# Shiva Ji Singh and others v. High Court of Judicature at Allahabad Through its Registrar General and another

- **Citation:** (2004) 1 ILRA 7
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-08-08
- **Case number:** Civil Misc. Writ Petition No.52755 of 2002
- **Bench:** Sunil Ambwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiva-ji-singh-and-others-v-high-court-of-judicature-at-allahabad-through-its-40286
- **Pages:** 9

## Headnote

INDIAN LAW REPORTS ALLAHABAD SERIES [2004
8
Sri G.K. Singh
Sri K.R. Sirohi
S.C.

U.P.
Regularisation
of
Adhoc
appointments (on Posts outside the
preview of Public Service Commission)
Rule
1979-Rule-3
(1)
-read
with
Constitution of India-Article 14 & 16Regularisation fixing of cut of dateappointment should be prior to 30.6.98
and must continuous in service on
20.12.01-whether is discriminatory for
these adhoc appointee appointed after
the cut of date, but have completed 3
years service?-held-'No'.

Held: Para 11
It is true that some of the persons may
have been appointed after 30th June,
1998
and
are
eligible
and
have
completed three years of service before
the date of notification of the third
amendment to the Rules but that by
itself does not give them a right to be
considered for regularisation in the
present case, as against the persons who
were appointed on ad hoc basis before
30.6.1998. In the present case all the ad
hoc appointments were made after
30.6.1998
and
thus
there
is
no
discrimination inter se between ad hoc
appointees
in
the
Judgeship
at
Chandauli.
1975 SCC (1) 305
2000 (2) ESC-889
AIR 1990 SC-1300
1997 (1) SCC- 104
1997 (5) SC 368
2001 (1) ESC-7
1997 (1) ESC-655
LOPNO 6219 (55) 93 decided on 8.10.93
1989 (2) UPLBEC-144
AIR 1986 SC 210
AIR 1983 SC 130
1986 (10) SCC 536

## Text

http:\\allahabadhighcourt.nic.in
1 All] Gauri Shanker Gupta V. Anita Misra and another
7
 whether U.P. Act No. 13 of 1972 applied
to the shop in dispute on the date of filing
of the suit or not. In the plaint it has not
been pleaded that heirs of Ram Autar
other
than
defendant
Azad
Kumar
expressly surrender their tenancy.

3. Under the general law after the
death of the tenant all his heirs inherit the
tenancy. Even under U.P. Act No. 13 of
1972, in case of non residential building
all the heirs of the tenant inherit the
tenancy by virtue of definition of tenant
given u/s 3 (a) of the Act. Even though
the Supreme Court in AIR 1995 SC 676
and AIR 2001 SC 2251 has held that
after the death of the tenant all his heirs
inherit the tenancy jointly and decree
passed against one or some of them is
binding on non impleaded joint tenants
also, however, this doctrine can not be
pressed in to service when during the
pendency of the suit a person claiming to
be
the
joint
tenant
applies
for
impleadment. In AIR 2001 SC 2251
(supra) itself an earlier authority of three
Hon'ble Judges reported in AIR 1990 SC
2053 has been referred to in which a
decree for eviction was set-aside on the
application of non-impleaded joint tenant.

4. It is settled law that the sub tenant
is not a necessary party to a suit for
eviction filed against the chief tenant and
decree for eviction passed against chief
tenant is binding upon sub tenant.
However, even in the case of sub tenant, it
has been held by the Supreme Court that
in case, he applies for impleadment
during the pendency of a suit for
ejectment and on the objection of the
landlord his application is rejected then he
cannot be evicted under decree of eviction
against the chief tenant (vide AIR 2002
SC 804).

5. Learned counsel for the landlord
respondent has argued that late Ram
Autar left behind several heirs and it
would be very difficult to implead all of
them. It has further been argued that one
more heir of late Ram Aautar has also
applied for impleadment. According to
the learned counsel the entire exercise is
meant to delay the disposal of the suit. In
my opinion for this situation landlord
himself is responsible. Ordinarily after the
death of the tenant particularly in case of
tenancy of non-residential building, all his
heirs must be impleaded as tenant in
ejectment suit.

