High Court

1. Heard Mr. R.C. Tewari, learned counsel for petitioner and learned State Counsel for opposite parties.

2. Petition has been filed challenging order dated 04.09.2023 whereby petitioner's representation for regularization of services w.e.f. 20.09.2001 or from the date services of persons junior to petitioner were regularized has been rejected. Prayer has also been made seeking a direction to the opposite parties to regularize services of petitioner w.e.f. 20.09.2001 or from the date services of persons junior to petitioner have been regularized and also for a direction for grant of II & III A.C.P. to petitioner with all consequential service benefits.

3. It has been submitted that petitioner was initially engaged in service on ad hoc basis on 10.01.1991 on the post of Junior Clerk in the Social Welfare Department whereafter his services were transferred to the Women Welfare Department in the year 1995 and in the year 1997 he was sent on deputation to Minority Welfare Department whereafter he was repatriated on 31.07.2002. The said repatriation order was challenged by petitioner in Writ Petition No. 6382 of 2002 and was granted interim protection on 11.11.2002, in pursuance of which petitioner continued in service till 01.02.2018 when the said writ petition was disposed of with the observation that in case Government so desires to absorb the petitioner, the order would not come in that way.

4. It is submitted that in pursuance thereof, petitioner was directed to be relieved and joined in the Social Welfare Department on 11.05.2020 whereafter he was continuously employed with the said department and subsequently in pursuance of resolution dated 04.03.2021, his services were regularized vide order dated 23.07.2021.

5. It is, therefore, submitted that once the opposite parties have admitted petitioner's continuous ad hoc service w.e.f. 10.01.1991, there was no occasion for the opposite parties to have regularized his services only on 23.07.2021. Learned counsel has drawn attention to paragraph-20 of the writ petition to submit that one Mr. Dinesh Dutt Shukla who was also appointed on ad hoc basis in the same department on 09.04.1991 was subsequently regularized vide order dated 16.10.2002 and therefore the parity of same would also require to be granted to petitioner. Learned counsel has also adverted to the impugned order to submit that regularization of petitioner w.e.f. 20.12.2001 has been rejected primarily on the ground that the department did not have any service details available with them nor did petitioner ever give any representation for regularization of services prior thereto. He submits that the said reasoning is against principles of law and the rules pertaining to regularization.

6. Learned State Counsel has refuted submissions advanced by learned counsel for petitioner with the submission that admittedly petitioner was sent on deputation in the year 1997 to the Minority Welfare Department and was repatriated in 2002 but failed to join in pursuance of the repatriation order but continued on such deputation in terms of interim directions of this Court. It is submitted that petitioner thereafter rejoined in his parent department only in the year 2020 after dismissal of the writ petition and it is due to the said fact that department did not have any service records available pertaining to petitioner so as to consider his case for regularization. It is further submitted that petitioner also did not make any representation for such regularization of service indicating his status in the department. It is also submitted that petitioner does not have any vested right for regularization from a specific date and stood regularized only in terms of the relevant regularization rules with effect from the date when his case was considered for such benefit.

7. It is also submitted that subsequently the U.P. Qualifying Service for Pension and Validation Act, 2021 has been promulgated vide notification dated 05.03.2021 and it is in accordance thereof that petitioner's representation has been considered and rejected by means of impugned order.

8. Upon consideration of submissions advanced by learned counsel for parties and perusal of material on record, the impugned order as well as the counter affidavit clearly admits the fact that petitioner was employed as Junior Assistant on ad hoc basis in Social Welfare Department on 10.01.1991. The said fact is also evident from regularization order dated 23.07.2021. The impugned order as well as counter affidavit also clearly admit the fact that petitioner was in continuous employment with various departments of State Government on ad hoc basis without any break.

9. It is also evident that in paragraph-20 of the writ petition, it has been specifically stated that a person namely Mr. Dinesh Dutt Shukla was also appointed in his similar passion as petitioner on 09.04.1991 and was therefore, a subsequent appointee but his service stood regularized vide order dated 16.10.2002. The said paragraph of the writ petition has been replied to in paragarph-15 of the counter affidavit without denying such an assertion. In fact a copy of regularization order dated 16.10.2002 pertaining to the said person has been brought on record as annexure-13 to the writ petition clearly indicating his date of initial appointment as 09.04.1991 which is subsequent to petitioner's appointment.

10. The aspect of regularization of ad hoc persons in the employment of State Government is covered by U.P. Regularization of Ad hoc Appointments (on Posts Outside the Purview of the Public Service Commission) (Third Amendment) Rules, 2001 which clearly prescribes the aspect that any person who was directly appointed on ad hoc basis on or before 30.06.1998 and continued in service as such on the date of commencement of the Rules of 2001, possessed requisite qualifications prescribed for regular appointment and has completed three years service would be considered for regular appointment in permanent or temporary vacancy.

