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

- **Citation:** (2014) 3 ILRA 1391
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-10-31
- **Case number:** Civil Misc. Writ Petition No. 52637 of 2014
- **Bench:** Rajan Roy
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sanjeev-kumar-ors-v-state-of-u-p-ors-43140
- **Pages:** 15

## Headnote

Constitution
of
India,
Art.-226Regularization-employees
working
in
fast tract Court-after regularization-the
reconsidered as per circular issued by
High Court-following dictum of 'Uma
Devi' case-neither State Government nor
High Court ever given direction for
regularization-revocation although not
faulty-but High Court not considered the
case law of Apex Court of Brij Mohan Lalwhere direct or Adhoc judges of Fast
track Court were directed to regularizedboth judges and employees of fast track
court-being part of same scheme-should
not be treated differently-direction for
fresh
consideration
of
their
regularization given.
Held: Para-42
Having said so, I am also of the view that
the High Court does not appear to have
considered the judgment of the Supreme
Court in Brij Mohan Lal's Case (supra),
specially
Paragraph
207.9
thereof,
whereby direct recruit ad hoc judges of
Fast Track Courts were ordered to be
considered
for
regular
appointment/regularisation subject to
the terms and conditions mentioned
therein. As both judges and employees
of Fast Track Courts were part of the
same Scheme, in my view, there is no
reason as to why they should be treated
differently, therefore, I am of the view
that the respondents may consider the
case of the petitioners for grant of such
benefits as has been extended by the
Supreme Court in Brij Mohan Lal's Case
(supra) to the Fast Track Courts' Judges
vide paragraph 207.9 thereof, subject to
such variations as may be necessary,
unless
there
are
exceptional
and
compelling reasons for not extending
such benefit to them.
Case Law discussed:
2006 (4) SCC 1; 2014 (7) SCC 233; 2010 (9)
SCC 247; 2014 (7) SCC 2; 2012 (6) SCC 502;
2012 (11) SCC 656.
(Deliverd by Hon'ble Rajan Roy, J.)

## Text

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3 All].
Nagar Palika Parishad, Mawana, Merrut Vs. State of U.P. & Ors.
1391
3. The District Magistrate, Meerut as
an interim measure, pending taking over
charge by a regular appointee, has passed
the impugned order whereby he has
directed the respondent no. 4 Shailendra
Kumar Singh, who is the Executive
Officer, Hastinapur to also additionally
take charge of Nagar Palika Parishad,
Mawana.
4. The petitioner is the Chairman of
the Nagar Palika Parishad, Mawana and it
is alleged that this order of the District
Magistrate is without jurisdiction keeping
in view the ratio of the decision in the
case of Girdhari Lal Swarnkar Vs. State
of U.P. and others reported in 2014 (1)
A.D.J. page 368. Paragraph 29 of the said
judgment is extracted hereinunder:-
"29- The U.P. Palika (Centralized)
Service Rules, 1966, do not contemplate
any delegation of powers by the State
Government in the matter of appointment
upon the District Magistrate or any other
authority. Therefore, the Government
Order impugned also suffers from the vice
of excessive delegation."
5. This matter was taken up and we
had called upon the learned Standing
Counsel to obtain instructions about the
exercise of powers by the District
Magistrate in such a contingency keeping
in view the aforesaid decision of the
Court.
6. Learned Standing Counsel has
invited the attention of the Court to the
Government Order dated 24.1.2014 to
urge that the State Government has
already issued instructions as per the
judgment in the case of Girdhari Lal
Swarnkar (Supra) and any such proposal
for additional or temporary charge as
provided under Rule 31 of the U.P. Palika
(Centralized) Service Rules, 1966 has to
be sent to the State Government for
orders. The said rule is extracted
hereinunder:-
"31- Temporary Arrangments- Ad
hoc
and
temporary
officiating
appointments- Notwithstanding anything
contained
in
Rule
21
the
State
Government may
also make ad hoc
appointments or temporary officiating
arrangements for the posts falling vacant
Substantively or temporarily."
7. A perusal thereof leaves no room
for doubt that any ad hoc or temporary
officiating appointment is within the
jurisdiction of the State Government and
which stands fortified by the judgment in
paragraph 29 aforesaid. The Government
Order dated 24.1.2014 is also to the same
effect.
8. There is no ambiguity in the
source of the power available with the
State Government in this regard. The
petitioner therefore is correct in her
submission that the District Magistrate
did not have any jurisdiction to pass any
order with regard to such arrangment as
per Rule 31 aforesaid.
