Full Judgment Text
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PETITIONER:
KHAGESH KUMAR & ORS.
Vs.
RESPONDENT:
INSPECTOR GENERAL OF REGISTRATION & ORS.
DATE OF JUDGMENT27/09/1995
BENCH:
AGRAWAL, S.C. (J)
BENCH:
AGRAWAL, S.C. (J)
JEEVAN REDDY, B.P. (J)
CITATION:
1996 AIR 417 1995 SCC Supl. (4) 182
JT 1995 (7) 545 1995 SCALE (6)102
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
S.C. AGRAWAL , J. :
Delay condoned in S.L.P.(C) No. 22726-29/95
[C.C.No.3559/95].
These petitions for special leave to appeal arise out
of judgment dated February 8, 1995 passed by the Division
Bench of the Allahabad High Court in various special appeals
and writ petitions involving common questions relating to
regularisation of Registration Clerks employed on daily wage
basis in the Registration Department of the Government of
Uttar Pradesh.
Under the U.P. Registration Manual (hereinafter
referred to as ’the Manual’) provision is made in paragraph
94-A for appointment to the post of Registration Clerks in
Sub-registrar’s offices and in District Registrar’s offices
by the District Registrar. In paragraph 95 it is provided
that the strength and remuneration of registration
establishments shall vary according to the amount of work to
be performed in each office and will undergo periodical
review. Under paragraph 96 power has been conferred on the
Inspector General of Registration to sanction temporary
establishments within the limits of budget provision and up
to a rate of pay not exceeding Rs. 150 per mensem in each
case subject to the conditions precribed in clauses (a) to
(d). The District Registrar has also been empowered to
sanction, with the previous approval of the Inspector
General, the temporary appointment of extra clerks in the
Registration offices under his control up to a rate of pay
not exceeding Rs. 60 per mensem in each case but before
sanctioning the District Registrar is required to see that
the permanent clerks have been working up to the standard
prescribed by the preceding rule. Paragraph 97 requires that
a list of approved candidates for the post of registration
clerks shall be maintained by each District Registrar and
that except with the previous sanction of the Inspector
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General, at no time the number of enlisted candidates shall
exceed the number fixed by the inspector General for each
registration district according to the needs of each
district. The said list of approved candidates is required
to be revised by the District Registrar annually in the
month of January. In the said rule provision is also made
prescribing the conditions which are required to be
fulfilled by candidates for enlistment as well as the
grounds on which the names of candidates once brought on the
list may be removed. It is also prescribed that permanent
appointment to the post of registration clerks shall be made
from amongst the enlisted candidates strictly by seniority
and that officiating or temporary chances of more than a
month’s duration shall be given to enlisted candidates by
rotation.
Apart from the permanent and temporary establishments
referred to in paragraphs 95 and 96 of the Manual, a
practice was in vogue to appoint Registration Clerks on
daily wage basis for the speedy disposal of the pending
arrears of documents in the Registration offices. Such
appointments were authorised by the Governor for the
particular year only subject to the condition that the
posting of Registration Clerks on daily wage basis shall in
no case exceed three months in the year. One such order is
contained in G.O. dated December 23, 1987 which reads as
under :
"G.O.No. SR4353/X312(1) (O) 82 dated
23.12.87
From :
Shri Prem Shankar
Joint Secretary, Finance
Stamp and Registration Section
Government of U.P., Lucknow.
To
Inspector General of Registration Uttar
Pradesh, Allahabad
Sub :Appointment of daily wage
clerks for purpose of disposal
of arrears of documents in
Registration Offices
Sir,
With reference to your D.O. letter
No. 85101/VA-429 dated 26.11.1987, I
have been directed to inform that a
result of arrear of copying work in
various Registration Offices of the
State undue delay is being caused in the
return of original documents to the
parties. Consequently, the parties are
being put to inconvenience the Hon’ble
Governor has therefore been pleased to
sanction post of Clerks on daily wage
basis @ 20/- (Rupees Twenty) per working
day for the purpose of speedy disposal
of the present arrear of documents in
registration Offices on the following
terms and conditions :-
(1) The concerned District Registrar
with prior permission of District
Magistrate may appoint clerks in minimum
possible number in view of unavoidable
necessity and ensure in every case
disposal of all documents in arrear
within a period of three months.
