# Shiv Shankar v. State of U.P. & Ors

- **Citation:** (2021) 6 ILRA 573
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-06-14
- **Case number:** Writ -A No. 8385 of 2020
- **Bench:** Mrs. Sunita Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiv-shankar-v-state-of-u-p-ors-47132
- **Pages:** 12

## Headnote

A. Service Law - Regularisation and
payment
of
minimum
wages
-
U.P.
Regularization of Persons Working on
Daily Wages or on Work Charge or on
Contract in Government Departments on
Group 'C' and Group 'D' Posts (Outside the
Purview of the Uttar Pradesh Public
Service Commission) Rules, 2016 - Rules
5, 6, 8, & 10 - U.P. Regularization of Daily
Wages Appointment on Group 'D' Posts
Rules, 2001 - Rule 4(1).

Requirement of eligibility list - Rule 6(4) -
The eligibility list as contemplated under Rule
6(4) had to be prepared having regard to the
provisions of Rule 6(1) which provides two cutoff dates. The first date is of initial engagement
which is on or before 31.12.2001, and the
second is of working or engagement or
employment on 12.9.2016, the date of the
commencement of the Rules. (Para 17)

Exercise of regularisation as per the
procedure in the Rules' 2016 has not been
completed in the department. The claim of
the petitioner on individual basis had been
considered under the directions of this Court.
Whereas, the exercise of regularisation was
required to be undertaken by the Department
on its own and there was no requirement of
making individual claim by
one or two
employee(s). The record does not reflect that
any eligibility list had been prepared by the
appointing authority in terms of Rule 6(4) in
order of the seniority of all daily wage
employees
working
on
the
date
of
commencement of the Rules i.e. 12.9.2016 for
consideration of their candidature for regular
appointment on the permanent or temporary
vacancies available either on the date of
574 INDIAN LAW REPORTS ALLAHABAD SERIES
commencement of the rules, or any other
vacancy available in the department subsequent
thereto as per the Rule 5 of the Rules' 2016.
(Para 25, 26)

B. The word "continuous working" or
"continuous engagement or employment
or deployment" is neither contemplated
nor can be read into the Rules - Rule
6(1)(i) - The language employed in Rule 6(1)(i)
nowhere requires that the incumbent must have
been working continuously without any break
from the date of the initial engagement till the
date of the commencement of the Rules. The
only requirement to be fulfilled is that the
incumbent must have been engaged initially on
or before 31.12.2001 and must be still engaged
or employed or working as such (i.e. in the
same
capacity)
on
the
date
of
the
commencement of the Rules, i.e. 12.9.2016.
(Para 17)

In the opinion of the Court, the reason being
that the rule making authority had framed the
rules with the clear idea in mind that it was to
provide for regularisation of services of those
persons who were engaged or deployed or
working in the Department on daily wages, on
work charge or on contract and the nature of
their engagement, being in the exigencies or
necessities of the Department, could not be
regular or continuous. That means there may be
break in service of such employees. Moreover, if
daily wage engagement of an incumbent
remained n

## Text

_Characters 0–39,805 of 41,617. This is a partial read: ask again with offset=39805 for what follows._

6 All. Shiv Shankar Vs. State of U.P. & Ors.
573
Shiksha Adhikari, Mau and others. Special
Appeal No. 127 of 1992, decided on
22.4.1992. a Division Bench of this Court
had observed that powers in writ jurisdiction
should not be exercised to set aside one
illegal order to restore another illegal order
reiterating the view of another Division
Bench of this Court in its decision in the case
of SKJPK Inter College v. District Inspector
of Schools 1988 U.P.L.B.E.C. 739. pointing
out that quashing of an order which
amounted to putting premium upon and
giving Judicial imprimatur to another wrong,
namely conferment of a right upon certain
persons who were not entitled to it cannot be
justified.

19.

The
appointment
of
petitioner/respondent, if allowed, will amount
allowing a person to be appointed without
following procedure of law as the selection
process of the petitioner /respondent has
already been quashed by this Hon'ble Court.
This is not permissible in exercise of power
conferred
under
Article
226
of
the
Constitution of India.

20. In view of the above discussions,
the order of learned Single Judge dated
3.3.2020 passed in Writ-A No. 1228 of 2015
(Jai Prakash Uttam Vs. State of U.P. &
others) is set aside.

21. Consequently, the special appeal is
allowed.
----------
(2021)06ILR A573
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.06.2021

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.