9. The writ petition therefore
deserves to be allowed. The impugned
order dated 12.8.2014 Annexure 1 to the
writ petition is quashed leaving it open to
the State Government-respondent no. 1 to
pass an appropriate order with regard to
proposal of appointment of the Executive
Officer of the Nagar Palika Parishad
concerned in accordance with law.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
1392
 INDIAN LAW REPORTS ALLAHABAD SERIES
DATED: ALLAHABAD 31.10.2014
BEFORE
THE HON'BLE RAJAN ROY, J.
Civil Misc. Writ Petition No. 52637 of 2014
Sanjeev Kumar & Ors.
...Petitioners
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioners:
Sri Shashi Nandan, Sri Santosh Kumar
Srivastava, Smt. Alka Srivastava
Counsel for the Respondents
C.S.C., Sri Manish Goyal, Sri G.K. Singh
Sri Samir Sharma
Constitution
of
India,
Art.-226Regularization-employees
working
in
fast tract Court-after regularization-the
reconsidered as per circular issued by
High Court-following dictum of 'Uma
Devi' case-neither State Government nor
High Court ever given direction for
regularization-revocation although not
faulty-but High Court not considered the
case law of Apex Court of Brij Mohan Lalwhere direct or Adhoc judges of Fast
track Court were directed to regularizedboth judges and employees of fast track
court-being part of same scheme-should
not be treated differently-direction for
fresh
consideration
of
their
regularization given.
Held: Para-42
Having said so, I am also of the view that
the High Court does not appear to have
considered the judgment of the Supreme
Court in Brij Mohan Lal's Case (supra),
specially
Paragraph
207.9
thereof,
whereby direct recruit ad hoc judges of
Fast Track Courts were ordered to be
considered
for
regular
appointment/regularisation subject to
the terms and conditions mentioned
therein. As both judges and employees
of Fast Track Courts were part of the
same Scheme, in my view, there is no
reason as to why they should be treated
differently, therefore, I am of the view
that the respondents may consider the
case of the petitioners for grant of such
benefits as has been extended by the
Supreme Court in Brij Mohan Lal's Case
(supra) to the Fast Track Courts' Judges
vide paragraph 207.9 thereof, subject to
such variations as may be necessary,
unless
there
are
exceptional
and
compelling reasons for not extending
such benefit to them.
Case Law discussed:
2006 (4) SCC 1; 2014 (7) SCC 233; 2010 (9)
SCC 247; 2014 (7) SCC 2; 2012 (6) SCC 502;
2012 (11) SCC 656.
(Deliverd by Hon'ble Rajan Roy, J.)
1. Heard Sri Shashi Nandan, learned
Senior Counsel assisted by Sri Santosh
Kumar Srivastava for the petitioners, Sri
G.K. Singh, learned Senior Counsel
assisted by Shri Samir Sharma for the
respondents No. 2, 3 and 4 and the
learned
Standing
Counsel
for
the
respondent No. 1.
2. The issue involved herein is the
entitlement
of
the
petitioners
to
regularization of their ad hoc services
against sanctioned posts in the regular
cadre of service in the District Courts and
the validity of the orders passed by the
concerned District Judge and the High
Court, on the Administrative Side, in this
regard.
3. The scheme of Fast Track Courts
was introduced by the Union of India and
funds were allocated for the said purpose
by the 11th Finance Commission. The
said Courts were created for short
duration, which were extended from time
to
time.
Ultimately,
the
aforesaid
arrangement came to an end on 31.3.2011
when the Union of India refused to extend
3 All].
Sanjeev Kumar & Ors. Vs. State of U.P. & Ors.
1393
further financial assistance for the said
Courts. Thereafter, in some States, the
Fast Track Courts have continued and the
expenses have been borne by the
concerned State Government, whereas in
other States, the employees engaged for
running of the said Courts have been
absorbed in the regular Courts on such
terms and conditions as has been deemed
fit.
4. An advertisement was issued by
the District Judge, Baghpat on 27.5.2003
inviting applications for selection and
appointment
of
Stenographers/Clerks/Typists and ClassIV employees for the Fast Track Courts
referred above and in pursuance thereof a
selection was held wherein the petitioners
participated and on being found fit for the
post in question, were selected and
appointed on ad hoc basis with a clear
stipulation that the post in question were
purely temporary and likely to continue
for short duration unless abolished earlier
and that no lien etc. will be claimed for
further appointment on these posts.