(2) The standard of work of clerks
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appointed on daily wage basis be the
same as that of regularly appointed
clerks. If the output of work on any
working day is less than standard
prescribed than in that case his wages
shall be liable to be reduced in the
same proportion.
(3) The disbursement of wages to the
daily wage clerks will be made only
after the concerned Sub-Registrar
certified that on each working day the
work done by the daily wage clerk is not
less than the prescribed standard.
(4) With a view to ensure that copying
work does not fall in to arrear in
future, weekly monitoring will be done
by District Registrars.
(5) The posting of daily wage clerks
shall in no case exceed three months
during the course of a financial year.
(6) The District Registrar will prepare
a list of candidates for appointment to
the post of daily wage clerks in the
District and the appointment will be
made on the basis of list prepared in
the last year’s examination.
(7) The District Registrar will report
to the Government and to the Inspector
General of Registration, U.P., Allahabad
from time to time about the pending work
in the district.
(8) The expenditure shall be made in
financial year 1987 from serial No. 81
head of account 2030 Stamps and
Registration under Non-Plan Expenditure
and shall be borne from savings. Here it
is also made clear that the entire
responsibility of keeping the work in
Sub Registrar Office upto-date shall be
that of the District Registrar and they
will be responsible for pending work.
This order is being issued with the
consent of the Finance Department D.O.
letter No. E-4/11541/X-87 dated
23.12.1987.
Yours faithfully,
sd/-
(Prem Shankar)
Joint Secretary"
It has been stated that similar orders were issued in
each year and that such appointments were being made since
1983-84. The petitioners in these cases are persons who were
appointed on daily wage basis for short period/periods in an
year and on the expiry of the period their services were
terminated. Some of them were appointed on the same basis in
the next succeeding year or after a gap of one or two years.
On May 12, 1978 the Uttar Pradesh Registration
Department (District Establishment) Ministerial Service
Rules, 1978 (hereinafter referred to as ’the 1978 Rules’)
were published. The 1978 Rules provide for recruitment to
various category of posts in the U.P. Registration
Department (District Establishment) Ministerial Service. The
post of registration clerk is a post falling in the said
service. The 1978 Rules provide for appointment on the post
of registration clerks by direct recruitment and by
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promotion from amongst Group ’D’ employees. Direct
recruitment on permanent as well as officiating or temporary
vacancies was required to be made in accordance with the
procedure laid down in the Subordinate Offices Ministerial
Staff [Direct Recruitment] Rules, 1975. By notification
dated September 9, 1992 [published in the U.P. Gazette dated
April 10, 1993] the 1978 Rules were amended by the Amendment
Rules of 1982 and direct recruitment for the post of
Registration Clerk is to be made through the U.P.Subordinate
Services Selection Commission on the basis of competitive
examination conducted by the Commission.
In 1989 the Registration Act, 1908 was amended by the
State legislature of U.P. and Section 32- A was inserted
whereby it was provided that the document presented for
registration should be accompanied by such number of true
photostat copies there of as may be prescribed by the rules
under Section 69. There was a further amendment of the
Registration Act, 1908 by U.P. Act No. 27 of 1994 whereby
Section 32-B was inserted. By the said provision it has been
prescribed that in such cases as may be notified by the
State Government every document and the translation of the
document referred to in Section 19, presented for
registration shall be accompanied by a true copy there of
which shall be neatly and legibly printed, lithographed,
type written or otherwise prepared on only one side of the
paper and that such true copy shall be laminated in
accordance with the procedure laid down in the section. It
has been stated that U.P.Act No. 27 of 1994 has been brought
into force with effect from October 1, 1994 vide
notification dated September 28, 1994.