6. Accordingly, the revision is
allowed. The impugned order is set aside
and revisionist Gauri Shankar Gupta is
directed to be impleaded as defendant
no.2 in the SCC Suit No. 42 of 2001,
pending before the Additional District
Judge, Court No.2, Kanpur Nagar.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.08.2003

BEFORE
THE HON'BLE SUNIL AMBWANI, J.

Civil Misc. Writ Petition No.52755 of 2002

Shiva Ji Singh and others ...Petitioners
Versus
High Court of Judicature at Allahabad
Through
its
Registrar
General
and
another

 ...Respondents

Counsel for the Petitioners:
Sri Shashi Nandan
Sri L.R. Khan

Counsel for the Respondents:
Sri Sudhir Agarwal
Sri A.P. Sahi
Sri A.K. Singh
http:\\allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
8
Sri G.K. Singh
Sri K.R. Sirohi
S.C.

U.P.
Regularisation
of
Adhoc
appointments (on Posts outside the
preview of Public Service Commission)
Rule
1979-Rule-3
(1)
-read
with
Constitution of India-Article 14 & 16Regularisation fixing of cut of dateappointment should be prior to 30.6.98
and must continuous in service on
20.12.01-whether is discriminatory for
these adhoc appointee appointed after
the cut of date, but have completed 3
years service?-held-'No'.

Held: Para 11
It is true that some of the persons may
have been appointed after 30th June,
1998
and
are
eligible
and
have
completed three years of service before
the date of notification of the third
amendment to the Rules but that by
itself does not give them a right to be
considered for regularisation in the
present case, as against the persons who
were appointed on ad hoc basis before
30.6.1998. In the present case all the ad
hoc appointments were made after
30.6.1998
and
thus
there
is
no
discrimination inter se between ad hoc
appointees
in
the
Judgeship
at
Chandauli.
1975 SCC (1) 305
2000 (2) ESC-889
AIR 1990 SC-1300
1997 (1) SCC- 104
1997 (5) SC 368
2001 (1) ESC-7
1997 (1) ESC-655
LOPNO 6219 (55) 93 decided on 8.10.93
1989 (2) UPLBEC-144
AIR 1986 SC 210
AIR 1983 SC 130
1986 (10) SCC 536

(Delivered by Hon'ble Sunil Ambwani, J.)

1. Heard Sri Sashi Nandan assisted
by Sri L.R. Khan for petitioners in both
the above writ petitions and Sri Sudhir
Agarwal for respondents. I have also
heard Sri A.P. Sahi appearing for Sri
Ashok Kumar Singh (newly impleaded
respondent no.3) in writ petition no.52753
of 2002.

2. Petitioners, in both the writ
petitions, are working as ad hoc Class III
employees, in the Judgeship of the newly
created district of Chandauli. They have
prayed for writ of certiorari for quashing
order dated 31.10.2002 passed by District
Judge, Chandauli terminating their ad hoc
services with effect from 1.11.2002, and
for a direction in the nature of mandamus
to the respondents to regularise their
services on the post of clerks and
stenographers and to allow them to
continue and to make payment of salary
month to month. In writ petition no.
26618 of 2002 petitioner Rajesh Kumar
Srivastava has also challenged an order of
District Judge dated 18.5.2002 by which
his representation for regularisation was
rejected. A prayer has also been made to
quash part of U.P. Regularisation of Ad
hoc Appointments (on posts outside the
purview of the U.P. Public Service
Commission) Rules 1979 as amended in
2001, which prescribes 30.6.1998 as cut
off date for regularisation of services,
after completion of three years. By
amendment application in the second writ
petition, petitioner has also prayed to
quash the orders dated 31.10.2002, as
aforesaid and order dated 11.11.2002
passed
by
Judgeship
of
Chandauli
requesting Registrar General of High
Court to allow him to continue 20 ad hoc
appointees of Class III posts and 6 ad hoc
Stenographers until regular selection takes
place.

