R.B. Misra, J.
Heard Sri S. N. Singh, learned counsel for the petitioners and Sri K.R. Sirohi learned counsel for the Judgeship of Basti, respondent.
1. In this petition prayer has been made for quashing the advertisement dated 5.2.2000 issued by the respondent for recruitment to the class III posts of ministerial cadre with further prayer for issuance of mandamus commanding the respondent to treat the petitioners as regular in service on the posts held by them and for payment of salary admissible to the regular employees.
2. The brief facts necessary for adjudication of the writ petition are (i) the petitioners No. I and 2 namely Triloki Nath Dwivedi and Santosh Kumar Srivastava were appointed on 19.2.1991 and 126.96.36.199 respectively in District Judgeship of Mirzapur as paid apprentice on ad-hoc basis @ of Rs. 900/- per month and were subsequently transferred to Judgeship of Basti and joined there on 20.9.1994 and 13:9.1994 respectively, since then they are working as class III employees and are being paid salary as a regular employees; (ii) Petitioner No. 3 Sri Ajai Kumar Rai was initially appointed as Stenographer (Hindi) in Gorakhpur Judgeship on 5.2.1991 and was transferred to Judgeship of Basti and had joined in Judgeship of Basti on 23.9.1994 and since then he is continuously working; (iii) Petitioner No. 4 Sri Govind Saran Lal and petitioner No. 5 Sri Anuj Kumar were initially appointed on fixed pay of Rs. 950/- per month as Copyist on 9.1.1991 and 3.9.1990 respectively land are working on the Same post continuously without any break; (iv) Petitioner No. 6 Sri Sanjay Kumar Sonkar was initially appointed on ad hoc basis on the post of paid apprentice in Lucknow Judgeship on 17.12.1990 and was subsequently transferred to Judgeship of Basti on 12.9.1994 and since then he is regularly working there.
3. According to the petitioners they were appointed in accordance to Rule 269 of General Rules (Civil) which empowers the District Judge to make appointment in emergency. Rule 269 is reproduced as below :
"269. District Judge to be informed when work increases for ('opyists - If in any court, copying work increases so much (hat the existing staff of copyists cannot cope with it; the head copyists shall at once report to the District Judge, in the case of the court of the District Judge through the Munsarim of that court, and in the case of any other cowl, through the presiding officer of the court. The District Judge shall ascertain whether any increase of establishment is necessary; and if an increase he necessary in his opinion, he shall report the matter for the orders of the High Court. In urgent cases, the District Judge may employ extra copyists and report to the High Court."
4. According to the petitioners they were appointed by proper selection committee by respective District Judges prior to June, 1991 and at the time of their initial appointment as adhoc they were in possession of required qualifications for appointment to the class III posts, therefore, they are entitled to be considered and treated/appointed as regular employee to the existing class III posts in reference to U.P. Regularisation of Ad hoc Appointment (on the post outside the purview of Public Service (Commission) Rules, 1979 in short called "Rules, 1979" as amended from time to time and in view of the 'Rules, 2001' which came into effect on 20th December, 2001 i.e. Uttar Pradesh Regularisation of Ad-hoc Appointments (on posts outside the purview of the Public Service Commission) (Third Amendment) Rules, 2001. The relevant provisions are given as below :
1. (1) These Rules may be called the Uttar Pradesh Regularisation of Ad-hoc Appointment (On posts outside the Purview of the Public Service Commission) (Third Amendment) Rules, 2001.
(2) They shall come into force at once.
2. In the Uttar Pradesh Regularisation of Ad-hoc Appointments (On posts outside the Purview of the Public Service commission Rules, 1979 in Rule 4 for existing sub Rule (1) set out in column I below, the sub-rule as set out in column 2 shall he substituted, namely :-
Existing Sub- Rule
(i) Any person who-
(i) was directly appointed on ad-hoc basis before January 1, 1977 and is continuing in service as such on the date of commencement of these Rules;
(ii) possessed requisite qualifications prescribed for regular appointment as 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.
