- (1.) P. Dayal, J. Petitioners in these 3 writ petitions are Class III employees Function ing in the ministerial establishments of the District Courts in the State of Uttar Pradesh. They were all appointed on ad hoc basisand have claimed regularisation of their services. In first two writ petitions, i. e. 17907/96 and 17683/96 the ad hoc appoint ments of the petitioners have been brought to an end. So in these cases, the petitioners have also claimed a writ of certiorari quash ing the orders ceasing their employment.
(2.) BEFORE the commencement of the Constitution, recruitment to the ministerial establishment in the Subordinate Civil Courts of the United provinces was regu lated by the Subordinate Civil Courts Mini sterial Establishment Rules, 1947, (here-in-after referred as '1947 Rules' ). The expres sion 'ministerial establishment' was denned by Rule 2 (c) of the 1947 Rules as the Staff of the Subordinate Civil Courts consisting of ministerial servants as defined in Fun damental Rule (17), Financial Hand Book, Volume II Part II. According to the defini tion given in Rule 2 (e) of the 1947 Rules the expression 'subordinate Civil Courts' in cluded the Courts of District and Sessions Judges, Additional District and Sessions Judges, Civil and Sessions Judges, Civil Judges, Additional Civil Judges, Munsifs, Additional Munsifs and Courts of Small Causes Subordinate to the High Court of Judicature at Allahabad or the Chief Court of Oudh at Lucknow. Rule 5 prescribes academic qualifications which a person should possess for being a candidate to a post in the ministerial establishment. It reads as under: "5. Academic qualifications-No person who is not already on the staff attached to a Subordinate Civil Court shall be appointed to a post in the ministerial establishment unless: (a) he has passed at least the Intermediate Examination conducted by the Board of High School and Intermediate Education, Uttar Pradesh, or any other examination which has been or may be declared by the Governor to be equivalent thereto. (b) he possesses a thorough knowledge both of Urdu and Hindi; (c) he possesses in the case of a candidate for the post of stenographer a diploma or certifi cate from a University or a recognised shorthand and typewriting institution, showing that he pos sesses a speed of at least 100 words per minute in shorthand and. 35 words per minute in type writing. " Rules 9 to 12 made provisions regarding the method of recruitment. The District Judge is specified as Appointing Authority and the High Court as Appellate Authority in Rule 15, which reads as under: "15. Appointment-All appointments to the ministerial establishment shall be made by the District Judge. Except in the case of stenographer, first appointment shall, subject to the provisions of Rule 12 be made to the lowest posts (other posts being filled in by promotion) from amongst the candidates recruited u/r. 11 in order of merit. (2) In filling the posts of stenographers preference shall be given to officials possessing the prescribed qualifications who are already working in the Judgcship in which the vacancy has oc curred: Provided that. any person aggrieved by any order or appointment made otherwise than in accordance with these rules shall have a right of appeal to the High Court or the Chief Court as the case may be: Provided also that nothing in these rules shall operate to the disadvantage of any person on the approved list of candidates who have already got an officiating chance and not otherwise dis qualified at the time. These rules come into force, whether such person has in fact been appointed or not. " By virtue of the provisions of Article 313 and of Article 372 of the Constitution, the 1947 Rules continued to be in force even after the commencement of the Constitun tion. But on Jury 15, 1950 the Governor of Uttar Pradesh promulgated" "rules for the Recruitment of Ministerial Staff to the Sub ordinate Offices" ( here in after referred as the 1980 Rules), in exercise of the powers - conferred on him by the proviso to Article 309 of the Constitution of India is superses sion of all existing rules and orders on the subject of recruitment to the ministerial es tablishment of subordinate offices. Rule 3 of these Rules provides that the recruitment to the lowest grade of the ministerial staff in a subordinate office shall be made on the basis of a competitive test. Rules 4 and 5 read as under: "4. Calculation of vacancies.-The head of the subordinate office shall ascertain the probable number of vacancies, if any, in his office during the course of the year and shall if necessary, take steps to make the fact generally known. " 5. Tests to be held annually.-The Competi tive tests shall be held at least once a year and at the time specified in the Schedule by each head of a subordinate office for posts not requiring techni cal knowledge, e. g. , Stenography: Provided that if the strength of any office does not warrant annual recruitment in a par ticular year, a competitive test shall be held when ever it becomes necessary to recruit a ministerial servant to the office. " Rule 6 States that the competitive tests shall comprise a written test as well as an oral test and specifies the subject of test and maximum marks of each subject. Rule 7 reads as under: "7. Selection of candidates.- () On the results of the test, the head of the subordinate office shall select a number of candidates suffi cient to fill the number of vacancies as ascertained in Rule 4 and offer to them appointment as and when the vacancies occur according to the order of merit disclosed at the test. (2) No one who has not been selected in accordance with sub-rule (1) shall be appointed to any vacancy unless the list of selected candidates is exhausted. (3) Casual vacancies may be filled up by appointing persons who have not taken the test, but their further retention shall depend on their taking the next test and being selected in it". 3-A. The Supreme Court held in Om Prakash Shukla v. Akhilesh Kumar Shukla and others, AIR 1986 SC1043 that the clear effect of the 1950 Rules was that the 1947 Rules stood superseded by the 1950 Rules as regards the subjects prescribed for the test and the manner of the examination to be held for the purpose of selecting candidates for the ministerial staff in the Civil Courts of the State of Uttar Pradesh. To be precise, Rules 9 to 12 and Appendix II of the 1947 Rules were superseded. " Statutory provision was made for regularisation of the services of ad hoc employees on the posts outside the purview of Public Service Commission by the Uttar Pradesh Regularisation of Ad Hoc Ap pointments (On posts Outside the purview of the Public Service Commission) Rules, 1979 ( here in after referred as the Regularisation Rules) promulgated by the Governor of Uttar Pradesh in exercise of the powers conferred by the proviso to Article 309 of the Constitution on 14-5-1979. Rule 4 to 8 read as under: "4. Regularising of Ad Hoc appointments.