Writ -A No. 8385 of 2020
Along with
Writ -A No. 18664 of 2019

Shiv Shankar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Sanjeev Singh, Sri Ghan Shyam Yadav

Counsel for the Respondents:
C.S.C.

A. Service Law - Regularisation and
payment
of
minimum
wages
-
U.P.
Regularization of Persons Working on
Daily Wages or on Work Charge or on
Contract in Government Departments on
Group 'C' and Group 'D' Posts (Outside the
Purview of the Uttar Pradesh Public
Service Commission) Rules, 2016 - Rules
5, 6, 8, & 10 - U.P. Regularization of Daily
Wages Appointment on Group 'D' Posts
Rules, 2001 - Rule 4(1).

Requirement of eligibility list - Rule 6(4) -
The eligibility list as contemplated under Rule
6(4) had to be prepared having regard to the
provisions of Rule 6(1) which provides two cutoff dates. The first date is of initial engagement
which is on or before 31.12.2001, and the
second is of working or engagement or
employment on 12.9.2016, the date of the
commencement of the Rules. (Para 17)

Exercise of regularisation as per the
procedure in the Rules' 2016 has not been
completed in the department. The claim of
the petitioner on individual basis had been
considered under the directions of this Court.
Whereas, the exercise of regularisation was
required to be undertaken by the Department
on its own and there was no requirement of
making individual claim by
one or two
employee(s). The record does not reflect that
any eligibility list had been prepared by the
appointing authority in terms of Rule 6(4) in
order of the seniority of all daily wage
employees
working
on
the
date
of
commencement of the Rules i.e. 12.9.2016 for
consideration of their candidature for regular
appointment on the permanent or temporary
vacancies available either on the date of
574 INDIAN LAW REPORTS ALLAHABAD SERIES
commencement of the rules, or any other
vacancy available in the department subsequent
thereto as per the Rule 5 of the Rules' 2016.
(Para 25, 26)

B. The word "continuous working" or
"continuous engagement or employment
or deployment" is neither contemplated
nor can be read into the Rules - Rule
6(1)(i) - The language employed in Rule 6(1)(i)
nowhere requires that the incumbent must have
been working continuously without any break
from the date of the initial engagement till the
date of the commencement of the Rules. The
only requirement to be fulfilled is that the
incumbent must have been engaged initially on
or before 31.12.2001 and must be still engaged
or employed or working as such (i.e. in the
same
capacity)
on
the
date
of
the
commencement of the Rules, i.e. 12.9.2016.
(Para 17)

In the opinion of the Court, the reason being
that the rule making authority had framed the
rules with the clear idea in mind that it was to
provide for regularisation of services of those
persons who were engaged or deployed or
working in the Department on daily wages, on
work charge or on contract and the nature of
their engagement, being in the exigencies or
necessities of the Department, could not be
regular or continuous. That means there may be
break in service of such employees. Moreover, if
daily wage engagement of an incumbent
remained necessity of the Department or the
requirement thereof for more than 15 years
between two cut off dates, the benefit of
regularisation had to be provided to him,
irrespective of breaks in his service. (Para 18,
19)

C. It is well-settled that the plain and
simple reading of the statute, if shows no
ambiguity, the rule has to be followed as
such. In the instant case, the plain and simple
reading of the Rule 6(1)(i) shows no ambiguity.

"Break in service" or "artificial break" - It
is further clarified that having regard to the
requirement of the rules considering the nature
and period of working of a daily wage
employee, it is always open for the competent
authority to consider as to whether long break
in service between two dates, i.e. the date of
initial engagement and the date of the
commencement of the Rules would be a 'break
in service' or the same can be ignored as
'artificial break' in a given case. What would be
'artificial break' which can be ignored while
considering the eligibility of a candidate would
depend upon the facts and circumstances of a
particular case. (Para 20)

In the instant case, it is evident that the
petitioner herein had worked for the whole year
(12 months) in several years after his initial
engagement in the year 1995. Besides, on the
date of the commencement of the Rules i.e. on
12.9.2016, the petitioner was 'still working' in
the Department as a daily wager. The initial
requirement of the rules of working as daily
wager between the two dates, is thus, fulfilled
in the case of the petitioner. (Para 23)

Disengagement
or
discontinuance
of
the
services of the petitioner in the year 2002 and
again in the years 2011 and 2012 cannot be
said to be break in service rather it can be seen
that the daily wage engagement of the
petitioner remained necessity of the Department
and he was engaged and worked as Mali
continuously (with artificial break), for the
requirement of the department, for more than a
period of 22 years (from 1995 to 2016). (Para
24)

D. Misinterpretation of statute - Rule 10 -
Rule 10 clearly states that services of a
person who is not found 'suitable' after
consideration under the Rules shall be
terminated. It is evident that the language of
Rule 10 had been mis-interpreted by the
respondent. (Para 27)

'Eligibility' and 'suitability' - The 'eligibility'
and
'suitability'
of
the
candidates
for
regularisation,
thus,
are
two
independent
parameters which have to be assessed by two
separate authorities at two different stages of
the consideration as mentioned in Rule 6(4).