The fact giving rise to these petitions
http:\\allahabadhighcourt.nic.in
1 All] Shiva Ji Singh and others V. H.C., Allahabad through its Registrar General and another
9
are stated as below;

A new Revenue District by the name
of Chandauli was carved out of Varanasi
in the year 1998. A Sessions Devision for
this newly created district of Chandauli
notified nine Courts including the Court
of District Judge, Additional District
Judge,
Chief
Judicial
Magistrate,
Additional Chief Judicial Magistrate,
Civil Judge Senior Division and Civil
Judge junior Division. In order to provide
these
Courts
clerical
staff
and
stenographers, until regular appointments
are made under U.P. Subordinate Staff
Courts ministerial Establishment Rules
1947 as replaced by Recruitment of
Ministerial Staff to the Subordinate
Offices Rules of 1950; the High Court
gave permission to the Officer on Special
Duty, Chandauli by D.O. letter No.17760
dated October 16, 1998 to appoint ad hoc
appointees for a period of three months.
In pursuance thereafter Sri Rajesh Kumar
Srivastava petitioner in writ petition
no.26618 of 2002 was appointed as typist
on ad hoc basis on 17.10.1998 for a
period of three months. Petitioners' Shiva
Ji Singh & others in writ petition No.
52755 of 2002 were appointed as clerks
and stenographers on ad hoc basis initially
for a period of three months between
14.7.1999 and 15.9.1999. The High Court
granted permission to extend their period
from time to time. Whereas petitioner
No.1 to 12 in writ petition No. 52755 of
2002 were appointed as clerks, petitioners
No.13
and
14
were
appointed
as
stenographers. Steps were taken for
making appointments on regular basis
under the aforesaid Rules of 1950 by
issuing advertisement in newspapers on
30.6.1999. A regular selection was held
but appointment could not be made. This
court vide report of Registrar General of
High Court dated 19.3.2001 found that the
regular selections advertised on 1.10.2001
suffered from certain irregularities. The
report were accepted by Hon'ble the then
Chief
Justice
on
21.4.2001.
Fresh
advertisements were issued for direct
recruitment on the post on the aforesaid
Rules of 1950 on 1.10.2001 for which
written examinations were held on
13.4.2002. In view of the progress of
process of regular selections, this Court
vide letter No.1590/7 B-104/Admin. (D)
dated
29.10.2002
directed
that
the
services of ad hoc employees may not be
extended
beyond
31.10.2002.
Consequently District Judge Chandauli by
his letter dated 31.10.2002 terminated the
services of all ad hoc Class III clerks and
stenographers with effect from 1.11.2002.
It appears that District Judge Chandauli
found that in view of the existing
vacancies for which regular appointment
was not made, it was necessary in the
interest of work to continue the ad hoc
employees for some more time and thus
he made a request to this Court on
11.11.2002 to permit him to extend the
services of at least 20 Class 3 employees
and 6 stenographers. It is at this stage that
the above two writ petitions were filed
and that an interim orders was made in the
first writ petition, not to disturb the
functioning
of
petitioners
on
their
respective posts up-to 27.1.2003. It was
made clear that the interim order will not
confer any rights of regularisation to
petitioners.

4. One Sri Nagrendra Kumar
Srivastava,
a
candidate
for
direct
recruitment filed writ petition No. 9514 of
2003 challenging the process of selection
by advertisement on the ground that it
was contrary to Rules 6 (2) of the Rules
of 1947 as substituted by Rules 1950. It
http:\\allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
10
was alleged that the written examination
required candidates to appear for two
papers in English whereas only one paper
of English of 50 marks was provided
under the Rules. The selection was stayed
by this Court on 28.2.2003. However, the
interim order has been vacated on
9.7.2003, and it has been made open to
the District Judge Chandauli to declare
result of the examination and to make
appointments.

5. In the aforesaid backdrop
petitioners have insisted that this Court
may decide their rights to be regularised
under U.P. Regularisation of Ad hoc
Appointments (on posts outside the
purview
of
U.P.
Public
Service
Commission) Rules, 1979, as amended by
its, amendment by notification dated
20.12.2001. Sri Shashi Nandan appearing
for petitioners submits that petitioners are
eligible to be appointed as Class III
employees and Stenographers, and were
appointed on the dates given as above and
that each of petitioners had completed
three years of continuous service on or
before 30.10.2002. Each of them is,
therefore, entitled to be regularised under
the aforesaid Rules of 1979, as amended
by its third amendment. He submits that
this
Court
by
its
Circular
Letter
No.70/Admin.(D) dated 24th December,
1992 has accepted the applicability of the
aforesaid Rules of 1979 for regularisation
of ad hoc employees of subordinate
courts. After the third amendment of the
Rules this Court has accepted the
applicability of the said amendment and
the right of regularisation of ad hoc
employees under the aforesaid amended
rules introducing cut of date as 30.6.1998
and the circular letter No.18/VIII B114/Admin (D) dated 8.5.2002 has been
issued by which the notification dated
20.12.2002 notifying third amendment to
the rules had been adopted by the High
Court.