- Any person who- (1) was directly appointed on Ad Hoc basis before January 1, 1977 and is continuing in service as such on the date of commencement of these rules; (ii) possessed requisite qualifications prescribed for regular appointment at the time of such Ad Hoc appointment; and (iii) has completed or, as the case may be, after be has completed three years' service as such, shall be considered for regular appointment in permanent or temporary vacancy as may be available, on the basis of his record and suitability before any regular appointment is made in such vacancy in accordance with the relevant service rules or orders. (2) In making regular appointments under these rules, reservation for the candidates belong ing to the Scheduled Castes, Scheduled IHbes, Backward Classes and other categories shall be made in accordance with the orders of the Government in force at the time of recruitment. (3) For the purpose of sub-rule (1) the ap pointing authority shall constitute a Selection Committee. (4) The appointing authority shall prepare an eligibility list of the candidates, arranged in order of seniority, as determined from, the date of order of appointmentand if two or more persons are appointed together, from the order in which their names are arranged in the said appointment order, the list shall be placed before the Selection Committee along with the character rolls and such other records of the candidates as may be con sidered necessary to assess their suitability. (5) The Selection Committee shall consider the cases of the candidates on the basis of their records referred to in sub-rule (4 ). (6) The Selection Committee shall prepare a list of the selected candidates the names in the list being arranged in order of seniorityand for ward it to the appointing authority".
(3.) APPOINTMENT.-The appointing authority shall, subject to the provisions of Sub-rule (2) of Rule 4 make appointments from the list prepared under sub-rule (6) of the said rule in the order in which the names stand in the list. " Appointments be deemed to be under the relevant Service Rules, etc.-Appointment made under these rules shall be deemed to be under the relevant Service Rules or orders, if any. "7. Seniority.- (1) A person appointed under these rules shall be entitled to seniority only from the date of order of appointment after selec tion in accordance with these rules and shall in all cases, be placed before the persons appointed in accordance with the relevant service rules or, as the case may be, the regular prescribed proce dure, prior to the appointment of such person under these rules. (2) If two or more persons are appointed together their seniority inter se shall be deter mined in the order mentioned in order of appoint ment". "8. Termination of Service.-The services of a person, appointed on ad hoc basis who is not found suitable or whose case is not covered by Sub-rule (1) of Rule 4 of these rules, shall be determined for thwith and, on such termination, he shall be entitled to receive one month's pay. " 5. By notification dated 22-3-1984, the Uttar Pradesh Regularisation of Ad Hoc Appointments (On post Outside the pur view of the Public Service Commission) (Amendment) Rules, 1984 were promul gated amending the 1979 Rules inserting Rule 9 thus, making the provisions of the 1979 Regularisation Rules also applicable to any person directly appointed on ad hoc basis on or before May 1, 1983, 1979 Regularisation Rules were further amended vide Notification dated 7-8-1989 by the Uttar Pradesh Regularisation of Ad Hoc Appointments (On Posts Outside the pur view of the Public Service Commission (Second Amendment) Rules, 1989 making the provisions of 1979 Rules also applicable to any person directly appointed an ad hoc basis on or before 1-10-1986 by inserting Rule 10, which reads as under: "10. Extention of the Rules.-The provisions of these Rules shall apply mutatis mutandis, also to any person directly appointed on ad hoc basis on or before October 1, 1986 and contimring-in vice as such, on the date of commencement of the Uttar Pradesh Rcgularization of Ad Hoc Ap pointments (on posts Outside the purview of the Public Service Commission) (Second Amend ment) Rules, 1989". Thus, 1979 Regularisation Rules as amended in the year 1989 provide for regulansation of the services of only those employees who were appointed on ad hoc basis on or before 1-10-1986. 6. It also needs be mentioned that regular appointments of Class III employees have not been made in the Dis trict Courts of Uttar Pradesh for a long time since the High Court was not satisfied with the manner of making the selections and was seriously considering to avoid favouritism, nepotism and ensure proper selection. At one stage the High Court was even considering the creation of a State wide recruiting authority with Head Office at Allahabad Lucknow for Class III employees of the District Courts. The High Court was also not in favour of ad hoc ap pointments except in every urgent cases. Reference in this connection may be made to the circular letter No. 16/ivh-36 (Admn. "g") dated 27-3-1989 sent by the Registrar of the High Court to all the District Judges, a copy of which has been filed by the respon dents alongwith their counter-affidavit and which appears at page 124 of thepaper-bpok of writ petition No. 17907/96. The said circular letter reads as under: "it is proposed to create a State-wide recruiting authority with its Head Office a Al lahabad Lucknow for Class III employees of the District Courts. This has been felt necessary on account of complaints received from various quarters. In order to provide a clean image to recruitment in the District Courts, you may kindly consider its feasibility, advisability and prac ticability and send your proposals to the Registrar, High Court, Allahabad. This matter will be dis cussed in the Administrative Conference Scheduled for 8th April, 1989. Kindly also con sider the relevant provisions of law which may be necessary to be looked into in this regard. Adhoc appointments which are generally made in the District Courts of Class HI employees bring bad name to the judgeshipand, therefore, it has to be discouraged. It may be resorted to only in very urgent cases. ";