Under the rules, the 'suitability' of the
candidates has to be judged by a Selection
Committee on consideration of the character roll
and other relevant records pertaining to the
services as are necessary to assess their
6 All. Shiv Shankar Vs. State of U.P. & Ors.
575
suitability in accordance with the service rules.
Whereas 'eligibility' of a candidate, to be
included in the eligibility list prepared in
accordance with Rule 6(4), is to be scrutinised
by the appointing authority in terms of the
conditions of Rule 6(1) of 2016 Rules.

The word used in Rule 10 is 'suitable' and not
'eligible'. That means only if a daily wage
incumbent is not found 'suitable' for regular
appointment after consideration by the Selection
Committee on assessment of his service record
such as character roll etc., he would not be
entitled to continue even on daily wage basis.
The same yardstick cannot be applied in a case
where a daily wage incumbent is not found
'eligible' for regularisation under Rule 6(1), to be
included in the list of eligible candidates,
arranged
by
the
appointing
authority
in
accordance with Rule 6(4) for placing the same
before the Selection Committee, as the question
of 'suitability' of the candidate for regular
appointment does not arrive at all. (Para 28)

Writ petitions allowed. Impugned orders
quashed and claim for regularization to be
considered afresh. (E-3)

Precedent followed:

1. Janardan Yadav Vs St. of U.P., 2008 (1) ADJ
60 (Para 22)

Present writ petitions have been filed
against orders dated 04.06.2019 and
04.08.2020, passed by Divisional Director,
Social
Forestry
Department,
District-
Siddharth Nagar.

(Delivered by Hon'ble Mrs. Sunita
Agarwal, J.)

1. The aforementioned two writ
petitions have been filed by a daily wage
worker engaged as Class-IV employee
(Mali) in the Social Forestry Department,
Siddharth
Nagar.
The
orders
dated
04.06.2019 and 04.08.2020 passed by the
Divisional
Director,
Social
Forestry
Department, District- Siddharth Nagar are
subject matter of challenge, separately in
the above writ petitions.

2. It is the case of the petitioner that
he was initially engaged in the year 1995 as
a Class-IV employee in different units of
Khesaraha Range of the Forest Department
in District Siddharth Nagar. Since his initial
engagement, the petitioner had been
continuously working as daily wager
without any complaint. For some period in
the interregnum he had not been engaged
but the said period has to be treated as
artificial break, inasmuch as, the petitioner
had continuously been engaged for the
need/requirement of the department from
1995 till the date of termination of his
services by the impugned order dated
04.08.2020 and had been discharging the
duties of Mali in the Social Forestry
Department on daily wage basis.

3. When the claim of the petitioner for
regularisation under the prevalent rules in
the Department was not considered, he
filed writ petition(A) No.51403 of 2017
(Shiv Shankar vs. State of U.P. & ors.)
wherein by the order dated 18.02.2019
direction was issued to consider the claim
of the petitioner for regularisation and
payment of minimum wages. Pursuant
thereto, the claim of the petitioner for
regularisation was considered and rejected
vide impugned order dated 04.06.2019 on
the ground that the petitioner's services
were discontinued for two long years
during the entire period of his working and
the same cannot be ignored as artificial
break. The petitioner was, thus, held
ineligible for regularisation under the
Regularisation Rules, 2016. With regard to
the claim of minimum wages, it was held
that the petitioner having not been
appointed against a sanctioned post and no
appointment letter having been issued to
576 INDIAN LAW REPORTS ALLAHABAD SERIES
him, he was not entitled for grant of
minimum wages.

4. During the pendency of the writ
petition of 2019 challenging the order dated
04.06.2019 rejecting claim of the petitioner
for regularisation and grant of minimum
wages, the petitioner had also been
disengaged as daily wager by the order
dated 04.08.2020 on the ground that he was
not found eligible for regularisation and as
such he cannot continue as daily wager in
terms of Rule 10 of the Regularisation
Rules, 2016. The writ petition of 2020 was,
thus, instituted by the petitioner to
challenge the same.