Sub-rule as hereby substituted
(i) 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 outside the purview of the Public Service Commission) (Third Amendment) Rules, 2001:
(ii) Possessed requisite qualifications prescribed for regular appointment as the time of such adhoc 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."
5. According to the petitioners, the earlier 'Rules 1979' was amended by "Rules 2001" and was promulgated for the employees of State of Uttar Pradesh and the same has been adopted by this High Court as indicated in Circular No. 18/ VII b/104/Admin.(D) dated 8.5.2002. When initially this writ petition was filed, the selections to the Class III employees was stayed by an interim order dated 9.5.2000 of this Court.
6. After the exchange of counter and rejoinder affidavits, it was revealed that large number of posts to the class III in the judgeship of Basti is still in existence, however the counter affidavit which preferred in February, 2000 has indicated the difficulty of judgeship of Basti to consider the case of the petitioners for regularisation in absence of any specific Rules of regularisation. In absence of any prevailing Rules of regularisation the District Judge, Basti was not able to regularise or treat the petitioners as regular employee. Subsequently this Court inquired about the applicability of Rules 2001' in the judgeship and High Court and it was fairly indicated on the part of Sri K.R. Sirohi learned counsel appearing for the judgeship of Basti that 'Rules, 2001' has already been adopted by this Court in the year 2002 as indicated above. This Court was pleased to pass an order on 17.9.2003 which reads as below :-
"Heard Sri Sudhir Agrawal, learned counsel for District Judge Basti. None appears on behalf of the petitioners.
An advertisement dated 2.2.2000, was made by District Judge Basti for recruitment to the class III post in the judgeship of Basti. However, the selection to the class III post was stayed by an interim order dated 9.5.2000, passed by this court. Counter affidavit rejoinder affidavit have been filed. The six petitioners claimants prayed for regularization and their right of regularization is yet to be adjudicated upon. In this consideration keeping in view the requirement of judgeship of Basti and its functioning the interim order dated 9.5.2000, is modified to the extent that a fresh advertisement shall be published by the district Judge Basti for recruitment to the class III post in the Judgeship of Basti and a selection process may be conducted made in accordance with the Rules and law. Six post of class III, for which the petitioners are claiming, shall not be included in that advertisement till fresh/further order of this court. If the petitioners' claim is found to be justified and the petitioners are given relief in their favour after finalization of the writ petition otherwise against these posts also fresh regular recruitment may be made by the District Judge. The interim order dated 9.5.2000, in respect of the petitioners and six posts is effective upto 21s' October 2003, or till any further modification. The liberty is given to the petitioners also to appear in the examination and selection for the recruitment of class III post in the regular post.
List on 21st October, 2003, as a part heard matter before me."
7. At the time of argument it was brought to the notice of this Court that a temporary ban has been imposed by the Chief Justice of this High Court on the administrative side for appointment, promotion to the class IV and class III posts in all the judgeship of districts of State of Uttar Pradesh, in these circumstances, the District Judges have stopped making any recruitment/selection, however such ban of Chief Justice on administrative side has no relevance, and binding effect in the matters being adjudicated before this Court and impediment for obeying a judicial verdict of this Court, if any, as such the apprehension of parties are discarded.
