Lawyers are abstaining from work.
The petitioner appeared in person and argued his case within a broader view of the factual position not happily worded in the writ petition and commenting in this regard on the role of learned counsel, who professionally are distancing from the spirit of service is futile. Suffice it to say that the professional duties, to an extent, strictly speaking are neither business nor trade and this may be one of the reasons why members of legal fraternity should be claiming special privileges.
None represented the respondents.
This is a second writ petition filed by the petitioner in the sequel of litigation before this Court. Previously Writ Petition No.2637 (S/S) of 1991 was filed by the petitioner against the order of oral termination from service, wherein this Court on 30.4.1991 was pleased to pass the following order:-
"Notice of this petition on behalf of opposite parties has been accepted by Sri Rakesh Kumar who is allowed time till 7.5.1991 to file a counter affidavit. If the petitioner has completed 240 days of continuous service within the next preceding 12 months and if his work and conduct has been satisfactory, the petitioner shall be allowed to continue in service, the petitioner shall also be considered for being paid salary in the regular scale of pay."
The petitioner having been appointed in the month of April, 1988 was further allowed to work in compliance of Court order from the month of May, 1994. The writ petition came up for final hearing in the year 2003, when the same was disposed of in terms of order/ judgment dated 15.09.2003 and for ready reference the said order/ judgment is reproduced as under:-
"Heard learned counsel for the petitioner and learned standing counsel.
By means of this writ petition, petitioner has prayed for a writ in the nature of mandamus commanding the opposite parties to allow the petitioner to be continued in service after declaring his retrenchment to be illegal and also commanding to them to regularize his services. Petitioner is Diploma holder Electrical Engineering was appointed on the post of Operator by the General Manager (Administration) of U.P. Cooperative Processing and Cold Storage Federation Limited Lucknow on 29.3.1988 on daily wages basis. He was disengaged against which he filed the instant writ petition by which an interim order was passed to the effect that the petitioner has completed 240 days of continuous service within the next preceding 12 months and if his work and conduct has been satisfactory the petitioner shall be allowed to continue in service and the petitioner shall also be considered for being paid salary in regular scale of pay. The petitioner is continue in pursuance of the interim order dated 30.4.1991.
The petitioner has claimed parity with the order passed in the case of Jitendra and others Vs. State of U.P. and others of writ petition no.6240 (S/S) of 1991 decided on 26.4.2000. The relevant part of the order passed in the said writ petition is quoted as under:
"In the instant case undoubtedly and undisputedly the petitioner is working for a period more than 12 to 18 years but no reasons have been indicated in the counter affidavit as to why those petitioners have been continued in service on daily wage basis and why their cases for regularization have not been considered so far. The petitioners who have been working for such a long time are thus entitled for regularization.
I, therefore, allow the writ petition and issue a writ of mandamus directing the opposite parties to regularize the services of the petitioners on the post on which they are working and to place them in regular pay scale from the date of their regularization. The regularization of the petitioners shall considered within a period of six weeks from the date the certified copy of this order is produced before the concerned Authority. However, if the petitioners have become overage their age should come in the way while considering their regularization and in passing the orders accordingly. The writ petition is allowed.
No orders as to costs."
Considering the facts and circumstances of the case, this writ petition is disposed of in terms of the order passed in the case of Jitendra and others Vs. State of U.P. & others in case the petitioner's case is covered and he has completed 10 years regular service on daily wage basis, as the case of Jitendra & others is as quoted above, the petitioner will be considered for regularization as directed in the above order."
The pleadings show that the final order passed by this Court on 15.09.2003 was further clarified by this Court vide order dated 24th February, 2004 on an application for recall/ modification of the aforesaid judgment, which reads as under:-
"This is an application for recall, modification and clarification of the judgment and order dated 15.9.2003 passed by this Court.