5. Since the affidavits have been
exchanged between the parties in previous
writ petition filed in the year 2019 and both
the counsels for the parties admit that the
issues in both the writ petitions can be
decided
without
calling
for
counter
affidavit in the writ petition no.8385 of
2020, both the writ petitions were heard
together and are being decided by this
common judgment.

6. Challenging the orders impugned,
the contention of the learned counsel for
the petitioner is that the claim of the
petitioner for regularisation had been
rejected on a misinterpretation of the
provisions of Rules, 2016. The chart of
year-wise working of the petitioner, as
extracted in the order impugned dated
04.06.2019,
indicates
that
the
initial
engagement of the petitioner as daily wager
was made in August, 1995 and the
petitioner had worked for a period of 7
months in the year 1995-96. The said chart
also shows that the petitioner was still
working on the date of the commencement
of the Regularisation Rules, i.e. in the
month of September, 2016 and had also
worked for 11 months and 9 months in the
year 2017-18 and 2018-19; respectively. As
the daily wage engagement of the petitioner
was due to the necessity of the Department
and he had worked for more than 10 years,
the benefit of regularisation Rules, 2016
ought to have been provided to him. The
discontinuance of services of the petitioner
on account of non engagement in the years
2002, 2011 and 2012 cannot be treated as
break in the services rendered by the
petitioner as daily wage employee. The
reason given in the order impugned for
holding
the
petitioner
ineligible
for
regularisation is, thus, illegal.

7. As regards the order dated
04.08.2020 for termination of services of
the petitioner, it is contended that the
respondent no.3 has misinterpreted the
provisions of Rules, 2016, inasmuch as,
only if a daily wager has been found
unsuitable, he can be disengaged. In the
case of the petitioner, his suitability for the
regular post had never been assessed nor is
there any such indication in the order of
rejection of the claim of the petitioner for
regularisation. The termination of services
of the petitioner by the order dated
04.08.2020
taking
recourse
to
the
provisions of Rule 10 of Rules, 2016 is,
therefore, contrary to law. Both the orders
are, thus, liable to be set aside and a
direction is to be issued to the respondents
to regularise the services of the petitioner
strictly
in
accordance
with
the
Regularisation Rules, 2016.

8. Learned Standing Counsel, on the
other hand, defending the order impugned
states that the break of two continuous
years in the total services rendered by the
petitioner cannot be ignored as an artificial
break. As the petitioner had not rendered
continuous services from the date of
6 All. Shiv Shankar Vs. State of U.P. & Ors.
577
engagement
till
the
date
of
the
commencement of the Rules, he has rightly
been held disentitled for regularisation.
With the rejection of claim of the petitioner
by the duly constituted committee, he
cannot be allowed to continue even on
daily wage basis, in view of Rule 10 of the
Regularisation Rules, 2016.

9. Having heard learned counsel for
the parties and perused the record, it is
clear that the controversy revolves around
the interpretation of the Regularisation
Rules, 2016 namely the U.P. Regularisation
of Persons Working on Daily Wages or on
Work
Charge
or
on
Contract
in
Government Departments on Group 'C' and
Group 'D' Posts (Outside the Purview of the
Uttar Pradesh Public Service Commission)
Rules, 2016 (hereinafter referred to as the
'Rules, 2016').

10. Certain relevant provisions of the
said Rules are pertinent to be noted
hereinunder:

"5. Subject to the provisions of rule 2,
regularisation under these rules shall be
done on available vacant post in a
Government Department:

Provided that if vacant post is not
available then, as and when required, a
supernumerary post may be created with
the approval of the Government.

6. (1) Any person who-

(i) was directly engaged or employed
or deployed or working on daily wages or
on work charge or on contract in a
Government Department on Group 'C' or
Group 'D' post (outside the purview of the
Uttar Pradesh Public Service Commission)
on or before December, 31, 2001 and is
still engaged or employed or deployed or
working as such on the date of the
commencement of these rules; and

(ii) possessed requisite qualification
prescribed for regular appointment for that
post at the time of such engagement or
employment or deployment on daily wages
or on work charge or on contract, under
the relevant service rules and, subject to
the provisions of above mentioned rules 2
and 5,

shall
be
considered
for
regular
appointment on Group 'C' or Group 'D'
post (outside the purview of the Uttar
Pradesh Public Service Commission) in
permanent or temporary vacancy as may
be
available
on
the
date
of
the
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
Scheduled Castes, Scheduled Tribes and
Other Backward Classes) Act, 1994 and the
Uttar Pradesh Public Services (Reservation
for Physically Handicapped, Dependents of
Freedom Fighters and Ex-Servicemen) Act,
1993, as amended from time to time, and
the orders of the Government in force at
the time of regularisation under these rules.