5. The Fast Track Courts Scheme
continued till 2005 when the same was
withdrawn, however, on revival of the
said scheme in the same year, the ex-ad
hoc employees, such as the petitioners,
who were earlier working, were allowed
to continue on the same terms and
conditions but with the condition that the
salary shall be payable only from the date
of fresh joining. The earlier period was to
be counted for other purposes, except
salary. This was provided by the Circular
of the High Court dated 24.5.2005. The
employees of the Fast Track Courts who
were declared surplus on account of
shifting of such Courts from one judiciary
to another, were to be considered for
absorption as per the Circular dated
27.7.1994.
6. On 28.8.2010, a Government
Order was sent by the State Government
to the Registrar General of the Allahabad
High Court communicating extension of
the Fast Track Courts w.e.f. 1.6.2010 to
28.2.2011 subject to the terms and
conditions mentioned therein. The said
Government Order also mentioned that
Union of India vide its letter dated
9.8.2010 had informed that the financial
assistance provided by it for the Fast
Track Courts for the period up to
31.3.2011, was limited to 480 lacs per
year and any expenditure beyond it will
have
to
be
borne
by
the
State
Government, therefore, the High Court
should consider keeping the post of
Presiding Officer vacant as and when the
incumbent relinquishes the post on
account of promotion or other such reason
and not to fill up the same and also to
absorb the supporting staff elsewhere.
7. On 18.3.2011, a Circular was
issued by the Registrar General, High
Court, Allahabad to all the District Judges
in the State to the effect that if they
wanted to make appointments in the
regular establishment of Class III and IV
of their judgeship, they will leave vacant
or keep reserved posts for the purpose of
adjustment of the employees of the Fast
Track Courts working in their judgeship.
8. On 31.3.2011, presumably,
consequent to the refusal of the Union of
India to extend further financial assistance
for such Courts, a Government Order was
sent by the State Government to the
Registrar General, Allahabad High Court
regarding creation of 780 ex-cadre posts
for speedy disposal of cases for the period
1394
 INDIAN LAW REPORTS ALLAHABAD SERIES
1.4.2011 to 29.3.2012 unless abolished
earlier. These posts were created subject
to the condition that as and when the
regular posts in the regular cadre fall
vacant, the aforesaid ex-cadre posts shall
be adjusted/absorbed against said posts
and thereafter, the vacancy shall be filled
up in accordance with the procedure
prescribed in the Rules. On 1.4.2011, the
Registrar General communicated the
Government Order dated 31.3.2011 to all
the District and Sessions Judges in the
State of U.P. For necessary action. The
Adhoc employees of the Fast Track
Courts were continued against these excadre post, albeit on Adhoc basis.
9. The records reveal that in view of
the letter of the Registrar General dated
1.4.2011 and the G.O. Dated 31.3.2011
referred therein, a representation was
submitted by the petitioners and others for
their
absorption/regularization,
whereupon a Screening Committee was
constituted by District Judge vide order
dated 12.2.2013, which recommended
their
absorption/regularization
vide
undated report, a copy of which is
annexed as Annexure 12 to the writ
petition.
10. Consequent to the report
submitted by the Screening/Grievance
Committee, the District Judge, Baghpat
issued
an
order
dated
23.5.2013
regularising the services of the petitioners
herein allegedly against vacant posts in
the regular cadre of the judgeship.
11. Thereafter, on 26.11.2013, the
Grievance Committee submitted another
report recommending confirmation of the
petitioners on the respective posts in the
service, which was approved by the
District Judge on the same date.
12. Based on another report of the
Grievance Committee dated 2.2.2014, the
petitioners were granted the first financial
upgradation from respective dates on
completion of 10 years satisfactory
service, including the ad hoc services
rendered by them and the same was
approved by the District Judge on
2.7.2014.
13. On 30.8.2014, the Joint Registrar
(Judicial) (Inspection), Allahabad High
Court issued a letter to the District Judge,
Baghpat communicating him the decision
of the High Court to the District Judges
asking them to re-visit the order of
regularization/absorption and to bring the
same in conformity with the law laid
down by the Apex Court in the case of
Secretary, State of Karnatka Vs. Uma
Devi reported in 2006 (4) SCC 1 and to
issue
a
show-cause-notice
to
the
employees concerned to explain as to why
orders of regularization/absorption may
not be withdrawn and after considering
their reply suitable orders may be passed.