Vide judgment and order dated 15.9.2003 this Court has disposed of this writ petition in terms of the order passed in W.P. No.6249 of 1991 (SS) (Jitendra & others Vs. State of U.P. & others) and directed that the petitioner shall be considered for regularization but the opposite parties have not considered the case of the petitioner for regularisation and rejected his case on two grounds. Firstly, the petitioner is not qualified to be appointed on the post of Operator and secondly, the post of Operator (Cold Storage) has been declared as dying cadre.
Learned counsel for the applicant/ petitioner has submitted that at the time of initial appointment no objection was raised regarding the qualification of the petitioner and since the date of initial appointment till today the work and conduct of the petitioner has been remained more than satisfactory and no adverse material has been commu8nicated so far. Thus, at this stage, it cannot be said that the petitioner is not qualified to be appointed on the post of Operator.
From a perusal of letter dated 6.6.2003 contained in Annexure No.5 to this application it is clear that the post of Operator has been declared dying cadre, in which it is also mentioned that the posts of the employees working as Operator and Helper Operator, shall be deemed to be abolished after their death, superannuation and resignation. This letter is not applicable in the case of the petitioner because it is prohibiting for new appointment and the case of the petitioner is not a new appointment and the same is for regularization, who has been working for the last 14 years.
The petitioner has been considered under dying cadre while he should have been considered for regularization under the available post.
In view of the above mentioned facts and circumstances, this Court is of the opinion that the petitioner is liable to be considered on the available vacancy.
Therefore, it is directed that the petitioner shall be allowed to continue and his regularization shall also be considered on the available vacancy and not under dying cadre.
Accordingly, this application is disposed of with the above modification."
At the relevant point of time, when the judgment dated 15.09.2003 was clarified by this Court, the case of the petitioner stood already considered for regularisation by order dated 22.1.2004, whereby his candidature for the purposes of regularisation in service was rejected on the grounds mentioned in the said order. The respondents in compliance of clarificatory order passed by this Court on Civil Misc. Application No.6327 (W) of 2004 filed in Writ Petition No.2637 (S/S) of 1991, on the one hand complied with the clarificatory order by passing a further order on 22.9.2004 in furtherance of previous order dated 22.1.2004, whereby the claim of the petitioner for regularisation in service was rejected and on the other hand, filed a Special Appeal simultaneously against the clarificatory order dated 24.2.2004 passed by learned Single Judge on Civil Misc. Application No.6327 of 2007 mentioned above. Since the claim of the petitioner for regularisation in service had already been considered and rejected by order dated 22nd January, 2004 and a further order to this effect had also been issued on 22.09.2004, therefore, the special appeal filed by the respondents was allowed and the clarificatory order passed in Writ Petition No.2637 (S/S) of 1991 on 24.2.2004 was set aside. However, liberty was given to the petitioner to challenge the orders dated 22.1.2004 and 22.9.2004. The order dated 23.10.2007 passed in the Special Appeal No.461 of 2005 reads as under:-
"Heard Sri Sanjay Kumar, learned counsel for the appellant and Sri Ramesh Kumar Srivastava, learned counsel for the respondent.
The instant Special Appeal arises from the order dated 24.02.2004 passed by the Hon'ble Single Judge on C.M. Application No.6327 of 2007 in writ petition No.2637 (S/S) of 1991 by which the judgment and order dated 15.09.2003 was modified.
We have been informed by the learned counsel fro the appellant that in compliance of the judgment and order dated 15.09.2003 the case of the petitioner was considered by the competent authority who passed the order dated 22.1.2004 and in compliance of the order dated 24.2.2004 the case of the respondent for regularization was again considered by the competent authority by the order dated 22.09.2004.
It is admitted case of the parties that the order dated 22.01.2004 was not challenged by the respondent in writ jurisdiction.
In view of the order dated 22.01.2004 passed by the competent authority, it was not open for the Hon'ble Single Judge to modify the judgment and order dated 15.09.2003. The Special Appeal is hereby allowed and the impugned order dated 24.02.2004 is hereby set aside. However, it will be open for the respondent to challenge the orders dated 22.01.2004 and 22.09.2004 in accordance with law."