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

(4) The Appointing Authority shall,
having regard to the provisions of sub rule
(1), prepare an eligibility list of the
candidates, arranged in order of seniority
as determined from the date of engagement
or employment or deployment on daily
wages, on work charge or on contract and,
578 INDIAN LAW REPORTS ALLAHABAD SERIES
if two or more persons are engaged or
employed or deployed together, from the
order in which their names are arranged in
the said engagement or employment or
deployment order. The list shall be placed
before the Selection Committee alongwith
their character rolls and such other
relevant records, pertaining to them, as
may be considered necessary to assess
their suitability.

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

(6) The Selection Committee shall
prepare a list of selected candidates
arranging their names in order of seniority
and forward the same to the appointing
authority.

7. The appointing authority shall,
subject to the provisions of sub-rule (2) of
rule 6, make appointments from the list
prepared under sub-rule (6) of the said rule,
in the order in which their names stand in the
list.

8. Appointments made under these rules
shall be deemed to be appointments under the
relevant service rules or orders, if any.

10. The services of a person who is
working on daily wages, or on work charge
or on contract and who is not found suitable,
after consideration under these rules, shall be
terminated
forthwith
and,
on
such
termination, he shall be entitled to receive
one month's wages.

12. Notwithstanding anything contained
in these rules, the person/persons working on
daily wages or on work charge or on
contract,
shall
have
no
claim
for
regularisation as a matter of right."

11. There is no dispute regarding the
applicability of the Rules in the Social
Forestry Department and that the petitioner
being daily wage employee of the said
Department was entitled for consideration
of his claim for regularisation by the
competent authority.

12. As to how and in what manner the
entire exercise of regularisation of daily
wager had to be made under the said Rules
can be understood by the plain and simple
reading of the Rules itself. As regard
eligibility, under the Rules, 2016, an
incumbent was required to fulfill the
following conditions for consideration for
regularisation:

(i) He must had been directly engaged
or working on daily wage basis on Group-
'C' or Group-'D' post on or before
31.12.2001; and,

(ii) he was still engaged or working as
such on the date of the commencement of
the Rules i.e. on 12.09.2016; and,

(iii) he must possess the requisite
qualification
prescribed
for
regular
appointment for the post at the time of such
engagement on daily wages under the
relevant service rules, subject to the
provisions of Rule 2 and Rule 5 of Rules,
2016; and,

(iv) regularisation may be made in a
permanent or temporary vacancy as may be
available on the date of the commencement
of the Rules i.e 12.09.2016 as also the
available vacancy in the Government
department as per Rule 5.

13. As regards the procedure for
regularisation, the rules provide that:-

(i) regular appointment be made on the
basis of assessment of the service record
and suitability of the daily wager in
accordance with the relevant service rules
or orders; and,
6 All. Shiv Shankar Vs. State of U.P. & Ors.
579

(ii) for the purpose of consideration
for regularisation under Rule 6(1), a
selection committee in accordance with the
relevant provisions of the service rules is to
be constituted by the appointing authority;

(iii) an eligibility list of the candidates,
arranged in the order of seniority, as per
their eligibility, in accordance with the
provisions of Rule 6(1) has to be prepared
by
the
appointing
authority
wherein
seniority is to be determined from the date
of engagement on daily wages, on work
charge or on contract;

(iv) the said list has to be placed
before the Selection Committee along with
the service record of the employees such as
character roll and other relevant records as
is necessary to assess their suitability. On
assessment of the service record of the
daily wage employees, as referred in Rule
6(4) of the Rules, the selection committee
may also interview the candidates to assess
their suitability;

(v) after completion of the selection
process, the Selection Committee has to
prepare a list of selected candidates
arranged in order of their seniority and
forward the same to the appointing
authority;

(vi) subject to the provisions of subrule (2) of Rule 6 which provides that the
reservation rules in force at the time of
regularisation under the Rules shall be
applicable in making regular appointment
under these rules, the appointing authority
shall make appointment from the list
prepared under Rule 6(6) and forwarded by
the Selection Committee.

14. Rule 8 further provides that
appointments made under the regularisation
rules shall be deemed to be appointments
under the relevant service rules. Rule 10,
however, provides that in case a person
who is working on daily wages, or on work
charge or on contract is not found suitable,
after consideration under these rules, his
services shall be terminated forthwith and
on such termination, he shall be entitled to
receive one month's wages.