Prior to March 20, 1991 the appointing authority for
registration clerks under the 1978 Rules was the District
Registrar but by notification dated March 20, 1991 the rules
were amended and the Inspector General of Registration
became the appointing authority. On March 24, 1991 the
Inspector General of Registration issued a press
Notification inviting applications for appointment to the
posts of Registration Clerks.
A number of writ petitions were filed in the Allahabad
High Court by persons who had worked as registration clerks
on daily wage basis in the past or who were actually working
as Registration Clerks on daily wage basis wherein the
petitioners sought regularisation of their appointment on
the post of registration clerk and prayed for quashing of
the Press notification inviting applications for appointment
on the post of registration clerks. Many of these writ
petitions had been disposed of by learned single Judges of
the High Court and special appeals against these judgments
were pending before the Division Bench while other writ
petitions were pending for disposal before learned single
Judges. In a large number of cases interim orders had been
passed directing that the petitioners in the writ petitions
may be allowed to continue in service during the pendency of
the writ petitions. One such writ petition (Civil Misc. Writ
Petition No. 3721/90, Majeed & Ors. v. State of U.P. & Ors.)
filed at the Lucknow Bench of the High Court had been
allowed by a learned single Judge (S.H.A. Raza J.) and the
special leave petition (Civil) No. ....../93 [CC no.
121212/91] filed against the said judgment was dismissed on
the ground of delay by this Court by order dated August 10,
1993. All the special appeals and writ petitions that were
pending in the High Court at Allahabad as well at the
Lucknow Bench were taken up and were disposed of by the
Division Bench of the High Court by the impugned judgment
dated February 8, 1995.
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On behalf of the petitioners, it was claimed before the
High Court that they had been regularly selected by a duly
constituted Selection Committee and their appointment should
be treated as regular appointment. This claim was, however,
contested by the State. The High Court rejected the said
claim of the petitioners and held that nothing had been
shown that the appointment of the petitioners was made after
selection through a Selection Committee. The other
contention that was urged on behalf of the petitioners
before the High Court was that the petitioners had been
working on daily wage basis for a number of years and,
therefore, they were entitled to be regularised on the post.
The said contention was also rejected by the High Court on
the view that none of the petitioners were either ad hoc
employees or even daily wagers continuously for one year or
for 240 days as is generally claimed by the persons seeking
regularisation even in industrial establishments and,
furthermore the petitioners did not fall in any of the
categories referred to by this Court in the State of Haryana
v. Piara Singh, 1992 (1) SCC 118, as entitling
regularisation. The High Court has held that in every one of
the writ petitions none of the petitioners had worked even
for more than a few weeks or at best for a few months in a
year and consequently the entire edifice of the claim of the
petitioners seeking regularisation was knocked out. As
regards the advertisement dated March 24, 1991 issued by the
State inviting applications for appointment on the post of
Registration Clerks it was stated on behalf of the
respondents before the High Court that in view of the
amendments which have been made in the Registration Act,
1908, the State does not need any more Registration Clerks
and that no further steps have been taken for recruitment on
the basis of the said advertisement. The High Court has held
that mere advertisement in a paper about some posts lying
vacant does not confer any right whatsoever on those who may
be seeking appointment in pursuance of the advertisement and
since the State has specifically come up with the case that
they do not require any one to be appointed as Registration
Clerks in pursuance of the said advertisement dated March
24, 1991 and they are not proposing to process the said
advertisement any further, the said advertisement cannot be
invoked by the petitioners to seek regularisation as
Registration Clerks. Referring to the decision of S.H.A.
Raza J. in Civil Misc. Writ Petition No. 3721/1990 against
which the special leave petition was dismissed by this
Court, the High Court has observed that the fact that the
special leave petition has been dismissed against the said
judgment cannot be a precedent for permitting the
petitioners in these matters to get a benefit which they are
not entitled to. The High Court has disagreed with the view
of the learned Judge in that case and has reversed the same.
