Sudhir Agarwal, J. - (1.) PETITIONER was engaged in Census Department during the period of census 1991 and claiming absorption pursuant to service rendered for a short time. It is not disputed that the petitioner was never appointed or engaged after the advertisement of vacancies, complying with the provisions of Article 16 of the Constitution of India, i.e., by giving equal opportunity for public employment to all eligible persons. The petitioner also could not place before the Court any statutory provision whereunder he can claim absorption. Similar question was considered in Imtiaz Ahmad v. Regional Deputy Director of Census Operation and others, : 2007 (3) ADJ 138 and referring to various Government Orders dealing in para 7 it was held as under: "I have heard learned counsel for the petitioner and perused the record. It is not disputed that in certain broken spells as and when census operations were undertaken by the Government of India, the petitioner was engaged in the census department from time to time. The aforesaid appointment was purely temporary and therefore after completion of the work or due to reduction in the establishment of census department, he was terminated or discontinued where against no grievance was raised by the petitioner at any point of time. His claim is now confined to regular appointment under the State Government considering his status as a "retrenched employee". For the purpose of the present case, even if the petitioner is treated to be a retrenched employee, learned counsel for the petitioner failed to point out any statutory provision or executive order having force of law entitling the petitioner for regular appointment in a class -III or class -IV post under the State Government. The Government order dated 22.4.1987 placed on record as Annexure -1 to the rejoinder -affidavit shows that the Census Directorate, Government of India communicated to all the Head of Departments, District Magistrates and other employment officers in the State of U.P. that the employees who have worked in the Census Department for about three and half years in 1981 census operations and some of them have crossed maximum age required for employment in the Government service and, therefore, they were allowed relaxation of three years in the age vide Government Order No. 41.2.1967 -Karmik -2 dated 13.2.1985 extended upto 12.2.1988, and therefore the said persons may be considered in the service of the State Government extending the said relaxation in age. The aforesaid order, therefore, only provides relaxation in maximum age but nowhere shows that the process of recruitment applicable to class -III and class -IV posts in the state of U.P. shall not be followed for appointment of the said retrenched employees of the census department. Moreover, a bare reading of the aforesaid Government order shows that it is applicable to such employees who continuously worked for three and half years pursuant to 1981 census and were retrenched on 30.6.1984. On the contrary, the petitioner was engaged for short periods in 1981 and 1982 only, but there is no continuous service of three and half years as contemplated in the aforesaid Government order. Hence, in no circumstance the said Government order help the petitioner in any manner. In the state of U.P., recruitment to class -III posts prior to 1989 was being governed by the Subordinate Offices Ministerial Staff (Direct Recruitment) Rules, 1975 which were substituted by another set of rules on 16.3.1985, i.e., U.P. Subordinate Offices Ministerial Staff (Direct Recruitment) Rules, 1985 which continued to hold field, until substituted in their entirety by U.P. Procedure for Direct Recruitment for Group "C" Posts (Outside the Purview of The U.P. Public Service Commission) Rules 2001. In all the aforesaid Rules, there is no provision for appointment of a retrenched employee without undergoing the process of recruitment. Only certain concessions in the matter of age and educational qualifications etc. have been provided but otherwise a retrenched employee has to participate in the process of recruitment with other eligible candidates as and when the recruitment process is initiated. In the matter of selection and assessment of merit under 2001 Rules, certain weightage is provided but there is no provision for regularization of such employees to the exclusion of regular process of recruitment. In view of the statutory rules, no relief can be granted to the petitioner contrary thereto."
(2.) A similar view has been taken by a Division Bench of this Court (of which I was also a Member) in Sayed Mohammad Mahfooz v. State of U.P. and others, : 2007 (3) ADJ 46. Besides above, I may also place on record that in certain cases some persons who were engaged in election office as Junior Clerks for some short span from time to time were directed to be regularised in some of the judgments of Hon'ble Single Judges and one of such judgments is in Writ Petition No. 52586 of 1999, Dinesh Kumar Shukla v. State of U.P. and others. The aforesaid judgment as well as others taking similar view were assailed in intra -Court appeals before this Court and all those appeals were allowed, setting aside the judgments of Hon'ble Single Judges and the judgment is in State of U.P. and others v. Sanjay Kumar Pandey and other, : 2004 (4) ESC 2470 :, 2005 ALJ 1006. The Division Bench held that no regularisation or absorption contrary to rules can be claimed. Taking this view it also followed an earlier Division Bench decision in State of U.P. v. Rajendra Prasad, : 2004 (54) ALR 85. Against the judgment of Division Bench in Sanjay Kumar Pandey, the Special Leave Petition No. 5735 of 2009 has also been dismissed by Apex Court vide judgment dated 22.8.2012.
(3.) THE entire issue can also be looked into in the light of Constitution Bench decision in Secretary, State of Karnataka v. Uma Devi, : 2006 (4) SCC 1, which has been followed recently also in State of West Bengal and others v. Banibrata Ghosh and others, : 2009 (3) SCC 250; Council of Scientific & Industrial Research and others v. Ramesh Chandra Agarwal and another, : 2009 (3) SCC 35; General Manager, Uttaranchal Jal Sansthan v. Laxmi Devi and others, : 2009 (7) SCC 205; and, State of Rajasthan and others v. Daya Lal and others, : 2011 (2) SCC 429.;