8. The issue of regularisation has been considered by the Supreme Court from time and again and the law has been laid down in very clear terms in the cases, i.e. State of Haryana and Ors. v. Piara Singh and Ors. (Supra); Jacob M. Puthuparambil and Ors. v. Kerala Water Authority and Ors., 1991 (1) SCC 28; J & K Public Service Commission etc. v. Dr. Narinder Mohan and Ors., 1993 (6) JT 593; Dr. A.K. Jain v. Union of India, 1988 (1) SCR 335; E.K. Ramakrishnan and Ors. v. State of Kerala and Ors., 1996 (10) SCC 656; and Ashwani Kumar and Ors. v. State of Bihar and Ors., 1997 (1) JT 243; and the ratio of all those judgments can be summarized to the extent that the question as to whether the services of certain employees appointed on ad hoc basis should be regularised relates to the condition of service. The power to prescribe the conditions of service can be exercised either by making Rules under the proviso to Article 309 of the Constitution of India or any analogous provision and in the absence of such. Rules, under the instructions issued in exercise of its executive power. The Court comes into the picture only to ensure observance of fundamental rights and statutory provisions, Rules and other instructions, if any, governing the conditions of service. The main concern of the Court in such matters is to ensure the Rules of Law and to see that the executive acts fairly and gives a fair deal to its employee, consistent with the requirements of Articles 14 and 16, It also means that the State should not exploit its employees nor should it seek to take advantage of the helplessness and misery of either the unemployed persons or the employees, as the case may be. As is often said, the State must be a model employer. It is for this reason, it is held that equal pay must be given for equal work, which is indeed one of the Directive Principles of the Constitution. It is for this very reason it is held that a person should not be kept in a temporary or ad hoc status for long. A perusal of the authorities would show that appointments are as a Rule to be made in accordance with statutory Rules, giving equal opportunity to all the aspirants to apply for the posts and following the prevalent policy of reservation in favour of Scheduled Castes/Scheduled Tribes and other backward classes. Whenever the employees are appointed on ad hoe basis to meet an emergent situation, every effort should be made to replace them by the Employees appointed on regular basis in accordance with the relevant Rules as expeditiously as possible. Where the appointment on ad hoc basis has continued for long and the State has made Rules for regularisation, regularisation has to be considered in accordance with the Rules. Where, however, no Rules are operative, it is open to the employees to show that they have been dealt with arbitrarily and their weak position has been exploited by keeping them on ad hoc for long spell of time. However, it is a question of fact whether in the given situation, they were treated arbitrarily.
9. In Khagesh Kumar v. Inspector General of Registration, U.P. and Ors., AIR 1996 SC 417, the Supreme Court did not issue direction for regularisation of those employees who had been appointed on ad hoc basis or on daily wages after the cut off date, i.e. 1.10.1986 as was mandatorily required by the provisions of U.P. Regularisation of Ad hoc Appointment (On posts outside the Purview of the Public Service Commission) Rules, 1979 and those who were not eligible under the said Rules were not given regularisation. The same view has been taken by the Supreme Court in Inspector General of Registration and Anr. v. Awadhesh Kumar and Ors., 1996 (9) SCC 217. Moreover, the above referred cases further laid down that for the purpose of regularisation, various pre-requisiie conditions are to be fulfilled, i.e. the temporary/ ad hoc appointment of the employee should be in consonance with the statutory Rules, it should hot be a backdoor entry. The service record of the petitioner should be satisfactory, the employee should be eligible and/or qualified for the post at the time of his initial appointment. There must be a sanctioned post against which the employee seeks regularisation and on the said sanctioned post, there must be a vacancy. Moreover, regularisation is to be made according to seniority of the temporary/ ad hoc employees. The regularisation should not be in contravention of the State Policy regarding reservation in favour of Scheduled Castes/ Scheduled tribes and other backward classes and other categories for which State has enacted any Act or framed Rules or issued any Government Order etc..
10. Similar view has been taken in Union of India v. Vishamber Dutt, 1996 (11) SCC 341: and State of Uttar Pradesh v. U.P. Madhyamik Parishad Kshrimik Sangh, AIR 1996 SC 708. In the case of State of Himachal Pradesh v. Ashwani Kumar, 1996 (1) SCC 773, the Apex Court has held that if an employment is under a particular Scheme or the employee is being paid out of the funds of a Scheme, in case the Scheme comes to closure or the funds are not available, the Court has no right to issue direction to regularise the service of such an employee or to continue him on some other project, for the reason that "no vested right is created in a temporary employment."