It was made clear that these employees of
Fast Track Courts, shall not go out of
employment because of withdrawal of
order of regularization/absorption. They
were
to
be
continued
till
regular
appointments are made against the posts,
on same terms and conditions as they
were working prior to the issuance of the
orders of regularization/absorption.
14. In pursuance to the aforesaid, the
District Judge, Baghpat issued notices to
the petitioners who submitted their
replies. It appears that a report was sought
from the Administrative Committee of the
judgeship, which was submitted on
8.9.2014, based thereon, the impugned
order dated 9.9.2014 was passed restoring
their status and service, as it was, prior to
3 All].
Sanjeev Kumar & Ors. Vs. State of U.P. & Ors.
1395
the
passing
of
orders
of
regularization/absorption on 23.5.2013
and 30.8.2013 and continuing them as
such on ad hoc basis. Thus, the order
regularising their services and those
granting consequential benefits have been
rendered inoperative.
15. Being aggrieved by this order
dated 9.9.2014, the petitioners have
approached this Court.
16. The contention of Sri Shashi
Nandan, learned Senior Counsel is that
the appointments of the petitioners was
made after due advertisement and selection
based on open competition, albeit, on ad
hoc basis, therefore, it can neither be termed
as illegal nor irregular appointment. It can
also not be termed as back door entry. He
further contended that the genesis of the
dictum of the Supreme Court in Uma Devi's
case was appointments made without any
advertisement and selection i.e. through
back door and the observations contained
therein have to be understood in this
background.
As,
by
no
stretch
of
imagination, the entry of the petitioners in
the service of the Fast Track Courts can be
termed as back door entry, therefore, the
observations contained in Uma Devi's
case regarding dis-entitlement of such
appointees to regularization are not
attracted to their case. The petitioners
possessed the requisite qualification for
the respective posts and went through a
process of selection, which was in
consonance with the requirements of
Article 14 and 16 of the Constitution of
India, therefore, the District Judge, rightly
regularized their services and absorbed
them in terms of the letter of the High
Court dated 1.4.2011 and the Government
Order dated 31.3.2011, which, according
to
him
contained
a
decision
for
absorption/regularization
of
such
employees in the regular cadre of the
District Courts. Learned counsel also
placed reliance upon Paragraph 53 of the
judgement in Uma Devi's Case as
elucidated further in the case State of
Jharkhand Vs. Mamal Prasad reported in
2014 (7) SCC 223, in support of his
contention that the petitioners having
completed more than 10 years of service
and their initial appointments neither
being illegal nor through back door, their
services were rightly regularized.
17. Learned counsel contended that
the direction of the High Court vide letter
dated 30.8.2014 to the District Judge to
re-visit the order of regularization and
issue show-cause-notice to the concerned
employees
etc.
amounted
to
an
encroachment upon the authority of the
District Judge to take an independent
decision in the matter thereby reducing
the entire exercise to a mechanical
formality indicative of pre-determination,
on the part of the respondents, of the
issue. The High Court did not give any
reason as to how there was a violation of
Uma Devi's case. The consequential order
of cancellation of regularization passed by
the District Judge on 9.9.2014 is also not
sustainable as he has merely mechanically
followed the dictates of the High Court
without considering the reply submitted
by the petitioners to show-cause-notice
and without considering and mentioning
as to how the dictum in Uma Devi's case
has been violated in the matter of the
petitioners.
The
learned
counsel
contended that the petitioners have not
only been regularized in service but also
confirmed
and
granted
the
first
promotional pay scale, therefore, the
impugned
action
is
unjustified,
unreasonable and illegal.
1396
 INDIAN LAW REPORTS ALLAHABAD SERIES
18. The learned Senior Counsel
invited the attention of the Court to the
Government Order dated 31.3.2011 and
the Circular of the High Court dated
1.4.2011 as also the letter of the High
Court dated 18.3.2011 by which the
District Judges were directed to keep the
posts in the regular cadre reserved for
adjustment of the employees of the Fast
Track Courts working in the judgeship, as
well as various other documents which
have
already
been
referred
to
hereinabove.
19. Sri G.K. Singh, learned Senior
Counsel appearing for the Respondent
nos. 2 to 4 submitted that the petitioners
were
never
appointed
substantively
against any sanctioned post in the regular
cadre of the District Courts. He referred to
the advertisement annexed with the writ
petition to show that the selection on the
basis of which the petitioners were
appointed, was for Fast Track Courts, that
too, on ad hoc basis, wherein, even retired
employees could participate. The Fast
Track Courts were created for short
duration. He referred to the Government
Order dated 31.3.2011, to show that the
same only spoke of absorption of ex-cadre
posts against the regular vacancies in the
regular cadre of the District Courts but it
does
not
speak
of
absorption
of
incumbents thereof. The petitioners were
made to work against ex cadre posts only
on ad hoc basis and not on regular basis.