The learned Judges have also referred to the judgmentment of
another learned single Judge (Vijay Bahuguna J.) in Civil
Misc. Writ Petition No. 17634-A/1991 and has not approved
the directions given by the learned Judge in that matter and
have observed that the said directions are wholly out of
bounds of Article 226 of the Constitution of India. The
learned Judges have also taken note of the interim orders
that were passed by other learned Judges [sitting singly] in
various writ petitions, both at Allahabad as well as at
Lucknow, and have observed that the said interim orders were
obtained by the petitioners on the basis of averments which
were incorrect and false. The learned Judges have,
therefore, dismissed the writ petitions that were filed by
the petitioners.
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to in paragraphs 95 and 96 of the Manual, i.e., posts on the
permanent and the temporary strength of the establishment.
The permanent strenght is fixed for each office on the basis
of assessment made having regard to the amount of work to be
performed in the office and is subject to periodic review.
Similarly the temporary establishment is sanctioned by the
District Registrar with the previous approval of the
Inspector General. The permanent and temporary posts
contemplated in paragraphs 94-A, 95, 96 and 97 are posts
sanctioned for appointment on regular basis. The posts of
Registration Clerks on daily wage basis on which the
petitioners were appointed do not fall under these
paragraphs of the Manual. Special sanction was given by the
Governor for appointment on these posts of Registration
Clerks on daily wage basis for the purpose of disposal of
the arrears of documents in Registration offices and the
District Registrar had been directed to ensure in every case
disposal of all documents in arrears within a period of
three months. The sanction was given subject to the
condition that such appointment shall in no case exceed
three months during the course of a financial year. The
appointment on these posts of Registration Clerks on daily
wage basis was required to be made on the basis of a list
that was to be prepared as per the directions contained in
the Government order sanctioning the posts. The said list
was not the list prepared under paragraph 97 of the Manual.
In this context, it may also be stated that since 1978
there exist the 1978 Rules making express provisions with
regard to recruitment on the post of Registration Clerks in
the Registration Department. Rule 15 of the 1978 Rules
prescribes the procedure for the direct recruitment to the
post of Registration Clerk. Prior to the amendment
introduced by the Amendment Rules of 1992 the said Rule
provided that "subject to the provisions of rule 5(2),
recruitment to the post of Registration Clerk (including
against officiating or temporary vacancies) shall be made in
accordance with the procedure laid down in the Subordinate
Offices Ministerial Staff (Direct Recruitment) Rules, 1975
as amended from time to time". Rule 5(2) provided as under :
2Rule 5(2) :
Name of the Post Source of recruitment
Registration Clerk
a) By direct recruitment.
(b)By promotion to the extent of 10 per
cent of the vacancies from amongst the Group
’D’ employees in accordance with the
provisions of the Subordinate offices
Ministerial Staff (Direct Recruitment) Rules
1975 as amended from time to time.
(2) Notwithstanding anything contained in
these rules, before direct recruitment is
made to the post of Registration Clerk, the
appointment shall be made from amongst the
candidates whose names are included in the
list of approved candidates prepared under
rule 97 of the Registration Manual for Uttar
Pradesh, Part II (Seventh Edition) as it
stood on June, 1974 and in accordance with
the procedure laid down therein."
