RAJA RAM Vs. STATE OF U P

JUDGEMENT

(1.) This writ petition has been filed under Article 226 of the Constitution of India to quash the impugned order of termination dated 13.10.1986, passed by the opposite party No. 3 Executive Engineer, Minor Irrigation Division-I, Lucknow and for mandamus to hold the provisions of Rule 4 read with Rule 9 and Rule 8 of the U. P. Regularisation of Ad hoc Appointments (On Posts Outside the Purview of the Public Service Commission) Rules, 1979, as ultra vires and further a writ of mandamus commanding the opposite parties to allow the petitioner to continue in service without interruption and also to regularise the services of the petitioner in accordance with Regularisation Rules and give him full consequential benefits.

(2.) According to the petitioner, he was given appointment on the post of 'Gotakhor' by the opposite party No. 3 vide order dated 7.5.1983 (Annexure-1). He joined the post of "Gotakhor" on 7.5.1983 and since then, he has been performing his duties without any complaint. His services were terminated vide order dated 13.10.1986 (Annexure-2) in accordance with the instructions contained in the U. P. Regularisation of Ad hoc Appointments (On Posts Outside the Purview of the Public Service Commission) (Amendment) Rules, 1984. It is alleged that the petitioner has been discriminated vis-a-vis the other ad hoc employees who were appointed after the appointment of the petitioner under the opposite party No. 3 and in their cases the provisions of Regularisation Rules, 1984, have not been made applicable. The petitioner pointed out that Syed Ali Vasnir Zaidi, Sushil Kumar Srivastava, Aji Singh, Yadunath Singh and Subhash Chandra Upadhyaya were appointed after the date of the appointment of the petitioner and their services were regularised. The Regularisation Rules came into force in the year 1979 which provided that if, any person who was directly appointed on ad hoc basis before January 1, 1977 and was continuing in service as such on the date of commencement of the rules, i.e., 14.5.1979 shall be considered for regular appointment on the basis of their service records provided he possessed requisite qualifications prescribed for regular appointment at the time of such ad hoc appointment and had completed three years service as such. The provisions of Regularisation Rules were further extended to the employees appointed on ad hoc basis on or before 1.5.1983 by making amendment vide Notification No. 19/5/1981/Karmik-1, dated 22.3.1984. The petitioner further alleged that he has completed more than three years service and there is no infirmity in the way of his regularisation on the basis of his service record. The Regularisation Rules initially fixed 1.1.1977 as cut off date for giving facility to the ad hoc employees for regularisation and again extended this cut off date as 1.5.1983. This cut off date is highly arbitrary and there is no nexus between the fixation of this date and the object which is desired to be achieved by giving this facility to the ad hoc employees appointed on or before 1.5.1983 and not to them who were appointed after 1.5.1983. This cut off date in the Rules infringes fundamental rights guaranteed under Articles 14 and 16 of the Constitution of India. The provisions of Rule 8 which provide that the services of a person whose case is not covered by Sub-rule (1) of Rule 4 shall be terminated forthwith, are also contrary and unconstitutional. The post held by the petitioner has not been abolished and the ad hoc employees are being appointed even after restriction imposed by the Government. No regular selection has been held for the post, which was held by the petitioner. Thus, the petitioner has challenged his termination order on the grounds ; (1) the cut off date 1.5.1983 is arbitrary ; (2) the Rule 8 of the Regularisation Rules providing for termination of service is arbitrary and ultra vires ; (3) the petitioner has been discriminated in the matter vis-a-vis ad hoc employees appointed on or before 1.5.1983 ; and (4) the petitioner has been discriminated in the matter vis-a-vis other ad hoc employees who were appointed after the appointment of the petitioner on ad hoc basis but their services have not been terminated and they have been allowed to continue.

(3.) A counter-affidavit has been filed by the State of U. P. contending that the services of the petitioner have been terminated according to the provisions in G.O. No, 19/5-1981 Karmik-1, dated 22.3.1984 read with Regularisation Rules as amended in 1984. The petitioner was appointed temporarily and on ad hoc basis for a period of three months only and his services were liable to be terminated without notice before expiry of three months. The petitioner has not been discriminated and his services have been terminated according to the provisions of Ad hoc Regularisation Rules. The employees shown in para 7 at serial Nos. 1 to 4 on ad hoc basis were not appointed by the opposite party No. 3 and the employee shown at serial No. 5 was no more working under the opposite party No. 3. The employee shown appointed at serial No. 5 did not belong to cadre of 'Patrol' which post is held by the petitioner. The action under U. P. Regularisation of Ad hoc Appointment (On Posts Outside of the Purview of the Public Services Commission) Rules, 1979 read with its amendment Rules 1984 is being taken for different cadre of the posts by different offices under the U. P. Government. The Ad hoc Regularisation Rules as amended in 1984 were not applicable in the case of the petitioner as he was appointed after May, 1983, which is the cut off date in the Rules.