6. It is submitted that although
petitioners were appointed after the cut of
date i.e. 30.6.1998, they are entitled to be
regularised as they had completed three
years of continuous service on 20.11.2001
when the third amendment to the rules of
1979 came into force. He has also
challenged the cut of date given in the
rules on the ground that it is grossly
arbitrary, and has no statable purpose to
achieve. Relying upon B. Brabhakar
Rao Vs. State of Andhra Pradesh AIR
(1986) SC 210 (paragraph 18); D.S.
Nakara Vs Union of India AIR (1983)
SC
130
and
University
Grants
Commission
Vs
Smt
Sadhana
Chaudhari ( 1996) 10 SCC 536 it was
submitted that the normally choice of date
should be accepted unless it is very wide
of the original mark. In the present case it
is submitted that the Rules of 1979 were
amended on three occasions. The Rules of
1979 were initially notified on 14.5.1979
providing the cut of date in Rule 4 as
January 1st, 1977. Since some appointees
appointed after 1.1.77 had not completed
three years of service on 14.5.1979, sub
Rule 3 provided that a person who had
completed or as a case may be after he
has completed three years of service shall
be considered for regular appointment. By
the First Amendment, Rule 9 was inserted
on 22.3.1984 and the cut of date was
amended as 1.5.1983. There was a gap
one year and forty days and thus the
period of completing three years of
continuous service for regularisation was
made. The Rule was amended for second
time on 7.8.1989 by inserting Rule 10
providing cut of date as 1.10.1986. There
was a gap of about two years three
http:\\allahabadhighcourt.nic.in
1 All] Shiva Ji Singh and others V. H.C., Allahabad through its Registrar General and another 11
months and seven days, the Rule provided
for three years period of service. The third
amendment in the rules of 2001 came into
force on 20.12.2001 amending Rule 4 (1)
by providing a cut of date as June 30,
1998 with a gap of more than three years.
Sub Rule (3) of Rule 4 provides that such
persons who have completed, or as case
may be, after he has completed three
years of service shall be considered for
regular appointment. According to Sri
Shashi Nandan, all the persons who were
appointed on or before 30th June, 1998
have rendered more than three years of
service on the date of enforcement of the
amended Rules and thus there was no
justification for providing an event in Sub
Rule (3) which contemplates completion
of three years of service. In order to
harmonize Sub Rule (1) and (3) and in
order
to
avoid
ambiguity
and
arbitrariness, Sub Rule (1) should be read
in isolation and thus all the persons who
had completed three years of service on
20.12.2001 or thereafter must be given the
benefit of regularisation. He further points
out that Sub Rule (3) provides for two
distinct classes of persons who are
entitled to be considered for regularisation
name (1) persons appointed on ad hoc
basis on or before June 30, 1998 and
continuing on 20.12.2001, and have
completed three years of services on
20.12.2001 and (2) persons in service on
20.12.2001 but not completing three years
of service. It is submitted that cut of date
is not applicable to the second category of
persons. With the aforesaid suggested
interpretation it is submitted that firstly
cut of date is not relevant for purpose of
regularisation of petitioners' services, and
in the alternative it must be held to be
arbitrary vague and with no purpose to
achieve, and thus it must be declared to be
ultra virus of Article 14 and 16 of
Constitution of India. Lastly he submits
that cut of date is not something which is
so sacrocent that it cannot be scrutinized
by the Court. He submits that a choice of
the
date
is
wholly
unreasonable,
whimsical, burdensome and capricious
and relies upon the Division Bench
judgement of this Court in Jai Kushun
Vs. State of U.P. (1989) 2 UP LBEC
(page 144). The submission is that the cut
off date has no reasonable nexus with the
purpose to achieve and these employees
appointed after the cut of date and
fulfilling the requisite qualifications of
three years of continuous services can not
be
deprived
of
the
benefit
of
regularisation. Sri Sashi Nandan has also
relied upon Division Bench judgement of
this Court in Arvind Kumar Yadav Vs
State of U.P. in writ petition No.6219
(SS) of 1993 decided on 8.10.1993
holding the cut of date of 1st October,
1996 be ultra virus.