11. The Court depricates the practice of making appointments on daily wages without advertising the vacancy or calling the names from Employment Exchange in derogation to the provisions of Articles 14 and 16 of the Constitution and violative of the fundamental rights of other eligible persons of open market.
12. The question of appointment dehors the Rules has been considered by the Supreme Court from time and again and the Court held that such appointments are unenforceable and inexecutable. It is settled legal. proposition that any appointment made dehors the Rules violates the Public Policy; enshrined in the Rules and, thus, being void, cannot be enforced. (Vide Smt. Ravinder Sharma and Anr. v. State of Punjab and Ors., (1995) 1 SCC 138; Smt. Harpal Kaur Chahal v. Director, Punjab Instructions, 1995 (Suppl) 4 SCC 706; State of Madhya Pradesh v. Shyama Pardhi, (1996) 7 SCC 118; State of Rajasthan v. Hitendra Kumar Bhatt, (1997) 6 SCC 574; Patna University v. Dr. Amita Tiwari, AIR 1997 SC 3456; Madhya Pradesh Electricity Board v. S.S. Modh and Ors., AIR 1997 SC 3464; Bhagwan Singh v. State of Punjab and Ors, (1999) 9 SCC 573; and Chancellor v. Shankar Rao and Ors., (1999) 6 SCC 255).
13. Appointment dehors the Rules violates the mandate of the provisions of Articles 14 and 16 of the Constitution as held by the Hon'ble Supreme Court in Delhi Development Horticulture Employees' Union v. Delhi Administration, AIR 1992 Sc 789; and State of Haryana and Ors. v. Piara Singh, AIR 1992 SC 2130. In Delhi Transport Corporation v. D.T.C. Mazdoor Congress and Ors., AIR 1991 SC 101, the Supreme Court recognised the public employment as public property and held that all persons similarly situated have a right to share in it though its enjoyment is subject to the recruitment Rules which must be in consonance with the Scheme of the Constitution of India.
14. In Dr. M.A. Haque and Ors. v. Union of India and Ors., (1993) 2 SCC 213, the Supreme Court observed as under :
"...We cannot lose sight of the fact that the recruitment Rules made under Article 309 of the Constitution have to be followed strictly and not in breach. If a disregard of the Rules and by passing of the Public Service Commissions are permitted, it will open a back-door for illegal recruitment without limit. In fact this Court has, of late, been witnessing a constant violation of the recruitment Rules and a scant respect for the constitutional provisions requiring recruitment to the services through the Public Service Commissions. It appears that since this Court has in some cases permitted regularisalion of the irregularly recruited employees, some governments and authorities have been increasingly resorted to irregular recruitments. The result hod been that the recruitment Rules and the Public Service Commissions have been kept in cold storage and candidate dictated by various considerations are being recruited as a nuttier of course. "
15. Depricating the practice of making appointment dehors the Rules by the State or other State instrumentalities in Dr. Arundhali A. Pargaonkar v. State of Maharashtra, AIR 1995 SC 962, the Court rejected the claim of the petitioner therein for regularisation on the ground of long continuous service observing as under:
"Nor the claim of the appellant, that she having worked as Lecturer without break far 9 years' on the date the advertisement was issued, she should be deemed to have been regularised appears to be well founded. Eligibilily and continuous working for howsoever long period should not be permitted to over-reach the law. Requirement of Rules of selection...cannot be substituted by humane considerations. Law must lake its course."
