INDIAN LAW REPORTS ALLAHABAD SERIES
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),
the
Apex
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."

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

9. In State of Bihar Vs. Upendra
Narayan Singh & others (2009) 5 SCC
65,
Court
held
that
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 persons
get a fair chance to complete is in violation
of guarantee enshrined under Article 226
of the Constitution. Ad hoc/ temporary/
daily wage employees are not entitled to
claim regularisation in service as a matter
of right. If an illegality or irregularity has
been
committed
in
favour
of
any
individual or a group of individuals or a
wrong order has been passed by a judicial
forum,
others
cannot
invoke
the
jurisdiction of the higher of superior Court
for repeating or multiplying the same
irregularity or illegality or for passing
wrong order.

10. In Pinaki Chatterjee & others
Vs. Union of India & others 2009 (5)
SCC 193, the Court observed that it is no
2 All. Mukesh Kumar Vs. State of U.P. & Ors.
1243
doubt true that the respondents under
certain circumstances had been appointed
directly
as
casual
mates
and
they
continued as such and further by virtue of
their continuance they acquired temporary
status but that by itself does not entitle
them to be regularised as mates since that
would be contrary to the rules in force.
The Court further held that the respondents
did not acquire a right for regularisation as
mates from the mere fact of their
continuance as casual mates for a
considerable period.

11. In State of Rajasthan and
others Vs. Daya Lal & others, 2011(2)
SCC 429 Court following the decision in
Uma Devi (supra) held as under:

"The High Courts, in exercising
power
under
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. The
equality clause contained in Articles 14
and 16 should be scrupulously followed
and Courts should not issue a direction for
regularization of services of an employee
which would be violative of constitutional
scheme."

12. In State of U. P. and others vs.
Rekha Rani, JT 2011 (4) SC 6, Court
referring to its decision in Daya Lal
(supra), in para 12 of the judgment, said :

"12. It has been held in a recent
decision of this Court in State of
Rajasthan vs. Daya Lal, 2011 (2) SCC
429 following the Constitution Bench
decision of this Court in State of
Karnataka vs. Umadevi (2006) 4 SCC 1
that the High Court in exercise of its
power under Article 226 cannot regularize
an employee."

13. In Brij Mohan Lal vs. Union of
India (2012) 6 SCC 502, referring to Uma
Devi (supra) Court said :

"A Constitution Bench of this
Court has clearly stated the principle that
in
matters
of
public
employment,
absorption, regularization or permanent
continuance of temporary, contractual or
casual daily wage or ad hoc employees
appointed and continued for long in such
public employment would be de hors the
constitutional
scheme
of
public
employment and would be improper. It
would also not be proper to stay the
regular
recruitment
process
for
the
concerned posts."

14. In University of Rajasthan and
others vs. Prem Lata Agarwal and
others, (2013) 3 SCC 705 referring to
Constitution Bench judgment in Uma
Devi (supra) said :

".....the Constitution Bench, after
survey of all the decisions in the field
relating to recruitment process and the
claim for regularization, in paragraph 43,
has held that consistent with the scheme
for public employment, it is the duty of the
court to necessarily hold that unless the
appointment is in terms of the relevant
rules, the same would not confer any right
on the appointee. The Bench further
proceeded to state 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
1244 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

15. In Secretary to Government, School
Education Department, Chennai and others
Vs. Thiru R. Govindaswamy and others
(2014) 4 SCC 769, referring to Uma Devi
(supra) Court said that there is no fundamental
right 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. As has been held by this Court, 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.

16. In Upendra Singh Vs. State of Bihar
and others, (2018) 3 SCC 680 referring to Uma
Devi (supra), Court said :

"Law pertaining to regularisation has
now been authoritatively determined by a
Constitution Bench judgment of this Court in
Secretary, State of Karnataka and Ors. vs.
Umadevi and Ors. (2006) 4 SCC 1. On the
application of law laid down in that case, it is
clear that the question of regularisation of daily
wager appointed contrary to law does not arise.
This ration of the judgment could not be disputed
by the learned Counsel for the Appellant as well."

17. In view of above authorities and
binding precedent of Supreme Court, prayer for
regularization de hors the rules, cannot be
considered and any direction issued by this Court
otherwise, which is contrary to the Statute, would
be impermissible.

18. In view of discussion made
hereinabove, I do not find the petitioner entitled
for relief sought for. The writ petition lacks
merits. Dismissed.
----------
(2020)02ILR A1244

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.01.2020

BEFORE

THE HON'BLE PIYUSH AGRAWAL, J.

Writ-A No. 52369 of 2016

Babundar Chaubey @ Babundar Prasad
Chaubey ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Dharmendra Kumar Tripathi

Counsel for the Respondents:
-----

A. Service Law- Regularization - U.P.
Collection Amins Service Rules, 1974;
U.P. Seasonal Collection Amin Rules,
1974: Rules 5, 17, 17-A - Petitioner has not
been considered for regularization even after
achieving the target prescribed u/Rule 5.

The Court reiterating the principle that 'last
four fasals' would mean all fasals in which
Seasonal Collection Amin has worked and does
not mean the four immediately preceding
fasals, has given liberty to the petitioner to
move a detailed representation before the
Collector
(authority
concerned)
with
the
direction to decide the same expeditiously and
in accordance with law. (Para 7, 10)

Writ petition disposed of. (E-4)

Precedent followed:
1. State of U.P. and others Vs. Pankaj
Srivastava, 2013 (11) ADJ 473 (Para 7, 9)

2. Suresh Chand Mishra Vs. State of U.P. and
others,
2016
(11)
ADJ
315
(Para
8)