# Ram Naresh v. State of U.P. and Ors

- **Citation:** (2013) 3 ILRA 1491
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-10-25
- **Case number:** Civil Misc. Writ Petition No.44105 of 2011
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-naresh-v-state-of-u-p-and-ors-42733
- **Pages:** 17

## Headnote

Constitution
of
India,
Art.-226-
Regularization-daily wages working in
forest depot-engaged prior to 29.06.97
and
working
in
December
2001-no
denial-entitled for consideration strict in
accordance with seniority list prepared
under rule 4(1) of Rules-subject to
fulfillment of academic qualificationagainst existing vacancy in December
2001-future
vacancy
occurred
after
December 2001 shall not be clubbed-
order being contrary to rule-ultra virusquashed-direction issued accordingly.

Held: Para-54
The discussion made above leaves no
manner of doubt that petitioner in the
case in hand is entitled to be considered
for
regularisation,
subject
to
the
conditions, that, his seniority entitles
him for consideration for regularisation
against vacancies available on the date
of commencement of Rule 2001

Case Law discussed:
(2002) 2 UPLBEC 1595; Spl. Leave Petition No.
26664 of 2010; Writ A-58886 of 2009; 2008(1)
ADJ 371; 2011(2) ADJ 594; 2007(4) ADJ 186;
2008(2) ESC 1359; Writ A No. 61444 of 2007;
2006(4) SCC 1; 2007(2) SCC 230; 2011(5)
AWC 5075; 2011(2) SCC 429; 2011(4) SCC
200; 2012(6) SCC 502; 2013(3) SCC 705;
1992(Suppl) 3 SCC 217; JT 2001(8) SC 171;
1998(8) SCC 469; 1998(8) SCC 154; 2007(10)
SCC 684; 2008(4) SCC 171; Civil Appeal NO.
4483-4485 of 2013; 2007(7) SCC 140;
2012(13) SCALE 124; Spl. Appeal No. 375 of

## Text

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3 All] Ram Naresh Vs. State of U.P. and Ors.
1491
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.10.2013

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No.44105 of 2011

Ram Naresh ...Petitioner
Versus
State of U.P. and Ors. ...Respondents

Counsel for the Petitioner:
Sri Pankaj Srivastava

Counsel for the Respondents:
C.S.C.

Constitution
of
India,
Art.-226-
Regularization-daily wages working in
forest depot-engaged prior to 29.06.97
and
working
in
December
2001-no
denial-entitled for consideration strict in
accordance with seniority list prepared
under rule 4(1) of Rules-subject to
fulfillment of academic qualificationagainst existing vacancy in December
2001-future
vacancy
occurred
after
December 2001 shall not be clubbed-
order being contrary to rule-ultra virusquashed-direction issued accordingly.

Held: Para-54
The discussion made above leaves no
manner of doubt that petitioner in the
case in hand is entitled to be considered
for
regularisation,
subject
to
the
conditions, that, his seniority entitles
him for consideration for regularisation
against vacancies available on the date
of commencement of Rule 2001

Case Law discussed:
(2002) 2 UPLBEC 1595; Spl. Leave Petition No.
26664 of 2010; Writ A-58886 of 2009; 2008(1)
ADJ 371; 2011(2) ADJ 594; 2007(4) ADJ 186;
2008(2) ESC 1359; Writ A No. 61444 of 2007;
2006(4) SCC 1; 2007(2) SCC 230; 2011(5)
AWC 5075; 2011(2) SCC 429; 2011(4) SCC
200; 2012(6) SCC 502; 2013(3) SCC 705;
1992(Suppl) 3 SCC 217; JT 2001(8) SC 171;
1998(8) SCC 469; 1998(8) SCC 154; 2007(10)
SCC 684; 2008(4) SCC 171; Civil Appeal NO.
4483-4485 of 2013; 2007(7) SCC 140;
2012(13) SCALE 124; Spl. Appeal No. 375 of
2005.

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

1. Heard Sri Pankaj Srivastava for
the petitioner and learned Standing
Counsel for respondents. Since pleadings
are complete, as requested and agreed by
learned counsel for the parties, I have
proceeded to hear and decide it, under the
Rules of the Court, at this stage.

2. Though there are several reliefs
sought in this writ petition but in effect,
petitioner's claim is three fold: (i)
regularisation on a group 'D' post in
Forest Department (ii) payment of salary
at minimum of regular pay scale so long
he is not regularised as per the decision in
State of U.P. Vs. Putti Lal (2002) 2
UPLBEC 1595 and (iii) not to be
terminated orally or otherwise.