No such decision was taken by the State
Government or by the High Court to
confer status of regular or permanent
employee upon the petitioners. The
Circular dated 1.4.2011 of the High Court
and the G.O. dated 31.3.2011 were
misconstrued and misread by the District
Judge, Baghpat resulting in an illegal
exercise of regularization of services of
the petitioners, an error which has now
been rectified. There was no provision of
law under which the District Judge could
have passed the order of regularization of
services of the petitioners. There was no
policy
decision
of
the
Competent
Authority for regularization of employees
such as the petitioners. The District Judge
clearly exceeded his power.
20. He further contended that the
reliance placed by the petitioners on
Paragraph 53 of the judgement of the
Supreme Court in Uma Devi's case is
misplaced as the said paragraph has been
considered and explained by it in a
subsequent judgement in M.L. Kesri's
case reported in (2010) 9 SCC 247,
wherein, it has been held that period of 10
years of service should have been
completed, on the date of decision in the
Uma Devi's case i.e. 10.4.2006. As the
petitioners herein had not completed 10
years of service on the said date they were
not entitled to be regularized even as per
the exception carved out in Para 53 of the
dictum of the Supreme Court in Uma
Devi's case. The reliance placed by the
petitioners upon the judgement reported
in 2014 (7) SCC 2 is also misplaced as it
only follows M.L. Kesri's case and does
not overrule it. Both the judgements have
to be read and understood in harmony.
The employees in the latter case had
completed 10 years of service prior to the
decision in Uma Devi's case. In nut shell,
the submission was that the orders of
regularization were contrary to the dictum
of the Supreme Court in Uma Devi's
Case, therefore, remedial measures have
been taken which do not suffer from any
error.
21. No doubt the petitioners were
appointed after Advertisement and after
3 All].
Sanjeev Kumar & Ors. Vs. State of U.P. & Ors.
1397
going through a process of selection but
indisputably, the petitioners were not
appointed against regular posts in the
regular cadre of the Judgeship of District,
Baghpat. A perusal of the advertisement
and other documents relating to their
selection and appointment leaves no
doubt that their appointment was for
working in the Fast Track Courts, which
had been created for short duration, that
too, purely on ad hoc basis without any
right to claim any further appointment on
regular basis. The appointment was not a
regular appointment nor against a regular
sanctioned post in the regular Class III
and IV cadre in the judgeship of District
Baghpat. The petitioners from the very
date of their entry in the service of the
Fast Track Courts knew the nature of their
appointment, the duration of the Scheme
of Fast Track Courts and also the
limitations of the terms and conditions of
service of such appointments, yet they
chose to accept the same.
22. In this context reference may be
made to Paragraph 45 of the judgement in
Uma Devi's Case, which reads as under:
"While directing that appointments,
temporary or casual, be regularised or
made permanent, the courts are swayed
by the fact that the person concerned has
worked for some time and in some cases
for a considerable length of time. It is not
as if the person who accepts an
engagement either temporary or casual in
nature, is not aware of the nature of his
employment. He accepts the employment
with open eyes. It may be true that he is
not in a position to bargain-- not at arm's
length--since
he
might
have
been
searching for some employment so as to
eke out his livelihood and accepts
whatever he gets. But on that ground
alone, it would not be appropriate to
jettison the constitutional scheme of
appointment and to take the view that a
person who has temporarily or casually
got employed should be directed to be
continued permanently. By doing so, it
will be creating another mode of public
appointment which is not permissible. If
the court were to void a contractual
employment of this nature on the ground
that the parties were not having equal
bargaining power, that too would not
enable the court to grant any relief to that
employee. A total embargo on such casual
or temporary employment is not possible,
given the exigencies of administration and
if imposed, would only mean that some
people who at least get employment when
securing of such employment brings at
least some succour to them. After all,
innumerable citizens of our vast country
are in search of employment and one is
not compelled to accept a casual or
temporary employment if one is not
inclined to go in for such an employment.
It is in that context that one has to
proceed on the basis that the employment
was accepted fully knowing the nature of
it and the consequences flowing from it.