16. The Supreme Court in State of U.P. and Ors. v. U.P. State Law Officers Association and Ors., AIR 1994 SC 1654 has observed as under:
"This being so those who come to he appointed by such arbitrary procedure can hardly complain if the termination of their appointment is equally arbitrary. Those who come by the backdoor have to go by the same door.... The fact that they are made by public bodies cannot vest them with additional sanctity. Every appointment made to a public office, howsoever made, is not. There is, therefore, no public interest involved in saving all appointments irrespective of their mode. From the inception some engagements and contracts may be the product of the operation of the spoils system. There need be no legal anxiety to save them. "
17. Even if there are no Statutory Rules or Bye-laws of the society providing a mode for appointment, the Executive Instructions/Policy adopted by the respondent-society must be there providing for a mode of appointment. Even if no such Executive
Instructions/Policy/Guidelines/Circular etc. is in existence then a fair procedure for appointment has to be adopted in consonance with the provisions of Articles 14 and 16 of the Constitution. (Vide Nagpur Improvement Trust v. Yadaorao Jagannath Kumbhare, (1999) 8 SCC 99.
18. A Constitution Bench of the Supreme Court, in B.R. Kapoor v. State of Tamil Nadu, (2001) 7 SCC 231 (Jayalalitha case) has observed that it is the duty of the Court to examine whether the incumbent possesses qualification for appointment and the manner in which the appointment came to be made or the procedure adopted was fair, just and reasonable and if not, appointment should be struck down.
19. In view of the above observations it is clear that the appointment should be made at initial stage in accordance with Rules. Incumbent must possess the requisite qualification for the post on the date of appointment and if appointment had been made on temporary ad hoc basis, the workman should be permitted to continue for long rather the vacancies should be filled up on permanent basis in accordance with law. If the statutory provision or executive instruction provides for regularisation after completing a particular period only then regularisation is permissible. In special circumstances, Court may give direction to consider the case for regularisation provided continuation on ad hoc basis is so long that it amounts to arbitrariness and provisions of Article 14 are attracted. There must be sanctioned post against which regularisation is sought. At the same time policy of the State enforcing the reservation for particular classes like S.C., S.T., O.B.C. etc. and further for women, handicapped and ex-service men cannot be ignored.
20. I have heard learned counsel for the parties and perused the contents of the counter affidavit, rejoinder affidavit and supplementary affidavit. Undisputedly large number of vacancies are available for recruitment in the class III/ministerial cadre in the judgeship of Basti and the petitioners were working continuously to the class III posts as ad-hoc employees prior to June, 1991 and were in possession of the minimum qualification for the recruitment to the class III posts/ministerial cadre. Since they were appointed as ad-hoc employees, their cases are to be considered in view of the "Rules, 2001" as adopted by this Court as indicated in Circular Letter No. 18 dated 8.5.2002. Therefore, the petitioners are entitled for regular appointment out of the existing vacancies. No petitioner shall be ignored by virtue of his age on the date of consideration for regularisation if such person was fulfilling age criteria at the initial stage of his appointment on adhoc basis. The cases of petitioners are to be considered forthwith and District Judge, Basti is at liberty to proceed for recruitment and selection to the class III category of posts in judgship of Basti in view of the interim order dated 17.9.2003 of this Court in reference to the advertisement dated 2.2.2000. It is left to the wisdom and discretion District Judge, Basti to issue a corrigendum in sequence to earlier advertisement dated 2.2.2000 to incorporate upto-date vacancies and allow fresh applications from the open market and may consider the earlier applicants and their applications and fees irrespective of their present age, provided such applicants intended to participate in selection of 2.2.2000 were within specified age limit. The inter-se seniority of petitioners after being awarded regular status in reference to the newly selected candidates to class III may be resolved in accordance to the prevailing Rules and laws This Court had earlier been pleased to direct by an interim order dated 17.9.2003 directing the District Judge, Basti to proceed for the selection to the class III posts, if necessary by issuing fresh advertisement in sequence to the earlier advertisement dated 2.2.2000 and before that petitioners are to be considered against the six regular existing vacancies and the order of regularisation are to be issued in consonance to the 'Rules, 2001' accordingly.
In view of the above observations, the writ petition is allowed. However no order as to cost.