3. Besides above, there is an
additional issue in this matter. The
petitioner has assailed an order dated
24.06.2011
(Annexure
16
to
writ
petition), which is a letter issued by
Principal
Conservator
of
Forest
(Administration),
U.P.,
Lucknow
(hereinafter referred to as the "PCF
(Admn.)") to the Principal Conservator ,
(Wildlife), U.P., Lucknow and all Chief
Conservator of Forest, U.P. stating that
not only vacancies newly created as
supernumerary, by Government Order
dated 23.06.2011, ought to be utilized for
regularisation of employees in Group 'D'
posts, under U.P. Regularisation of Daily
Wage Appointments on Group 'D' posts
Rules 2001 (hereinafter referred to as "
1492 INDIAN LAW REPORTS ALLAHABAD SERIES
Rules 2001") and on Group 'C' posts
under U.P. Regularisation of Daily Wages
Appointment on Group 'C' Posts (Outside
the Purview of the Uttar Pradesh Public
Service
Commission)
Rules,
1998
(hereinafter referred to as "Rules 1998")
and all those daily wage employees who
are working since 29th June 1991 are to
be regularised but if any vacancy has
occurred due to retirement etc., and, is
existing, the same would also be utilised
for such regularisation. Thus validity of
this order dated 24.06.2011 is to be tested
in the light of Rules, 2001 and 1998.

4. The facts in brief as per
petitioner's version in the writ petition,
are, that the petitioner was engaged as a
Group 'D' employee in February, 1989
and continuing till the date of filing of the
writ petition. He claims to be eligible for
regularisation as per directions of Apex
Court in State of U.P. Vs. Putti Lal
(Supra) and also in view of statutory
provisions contained in the Rules, 2001.
The State Government took a policy
decision to implement judgment in State
of U.P. Vs. Putti Lal (Supra), as
communicated
by
Principal
Chief
Conservator of Forest, U.P., Lucknow
(hereinafter referred to as the "PCCF")
vide letter dated 07.09.2002, to all Chief
Conservators
of
Forest,
U.P.,
Conservators of Forest/Regional Director
and Divisional Forest Officers, U.P.,
directing to follow and comply Court's
decision in State of U.P. Vs. Putti Lal
(Supra). The Divisional Forest Officers of
concerned areas, who are appointing
authorities, however, proceeded illegally
by
making
rampant,
arbitrary
and
whimsical regularisations, without caring
for length of engagement of individual
daily wage employees and without
preparing any seniority list vis-a-vis the
vacancies available. A complaint was
made to State Government that available
vacancies for regularisation have been
diverted elsewhere, so as to deprive daily
wage employees of the benefit of
regularisation. In this regard, detailed
information
was
sought
by
State
Government vide order dated 20.05.2002
(Annexure 5 to the writ petition) from all
the Divisional Forest Officers/Divisional
Directors. It drew attention of this Court
also when an Hon'ble Single Judge,
dealing
Contempt
Petition
No.1632
of2009 (Laxmi Chandra Vs. N.K. Janu),
vide orders dated 03.12.2009, 26.02.2010
and
28.08.2010,
sought
detailed
information from PCCF. The proceedings
could not continue since in the meantime,
some of the officers concerned went in
appeal before Apex Court in Special
Leave Petition No. 26664-26665 of 2010
(Chanchal Kumar Tiwari and others vs.
Narayan Singh) and the Hon'ble Court,
vide order dated 16.09.2010, stayed
contempt proceedings. Similar stay order
in all contempt proceedings was passed in
SLP NO. 26571-26572 of 2010 on
27.09.2010.