The record also shows that the respondents in compliance of this Court's order dated 15.09.2003 and the directions issued in Contempt Petition No.421 (C) of 2005 proceeded to consider the candidature of the petitioner for regularisation afresh and in the selection proceedings held on 14.11.2007 on the basis of which the impugned order dated 16.11.2007 is issued, the matter after due consideration was rejected again. Resultantly the present writ petition came to be filed against the impugned order dated 16.11.2007 as well as the selection proceedings held on 14.11.2007.
In the counter affidavit filed by the respondents, an objection was raised that since the petitioner had failed to assail the order dated 22.1.2004 and 22.9.2004, therefore, maintainability of the writ petition on that account was questioned. In order to rectify the defect, the amendment applications were filed by the petitioner and the same were allowed to the extent of challenging the previous orders passed by the respondents on 22.1.2004 and 22.9.2004 and the order dated 19.11.2007 as well. After allowing the amendment applications by this Court, the entire relief prayed for in the writ petition reads as under:-
"i. issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 16.11.2007 and proceedings of the selection committee dated 14.11.2007 are being filed as Annexure No.1 and 2 to the writ petition.
ii. issue a writ, order or direction in the nature of certiorari quashing the oral order of termination passed by Opp. Party No.3 dated 23.11.2007.
iii. issue a writ, order or direction in the nature of mandamus commanding the Opp. Parties to allow the petitioner to continue in service as operator.
iv. issue a writ, order or direction in the nature of mandamus commanding the Opp. Parties to give the pay scale of operator that is Rs.1200-2040.
v. any other writ, order or direction which this Hon'ble Court deem fit, just and proper in the circumstances of the case.
vi. a writ, order or direction in the nature of certiorari quashing the impugned order dated 19.11.2007, which is contained as Annexure No.18 to the writ petition.
vii. writ, order or direction in the nature of certiorari quashing the impugned order dated 22.01.2004 and 22.09.2004 which are contained as Annexure No.7 and 11 to the writ petition."
The aforesaid reliefs are prayed for on the premise that the petitioner was initially appointed in the month of April, 1988 and at that point of time the respondent organisation, which is an instrumentality of the State within the meaning of Art.12 of the Constitution of India being registered under the U.P. Cooperative Societies Act, 1965 was known by the name of 'U.P. Cooperative Processing and Cold Storage Federation Ltd.' It is pointed out that business of the State controlled society at the relevant point of time was in the nature of running cold storages. Since the year 1991 onwards the cold storage business of the society gradually came to a closure whereafter from the year 1994 onwards, the society came to be renamed as 'U.P. Processing and Construction Cooperative Federation Ltd., 19A, Vidhan Sabha Marg, Distt. Lucknow'. The business of the society is spread over entirely within the State of U.P. The petitioner in the month of May, 1994 was restored in service in compliance of the Court order dated 30th April, 1991, and since then he was rather assigned the work of Supervisor, inasmuch as, all the Operators working in the society at the relevant point of time in cold storages because of the cessation of work of Operator (Refrigeration) had come to be accommodated against the work of Supervisor (Sthal Abhiyanta). The petitioner points out that he also continued to work in the capacity of Work Supervisor until the year 2004, when his case came to be considered for regularisation by the competent authority.
The claim of the petitioner was rejected on the ground that he did not fulfill the requisite qualification i.e. I.T.I. certificate in refrigeration on the post of Operator as was prescribed under a circular issued by the Registrar, Cooperative Societies in exercise of the powers under Regulation 3 of the U.P. Cooperative Societies Employees Service Regulations, 1975. It is also mentioned in the counter affidavit that the post of Operator was declared as a dying cadre, when the case of the petitioner came up to be considered for regularisation in service. The two conflicting stands are very much apparent from the contents of counter affidavit as has been filed in the writ petition. The applicability of statutory rules is also vaguely disputed.