15. Having carefully gone through the
entire scheme of the Rules' 2016, it is
evident that the rule making authority had
contemplated to complete one time exercise
for consideration of claims of regularisation
of daily wage employees already working
in the Department on the date of
commencement of the Rules 2016, that is
12.09.2016
as
against
the
available
permanent or temporary vacancies in the
Department
on
the
said
date.
The
subsequent exercise of regularisation can
be made in case of available vacancies in
the department as per Rule 5.

16. As per the procedure, the
appointing authority was required to
prepare an eligibility list of the candidates
working on daily wages, on work charge or
on contract in the Department, arranged in
order of seniority to be determined from the
date of engagement or employment or
deployment so as to place the same before
the Selection Committee for consideration
for regularisation.

17. The eligibility list as contemplated
under Rule 6(4) had to be prepared having
regard to the provisions of Rule 6(1) which
provides two cut-off dates. The first date is
of initial engagement which is on or before
31.12.2001, and the second is of working
or
engagement
or
employment
on
12.09.2016, the date of the commencement
of the Rules. The language employed in
Rule 6(1)(i) nowhere requires that the
incumbent
must
have
been
working
continuously without any break from the
date of the initial engagement till the date
580 INDIAN LAW REPORTS ALLAHABAD SERIES
of the commencement of the Rules. The
only requirement to be fulfilled is that the
incumbent
must
have
been
engaged
initially on or before 31.12.2001 and must
be still engaged or employed or working as
such (i.e. in the same capacity) on the date
of the commencement of the Rules, i.e.
12.09.2016.

18. The word "continuous working" or
"continuous engagement or employment or
deployment" is neither contemplated nor can
be read into the Rules. In the opinion of the
Court, the reason being that the rule making
authority had framed the rules with the clear
idea in mind that it was to provide for
regularisation of services of those persons
who were engaged or deployed or working
in the Department on daily wages, on work
charge or on contract and the nature of their
engagement on daily wages, on work charge
or on contract itself, being in the exigencies
or necessities of the Department, could not
be regular or continuous. That means there
may be break in service of an employee
engaged on daily wages, work charge or on
contract, who was found covered under the
rules.

19. As per the requirement of the
Rules' 2016, if daily wage engagement of an
incumbent
remained
necessity
of
the
Department or the requirement thereof for
more than 15 years between two cut off
dates (from prior to December, 2001 till
September
2016),
the
benefit
of
regularisation had to be provided to him,
irrespective of breaks in his service. The rule
nowhere requires that the incumbent must
have worked continuously, without any
break, from the date of initial engagement
till the date of the commencement of the
Rules. To read these words into the rules
would amount to adding words to the statute
which is not permissible in law.

20. It is well settled that the plain and
simple reading of the statute, if shows no
ambiguity, the rule has to be followed as
such. In the instant case, the plain and
simple reading of the Rule 6(1)(i) shows no
ambiguity. It is further clarified that having
regard to the requirement of the rules
considering the nature and period of
working of a daily wage employee, it is
always open for the competent authority to
consider as to whether long break in service
between two dates, i.e. the date of initial
engagement
and
the
date
of
the
commencement of the Rules would be a
'break in service' or the same can be
ignored as 'artificial break' in a given case.
For instance, if an employee had worked
only for few months in some years between
the above noted two cut off dates, the
'break in service' in that case cannot be
treated as 'artificial break' rather the same
would be 'break in service' of the employee
as the Department did not require his
services for a long time. The benefit of
regularisation in such a case may be
refused. Thus, the question as to what
would be 'artificial break' which can be
ignored while considering the eligibility of
a candidate would depend upon the facts
and circumstances of a particular case. No
universal or strait-jacket formula can be
derived for such an assessment. Each case
has to be decided on the facts and
circumstances of that case, considering the
nature and period of working of the
incumbent.

21. As regards the decision of the
Special Appellate Court in Surendra
Singh and another in Special Appeal
No.1016 of 2005, which has been made
basis of rejection of claim of the
petitioner, relevant is to note that the said
decision had been rendered in the facts
and circumstances of that case. No
6 All. Shiv Shankar Vs. State of U.P. & Ors.
581
universal formula or rule has been
prescribed in the said case so as to assess
what would be the break which cannot be
treated to be an 'artificial break' in
service. A perusal of the said decision
indicates that in the facts of the said case,
it was found that the writ petitioners
therein had failed to discharge the burden
of establishing that they were working on
daily wages in the forest department
during the relevant period and the
contentions of the writ petitioners therein
that they had been working without
payment of any wages was not accepted
by the learned Single Judge, with the
finding that it was difficult to believe that
the writ petitioners actually worked for
two years without payment of wages.
While upholding the views of the learned
Single Judge, the Special Appellate
Bench has held therein as under:

"In the present case, the writ
petitioners had not worked on daily wage
basis for a long period of two years. This
break cannot be treated to be an artificial
break in the service. The writ petitioners
did not satisfy the essential requirements
contained in the 2001 Rules. They were,
therefore, not entitled for regularisation
under the 2001 Rules.