In other words, even while accepting the
employment, the person concerned knows
the nature of his employment. It is not an
appointment to a post in the real sense of
the term. The claim acquired by him in
the post in which he is temporarily
employed or the interest in that post
cannot be considered to be of such a
magnitude as to enable the giving up of
the procedure established, for making
regular appointments to available posts in
the services of the State. The argument
that since one has been working for some
time in the post, it will not be just to
discontinue him, even though he was
aware of the nature of the employment
1398
 INDIAN LAW REPORTS ALLAHABAD SERIES
when he first took it up, is not (sic) one
that would enable the jettisoning of the
procedure established by law for public
employment and would have to fail when
tested
on
the
touchstone
of
constitutionality
and
equality
of
opportunity enshrined in Article 14 of the
Constitution."
23. Paragraph 19 of the aforesaid
judgement is also relevant, which reads as
under:
"One aspect arises. Obviously, the
State is also controlled by economic
considerations and financial implications
of any public employment. The viability of
the department or the instrumentality of
the project is also of equal concern for the
State. The State works out the scheme
taking into consideration the financial
implications and the economic aspects.
Can the court impose on the State a
financial burden of this nature by
insisting on regularisation or permanence
in employment, when those employed
temporarily are not needed permanently
or regularly? As an example, we can
envisage a direction to give permanent
employment to all those who are being
temporarily or casually employed in a
public sector undertaking. The burden
may become so heavy by such a direction
that the undertaking itself may collapse
under its own weight. It is not as if this
had not happened. So, the court ought not
to impose a financial burden on the State
by such directions, as such directions may
turn counterproductive."
24. In paragraph 43, the Constitution
Bench held as under:
"Thus, it is clear that 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 would certainly be
disabled from passing an order upholding
a violation of Article 14 or in ordering the
overlooking of the need to comply with
the requirements of Article 14 read with
Article 16 of the Constitution. Therefore,
consistent with the scheme for public
employment, this Court while laying down
the law, has necessarily to hold that
unless the appointment is in terms of the
relevant rules and after a proper
competition among qualified persons, the
same would not confer any right on the
appointee.
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.
High Courts acting under Article 226 of
the Constitution of India, should not
ordinarily issue directions for absorption,
regularization, or permanent continuance
unless the recruitment itself was made
3 All].
Sanjeev Kumar & Ors. Vs. State of U.P. & Ors.
1399
regularly
and
in
terms
of
the
constitutional scheme. Merely because, an
employee had continued under cover of
an order of Court, which we have
described as 'litigious employment' in the
earlier part of the judgement, he would
not be entitled to any right to be absorbed
or made permanent in the service. In fact,
in such cases, the High Court may not be
justified in issuing interim directions,
since, after all, if ultimately the employee
approaching it is found entitled to relief,
it may be possible for it to mould the
relief in such a manner that ultimately no
prejudice will be caused to him, whereas
an interim direction to continue his
employment would hold up the regular
procedure for selection or impose on the
State the burden of paying an employee
who is really not required. The courts
must be careful in ensuring that they do
not interfere unduly with the economic
arrangement of its affairs by the State or
its instrumentalities or lend themselves
the instruments to facilitate the bypassing
of
the
constitutional
and
statutory
mandates."
25. Paragraph 47 of the said
judgement reads as under:
"47. 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 the
relevant rules or procedure, he is aware
of the consequences of the appointment
being temporary, casual or contractual in
nature. Such a person cannot invoke the
theory of legitimate expectation for being
confirmed
in
the
post
when
an
appointment to the post could be made
only by following a proper procedure for
selection and in concerned cases, in
consultation with the Public Service
Commission. Therefore, the theory of
legitimate
expectation
cannot
be
successfully advanced by temporary,
contractual or casual employees. It
cannot also be held that the State has held
out any promise while engaging these
persons either to continue them where
they are or to make them permanent. The
State cannot constitutionally make such a
promise. It is also obvious that the theory
cannot be invoked to seek a positive relief
of being made permanent in the post."
26. The Constitution Bench held that
such
employees
do
not
have
any
enforceable right of regularization of their
services nor of being declared permanent.
27. Having said so, the Supreme
Court carved out an exception in Para 53
thereby permitting, as a one time measure,
the regularization of such employees
irregularly
appointed
(not
illegally
appointed) who have completed 10 years
or more of service without intervention of
the order of the Courts/Tribunal and were
duly qualified persons appointed against
duly sanctioned vacant posts.