Now coming to the merit of the impugned order dated 22.1.2004 it is seen that on the date of petitioner's consideration for regularisation in service, the cadre of Operators which is said to have been declared a dying cadre, thus, for the purposes of consideration of the petitioner for regularisation in service, the eligibility on the post of Operator had virtually lost its relevance, although the stand of the petitioner is to the effect that he is possessed with a diploma degree of three years from a Polytechnic College in the electrical wing, which being a three years course comprises of the studies spread over to nearly 27 trades including refrigeration. The petitioner further submits that the regular incumbents, who were possessed with the Diploma Degree from Polytechnic Colleges whether in electrical wing or mechanical wing being initially appointed as Operators were duly allowed to work as Work Supervisor (Sthal Abhiyanta) and the petitioner being one of the persons working against the sanctioned strength of Operators like other regular incumbents ought to have been considered having regard to the qualification possessed by him for a Group-C post i.e. Work Supervisor and his candidature on the reasoning assigned in the impugned order was incapable of being rejected by the opposite party particularly when he had already rendered considerable period of satisfactory service on the basis of which he was considered for regularisation. The petitioner has also placed on record the list of employees working against the strength of sanctioned posts and it is seen that his name figures as one of the incumbents working as Operator amongst other regular employees of the category. All other Operators are said to have been accommodated by the opposite parties as Work Supervisor (Sthal Abhiyanta) upon closure of the cold storage business of the society, which is now involved in the construction work and is known as 'U.P. Processing and Construction Cooperative Federation Ltd., 19A, Vidhan Sabha Marg, Distt. Lucknow'.
From the perusal of order dated 22.1.2004 it is also gathered that in absence of any dispute with respect to petitioner being possessed with minimum eligibility of length of service, the respondents have not assailed the order passed by this court on 15.09.2003 in Writ Petition No.2637 of 1991, whereunder petitioner's right of consideration for regularisation in service having attained finality was subjected to consideration. Once this right attained finality, significance was liable to be attached to the work and duties, performed by the petitioner since the year 1994 and not to a hypothetical situation existing at the initial stage. It is also relevant to note that the similarly situated persons, who were discharging the duties of Operators have been accommodated against the work/ post of Work Supervisor (Sthal Abhiyanta), therefore, eligibility of the petitioner was liable to be tested against the work/ post of which the duties were actually assigned to the petitioner since the year 1994 onwards. The respondents in order to frustrate the claim of the petitioner proceeded to scrutinise the case of the petitioner in a faulty manner and have rejected his claim merely on the ground of qualification, which at the relevant point of time had lost its relevance with the declaration of the posts of Operator as a dying cadre.
Pursuant to the orders passed in Contempt Petition No.421 (C) of 2005 the candidature of the petitioner was considered afresh in the year 2007 by means of the impugned order contained in Annexure No.1 on the basis of selection proceedings held on 14.11.2007. The same reasoning has again weighed in the mind of Selection Committee, which had become irrelevant on the date of petitioner's previous consideration in the year 2004 and the real grievance of the petitioner for being considered for regularisation in service in the changed ground realities remained unattended and unnoticed, consequently the petitioner continues to wait for enjoying the fruit of justice till date.
The approach of the employer which ought to have an essence of redressal of petitioner's grievance rather got oriented to frustrate his valuable right of consideration. Evidently, such an approach on the part of employer is unwanted and cannot be approved of in a situation, where an employee has spent his long valuable years of life towards serving an organisation which being the instrumentality of State is rather responsible for generating source of employment. This of course is subject to the limitation that Courts cannot direct for the creation of post but in the instant case as many as ten sanctioned posts of Operators had already been existing and against one such post, the petitioner had been working along with other regular employees. The posts as per the own stand of respondents set out in the order dated 6.6.2003 were to exist till the superannuation, death or resignation of the holders of post. Therefore, in such a situation the conversion of duties is to be understood in an equal and identical manner within the same class of employees. Unjustified distinctions drawn merely on the basis of status between regular, temporary, adhoc or daily wage employee is highly misplaced. Once the other regular employees (Operators) working on the same post with the same qualification were allowed to work as Work Supervisor (Sthal Abhiyanta), the candidature of the petitioner for regularisation was liable to be considered in the changed circumstances of the organisation. The nature of work discharged by the petitioner had assumed altogether a new nomenclature of duties, with the change of the business of society and this reality ought to have been recognised by the respondents while considering petitioner's candidature for regularisation in a meaningful manner. Even otherwise, once the diploma degree possessed by the petitioner is inclusive of the training/ studies in refrigeration, it is difficult to accept as to why the petitioner would be ineligible.