5. Petitioner further pleads that one
Sri Pratap Singh son of Jhunni Lal has
been
regularised
by
order
dated
11.02.2011. The same benefit should be
extended to petitioner also. Salary payable
to daily wage employees, yet not
regularised,
has
also
been
revised,
implementing recommendation of VII Pay
Commission by order dated 11.03.2010
(Anenxure 11 to writ petition). Nonpreparation of a combined eligibility and
seniority list by respondents, before
considering daily wage employees for
regularisation in Forest Department, is
illegal and arbitrary. It amounts to
deliberate and intentional attempt to
3 All] Ram Naresh Vs. State of U.P. and Ors.
1493
circumvent judgment in State of U.P. Vs.
Putti Lal (Supra). It is gross abuse of
power
so
as
to
deny
benefit
of
regularisation in accordance with Rules
2001, to the concerned workers. Further
that, now work of Forest Department has
been reduced by granting exemption to
forest produce, peat, surface soil, rock and
minerals etc., mentioned in sub-clause
(iv) of Clause (b) of Sub-Section (4) of
Section 2 of Indian Forest Act 1927,
excavated from non forest land and
moved from forest area, for operation of
U.P. Transit of Timber and other Forest
Produce Rules, 1978, so as to help forest
Mafias, causing loss of revenue to the
department. Much of work, which earlier,
used to be done by Forest Department has
now been transferred to Gram Panchayat
etc. and is being done under National
Rural Employment Guarantee Act, 2005
(hereinafter referred to as "NREG Act,
2005"). The petitioner is now being
engaged under aforesaid NREG Act 2005.
This has also resulted in denying
continuity of engagement to petitioner as
Group
'D'
employee
in
Forest
Department. This action is clearly illegal,
arbitrary and with an intention of
victimisation of daily wage employees,
like the petitioner. The change of mode of
payment of wages by applying NREG Act
2005 and deviating from the procedure
prescribed under Rules 98 to 100 of
Forest Accounts Rules, Part VII, is wholly
arbitrary and illegal. Lastly, it is said that
in order to absorb daily wage workers in
Group
'D'
vacancies,
the
State
Government created 2022 posts for
regularisation in Group 'D' and 37 in
Group 'C' vide Government Order dated
23.06.2011 with clear direction that these
posts shall be utilised for the purpose of
regularisation of daily wage employees.
The posts having been created as
supernumerary, shall go on abolition as
soon as regular posts are available to the
concerned employees. The petitioner,
therefore, is entitled for regularisation
against the aforesaid newly created
supernumerary Group 'D' posts, following
the procedure prescribed in Rules 2001.

6. Respondents have filed a counter
affidavit
wherein
basic
facts
about
engagement of petitioner, as stated in the
writ petition, have been denied. The
petitioner's claim that he is working since
February 1989 continuously and at least,
till date of filing of writ petition in 2011 is
denied. The averment made in para 4 of
writ petition, has been denied in para 12
of counter affidavit, stating that petitioner
has not placed any material on record to
show that he was entitled to regularisation
under Rules 2001. It is, however, said that
the petitioner worked as daily wager for
one month in 1982, 5 months in 1983,
five months in 1984, 12 months in 1985,
11 months in 1986, 10 months in 1987, 9
months in 1988, 12 months in 1989, 12
months in 1990, 3 months in 1991, 9
months in 1996, 7 months in 1997 and 7
months
in
2001.
Right
to
claim
regularisation has been denied on the
ground that that he has not worked
continuously from the date of his initial
engagement till commencement of Rules
2001 i.e., upto 21st December 2001. In
para 16 of counter affidavit it is also
averred that only those daily wage
employees were eligible for consideration
of regularisation under Rules, 2001 who
were engaged on daily wage basis on or
before 29.06.1991 and continuing to work
on the date of commencement of Rules
2001, i.e., 21.12.2001. The petitioner was
ineligible under the aforesaid Rules,
hence, not considered for regularisation.
There was no occasion for placing his
1494 INDIAN LAW REPORTS ALLAHABAD SERIES
name in the list, in order of seniority, for
the purpose of regularisation since he
does not fulfil requirement under Rule
4(1) of Rules 2001. Nobody could have
been compelled to work under NREG
Act, as the scheme thereunder is totally
different and has nothing to do with
Forest Department as such.

7. A very bulky and voluminous
rejoinder affidavit has been filed by
petitioner. In para 8 thereof, it is said that
petitioner has been working at Chakar
Nagar Forest Range, Etawah throughout.
Photo copies of cash books commencing
from February 1989 have been filed as
Anenxures 1 and 2 to rejoinder affidavit
to show continuous working of petitioner.

8. Sri Pankaj Srivastava, learned
counsel for the petitioner vehemently
argued that unless a list of daily wage
employees
engaged,
in
Forest
Department, before 29.06.1991, for the
purpose of regularisation, is prepared, in
order of seniority, Rules 2001 cannot be
applied and implemented truly. In the
present case, since no list has been
prepared, this indicates how respondent
authorities have acted illegally so as to
deny benefit of regularisation to petitioner
and similarly placed other employees. He
reiterated various grounds, as set up in the
writ petition and mentioned above,
placing reliance on Apex Court's decision
in State of U.P. and others Vs. Putti Lal
(supra). He also complained on non
payment of salary as directed by Court in
above decision in Putti Lal.