On behalf of the petitioners it has been urged that
appointment of a candidate whose name is included in the
list of approved candidates under paragraph 97 of the
Manual, as the said paragraph stood on January 19, 1974, is
to be treated as an appointment under rule 15 of the 1978
Rules. The submission of the learned counsel is that the
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words "as it stood in January 1974" refer to paragraph 97 of
the Manual. We are unable to agree. The said provision in
rule 5(2) was in the nature of a transitory provision which
enabled recruitment to be made in the initial period after
the coming into force of the 1978 Rules on the basis of the
list of the approved candidates that had been prepared under
the existing provisions contained in paragraph 97 of the
Manual. The words "as it stood in January 1974" must,
therefore, be construed as referring to the list of approved
candidates that had been prepared under paragraph 97 of the
Manual as that list stood in January 1974. The construction
placed by the learned counsel for the petitioners on the
words "as it stood in January 1974" would mean that even
after the 1978 Rules the appointments will have to be made
on the basis of list prepared in accordance with paragraph
97 of the Manual from time to time. This would completely
nullify the provisions relating to recruitment contained in
rule 15 of the 1978 Rules. A construction which leads to
such a result cannot be adopted. We are, therefore, unable
to accept the contention urged on behalf of the petitioners
that the appointment of the petitioners on the post of
Registration Clerks on daily wage basis was in the nature of
a regular appointment made in accordance with the provisions
of the relevant rules. In our opinion, appointment of the
petitioners was made on the basis of the sanction given by
the Governor for such posts each year which sanction was
subject to the express condition that such an appointment
shall in no case exceed three months during the course of a
financial year.
The next contention that has been urged by learned
counsel for the petitioners is with regard to their
regularisation on the post of Registration Clerks. It has
been submitted that in letters dated July 6, 1985 and
September 20, 1985 from the Inspector General of
Registration to the State Government it was pointed out that
in June 1985, the number of documents which were pending
clearance were about 11,28,000 and as per the requirement
prescribed in the Manual about 700 Registration Clerks were
required over and above 900 sanctioned posts of Registration
Clerks existing in the Department. It has also been
submitted that as per letter dated December 22, 1993 from
the Inspector General of Registration in November 1993 the
total number of documents pending clearance was about
9,12,696 and that, if the certified copies of the documents
and the memos of enquiry were to be taken into account, the
said number would increase to about 15,00,000 and about 920
Registration Clerks were required for that purpose. It has
been urged that against the said requirement only 272 posts
of Registration Clerks were created between 1985 and 1994
and that at present there are only 1247 sanctioned posts of
Registration Clerks out of which 147 posts were vacant in
December 1993 and by July 31, 1994 the number of vacant
posts had increased to 214 on account of promotion and
retirement. On behalf of the respondents it has been
submitted that a requisition for selection for 128 posts of
Registration Clerks was sent to the Subordinate Services
Selection Commission and the same is pending and that in
view of the insertion of Sections 32A and 32B in the
Registration Act in the State of U.P., additional hands are
not needed and the Government was thinking of withdrawing
the requisition. We do not propose to go into the question
whether there is need for appointment of Registration Clerks
against the existing vacancies. We will deal with the
contention urged by the learned counsel of the petitioners
on the basis that there are vacancies on the post of
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Registration Clerks and examine whether the petitioners can
claim regularisation on such posts. In this regard, it may
be stated that in the State of U.P. provisions with regard
to regularisation are contained in the U.P. Regularisation
of Ad hoc Appointments (on posts outside the purview of the
Public Service commission) Rules, 1979. (hereinafter
referred to as ’the Regularisation Rules’). Rule 4(1) of the
Regularisation Rules provides; as follows :
"Rule 4. Regularisation of ad hoc
appointments-
(1) 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 at the
time of such ad hoc appointment; and
(iii) has comp leted or, as the case may
be, after he has completed three years
continuous 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 is accordance with the
relevant service rules or orders."
By the Amendment Rules notified vide notification dated
August 7, 1989 the Regularisation Rules were amended and
Rule 10 was inserted which provides that :
"Rule 10. Extension of the Rules -
The provisions of these Rules shall apply,
mutatis mulandis, also to any person directly
appointed on ad hoc basis on or before
October 1, 1986 and continuing in service as
such, on the date of commencement of the
Uttar Pradesh Regularisation of Adhoc
Appointments (On posts outside the purview of
the Public Service Commission) (Second
Amendment) Rules, 1989."