The issuance of impugned order dated 16.11.2007 on the basis of fresh consideration gave rise to a new dimension to the controversy when the selection committee simply on the ground of lack of ten years continuous service found the petitioner as ineligible although there is no such mention in the order dated 22.1.2004 when the candidature of the petitioner was considered previously and the same order remains the basis of rejection of petitioner's claim throughout. This finding of the selection committee is perverse and in the teeth of this Court's order dated 15.09.2003 according to which the petitioner's right of consideration attained finality. This aspect of the matter was open to be agitated before the writ court prior to the judgment dated 15.09.2003 and in the special appeal no.461 of 2005, when the same was decided on 23.10.2007 but there is no such challenge. Moreover, the eligibility is to be seen at the time of entry in service which unless misrepresented by a person would not be construed in a discriminatory manner as is the situation in the present case.
The selection committee as per the mandate of statutory rules applicable for the purpose has clearly failed to consider the suitability of the petitioner having regard to the work and conduct of the petitioner while in service, rather the eligibility, which aspect remained unquestioned and had attained finality, was wrongly sought to be reopened by the selection committee. In this manner the selection committee clearly misunderstood the distinction between eligibility and suitability. The exercise by the selection committee is restricted to the assessment of suitability having regard to work and conduct and that aspect, apparently being completely lost sight of by the competent authority, renders the impugned order dated 16.11.2007 as well as the selection proceedings as unfair and unjustified in the eye of law.
In the matters of regularisation of employees in service within the scope of regularisation rules, it is generally seen that the authorities have laid more emphasis on eligibility rather suitability to be determined on the basis of an established track record of service of an employee. The casualty of non-application of mind and undue resistance against attaching due importance to the true meaning of 'consideration' in a fair manner is largely visible in most of the cases.
The phrase 'consider' is very often used in the statutes and the orders/judgments passed by this Court. People at large look at the public authorities and our judicial system with a hope of justice, therefore, the phrase 'consider' in its wider sense is an article 'repository of faith'. Very often, leaving the matter open to be considered by the executive authorities, this Court heals and bridges the gap of faith between the people and executive authorities in the matter of public duties. Therefore, the performance of duties by the public authorities wisely, fairly and fearlessly strengthens the faith of people at large in the matter of governance and recognition of this article of faith in judicial pronouncements tends to strengthen the relationship of obedience between the state and its subjects. The lawyers owe to the profession a basic duty to protect this 'article of faith' and save the institution and role they play from sarcasm and undue criticism.
The true import of the word 'consider' and its meaning came to be considered by the Hon'ble Apex Court in the case of Bhikhubhai Vithlabhai Patel & Ors. v. State of Gujarat & Anr. reported in (2008) 4 SCC 144, wherein, in para 25 of the judgment, the following observations are made:-
"25. The formation of the opinion by the State Government is with reference to the necessity that may have had arisen to make substantial modifications in the draft development plan. The expression: so considered necessary is again of crucial importance. The term consider means to think over; it connotes that there should be active application of the mind. In other words the term consider postulates consideration of all the relevant aspects of the matter. A plain reading of the relevant provision suggests that the State Government may publish the modifications only after consideration that such modifications have become necessary. The word necessary means indispensable, requisite; indispensably requisite, useful, incidental or conducive; essential; unavoidable; impossible to be otherwise; not to be avoided; inevitable. The word necessary must be construed in the connection in which it is used. (See-Advanced Law Lexicon, 3rd Edition, 2005; P. Ramanatha Aiyar)"
Likewise in the decision rendered by the Hon'ble Apex Court in the Divisional Personnel Officer, Southern Railway & Anr. v. T.R. Chellappan reported in (1976) 3 SCC 190, para 21 of the judgment is significant and meaning of the word 'consider' how to be understood in the context of application of mind, the apex court has guided.