7. Sri Sudhir Agarwal appearing for
both District Judge Chandauli and the
High Court denies petitioner's claim to be
regularised. He submits that Sessions
Division of Chandauli was created in the
year 1998 and in order to ensure proper
functioning of the Courts in the Judgeship
at Chandauli, the Officer on Special Duty
and thereafter the District Judge was
required to appoint eligible persons as ad
hoc employees only for a fixed period of
three
months
by
way
of
interim
arrangment.
Petitioners
were
not
appointed by adopting any process of
selection.
Their
appointments
was
extended from time to time. They were
clearly informed that their appointment is
purely ad hoc till regular selections. The
selections
in
pursuance
of
the
advertisement made on 30.6.1999 were
found to suffer from various irregularities
http:\\allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
12
and was cancelled by the High Court on
13.4.2001. Fresh advertisements have
been issued on 1.10.2002 in pursuance of
which the selections are in progress.
Written examinations have been held. The
result of stenographer have been declared
in which two petitioners have been
selected as stenographer. He submits that
petitioners'
services
were
rightly
terminated as regular selection was in
progress.
None
of
petitioners
were
appointed on or before 30.6.1998, and
thus they are not entitled to be regularised
under the rules of 1979, as amended by
third amendment, which has been adopted
by this Court by its Circular Letter dated
8.5.2002. The judgment in Arvind Kumar
Yadav case (Supra) was expressly over
ruled by Division Bench judgement of
this Court in Subedar Singh Vs. D.G.
Mirzapur (1997) 1 E.S.C. 655 and that
Subedar Singh's case has been approved
by Hon'ble Supreme Court in Subedar
Singh's
case
Vs.
District
Judge
Mirzapur reported in 2001 (1) ESC 7.
He also relies upon a Single Judge
judgement of this Court in Sita Ram Vs
State of U.P. 2003 ALJ 1249 where the
validity cut of date as 1.5.1983 as
amended on 22.3.1984 was held to be
valid. In this decision the Court relied
upon the judgement in D.C. Bhatia Vs.
Union of India ( 1995) 1 SCC 104; State
of Haryana Vs Rai Chandra Jain
(1997) 5 SCC 167, and State of Bihar Vs
Ram Jee Prasad (1996) 3 SCC 368. Sri
Agarwal submits that fixing a cut of date
is a matter of executive policy of the
State. It is for the legislature to decide and
to classify the date. If there is some
indication between object sought to be
achieved and the classification, the
legislature cannot be said to have acted in
improper exercise of its powers. The
classification may result in some hardship
but a statutory discretion can not be set
aside. The Court can only consider
whether classification has been done on
rationale basis and cannot question the
validity on the ground of lack of
legislative wisdom. It is for petitioners to
show that there was no object sought to be
achieved and that the cut of date is so
wide off, the mark of such objective that
it can be held to be arbitrary. Sri Sudhir
Agarwal has tried to explain the basis and
reason of fixing the cut of dates. He
submits
that
executive
policy
of
beginning of recruitment year from 1st
January when the 1979 Rules were made,
was changed and now the recruitment
years begins from 1st July each year and
thus the cut of date was fixed on 30thJune,
1998. He has co related these dates which
certain amendment in the Rules for
promotion made by U.P. Public Service
Commission with which we are not much
concerned. In the present case he submits
that petitioners appointed on ad hoc basis,
took
the
appointment
on
specific
condition that their appointments are
subject to regular selections. Even if they
have completed three years of service, no
benefit of consideration for regularisation
can be given to them unless they are
covered by the statutory rules. In Subedar
Singh's case (supra) the Supreme Court
has expressly laid down that appointments
dehors the rules do not confer any right
upon petitioners except those who are
protected by statutory rules.