11. In the considered opinion of this Court the aforesaid rules are squarely applicable upon petitioner which is also evident from the fact that petitioner was subsequently in fact regularized in service by means of order dated 23.07.2021 in terms of the aforesaid Rules of 1979 as amended from time to time.

12. The aforesaid conditions are clearly applicable in the present facts and circumstances of the case where admittedly petitioner was appointed on ad hoc basis with the Government Department prior to the cut-off date and has continued in service till the cut-off date prescribed under the third amendment. His subsequent regularization by means of order dated 23.07.2021 also indicates the fact that he was eligible and qualified for regular appointment in terms of the Rules of 1979 as amended.

13. It is also evident and admitted from the record that a person appointed subsequent to petitioner on ad hoc basis as indicated hereinabove was subsequently regularized in service way back on 16.10.2002 thereby depriving petitioner of the same benefits although he was better placed than the said person.

14. The representation of petitioner has been rejected by means of impugned order primarily on the ground that his service records were not available with the department for consideration for regularization and that petitioner never made any representation for same.

15. In the considered opinion of this Court, such a ground for rejection of petitioner's representation for regularization is clearly untenable once the petitioner was clearly protected by means of Rules of 1979 as amended. Withholding such benefit to petitioner while granting same to a person appointed subsequent to petitioner would clearly be arbitrary and therefore, violative of not only Article 14 of the Constitution of India but also Article 16 thereof.

16. In view of aforesaid discussion, the impugned order dated 04.09.2023 being against provisions of law is hereby by quashed by issuance of a writ in the nature of certiorari. A further writ in the nature of mandamus is issued commanding the opposite party no. 2 i.e. Director, Women Welfare, (Women Welfare Directorate) U.P., Lucknow or any other competent authority to regularize service of petitioner w.e.f. 16.10.2002 on a notional basis. The said opposite party no. 2 i.e. Director, Women Welfare, (Women Welfare Directorate) U.P., Lucknow shall also consider grant of II & III A.C.P. to petitioner in pursuance thereof. Such a decision shall be taken and orders passed within a period of eight weeks from the date a certified copy of this order is served upon the said authority.

17. Consequently, the petition succeeds and is allowed. Parties to bear their own cost. Order Date :- 1.7.2025 Satish

1. Heard Mr. R.C. Tewari, learned counsel for petitioner and learned State Counsel for opposite parties.

2. Petition has been filed challenging order dated 04.09.2023 whereby petitioner's representation for regularization of services w.e.f. 20.09.2001 or from the date services of persons junior to petitioner were regularized has been rejected. Prayer has also been made seeking a direction to the opposite parties to regularize services of petitioner w.e.f. 20.09.2001 or from the date services of persons junior to petitioner have been regularized and also for a direction for grant of II & III A.C.P. to petitioner with all consequential service benefits.

3. It has been submitted that petitioner was initially engaged in service on ad hoc basis on 10.01.1991 on the post of Junior Clerk in the Social Welfare Department whereafter his services were transferred to the Women Welfare Department in the year 1995 and in the year 1997 he was sent on deputation to Minority Welfare Department whereafter he was repatriated on 31.07.2002. The said repatriation order was challenged by petitioner in Writ Petition No. 6382 of 2002 and was granted interim protection on 11.11.2002, in pursuance of which petitioner continued in service till 01.02.2018 when the said writ petition was disposed of with the observation that in case Government so desires to absorb the petitioner, the order would not come in that way.

4. It is submitted that in pursuance thereof, petitioner was directed to be relieved and joined in the Social Welfare Department on 11.05.2020 whereafter he was continuously employed with the said department and subsequently in pursuance of resolution dated 04.03.2021, his services were regularized vide order dated 23.07.2021.

5. It is, therefore, submitted that once the opposite parties have admitted petitioner's continuous ad hoc service w.e.f. 10.01.1991, there was no occasion for the opposite parties to have regularized his services only on 23.07.2021. Learned counsel has drawn attention to paragraph-20 of the writ petition to submit that one Mr. Dinesh Dutt Shukla who was also appointed on ad hoc basis in the same department on 09.04.1991 was subsequently regularized vide order dated 16.10.2002 and therefore the parity of same would also require to be granted to petitioner. Learned counsel has also adverted to the impugned order to submit that regularization of petitioner w.e.f. 20.12.2001 has been rejected primarily on the ground that the department did not have any service details available with them nor did petitioner ever give any representation for regularization of services prior thereto. He submits that the said reasoning is against principles of law and the rules pertaining to regularization.