9. Learned counsel for petitioner
contended that in order dated 24.06.2011
direction is in the teeth of statutory rules
inasmuch as, in both the sets of Rules,
namely, Rules 2001 and Rules 1998 only
those vacancies as were available on the
date of commencement of Rules , could
have been utilised for the purpose of
regularisation, any vacancy subsequently
created or occurred in whatever manner, it
is, but the same cannot be utilised for the
purpose of regularisation under the
aforesaid
Rules.
Learned
Standing
Counsel, however, apparently found it
difficult to defend impugned order dated
24.06.2011
(Annexure
16
to
writ
petition), but simply said that whatever
has been said therein, he supports it and
rest is for the Court to decide.

10. Learned Standing Counsel on
the contrary, submitted that the petitioner
did not fulfil all the conditions precedent,
required under Rule 4(1) of Rules, 2001,
therefore, he was not entitled to be
considered for regularisation. It is further
said that the petitioner since long is not
working in Forest Department and as
admitted by him, has been engaged under
NREG Act, 2005 by the concerned
authorities and not by Forest Department.
Refuting the complaint about salary, he
argued that petitioner, as per his own
admission, is engaged under NREG
Scheme hence the direction in Putti Lal
(supra)
does
not
apply
on
such
engagement.

11. in view of rival contentions,
adjudication of this writ petition requires
answer of the following questions:

(1)
Whether
petitioner
fulfilled
requisite eligibility conditions, making
him
eligible
for
consideration
for
regularisation under Rules, 2001 ?

(2)
Whether
preparation/nonpreparation of seniority list of Group 'D'
employees has any relevance for the
purpose of claim of petitioner for
3 All] Ram Naresh Vs. State of U.P. and Ors.
1495
regularisation, if question no. (1)is
answered against him ?

(3) Whether claim of petitioner,
presently, for payment of salary at
minimum of regular pay scale, is
admissible
and
applicable,
when
admittedly, he is discharging duty having
been employed under NREG Act, 2005,
after enforcement of the aforesaid Act ?

(4) Whether the respondents are
justified in utilising any vacancy occurred
or created, after commencement of Rules
1998 and 2001, for the purpose of
regularisation, under the aforesaid Rules
and
whether
the
order/letter
dated
24.06.2011 is valid?

12. First, I propose to consider
question no.1. For that purpose, suffice it
to mention that a person can claim right of
consideration for regularisation under
Rules, 2001, only if, he fulfils requisite
conditions, provided in Rule 4(1) thereof.
This Rule (1) 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 Schedule
Castes, Schedule Tribes, Other Backward
Classes of citizens and other categories
shall be made in accordance with the
Uttar
Pradesh
Public
Services
(Reservation
for
Schedule
Caste,
Schedule 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
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, arrange in order of seniority
as determined from the date of order of
Appointment on daily wage basis and if
two or more persons are appointed
together, from the order in which their
names
are
arranged
in
the
said
appointment order. The list shall be
placed before the Selection Committee
along
with
such
relevant
records
pertaining to the candidates, as may be
considered necessary, to asses their
suitability.

(5) The Selection Committee shall
consider the cases of the candidates on the
basis of their record 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
1496 INDIAN LAW REPORTS ALLAHABAD SERIES
to the Appointing Authority." (emphasis
added)

13. A bare perusal of Rule 4(1) of
2001 Rules makes it clear that only such
daily wager is entitled to be considered
for regularisation, who ;

(A) was appointed on daily wage
basis on a group 'D' post in Government
Service before 29th June 1991;

(B) continuing in service as such i.e.,
in his capacity as daily wager, on the date
of
commencement
of
Rules,
i.e.
21.12.2001;

(C) possessed requisite qualification
prescribed for regular appointment for
that post at the time of initial appointment
on daily wage basis; and,

(D) a permanent or temporary
vacancy in Group 'D' post is available on
the date of commencement of Rules, i.e.
21.12.2001.

14. The two crucial dates have to be
satisfied
by
daily
wage
employee,
namely, employment before 29th June
1991 and continuing in service on
21.12.2001. This condition is mandatory.
If either of the two conditions, is found
missing, in any particular case, such
incumbent shall not be eligible for
consideration for regularisation under
Rules, 2001.