From the perusal of material placed on record and the impugned orders passed on 22.1.2004, 22.9.2004, 19.11.2007 as well as the order dated 16.11.2007 based on the recommendation of Selection Committee meeting dated 14.1.2007, I am of the considered opinion that the respondents have not considered the candidature of the petitioner in accordance with law and against the nature of work discharged by all the Operators including the petitioner on the relevant date. Therefore, the impugned orders having been passed in an arbitrary manner are liable to be set aside. It goes without saying that the status of the petitioner as was maintained since the year 1994 ought to have been continued until the consideration of his candidature for regularisation in accordance with law. Therefore, ousting the petitioner from service is also clearly hit by Art.14 of the Constitution of India, inasmuch as, a person having been discharging duties for a sufficient long time could not be rendered jobless merely on the basis of an arbitrary consideration of his candidature for regularisation in service and that too contrary to the terms of the judgment according to which his right of consideration had attained finality.
As far as the position of sta
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tutory Rules in the context of petitioner's claim for being considered for regularisation in service is concerned, suffice it to say that the respondents while considering the petitioner's candidature as is evident in the order dated 22.1.2014 have specifically referred to the Government Order dated 27.08.1992 according to which the petitioner's claim is admitted to be covered under the Regularisation Rules notified on 26.03.2003 and the requisite length of service was certainly not a matter of dispute as is clear from the order dated 22.1.2004. The Regularisation Rules are a one time measure beneficial to all those persons, who step into public service otherwise than the prescribed method of recruitment resorted to fill up the vacancies at a large scale. Although casual mode of recruitment against the short term vacancies or in exigencies of work is improper but experience shows that it is inescapable. The government and its instrumentalities are adopting necessary measures to be more transparent but the settled lives have not to be unsettled so as to cause more injustice to the dependent families. In this view of the matter, these rules are liable to be interpreted liberally so that the proven ability based on work and conduct may weigh as the decisive criteria of appointment so as to achieve the exceptional object of statutory rules. By observing so it is not meant that the regular process of selection be by-passed but what is meant is that the authorities have to have logical and acceptable reasons for settling mode of recruitment in order to keep public trust and faith intact. In the light of observations recorded above, the impugned orders dated 22.1.2004, 22.9.2004, 14/16.11.2007 and 19.11.2007 are hereby set aside. The respondents are directed to restore the petitioner in service forthwith at the minimum of pay scale and proceed to consider the petitioner for regularisation in service without any delay having regard to the nature of duties discharged by him at par with the other similarly circumstanced regular Operators, who were allowed to work in the organisation namely 'U.P. Processing and Construction Cooperative Federation Ltd., 19A, Vidhan Sabha Marg, Distt. Lucknow'. As far as the salary for the period for which the petitioner has not worked is concerned, the petitioner, looking to the nature of duties as Group-C employee working on standard rate, shall be entitled to and paid a lumpsum amount of Rs.1.50 lakhs. Apart from the financial benefit to the extent allowed as above, other service benefits are allowed to the petitioner subject to his regularisation in service. The writ petition stands disposed of accordingly and cost of litigation payable to the petitioner is quantified at a sum of Rs.25,000/- and the total amount inclusive of Rs.1.50 lakhs mentioned in the operative part shall be paid to the petitioner within a period of one month from the date a certified copy of this judgment is served upon the concerned respondents.