28. The Purport of Paragraph 53 has
been clarified by the Supreme Court in a
subsequent judgement in M.L. Kesri's
case (supra) wherein Their Lordships
have held that the period of 10 years of
continuous service referred in para 53 of
Uma Devi's case should be before the date
of decision in Uma Devi i.e. 10.4.2006.
The said Paragraph 53 has also been
considered in the subsequent judgement
in State of Jharkhand Vs. Kamal Prasad
reported in 2014 (7) SCC 223 relied upon
by the petitioners and on a perusal of the
same, I find that the dictum of M.L.
Kesri's case, has not been deviated from,
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 INDIAN LAW REPORTS ALLAHABAD SERIES
in any manner. Thus, on a conjoint
reading of both the judgements, the
requirements of 10 or more years of
service before the date of decision in Uma
Devi's Case still holds good.
29. It is not out of place to mention
that
the
Supreme
Court
had
the
opportunity to consider the issue of
regularization of ad hoc judges appointed
in the Fast Track Courts in the case of
Brij Mohan Lal Vs. Union of India and
Others reported in 2012 (6) SCC 502,
wherein their Lordships after considering
the dictum in Uma Devi's Case (supra),
held that such appointees of the Fast
Track
Courts
did
not
have
any
enforceable right of regularization of their
services, however, in Para 207.9, in
exercise of their powers under Article 142
of the Constitution of India, they gave an
opportunity to such appointees for regular
appointment in the regular cadre, subject
to the terms and conditions mentioned
therein.
30. Reference may be made in this
regard to Paras 76, 172, 173, 174, 181 and
207 of the said judgement, which read as
under:
"76. Upon an analysis of the
abovestated Rules relating to the different
States, the appointment letters issued to
the appointees and the methodology that
was adopted for appointment of the FTC
Judges, it becomes clear that the
appointees cannot be said to have any
legal, much less an indefeasible right to
the posts in question. Firstly, the posts
themselves were temporary, as they were
created under and within the ambit and
scope of the FTC Scheme sponsored by
the Union of India, which was initially
made only for a limited period of five
years. Now, financing of the FTC Scheme
has already been stopped by the Central
Government with effect from 31.3.2011.
No permanent posts were ever created. In
other words, their appointments were
temporary
appointments
against
temporary posts.
172. The prayer for regularisation of
service and absorption of the petitioner
appointees
against
the
vacancies
appearing in the regular cadre has been
made not only in cases involving the case
of the State of Orissa, but even in other
States. Absorption in service is not a
right. Regularisation also is not a
statutory or a legal right enforceable by
the persons appointed under different
rules to different posts. Regularisation
shall
depend
upon
the
facts
and
circumstances of a given case as well as
the relevant rules applicable to such class
of persons.
173. As already noticed, on earlier
occasions also, this Court has declined
the relief of regularisation of the persons
and workmen who had been appointed
against a particular scheme or project. A
Constitution Bench of this Court has
clearly stated the principle that in matters
of
public
employment,
absorption,
regularisation 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
dehors
the
constitutional
scheme
of
public
employment and would be improper. It
would also not be proper to stay the
regular recruitment process for the posts
concerned. [Refer to Umadevi (3)]
174. It is not not necessary for us to
deliberate on this issue all over again in
view of the above discussion. Suffice it to
notice that the petitioner appointees have
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1401
no right to the posts in question as the
posts themselves were temporary and
were bound to come to an end by efflux of
time. With reference to the letters of their
appointment and the Rules under which
the same were issued, it is clear that these
petitioners cannot claim any indefeasible
right
either
to
regularisation
or
absorption. It may also be noticed that
under the Orissa Superior Judicial
Service and Judicial Service Rules, 2007,
there is no provision for absorption or
regularisation of ad hoc Judges.
181. The issues arising for the
consideration of this Court under this
head, though ancillary, are of significant
importance.
Having
held
that
the
petitioner appointees to FTCs do not have
any
right
to
the
post
and
such
appointments were temporary, ad hoc and
on urgent basis for a limited period, we
have yet to examine whether these
petitioners would at all be entitled to
some relief within the framework of law,
with particular reference to certain
constitutional provisions.
207. Without any intent to interfere
with the policy decision taken by the
Government, but unmistakably, to protect
the guarantees of Article 21 of the
Constitution, to improve the justice
delivery
system
and
fortify
the
independence of judiciary, while ensuring
the attainment of constitutional goals as
well as to do complete justice to the lis
before us, in terms of Article 142 of the
Constitution, we pass the following orders
and directions:
207.1. Being a policy decision which
has already taken effect, we decline to
strike down the policy decision of the
Union
of
India
vide
Letter
dated
14.9.2010 not to finance the FTC Scheme
beyond 31.3.2011.