15. Similarly, Rule 4(1)(b) makes it
clear that the incumbent must possess
requisite qualification prescribed for the
post or against which he was appointed on
daily wage basis, but further right of
regularisation is confined vide Rule 4(1)(a),
only against such vacancies as were
available on the date of commencement of
Rules, 2001, namely, 21.12.2001 and not
against
any
vacancy
occurring
subsequently. This is one time benefit made
available to Group 'D' employees, who fulfil
requisite conditions under Rule 4(1). It is
not a perennial source of recruitment so as
to induct a person by way of regularisation
as and when the vacancies are available,
either due to creation of post or otherwise,
on any date, subsequent to 21.12.2001. On
this aspect also, matter has been considered
in Santosh Kumar Bajpai Vs. State Of U.P.
& Others (Writ - A No. - 58886 of 2009,
decided on 18.11.2009) and it has been held
in para 11:

"11. A perusal of 2001 Rules thus
makes it clear that it is applicable to only
such vacancies as were existing on the
date of commencement of said Rules, i.e.,
21.12.2001. As soon as such vacancies
are filled in and get exhausted, no further
regularisation is permissible. The rules are
one time measure and shall render otiose
as soon as the vacancies existing on
21.12.2001 are filled in. If that be so, it
would be difficult to construe the word
"generally applicable" so as to include
such rules made for Government servants
which have application only for a limited
period or which are one time measure......
..............." (emphasis added)

16. In Rakesh Chandra Srivastava
Vs. State of U.P. & Ors., 2008 (1) ADJ
371
wherein
Rule
4
of
U.P.
Regularization
of
Daily
Wages
Appointments on Group 'D' Posts Rules,
2001 came up for consideration, the Court
looking all the aspects of Rule 4(1), said :

"A bare perusal of Rule 4 (1) (a) & (b)
makes it clear that it confers a right of
consideration for regularization upon such
daily wage employees who: (1) were
appointed on daily wage basis on a Group
'D' post in the Government service before
3 All] Ram Naresh Vs. State of U.P. and Ors.
1497
29th June, 1991 and (2) is continuing in
service
as
such
on
the
date
of
commencement of these rules and (3)
possesses requisite qualification prescribed
for regular appointment for that post at the
time of such appointment on daily wage
basis under the relevant service rules, and
(4) a person who fulfils all the above
qualifications 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 the said 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.

Therefore, the vacancy against which
right of consideration for regularization is
available are only those which were available
on the date of commencement of the rules,
namely, 2001 Rules and against such
vacancies only, if the incumbent fulfils the
aforementioned qualifications and eligibility,
would be entitled for regularization before any
regular appointment is made in such vacancy
in accordance with relevant service rules or
orders. There is no provision under 2001
Rules which permits right of regularization to
a daily wage employee against any vacancy
which may occur in future or subsequent to
21st
December
2001.
The
rules
of
regularization being in the nature of
exceptional provisions having overriding
effect over other provisions of normal
procedure of selection in accordance with
rules, can be allowed and permitted to apply
strictly in accordance with the rules and not
otherwise...." (emphasis added)

17. The above decision has been
followed in Ram Dayal Vs. State of U.P.,
2011 (2) ADJ 594 and in a number of
other cases.

18. A Division Bench of this Court
(of which I was also a member) in
Dukhi Singh Vs. State of U.P. and
others , 2007(4) ADJ 186 also took a
similar view.

19. Whether a daily wager is
continuously
and
without
break/gap
employed in between two cut off dates or
not, is not of any relevance. This question,
whether Rule 4(1)(a) of Regularisation Rules
2001 mandated that a daily wage employee,
after his engagement/appointment before
29.06.1991, should continue to work
throughout till the date of commencement of
Rules i.e., 21.12.2001 has been considered
and answered already in various authorities.

20. In Janardan Yadav Vs. State of
U.P. & others, 2008 (2) ESC 1359 this
Court in paras 5, 6 and 8 of the judgment
said:

"5. Since the facts are not in dispute
and it is also not disputed that the petitioner
was engaged on daily wage basis in 1984,
i.e., before 29.6.1991 and was also working
on the date of commencement of Rules 2001,
i.e, on 21.12.2001, thus it is evident that he
was
entitled
to
be
considered
for
regularization under the said Rules. The only
question up for consideration is whether the
said Rules require continuous service
throughout, i.e., from the date of initial
engagement till the commencement of the
Rules. In my view, there is no such
requirement under the Rules as is apparent
from perusal thereof.

6. The only requirement under Rule
4(1)(a) are that the incumbent was
directly appointed on daily wage basis on
a Group 'D' Post in a Government Service
before 29.6.1991 and is continuing in
service
as
such
on
the
date
of
1498 INDIAN LAW REPORTS ALLAHABAD SERIES
commencement of the said Rules. The
further requirement under Clause (b) of
Rule 4(1) is that he must have possessed
requisite qualification required for regular
appointment on that post at the time of
such employment on daily wage basis."

