- (1.) SUDHIR Narain, J. These Special Appeals are being disposed of by a com mon judgment, as common questions of law arise in all these appeals. The learned Single Judge, in the writ petition giving rise to these special appeals, passed an order directing the appellants to regularise the service of the petitioner-respondents.
(2.) THE petitioner-respondents were working in the Forest Department and their contention was that they had been working for more than three years and were entitled for reguiarisation. THE learned Single Judge, taking the view that as the petitioners had been working for more than three years, they were entitled for reguiarisation, allowed the writ peti tions and directed the appellants to regularise the services of the petitioners on the post on which they had been work ing. The main thrust of the submission Regulations and the Circulars but no mandami, can be issued by the Court directing the authorities to regularise the services of the respondents. It depends upon various facts. In case there is any Rule applicable for regularisation of their services the authorities can regularise only if the necessary conditions mentioned in such Rules are fulfilled. The authorities have further to take into consideration the eligibility of the employees, their past con duct and further whether there were vacant posts on which they can be regularised. In Khagesh Kumar and others v. Inspector General of Registration and others, (1996) 1 UPLBEC 23, wherein the daily rated workers claimed regularisation of their services on the ground that they had worked for more than three years, their Lordships of the Hon'ble Supreme Court held that the regularisation could be done only in accordance with the provisions of U. P. Regularisation of Ad hoc Appointments (on Posts Outside Pur view of the Public Service Commission) Rules, 1979. The Rules provide detailed procedure for regularisation. Regarding those who were not entitled for regularisa tion under the Rules, it was directed that they maybe considered for appointment at the time of regular recruitment taking into consideration their past experience A Division Bench of this Court in Garhwal Jal Sansthan v. Jagdish Prasad Magain, 1995 (70) FLR 179 set aside the direction given by the learned Single Judge for regularisation of service of the petitioner in that case. It was held that no direction for regularisation of service of an employee should be made but a direction can be given to consider his case for regularisation. The regularisation depends upon the various factors such as, nature of the work, conduct of the employee concerned and the availability of the post. The Court quoted the observa tion made in the case of Zakir Hussain v. Engineer-in-Chief, 1993 (1) UPLBEC 15 as follows: - "merely because an employee has worked for two or three years he cannot claim regularisation of service as a matter of right. For regularisation as mentioned before, there must be both posts an funds and the need for reten tion of the employees according to the requirement of work. That apart he must be qualified and the work and conduct of such employee must also be satisfactory. It is also to be con sidered whether appointment on ad hoc/daily wages Lasis have been made against the leave or casual vacancies. In cases of appointment on such vacancies iaere would hardly be any scope for regularisation. These and various other fac tors have to be taken into consideration before deciding the question as to whether service of an employee, appointed on ad hoc/daily wages basis should be regularised. Regularisation can not be made as 'rule of thumb' on the basis of completion of certain years of service of such an employee. It all depends on various facts, some of which have been mentioned above and it is for the employer to decide as to whether in view of the fact and circumstances of the case, the ser vices of those employees who were appointed on ad hoc/daily wages basis, should be regularised. " Similar view was expressed in Executive Chairman U. P. State Legal Aid and Advise Board, Lucknow and others v. Ram Bilas and others, 1995 (70) FLR 294, wherein it was held that the relief for regularisation must be moulded in each having regard to relevant facts and cir cumstances of the case.
(3.) WHILE making regularisation the authorities have further to examine whether the appointment of an employee was made in accordance with Rules. If the initial appointment is itself invalid, an employee is not entitled for regularisation merely on the ground that he had worked for many long years. In Jandk. Public Service Commission and others v. Dr. Narinder Mohan and others, AIR 1994 SC1808, the Hon'ble Supreme Court set aside the directions given by the High Court to regularise the service of ad hoc employees on the ground that the appointments were to be made under the Jammu and Kashmir Medical Education (Gazetted) Service Recruitment Rules, 1979. These Rules prescribed only two modes of recruitment i. e. direct recruitment or promotion by selection. The direction given by the High Court for regularisation by considering the service records of ad hoc employees was held as hybrid procedure not con templated by the Rules. Hon'ble K. Ramaswamy, J. observed: "it is settled law that once statutory rules have been made, the appointment shall be made only in accordance with the rules. The executive power could be exercised only to all in the gap but the instructions cannot aid should not supplant the law but would only sup plement the law. . . Having made the rules the executive cannot call back its general power under Article 162 to regularise the ad hoc appointments under the Rules. " Their Lordships of the Supreme Court also considered the case of State of Haryana v. Piyara Singh, AIR 1992 SC 2130, and it was explained that it a tem porary or ad hoc employee continues for fairly longer spell, the authorities must consider his case for regularisation provided he is eligible and qualified ac cording to the rules and his service record is satisfactory and his appointment does not run counter to the reservation policy of the State. The Court observed as under: - "it is to be remembered that in that case the appointments are only to Class III or Class IV posts and the selection made was by subor dinate Selection Committee. Therefore, this Court did not appear to have intended to lay down as a general rule that it every category of ad hoc appointment, if the ad hoc appointee continues for a long period, the rules of recruit ment should be relaxed and the appointment by regularisation be made. ";