207.2. All the States which have
taken a policy decision to continue the
FTC Scheme beyond 31.3.2011 shall
adhere to the respective dates as
announced, for example in the cases of
States of Orissa (March 2013), Haryana
(March 2016), Andhra Pradesh (March
2012) and Rajasthan (February 2013).
207.3. The States which are in the
process of taking a policy decision on
whether or not to continue the FTC
Scheme as a permanent feature of
administration of justice in the respective
States are free to take such a decision.
207.4. It is directed that all the
States, henceforth, shall not take a
decision to continue the FTC Scheme on
ad hoc and temporary basis. The States
are at liberty to decide but only with
regard either to bring the FTC Scheme to
an end or to continue the same as a
permanent feature in the State.
207.5. The Union of India and the
State Government shall reallocate and
utilise the funds apportioned by the 13th
Finance
Commission
and/or
make
provisions for such additional funds to
ensure regularisation of the FTC Judges
in the manner indicated and/or for
creation of additional courts as directed
in this judgement.
207.6. All the decisions taken and
recommendations made at the Chief
Justices and Chief Ministers' Conference
shall be placed before the Cabinet of the
Centre or the State, as the case may be,
which alone shall have the authority to
finally accept, modify or decline the
implementation of such decisions and,
that too, upon objective consideration and
for valid reasons. Let the minutes of the
Conference of 2009, at least now, be
placed before the Cabinet within three
months from the date of pronouncement of
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 INDIAN LAW REPORTS ALLAHABAD SERIES
this judgement for its information and
appropriate action.
207.7. No decision, recommendation
or proposal made by the Chief Justices
and Chief Minsters' Conference shall be
rejected or declined or varied at any
bureaucratic level, in the hierarchy of the
Governments, whether in the State or the
Centre.
207.8. We hereby direct that it shall
be for the Central Government to provide
funds for carrying out the directions
contained in this judgement and, if
necessary, by re-allocation of funds
already allocated under the 13th Finance
Commission for Judiciary. We further
direct that for creation of additional 10
per cent posts of the existing cadre, the
burden shall be equally shared by the
Centre and the State Governments and
funds be provided without any undue
delay so that the courts can be established
as per the schedule directed in this
judgement
207.9. All the persons who have been
appointed by way of direct recruitment
from the Bar as Judges to preside over the
FTCs under the FTC Scheme shall be
entitled to be appointed to the regular
cadre of the Higher Judicial Services of
the respective State only in the following
manner :
(a) The direct recruits to the FTCs
who opt for regularization shall take a
written examination to be conducted by
the High Courts of the respective States
for determining their suitability for
absorption in the regular cadre of
Additional District Judges.
(b)
Thereafter,
they
shall
be
subjected to an interview by a Selection
Committee consisting of the Chief Justice
and four senior-most Judges of that High
Court.
(c) There shall be 150 marks for the
written examination and 100 marks for
the interview. The qualifying marks shall
be 40 per cent aggregate for general
candidates
and
35
per
cent
for
SC/ST/OBC candidates. The examination
and interview shall be held in accordance
with the relevant Rules enacted by the
States for direct appointment to Higher
Judicial Services.
(d) Each of the appointees shall be
entitled to one mark per year of service in
the FTCs, which shall form part of the
interview marks.
(e) Needless to point out that this
examination and interview should be
conducted by the respective High Courts
keeping in mind that all these applicants
have put in a number of years as FTC
Judges and have served the country by
administering Justice in accordance with
law.
The
written
examination
and
interview module, should, thus, be framed
keeping in mind the peculiar facts and
circumstances of these cases.
(f) The candidates who qualify the
written
examination
and
obtain
consolidated
percentage
as
aforeindicated shall be appointed to the post of
Additional District Judge in the regular
cadre of the State.
(g) If, for any reason, vacancies are
not available in the regular cadre, we
hereby direct the State Governments to
create such additional vacancies as may
be necessary keeping in view the number
of candidates selected.
(h) All sitting and/or former FTC
Judges who were directly appointed from
the Bar and are desirous of taking the
examination and interview for regular
appointment
shall
be
given
age
relaxation. No application shall be
rejected on the ground of age of the
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1403
applicant
being
in
excess
of
the
prescribed age.
207.10.