"8. The said stand is contrary to the
Rules and it amounts to reading certain
words in Rule 4(1) which is not provided
therein by the Rule framing authority. The
rule framing authority has not framed the
aforesaid Rules in manner as are being read
by the respondents. Since the Rules are
applicable only to daily wage employees, the
Rules framing authority was aware that such
employee
could
not
have
worked
continuously throughout and, therefore, has
clearly provided that the engagement must be
before 29.6.1991 and he is continuing as
such on the date of commencement of the
Rules. If a daily wage engagement has been
made before 29.6.2001 and was continuing
on 21.12.2001, meaning thereby the daily
wage engagement remained necessity of the
department or the requirement thereof for
more than 10 years, for such a person only,
the benefit of regularization under 2001
Rules has been provided, and it nowhere
requires further that the incumbent must have
worked continuously from the date of initial
engagement till the commencement of these
Rules and to read these words would amount
to legislation, which is not permissible in
law. While interpreting the statute, it is well
settled that neither any word shall be added
nor be subtracted but if a plain reading of the
statute is clear and unambiguous, the same
has to be followed as such. This Court does
not find any ambiguity in Rule-4(1)
providing as to which kind of persons would
be entitled for regularization and it nowhere
requires that the incumbent must have
worked throughout from the date of initial
engagement till the date of commencement
of the Rules."

21. Following the law laid down in
Janardan Yadav (Supra), this Court in
Pooran Lal Vs. State of U.P. through
Ministry of Forest and others (Writ A No.
61444 of 2007) decided on 1.8.2013 held
as under:

"In view of the law laid down in
Janardan Yadav (supra) it is evident that
continuous service through out is not a
requirement in the Rules, 2001 and thus, the
reason given by respondents that the
petitioner did not work for certain period is
wholly incorrect and misconceived for the
reason that Rules, 2001 nowhere require that
a daily wage employee ought to have worked
continuously to get the benefit of the said
Rules. The order impugned in this writ
petition has been passed by the respondents
by reading something in the Rules which in
fact is not provided therein. The respondents,
therefore, have
acted
wholly
without
jurisdiction and exceeding the powers by
reading a statutory provision in his own way
and to the extent of reading certain words
therein though it is not there. The
respondents cannot sit over the wisdom of
the rule framing authority to find out
something which is not in the rule. The
manner in which the respondents have
considered this aspect is wholly erroneous
and, therefore, the impugned order cannot
sustain."

22. I find it my duty to make certain
aspects relating to regularisation, clear, at
this stage. The appointments in public
services are made in various ways. The
purest form of appointment is one which
is made following the procedure laid
down in statute consistent with Article 16
of the Constitution of India. When a
vacancy on a civil/public post is available,
it is made known to every one, eligible
and willing, to apply therefor, so as to be
considered thereagainst. It conforms the
3 All] Ram Naresh Vs. State of U.P. and Ors.
1499
fundamental right of equal opportunity of
employment to all qualified and willing
persons for such employment. When this
opportunity is given and appointment is
made
after
following
procedure
prescribed in statute, the appointment is
absolutely just, valid and called the purest
form of appointment.

23. Then comes an appointment,
where
vacancies
are
advertised,
consideration for employment is afforded to
all qualified and willing but in the process
of selection and appointment there is some
procedural defect which may not affect the
very appointment to its root. Such an
appointment, at the best may be an irregular
appointment which would confer a right
upon the appointee to continue and hold the
post subject to subsequent rectification or
validation by competent authority, expressly
or impliedly.

24. Then comes an appointment made,
fortuitous in nature, in certain exigencies. For
example, a short term, stop gap, officiating,
daily
wage
etc.
appointments,
which
normally is opted when requirement and
tenure is precarious and by the time,
procedure is followed, very purpose would
stand frustrated. Such appointments are made
normally by pick and choose method, i.e.,
whosoever come and apply, whether after
getting knowledge on his own or otherwise,
is given opportunity to serve for the limited
purpose and tenure, which is called, sudden
requirement and exigency of situation. Such
appointments do not confer any right upon
the appointee, either to hold post for a long
time or to get the post in substantive manner.
Above exception has been pleaded and
allowed though it deprives right of equal
opportunity of consideration to all eligible
and willing persons by advertising the
vacancy etc. only for the reason that
requirement is sudden, tenure precarious and
delay shall cause greater public loss,
otherwise such appointments, in other words,
comes in the category of illegal when tested
on the anvil of Article 14 and 16 of the
Constitution. One can say that applying
doctrine of reasonable classification and
considering fortuitous nature of requirement
and process followed for its achievement, per
se it may not be termed as illegal so long as
that requirement is there but in case it is
extended so as to confer a benefit more than
such requirement, it will cross the dotted line
of validity and will enter in the realm of
illegality. Such appointments have been held
void ab initio and not entitled to confer any
right upon appointee so as to claim a
substantive right on the post in his holding, in
whatever capacity, whether daily wager,
officiating, ad hoc etc.

