'Continuous Service' A Requirement For Regularization, Only Exceptions Are Artificial Breaks Or Prevention By Employer: Allahabad High Court
The Allahabad High Court has held that an employee must work for a long, continuous period to be eligible for regularization and the only exception to this requirement is 'artificial breaks' or where the employe is prohibited from working by the employer.
The division bench of Justice Ashwani Kumar Mishra and Justice Praveen Kumar Giri observed,
“Unless the requirement of continuous working is read into the rules, the Regularization rule itself would be open for challenge on the ground of it being violative of Article 16 of the Constitution of India. The only exception which can be continenced is the artificial break or period in which the employee is prevented from work by the employer.”
The observation comes in a special appeal preferred by the State against a single bench order directing regularisation of Malis stated to be working continuously at Government Gardens, Agra between 1998 to 2001 (except for intermittent, artificial breaks).
As per the Malis, despite repeated representations, their claims of regularisation were not examined by the authority concerned. Hence they approached the High Court. The writ petition was disposed of with direction to consider their claim with authorities permitted to verify if the malis were working between 31.12.2001 and 12.09.2016, artificial breaks notwithstanding.
Since the claims were rejected by the Deputy Director, Horticulture, Agra, they approached the High Court again under Article 226 of the Constitution.
As per the Single Judge, under Rule 6(1)(i) of the U.P. Regularization of Persons Working on Daily Wages or on Work Charge or on Contract in Government Departments on Group 'C' and Group 'D' Posts (Outside the Purview of U.P. Public Service Commission) Rules, 2016, the person to be regularized must have been directly engaged or employed before 31.12.2001 and must still have been so working on the date of commencement of said Rules.
Relying on an earlier judgment of the Allahabad High Court in Janardan Yadav vs. State of U.P. and Others which considered pari materia provisions of Regularization Rules of 2001, Single Judge held that the requirement of continuous working was not contemplated in said Rules, and such an interpretation would amount to impermissibly adding words in the Rules. The writ petition was allowed.
Aggrieved by the order of the Single Judge, the State approached the Division Bench in Special Appeal.
High Court Verdict
The Court noted that Janardan Yadav vs. State of U.P. and others was considered by a co-ordinate Bench in State of U.P. vs. Ram Roop Yadav, where it was held that the judgment proceeded on complete non-consideration of the Hindi version of the Rules, 2001. The Hindi version mandated continuous employment. In Ram Roop Yadav, the Court specifically cited judgment by a seven-judge Bench in Special Appeal no. 622 of 1965, which held that referral to the Hindi text may be made to remove doubt or ambiguity in the English version.
In State of U.P. vs. Raj Kumar Srivastava, the Allahabad High Court held that only artificial breaks or short breaks in service could be ignored for computing continuous service. Persons who had been appointed for a few days in one year and did not work continuously could not be said to be in continuous employment.
In Janardan Yadav it was further held that merely working on two dates without necessity of continuance in between cannot be interpreted to mean continuous service. It was held that the intention of regularization is to end uncertainty for those in long service but appointed without procedure concomitant with law.
The bench headed by Justice Mishra held that only after working for a long period of time does regularization steps in, being a manifestation of the concept of equity applied to daily wagers. It observed that the 'long period of time' was defined to be 10 years by the Supreme Court in a Constitution Bench judgment in Secretary, State of Karnataka and others vs. Umadevi.
“Article 16 of the Constitution of India otherwise contemplates equality of opportunity in matters of public employment. Any appointment made contrary to the rules of recruitment would thus be impermissible. It is only on account of continuous working for substantial long that the concept of regularization steps, which is manifestation of the concept of equity applied in the case of daily wagers who are continuing for long. Unless such working for continuously long length of time exists the decision to regularize such employee itself would be contrary to law.”
The Court observed that certain appellants had not worked continuously for several years. It held that whether this was an artificial break was to be determined by the competent authority, which is the selection committee in this case.
As there was no such determination, and no opportunity given to the appellants to explain such absences, the selection committee was directed to decide the claim of the appellants afresh after giving them said opportunity to explain their absence. The appellants were to provide explanation within 4 weeks, with the committee to pass a reasoned order within 3 months.
As the judgment by the Single Judge omitted this aspect, it was set aside and the special appeal was allowed.
Case Title: State Of Up And 3 Others v. Mahaveer Singh And 5 Others [SPECIAL APPEAL No. - 846 of 2024]