The petitioners can claim regularisation only if they
satisfy the requirements of the said provisions. They should
have been directly appointed on adhoc basis before October
1, 1986, they should have possessed the requisite
qualifications prescribed for regular appointment at the
time of such adhoc appointment and they should have
completed three years continuous service. It has been urged
on behalf of the petitioners that some of the petitioners
had been working as Registration Clerks on daily wage basis
since much before October 1, 1986 and they would be entitled
to be considered for regularisation under the Regularisation
Rules. These provisions are applicable only to an
appointment made on adhoc basis. Though the High Court has
held that the appointment of the petitioners on daily wage
basis was not an adhoc appointment, we are not inclined to
take that view and we will proceed on the basis that the
appointment of the petitioners was such an appointment. The
question which survives is whether any of the petitioners
who had been appointed as Registration Clerk on daily wage
basis prior to October 1, 1986 can be regarded as having
completed three years continuous service. Since the order of
the Governor sanctioning appointment on the posts of
Registration Clerks on daily wage basis imposes a limitation
that such appointment shall in no case exceed three months
during the course of a financial year, there are long breaks
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between the various periods during which the petitioners
were employed as Registration Clerks on daily wage basis. In
Bhagwati Prasad v. Delhi State Mineral Development
Corporation, 1990 (1) SCC 361, this Court has laid down that
for the purpose of counting three years’ continuous service
for the purpose of regularisation artificial break in
service for short period/periods created by the employer
could be ignored but "if there is a gap of more than three
months between the period of termination and re-appointment
that period may be excluded in the computation of the three
years period". (at p. 364). In view of the said decision for
computing three year period of continuous service for the
purpose of Rule 4(1)(iii) of the Regularisation Rules, the
period of break in service which was longer than three
months has to be excluded and only the period during which
the petitioners actually worked can be counted. In case any
of the petitioners was employed as a Registration Clerk on
daily wage basis prior to October 1, 1986 and, after
excluding periods of breaks in service which are longer than
three months, he has put in three years service, he would be
entitled to seek regularisation under Rule 4(1) of the
Regularisation Rules provided he fulfils the requirement of
clause (ii) of the said rule. He can move the appropriate
authority for such regularisation and the said authority
will pass appropriate orders after verifying the correctness
of the claim of such a petitioner. The petitioners who do
not fulfil the said condition of three years service
contained in Rule 4(1)(ii) cannot claim regularisation on
the basis of the Regularisation Rules.
It has been urged on behalf of the petitioners that
many of them have rendered continuous service for more than
240 days in a year and that they are entitled to be
regularised. We find no merit in this contention. In Delhi
Development Horticulture Employees’ Union v. Delhi
Administration, Delhi & Ors., 1992 (4) SCC 99, this Court
has not accepted the principle that an employee can seek
regularisation only on the ground that he has put in work
for 240 or more days. Similarly, in the State of Haryana v.
Piara Singh & Ors. (supra) this Court, while setting aside
the direction of the High Court that all those
adhoc/temporary employees who had continued for more than a
year should be regularised, has observed :
"None of the decisions relied upon by the
High Court justify such wholesale,
unconditional orders. Moreover, from the mere
continuation of an adhoc employee for one
year, it cannot be presumed that there is
need for a regular post. Such a presumption
may be justified only when such continuance
extends to several years. Further, there can
be no ’rule of thumb’ in such matters.
Condiytions and circumstances of one unit may
not be the same as of the other. Just because
in one case, a direction was given to
regularise employees who have put in one
year’s service as far as possible and subject
to fulfilling the qualifications, it cannot
be held that in each and every case such a
direction must followirrespective of and
without taking into account the other
relevant circumstances and considerations."
[p. 142]
In that case, this Court has, however,
observed :
"If a casual labourer has continued for
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a say two or three years - a presumption may
arise that there is a regular need for his
services and in such a situation it becomes
obligatory for the authority concerned to
examine the feasibility of his
regularisation." [p. 153]
Regularisation in service in the State of U.P. is
governed by the Regularisation Rules which prescribes a
period of three years continuous service. We cannot say that
the said period of three years prescribed under the
Regularisation Rules is unreasonable. In these
circumstances, it must be held that unless the petitioners
fulfil the requirement of the Re
Regularisation Rules, they cannot be regularised.