25. The Constitution Bench in
Secretary, State of Karnataka Vs. Uma Devi
2006 (4) SCC 1 has held that such illegal
appointments cannot be asked to be
regularized as that would amount to violating
the fundamental right of equal opportunity of
employment to those who have been denied
such opportunity. The Constitution Bench
decision has overruled dozens of earlier
decisions taking a view otherwise so as to
show sympathy in favour of those who got or
managed their appointments illegally, i.e.,
without complying the requirement of equal
opportunity of employment to all others,
came to the office on account of their
individual
resources
and
managing
continuance for quite some time or long
time, and then claim a substantive right on
the basis of long tenure, they have managed
to continue. In other words, the incumbent
comes to the office by virtue of a pick and
choose method, usurps office by back door
or whatever other term one may use, despite
it being short of compliance of requirement
1500 INDIAN LAW REPORTS ALLAHABAD SERIES
of Article 16(1) of the Constitution, but
having maintained such benefit to continue
for quite some time, which normally has the
support of appointing authorities also, the
beneficiary comes to claim a sense of
sympathy on the basis of such long
continued usurpation of office. In other
words, a violator of law claims a substantive
right for having violated law continuously
for quite a long time with regard to a public
office.

26. In the matter of appointment there
is no principle of adverse possession but a
plea somewhat similar thereto many a times
is raised that since he has continued to work
for quite long time, now he should be
allowed to stay in the office for rest of tenure
otherwise his family would suffer. A
situation is created where sympathy is sought
not in favour of victims, i.e., those who were
denied right of equal opportunity of
employment but in favour of those who have
violated law, contravened it, breached it with
impunity, and, have continued to do so for
quite some time, and now, boldly and
blatantly claiming a kind of right to retain
such benefit of breach of law for all times to
come and for that purpose various pleas in
the name of equity, sympathy, compassion
etc. are raised and pleaded and many a times
find favour in the Courts of Law.
Fortunately, Constitution Bench, after having
a retrospect of all earlier authorities, took a
clear stand against such kind of favour
shown to those who have come in public
office, by denying right of equal opportunity
to others. The Court in unequivocal terms
observed that any favour shown to such
violators would be a misplaced sympathy.

27. The maxim dura lex, sed lex,
which means "law is hard but it is the law",
in my view, aptly applies in the cases where
incumbents have come to an office not
following
procedure
consistent
with
constitutional requirement of Article 16(1)
but otherwise and thereafter claim equitable
and other consideration for sustaining their
entry and occupancy of the office for all
times to come. In Raghunath Rai Bareja and
another Vs. Punjab National Bank and
others, 2007(2) SCC 230 it is said:

"When there is a conflict between
law and equity, it is the law which has to
prevail . . . . . Equity can only supplement
the law, but it cannot supplant or override
it."

28. It has been followed in State of
Uttaranchal and Anr. Vs. Rajendra Singh
Kandwal 2011(5) AWC 5075 (SC).

29. After Uma Devi (supra) there is
a chain of authorities wherein the above
view has been followed and some of the
authorities which tried to take a different
view, subsequently, have been overruled
and clarified.

30. The Regularisation Rules is an
attempt to give a cover to such illegal
appointments and, therefore, may have to be
tested on the anvil of constitutional validity
under Article 14 and 16(1) of the
Constitution. However, in the present case,
since validity of regularization rules is not in
question, therefore, for the purpose of present
case I am following Rules, 2001 or Rules,
1998, as the case may be, as they are, but has
no hesitation in observing that benefit
thereunder will have to be construed very
strictly. Unless and until every indicia is
satisfied, one cannot be given benefit under
Rules, 2001 or 1998. In other words, every
requirement entitling a persons to be
considered for regularization must be held to
be mandatory and any deviation therefrom
will either disentitle the claimant from such
3 All] Ram Naresh Vs. State of U.P. and Ors.
1501
benefit or any attempt by executive
otherwise would render such action of even
executive authority, ultra vires.

31. Some of the recent authorities, in
this regard, just to recapitulate and remind
the exposition of law with regard to
regularisation may be referred to hereat.