There is, therefore, no error in the
judgment
which
may
call
for any
interference in this Special Appeal.

The Special Appeal is, accordingly,
dismissed."

22. At this juncture, the decision of a
learned Single Judge of this Court in
Janardan Yadav vs State of U.P. 2008 (1)
ADJ 60 is relevant to be noted wherein
Rule 4(1) of the U.P. Regularisation of
Daily Wages Appointment on Group 'D'
Posts Rules, 2001 (Regularisation Rules
2001) pari materia to rules 2016 was the
subject matter of consideration. It was
observed therein as under:

"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 29.06.1991 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 regularisation 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."

23. However, in the instant case,
looking to the chart of year-wise working
of the petitioner, extracted in the order
impugned itself, it is evident that the
petitioner herein had worked for the whole
year (12 months) in several years after his
initial engagement in the year 1995.
Though the petitioner was not engaged in
the years 2002, 2011 and 2012 but from the
year 2003 onwards till the year 2009, he
had worked for more than 10 months and
even up to 12 months in one calendar year.
From the year 2013 onwards till the date of
the commencement of the Rules in
September,
2016,
the
petitioner
was
engaged for about 9 to 11 months in one
calendar year. Besides, on the date of the
commencement of the Rules i.e. on
12.09.2016,
the
petitioner
was
'still
582 INDIAN LAW REPORTS ALLAHABAD SERIES
working' in the Department as a daily
wager. The initial requirement of the rules
of working as daily wager between the two
dates
i.e.
from
the
date
of
initial
engagement
till
the
date
of
the
commencement of the Rules is, thus,
fulfilled in the case of the petitioner.

24. Disengagement or discontinuance
of the services of the petitioner in the year
2002 and again in the years 2011 and 2012
cannot be said to be break in service rather
it can be seen that the daily wage
engagement of the petitioner remained
necessity of the Department and he was
engaged and worked as Mali continuously
(with artificial break) in the Social Forestry
Department, for the requirement of the
department, for more than a period of 22
years (from 1995 to 2016). The claim of the
petitioner for regularisation has, thus,
illegally been rejected treating the period of
non-engagement as break in service, for
holding him ineligible for consideration for
regularisation by the Selection Committee.
Thus, it can be seen that the sole ground of
rejection
of
the
candidature
of
the
petitioner is the above noted breaks in his
daily
wage
engagement.
Other
requirements of the rules had not been
adverted to while rejecting his claim for
regularisation.

25. The Court may further note that it
seems that the exercise of regularisation as
per the procedure in the Rules' 2016 has not
been completed in the department. The
claim of the petitioner on individual basis
had been considered under the directions of
this Court. The record does not reflect that
any eligibility list had been prepared by the
appointing authority in terms of Rule 6(4)
in order of the seniority of all daily wage
employees
working
on
the
date
of
commencement
of
the
Rules
i.e.
12.09.2016 for consideration of their
candidature for regular appointment on the
permanent
or
temporary
vacancies
available
either
on
the
date
of
commencement of the rules, or any other
vacancy
available
in
the
department
subsequent thereto as per the Rule 5 of the
Rules' 2016.

26. Further, the reading of the Rule 6
of Rules, 2016 makes it evident that the
exercise of regularisation was required to
be undertaken by the Department on its
own and there was no requirement of
making individual claim by one or two
employee(s). Further, the entire exercise of
regularisation
was
required
to
be
undertaken strictly in accordance with the
procedure prescribed in sub-rules (4), (5)
and (6) of Rule 6 of the Regularisation
Rules' 2016. The Selection Committee had
to be constituted to assess the suitability of
all the eligible candidates arranged in the
order of seniority in the list prepared by the
appointing
authority.
On
relative
assessment of all eligible candidates from
the said list on the basis of assessment of
their service records and interview of the
candidates, if considered necessary, the
select list had to be prepared by the
Selection Committee for forwarding the
same to the appointing authority for regular
appointment. The record does not indicate
that any such exercise had been undertaken
by the respondent. It seems that claim of
individual applicant (employee) had been
considered and rejected without adhering to
the procedure and the requirement of the
Rules' 2016.