It has been submitted by the learned counsel for the
petitioners that even though under the Governor’s sanction
appointment on the post of Registration Clerks on daily wage
basis could be made for a maximum period of three months
during the course of a financial year, a practice was
prevailing in the Registration Department to avail the
services of Registration Clerks appointed on daily wage
basis by treating them as Apprentices but they were not paid
any emoluments for the period they worked as Apprentices. It
is stated that this was done by invoking the provisions of
paragraph 101 of the Manual which provided as under :-
"101 : Employment of unpaid Apprentice
The employment of unpaid Apprentice in
registration offices is strictly prohibited,
except in special cases, and with the
previous sanction, in writing of the District
Registrar of the District or the Inspector
General of Registration, which sanction can
be at any time withdrawn. It should at the
same time, be clearly understood that as the
employment of unpaid Apprentice can only be
regarded as a convenience of the Sub-
Registrar himself, such services will not be
recognised as giving any claim of
appointment."
On behalf of the respondents it has been submitted that
the said provision contained in paragraph 101 of the Manual
has been superseded and instructions have been issued by the
Inspector General of Registration from time to time not to
engage any person under paragraph 101. Shri D.V. Sehgal has
very fairly stated that if any petitioner was required to
work without payment as an Apprentice under paragraph 101,
he will be paid emoluments on daily wage basis for the said
period. In view of this statement if any of the petitioners
or other similarly placed persons was required to perform
the duties of Registration Clerk as an Apprentice under
paragraph 101 of the Manual he can submit a representation
setting out the particulars about such employment and the
concerned authority, after verifying the correctness of
claim, would pass the necessary order for payment of
emoluments on daily wage basis for the period he is found to
have so worked on the post of Registration Clerk. The said
period during which he is found to have worked as Apprentice
under paragraph 101 of the Manual shall be also counted as a
part of his service as Registration Clerk on daily wage
basis for the purpose of computing the period of three years
continuous service for the purpose of regularisation.
It has been next urged on behalf of the petitioners
that even if the petitioners are not entitled to seed
regularisation, they should be given preference in the
matter of appointment on the post of Registration Clerk
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whenever regular appointment is made on that post and
reliance has been placed on the decision of this Court in
Prabodh Verma & Ors. vs. State of Uttar Pradesh & Ors., 1985
(1) SCR 216. In that case nearly 90 per cent of teachers in
recognised institutions who were members of the Uttar
Pradesh Madhyamik Shikshak Sangh went on an indefinite
strike. The said strike was declared as illegal by the State
Government and the services of the striking teachers were
terminated. Fresh appointments on temporary basis were made
on the posts of teachers whose services were terminated.
Thereafter a settlement took place between the striking
teachers and the State Government and the services of the
newly appointed teachers were terminated. Thereafter, the
Governor of Uttar Pradesh promulgated an ordinance which
provided for the absorption of certain teachers in the
institutions recognised under the Intermediate Education
Act, 1921 and for that purpose a provision was made for
maintaining a register of "reserve pool teachers" consisting
of persons who were appointed as teachers during the period
of the strike and it was further provided that where any
substantive vacancy in the post of a teacher in an
institution recognised by the Board of High school and
Intermediate Education was to be filled by direct
recruitment, such post should at the instance of the
Inspector be offered by the management to the teacher whose
name was entered in the said register. The validity of the
said ordinance was challenged before the Allahabad High
Court by some of the applicants who were not in the reserve
pool. The said ordinance was declared as invalid by the High
Court on the ground that it was violative of the right to
equality guaranteed under Article 14 of the Constitution.