32. Commenting upon one time
scheme of regularization, in State of
Rajasthan and others Vs. Daya Lal &
others, 2011(2) SCC 429, the Court in
para 12 of the judgment said:

"12. The decision relied upon by the
High Court namely the decision in
Anshkalin Samaj Kalyan Sangh of the High
Court
no
doubt
directed
the
state
government to frame a scheme for
regularization of part-time cooks and
chowkidars. It is clear from the said
decision, that such scheme was intended to
be an one-time measure. Further said
decision was rendered by the High Court
prior to Uma Devi, relying upon the
decision of this Court in Daily Rated Casual
Labour v. Union of India 1988 (1) SCC
122, Bhagwati Prasad v. Delhi State
Mineral Development Corporation 1990 (1)
SCC 361 and Dharwad District PWD
Literate Dalit Wage Employees Association
v. State of Karnataka 1990 (2) SCC 396.
These directions were considered, explained
and in fact, overruled by the Constitution
Bench in Uma Devi. The decision in
Anshkalin Samay Kalyan Singh is no
longer good law. At all events, even if there
was an one time scheme for regularisation
of those who were in service prior to
1.5.1995,
there
cannot
obviously
be
successive directions for scheme after
scheme for regularization of irregular or
part-time appointments. Therefore the said
decision is of no assistance."

33. In Union of India and others Vs.
Vartak Labour Union, 2011(4) SCC 200
in para 16 of the judgment the Court said:

"16. We are of the opinion that the
Respondent
Union's
claim
for
regularization of its members merely
because they have been working for BRO
for a considerable period of time cannot
be granted in light of several decisions of
this
Court,
wherein
it
has
been
consistently held that casual employment
terminates when the same is discontinued,
and merely because a temporary or casual
worker has been engaged beyond the
period of his employment, he would not
be entitled to be absorbed in regular
service or made permanent, if the original
appointment was not in terms of the
process envisaged by the relevant rules.
(See: Secretary, State of Karnataka and
Ors. v. Umadevi (3) and Ors. (2006) 4
SCC 1; Official Liquidator v. Dayanand
and Ors. (2008) 10 SCC 1; State of
Karnataka and Ors. v. Ganapathi Chaya
Nayak and Ors. (2010) 3 SCC 115; Union
of India and Anr. v. Kartick Chandra
Mondal and Anr.; Satya Prakash and Ors.
v. State of Bihar and Ors. (2010) 4 SCC
179 and Rameshwar Dayal v. Indian
Railway Construction Company Limited
and Ors. 2010) 11 SCC 733."

34. In Brij Mohan Lal Vs. Union of
India and others, 2012(6) SCC 502,
dealing with the Fast Track Courts, the
Court referred to the Constitution Bench
decision in Uma Devi (supra) and said
that therein the principle has been laid
down
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
1502 INDIAN LAW REPORTS ALLAHABAD SERIES
de hors the constitutional scheme of
public
employment
and
would
be
improper.

35. In University of Rajasthan and
another Vs. Prem Lata Agarwal, 2013(3)
SCC 705 after referring to the dictum in
Uma Devi (supra), the court observed,
that when a person enters a temporary
employment or gets engagement as a
contractual or casual worker and the
engagement is not based on a proper
selection as recognized by relevant
rules/procedure, he is aware of the
consequences
of
appointment
being
temporary, casual or contractual in nature.
Such a person cannot invoke the theory of
legitimate
expectation
for
being
confirmed on a post when an appointment
on the post could be made only by
following proper procedure.

36. In the light of above discussion
now it has to be seen whether the
petitioner fulfilled requisite conditions
under Rule 4(1) of Rules, 2001 or not. He
claimed that he was engaged and
continuing to work since February 1989.
Assertion to this effect made in para 4 of
the writ petition has been denied by
respondents in para 12 of counter
affidavit. To meet this objection, in para 8
of the rejoinder affidavit, read with
annexures 1 and 2 thereto, petitioner has
placed on record certain documents
showing payment of salary for certain
period. A perusal thereof would show that
payment of salary, shown to have been
made to petitioner is for the following
period:
Sl. Period Page no. in the rejoinder affidavit
1. April 1989 to March 1991 26A
2. April 1996 to January 1997 27A
3. April 1997 to September 1997 27B
4. June 2001 to February 2002 27C

37. A reading of the Rules, exposition
of
law
and
the
fact
about
engagement/employment of petitioner on
various days as daily wager as discussed
above, make it very clear that in the present
case, the petitioner was engaged as a daily
wager before 29th June 1991 and was in
employment in the month of December 2001
and on the date when Rules 2001 came into
force. Due to vague reply on the part of
respondents that the petitioner was engaged in
the entire month but without any date etc.