27. Further, on the question of
termination of the daily wage engagement
of the petitioner taking aid of Rule 10 of
the Regularisation Rules, it is evident that
the language of Rule 10 had been mis-
6 All. Shiv Shankar Vs. State of U.P. & Ors.
583
interpreted by the respondent. Rule 10
clearly states that services of a person who
is not found 'suitable' after consideration
under the Rules shall be terminated.
Meaning thereby that a person who is not
found 'suitable' for regular appointment
under the Rules would not be entitled to
continue even on daily wages, or on work
charge or on contract.

28. Under the rules, the 'suitability' of
the candidates has to be judged by a
Selection Committee on consideration of
the character roll and other relevant records
pertaining to the services as are necessary
to assess their suitability in accordance
with the service rules. Whereas 'eligibility'
of a candidate, to be included in the
eligibility list prepared in accordance with
Rule 6(4), is to be scrutinised by the
appointing authority in terms of the
conditions of Rule 6(1) of 2016 Rules. The
'eligibility' and 'suitability' of the candidates
for
regularisation,
thus,
are
two
independent parameters which have to be
assessed by two separate authorities at two
different stages of the consideration as
mentioned in Rule 6(4). The word used in
Rule 10 is 'suitable' and not 'eligible'. That
means only if a daily wage incumbent is
not found 'suitable' for regular appointment
after
consideration
by
the
Selection
Committee on assessment of his service
record such as character roll etc., he would
not be entitled to continue even on daily
wage basis. The same yardstick cannot be
applied in a case where a daily wage
incumbent is not found 'eligible' for
regularisation under Rule 6(1), to be
included in the list of eligible candidates,
arranged by the appointing authority in
accordance with Rule 6(4) for placing the
same before the Selection Committee, as
the question of 'suitability' of the candidate
for regular appointment does not arrive at
all.

29. Having said that, the Court may
reiterate that the claim of the petitioner
for regularisation had been rejected only
on the ground that he was not eligible
under Rule 6(1), inasmuch as, he had not
rendered continuous services between
two dates i.e. 31.12.2001 till 12.09.2016.
The order of rejection of claim of the
petitioner for regularisation does not state
that the petitioner had not been found
suitable on assessment of his service
record by a duly constituted selection
Committee in accordance with the subRule (4) & (5) of Rule 6. As the second
stage for assessment of 'suitability' of the
petitioner had not been arrived in the
instant case, the termination of daily
wage engagement of the petitioner by the
impugned order dated 04.08.2020 is
found illegal.

30. In view of the above discussion,
both the orders dated 04.06.2012 and
04.08.2020 are found unsustainable in the
eye of law and hence quashed.

31. The petitioner herein is held
entitled to continue on daily wages in the
Social Forestry Department till his claim
for regularisation is considered afresh
strictly
in
accordance
with
the
Regularisation Rules, 2016. He shall be
entitled to payment of wages as is
admissible to a daily wage employee of
the Department as and and when the same
falls due.

32. As regards the claim of
regularisation of the petitioner, the matter
is relegated to the respondents with the
directions as follows:
584 INDIAN LAW REPORTS ALLAHABAD SERIES

(i) The appointing authority shall
prepare an eligibility list in accordance
with the Rule 6(4) of the Rules 2016 and
constitute
a
Selection
Committee
in
accordance with the Rule 6(3) for placing
the same before it;

(ii) The eligibility of the candidates
(daily wagers) working in the department
shall be determined in accordance with the
requirement of the Rule 6(1) of the Rules'
2016, considering the long period of their
engagement in the necessity or requirement
of the department.

(iii) The selection Committee shall
consider cases of all eligible candidates
included in the eligibility list placed by the
appointing
authority
before
it,
in
accordance with sub-rule (5) of Rule 6 and
prepare the list of selected candidates as is
required under Rule 6(6).

(iv) The regular appointment on the
available
vacancies,
subject
to
the
provisions of Rule 5 in accordance with the
sub-rule (1) of Rule 6, shall be granted to
all suitable candidates recommended in the
select list prepared by the Selection
Committee, in accordance with the Rules 7
and 8.

(v) The services of only those daily
wagers included in the eligibility list who
are not found suitable by the Selection
Committee on assessment of their service
records, can be terminated by taking
recourse to the Rule 10 of the Rules by
giving them one month's wages.