6. Learned State Counsel has refuted submissions advanced by learned counsel for petitioner with the submission that admittedly petitioner was sent on deputation in the year 1997 to the Minority Welfare Department and was repatriated in 2002 but failed to join in pursuance of the repatriation order but continued on such deputation in terms of interim directions of this Court. It is submitted that petitioner thereafter rejoined in his parent department only in the year 2020 after dismissal of the writ petition and it is due to the said fact that department did not have any service records available pertaining to petitioner so as to consider his case for regularization. It is further submitted that petitioner also did not make any representation for such regularization of service indicating his status in the department. It is also submitted that petitioner does not have any vested right for regularization from a specific date and stood regularized only in terms of the relevant regularization rules with effect from the date when his case was considered for such benefit.

7. It is also submitted that subsequently the U.P. Qualifying Service for Pension and Validation Act, 2021 has been promulgated vide notification dated 05.03.2021 and it is in accordance thereof that petitioner's representation has been considered and rejected by means of impugned order.

8. Upon consideration of submissions advanced by learned counsel for parties and perusal of material on record, the impugned order as well as the counter affidavit clearly admits the fact that petitioner was employed as Junior Assistant on ad hoc basis in Social Welfare Department on 10.01.1991. The said fact is also evident from regularization order dated 23.07.2021. The impugned order as well as counter affidavit also clearly admit the fact that petitioner was in continuous employment with various departments of State Government on ad hoc basis without any break.

9. It is also evident that in paragraph-20 of the writ petition, it has been specifically stated that a person namely Mr. Dinesh Dutt Shukla was also appointed in his similar passion as petitioner on 09.04.1991 and was therefore, a subsequent appointee but his service stood regularized vide order dated 16.10.2002. The said paragraph of the writ petition has been replied to in paragarph-15 of the counter affidavit without denying such an assertion. In fact a copy of regularization order dated 16.10.2002 pertaining to the said person has been brought on record as annexure-13 to the writ petition clearly indicating his date of initial appointment as 09.04.1991 which is subsequent to petitioner's appointment.

10. The aspect of regularization of ad hoc persons in the employment of State Government is covered by U.P. Regularization of Ad hoc Appointments (on Posts Outside the Purview of the Public Service Commission) (Third Amendment) Rules, 2001 which clearly prescribes the aspect that any person who was directly appointed on ad hoc basis on or before 30.06.1998 and continued in service as such on the date of commencement of the Rules of 2001, possessed requisite qualifications prescribed for regular appointment and has completed three years service would be considered for regular appointment in permanent or temporary vacancy.

11. In the considered opinion of this Court the aforesaid rules are squarely applicable upon petitioner which is also evident from the fact that petitioner was subsequently in fact regularized in service by means of order dated 23.07.2021 in terms of the aforesaid Rules of 1979 as amended from time to time.

12. The aforesaid conditions are clearly applicable in the present facts and circumstances of the case where admittedly petitioner was appointed on ad hoc basis with the Government Department prior to the cut-off date and has continued in service till the cut-off date prescribed under the third amendment. His subsequent regularization by means of order dated 23.07.2021 also indicates the fact that he was eligible and qualified for regular appointment in terms of the Rules of 1979 as amended.

13. It is also evident and admitted from the record that a person appointed subsequent to petitioner on ad hoc basis as indicated hereinabove was subsequently regularized in service way back on 16.10.2002 thereby depriving petitioner of the same benefits although he was better placed than the said person.

14. The representation of petitioner has been rejected by means of impugned order primarily on the ground that his service records were not available with the department for consideration for regularization and that petitioner never made any representation for same.

15. In the considered opinion of this Court, such a ground for rejection of petitioner's representation for regularization is clearly untenable once the petitioner was clearly protected by means of Rules of 1979 as amended. Withholding such benefit to petitioner while granting same to a person appointed subsequent to petitioner would clearly be arbitrary and therefore, violative of not only Article 14 of the Constitution of India but also Article 16 thereof.

16. In view of aforesaid discussion, the impugned order dated 04.09.2023 being against provisions of law is hereby by quashed by issuance of a writ in the nature of certiorari. A further writ in the nature of mandamus is issued commanding the opposite party no. 2 i.e. Director, Women Welfare, (Women Welfare Directorate) U.P., Lucknow or any other competent authority to regularize service of petitioner w.e.f. 16.10.2002 on a notional basis. The said opposite party no. 2 i.e. Director, Women Welfare, (Women Welfare Directorate) U.P., Lucknow shall also consider grant of II & III A.C.P. to petitioner in pursuance thereof. Such a decision shall be taken and orders passed within a period of eight weeks from the date a certified copy of this order is served upon the said authority.

17. Consequently, the petition succeeds and is allowed. Parties to bear their own cost. Order Date :- 1.7.2025 Satish