8. The judgement of this Court in
Arvind Kumar Yadav's case (supra) was
over ruled by Division Bench in Subedar
Singh
Vs.
District
Judge
Mirzapur
(Supra). It was held that all the ad hoc
employees do not form one class. Those
who have rendered services for long are a
clause (class) different from those who
http:\\allahabadhighcourt.nic.in
1 All] Shiva Ji Singh and others V. H.C., Allahabad through its Registrar General and another 13
have not rendered for service for such
longer period to make them eligible for
regularisation. In paragarph 20 this court
held that the cut of date, 1.10.1986, under
the 1979 Rules as amended by second
amendment Rules 1989, is valid and the
decisions in Arvind Kumar Yadav's case
did not lay down correct law. This
Division
Bench
decision
has
been
approved
by
the
Supreme
Court.
Apparently petitioners were appointed
after the cut of date i.e. 30.6.1998. The
only question to be considered by this
Court is whether the cut of date is
arbitrary
and
provides
unfair,
discrimination between two recognizable
and distinct groups of persons, without
any object to be achieved, and is thus
violative of Article 14 and 16 of
Constitution
of
India.
The
second
question is to be examined is whether Sub
Rule (3) & (4) can be interpreted in a
manner to create a category of persons,
who may not have been appointed on or
before 30.6.1998, but are entitled to be
regularised under the said Rules on the
basis that they have completed three years
of continuous service on the date of
enforcement of the Rules i.e. 20.12.2001.

9. The legal position with regard to
fixing a cut of date for giving certain
benefits in service has been considered in
State of Bihar Vs. Ram Jee Prasad AIR
(1990) SC 1300. In this case an
advertisement was published by State of
Bihar on 29.12.1987 inviting applications
for appointments to various posts of
teacher in medical colleges and medical
colleges & hospitals. For the post of
Assistant Professor, the Officer who had
worked as resident for three years were
considered eligible. The date of receipt of
application was fixed as 31.1.1998. This
date was challenged on the ground that it
deprived those persons who have not
completed three years by that time for
making application and consideration for
the post. The Supreme Court held that
earlier past practice was to fix the last
date of receipt of the applications, a
month or half month after the date of
actual publication of the advertisement. In
continuation with the past practice, the
State Government had fixed the date. It
was held that choice of date cannot be
dubbed as arbitrary even if any particular
reason is not forthcoming for the same,
unless it is shown to be capricious and
whimsical or for wide of the reasonable
mark. The choice of date for advertising
the post depends upon special factors i.e.
the number of vacancies in different
disciplines, the need to fill up the post and
availability of candidates. Mainly because
the respondents or some others will
qualify by shifting the date is no reason
for dubbing the earher date as arbitrary or
irrational. In Manju Bala Vs. Union of
India 2000 (2) ESC 889, a full bench of
Delhi
High
Court
considered
the
challenge of cut of date for eligibility for
appointment on the post of assistant
teachers
and
nursery
teachers
in
Municipal Corporation of Delhi. It was
held that any of the suggested dates are
prone to some criticism. The Delhi High
Court relied upon Union of India Vs.
Permeswarn Match Works (1975) 1
SCC 305 where the principle that cut of
date is valid unless is so capricious or
whimsical
so
as
to
be
wholly
unreasonable was accepted. The burden
that the cut of date is capricious,
whimsical and wide off the mark is
therefore upon the petitioners who allege
it to be so. In order to appreciate the
submission the dates of the notifications
and the cut of date of the Rules and its
amendments is set out as below:
http:\\allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
14
Date of Notification
Cut of Date
1. 14.5.1979 Rule 4

1.1.1977
2. 22.3.1984 Rule 9

1.5.1983
 (1st amendment)
3. 7.8.1989 Rule 10

1.10.1986
 (2nd amendment)
4. 20.12.2001 Rule 4
30.6.1998
 (3rd amendment)

10.

The
gaps
between
the
notification and the cut of date are not
relevant for the purpose of considering the
submission of petitioners as in every case
it was necessary that a person should have
completed three years of continuous
service or completes three years of
service. Subsequent to the date of
notification in each case there were
person appointed on adhoc basis and
working before the cut of dates and that
the qualifying services of three years was
necessary
for
consideration
for
regularisation. The seniority of a person
has to be determined from the date of
when he was appointed and this date of
appointment in the Rule 7 is not the date
of actual appointment, but the date on
which the substantive vacancies became
available to him for appointment. The
consideration for regular appointment is
to be made after person fulfils the
eligibility and after his selection by the
selection committee from amongst the list
prepared by the selection committee from
when a permanent or temporary vacancy
as the case may becomes available for
such
appointments.
There
may
be
difference between the date when a
person is to be considered for regular
appointment and the date with effect from
which he may be appointed in such
vacancies. The fixation of cut of date
therefore has no relevance to the date of
appointment, to be given by selection
committee.

