Civil Misc. Writ Petition No. 44301 of 2011. Case: Braj Kumar Vs State of U.P. and Others. High Court of Allahabad (India)
| Case Number | Civil Misc. Writ Petition No. 44301 of 2011 |
| Counsel | For Appellant: A.K. Srivastava, Advs. and For Respondents: C.S.C. |
| Judges | Dilip Gupta, J. |
| Issue | Constitution of India - Articles 12, 14, 16, 226 |
| Citation | 2012 (7) ADJ 154 |
| Judgement Date | May 14, 2012 |
| Court | High Court of Allahabad (India) |
Judgment:
Dilip Gupta, J.
1. The petitioner, who was appointed as a Clerk on a temporary basis for a period of three months in the District Supply Office, Allahabad, has filed this petition for a direction upon the respondents to regularise the services of the petitioner on the post of Clerk. The petitioner has placed on record the order dated 10th February, 1984 passed by the Commissioner, Allahabad Division, Allahabad by which the petitioner was appointed as a Clerk in the District Supply Office, Allahabad in place of Gulab Singh in the pay scale of Rs. 354-550. The order mentions that the appointment: of the petitioner was purely temporary in nature for a period of three months or till a regularly selected candidate was appointed and that it could be terminated at any time without notice. It was also provided in the order that the petitioner shall stand attached to the office of the Assistant Commissioner, Allahabad Division, Allahabad from the day he joins the District Supply Office and his salary shall be drawn from the District Supply Office, Allahabad.
2. The petitioner continued to work on the basis of the aforesaid order and submitted various representations before the Commissioner, Allahabad Division, Allahabad, the District Supply Officer, Allahabad and the Additional District Magistrate, Allahabad for regularisation and confirmation of his services. Papers were sent on 7th November, 2005 to the Commissioner, Food and Civil Supplies, Lucknow who by his letter dated 28th April, 2009 sought information from the Commissioner, Allahabad Division, Allahabad about the services of the petitioner and though the Commissioner, Allahabad Division, Allahabad sent the required information but still no decision was taken. It is further stated that Sri Nawab Alam working in the District Supply Office, Fatehpur, Sri Sitaram working in the Rent Control and Eviction Office, Allahabad, Sri Dilip Sonkar working at Kaushambi and Sri Asfaq Ahmad who are junior to the petitioner have been regularised.
3. The petitioner claims regularisation in terms of the Uttar Pradesh Regularisation of Ad hoc Appointments (On Posts Out Side the Purview of the Public Service Commission), Rules, 1979 (hereinafter referred to as the '1979 Regularisation Rules') as amended by the Uttar Pradesh Regularisation of Ad hoc Appointments (On Posts Out Side the Purview of the Public Service Commission) (Third Amendment) Rules, 2001 which substitutes the earlier Rule 4(1). The amended Rule 4(1) is quoted below:
4(1) Any person who-(i) was directly appointed on ad hoc basis on or before June 30, 1998 and is continuing in service as such on the date of commencement of the Uttar Pradesh Regularisation of Ad hoc Appointments (on Posts Out Side the Purview of the Public Service Commission) (Third Amendment) Rules, 2001.
(ii) possessed requisite qualifications prescribed for regular appointment at the time of such ad hoc appointment; and
(iii) has completed or, as the case may be, after he has completed three years service shall be considered for regular appointment in permanent or temporary vacancy, as may be available, on the basis of his record and suitability before any regular appointment is made in such vacancy in accordance with the relevant rules or orders.
4. Sri A.K. Srivastava, learned counsel appearing for the petitioner submitted that the petitioner is entitled for regularisation of his services in terms of the 1979 Regularisation Rules as amended in 2001 since the petitioner has been working before 30th June, 1998; was in service on 20th December, 2001 when the 1979 Regularisation Rules were amended in 2001; possesses the requisite qualifications at the time he was appointed and has completed three years of service. In support of his contention, learned counsel for the petitioner placed reliance on the following decisions of the Supreme Court:
1. Secretary, State of Kamataka and others v. Umadevi and others, (2006) 4 SCC 1;
2. State of Haryana and others v. Shakuntla Devi, AIR 2009 SC 869;
3. Khagesh Kumar and others v. Inspector General of Registration and others, AIR 1996 SC 417;
4. State of Kamataka and another v. M.L. Kesari and others, (2010) 9 SCC 247; and
4. Rajpal v. State of Haryana and others, (1996) 7 SCC 381.
5. Learned Standing Counsel appearing for the respondents, however, submitted that the petitioner is not entitled for regularisation under the 1979 Regularisation Rules as amended in 2001 for the reason that the petitioner was not appointed on ad hoc basis; was not appointed in accordance with the procedure prescribed under the Uttar Pradesh Food and Civil...
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