Reversing the said view of the High Court, this Court upheld
the said ordinance and held that there was an intellingile
differential which distinguishes the teachers put in the
reserve pool from other applicants for posts of teachers in
recognised institutions inasmuch as the reserve pool
teachers were those who had come forward at a time when the
teachers employed or a large majority of such teachers, in
the recognised institutions, had gone on an indefinite
strike and had continued the strike even after it had been
declared illegal and had the strike continued almost all the
recognised institutions in the State would have had to close
down putting the students to great hardship and suffering
and causing a break in their education and that it was in
these difficult and trying times that the reserve pool
teachers came forward to man the recognised institutions. It
has also been observed that the reserve pool teachers joined
the recognised institutions during the period of the strike
in circumstances in which they exposed themselves to great
hostility from the striking teachers and that they did so
running a certain amount of risk for there was always a
possibility of a strike turning violent and that almost all
those who applied for these posts and were not in the
reserve pool and were seeking to challenge the validity of
the ordinance must have qualified to be appointed to the
post of teachers in the recognised institutions during the
pendency of strike and none of these applicants, however,
came forward to join a recognised institution during that
period as the reserve pool teachers did and, therefore, they
stood in a different class from the reserve pool teachers.
We find it difficult to appreciate how the petitioners can
claim preference in the matter of regular appointment on the
post of Registration Clerk on the basis of this decision. It
cannot be said that the petitioners had to undergo any risk
when they joined as Registration Clerks on daily wage basis.
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They joined the posts of their own free will knowing fully
well that the said appointment was for a very short duration
and would not exceed three months during the course of a
financial year. We are, therefore, unable to hold that the
petitioners who had worked as Registration Clerks on daily
wage basis form a separate class and are entitled to claim
preferential treatment in the matter of appointment on the
post of Registration Clerks as and when recruitment is made
for the said post.
We are, however, of the view that in the event of the
recruitment being made on the post of Registration Clerks on
regular basis, the petitioners or other similarly placed
persons should be given one opportunity of being considered
for such appointment and they be given relaxation in age
requirement provided for such appointment under the rules.
During the process of selection weightage may be given for
their experience to the Registration Clerks who have worked
on daily wage basis and suitable guidelines may be framed
for that purpose by the Subordinate Services Selection
Commission.
For the reasons aforementioned, the impugned judgment
of the High Court is upheld with the following directions :-
(1) The petitioners or other similarly placed persons who
were employed as Registration Clerks on daily wage basis
prior to October 1, 1986 shall be considered for
regularisation under the provisions of rule 4 of the
Regularisation Rules provided they fulfil the reguirements
of rule 4(1)(ii) and they have completed three years
continuous service. The said period of three years service
shall be computed by taking into account the actual period
during which the employee had worked as Registration Clerk
on daily wage basis. The period during which such an
employee has performed the duties of Registration Clerk
under paragraph 101 of the Manual shall be counted as part
of service for the purpose of such regularisation.
(2) In the event of appointment on regualr basis on the
post of Registration Clerks, the petitioners or other
similarly placed persons who had worked as Registration
Clerks on daily wage basis may be given one opportunity of
being considered for such appointment and they be given
relaxation in the matter of age requirement prescribed for
such appointment under the Rules.
(3) The Subordinate Services Selection Commission while
making selection for regular appointment to the posts of
Registration Clerks shall give weightage for their
experience to the Registration Clerks who have worked on
daily wage basis and shall frame suitable guidelines for
that purpose.
(4) If any of the petitioners or other similarly placed
person was required to perform the duties of Registration
Clerk as an Apprentice under paragraph 101 of the Manual, he
may submit a representation to the appropriate authority
setting out the full particulars of such employment within
three months and the concerned authority, after verifying
the correctness of the said claim, shall pass the necessary
order for payment of emoluments on daily wage basis for the
period he is found to have so worked on the post of
Registration Clerk. The said payment shall be made within a
period of three months from the date of submission of the
representation.
The Special Leave Petitions are disposed of
accordingly.
No costs.
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