11. The submission that the cut of
date is arbitrary only on the ground that
there was a gap of more than three years
between the notification of the third
amendment and the cut of date cannot be
accepted. The fact that some of the
persons may have been appointed after
30th June, 1998 and have completed three
years of continuous service cannot be a
ground to keep such person in separate
classes for the purpose of consideration of
regularisation. The three conditions must
be satisfied namely that the person was
eligible to be regularly appointed on the
date of such ad hoc appointment; has
completed three years of service and was
appointed on adhoc basis on or before the
cut of date provided in the Rules. He
should be in continuous service on the
date of commencement of the Rules. If
any of these three conditions is not
fulfilled the person is not entitled to be
considered for regularisation. In almost all
the service rules in the State of U.P., the
recruitment year begins from 1st July and
thus fixing cut of date to be 30th June,
1998 i.e. prior to the recruitment year
1999-2000 appears to be a valid criteria.
No suggestion has been made that this
date was fixed to benefit a person or a
class of persons and that the date was
taken out of hat, or had any other purpose
to achieve. It is true that some of the
persons may have been appointed after
30th June, 1998 and are eligible and have
completed three years of service before
the date of notification of the third
amendment to the Rules but that by itself
does not give them a right to be
considered for regularisation in the
present case, as against the persons who
were appointed on ad hoc basis before
30.6.1998. In the present case all the ad
hoc
appointments
were
made
after
30.6.1998
and
thus
there
is
no
http:\\allahabadhighcourt.nic.in
1 All] Smt. Ribha Devi and others V. R.C.E.O., Varanasi and another
15
discrimination inter se between ad hoc
appointees in the Judgeship at Chandauli.

12. Rule (4) cannot be interpreted in
a manner as suggested by the counsel for
petitioners. It does not create two classes
of persons. It creates only one class of
person
who
possess
requisite
qualifications for regular appointments at
the time of ad hoc appointments; was
directly appointed on ad hoc basis on or
before 30.6.1998, and is continuing in
service as such on 20th December, 2001,
and has completed three years of service.
His appointment has to be given with
effect from the date when a permanent or
temporary post becomes available. Thus
only one class of person has been
visualized
for
consideration
for
regularisation and i.e. a person who
fulfills all three conditions given in Rule
4.

13. All petitioners were appointed
without following any procedure of
appointment,
and
without
inviting
applications from the open market and all
of them were aware of the fact that their
ad hoc appointment is only for a period of
three months and in any case until the
regular selections. Each of them got
opportunity to apply in regular selections.
Petitioners' appointment were, therefore,
made in a particular exigencies of service
for specific periods and that with express
condition that it will be terminated on
regular
appointment.
They
cannot,
therefore, invoke equity in law only on
the ground that they have completed three
years of service.

14. For the aforesaid reasons, I do
not find any merit in both the writ
petitions. The cut of date provided in the
Rules is held to be valid. All the
petitioners were appointed subsequent to
this date and thus they are not entitled to
be considered for regularisation. Both the
writ petitions are consequently dismissed
with no order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 1.12.2003

BEFORE
THE HON'BLE S.U. KHAN, J.

Civil Misc. Writ Petition No.49640 of 2003

Smt. Ribha Devi and others ...Petitioner
Versus
Rent Control & Eviction Officer, Varanasi
and another

 ...Respondents

Counsel for the Petitioner:
Sri Arvind Srivastava

Counsel for the Respondents:
Sri M.S. Haq
Sri T. Haq
S.C.

U.P. Urban Buildings (Regulation of
letting, Rent and Eviction) Act 1972,
Section 16 (b)-title dispute-can not be
determined in mutation proceedings by,
municipal corporation-nor in proceedings
u/s 16 of Act No. 13 of 1972-even the
orders passed by RC & EO is subject to
decision of regular suit.

Held- Para 3

In my opinion the validity of the gift/gift
deed alleged to have been made by Raj
Nath in favour of Pyare Lal and Ram
Dulare can be determined neither in
mutation proceedings before municipal
corporation nor in proceedings under
Section 16 of U.P. Act No.13 of 1972. If
the gift is valid then sale deeds obtained
by
respondent
no.2
are
also
valid
otherwise not. The dispute in between
petitioners and respondent no.2 is a pure