- (1.) O. P. Garg, J. By this writ petition, under Article 226 of the Constitution, the petitioners have prayed that the respon dents be directed to regularise the services of the petitioners in the Trade Tax Depart ment, Bareilly Division, Counter and rejoinder affidavits have been exchanged. Heard Sri S. K. Varma, learned Counsel for the petitioner as well as learned Standing Counsel on behalf of the respondents.
(2.) THE petitioners who are five in number, along with seven other persons, were initially appointed in the Bareilly Division of Trade Tax Department by the Deputy Commissioner, Administration, Trade Tax, Bareilly on the post of Clerk Typist against the substantive vacancies for a period expiring upto 28-2- 1991 on the fixed consolidated amount of salary of Rs. 950 per month. THE petitioner No. 1 was posted in Badaun, while petitioner Nos. 2 and 3 were posted in Pilibhit and petitioner Nos. 4 and 5 were posted in Bareilly office of the Trade Tax Department. Subsequently, on 23-2-1991, an order, Annexure 6 to the writ petition, was passed where by the petitioners were directed to continue on their respective posts until further orders. Instead of con solidated salary of Rs. 950 per month, the petitioners were allowed to draw pay in the pay scale of Rs. 950-1500 w. e. f. 1-2-1991. THE petitioners, it is alleged, are continu ing in service throughout the period from their initial appointment. THEy applied for regularization of their services but the department did not accede to their re quest. According to the petitioners one Vijai Kumar Srivastava, who was ap pointed on 6-11-1991, has been regularised in service while the petitioners who are senior to him with reference to the date of appointment, have been denied the benefit of regularization of their services. Counter-affidavit has been filed by Desh Raj, Trade Tax Officer, Badaun. The pleas taken in the counter-affidavit to refute the claim of the petitioners are that the relief of regularization of services can not be granted by this Court in view of decision in Special Appeal No. 371 of 1995 and that the U. P. Regularization of ad hoc Appointment (on Posts Outside the Pur view of Public Service Commission) Rules, 1979 (here in after referred to as 'the Rules of 1979'), do not apply to the case of the petitioners. After filing of this writ petition, an order was passed on 20th May, 1996 direct ing the respondents to decide the repre sentations of the petitioners. The petitioners made representations before the Deputy Commissioner, Trade Tax, Bareilly Region, Bareilly, who by order dated 11-7-1996 has rejected the repre sentations of the petitioners by observing that since the petitioners were not selected for appointment according to the proce dure prescribed, question of regulariza tion of their services does not arise and that the appointment of the petitioners in the pay scale of Rs. 950-1500 instead of the consolidated amount of Rs. 950 per month does not confer any right for confirmation or regularization on them in service.
(3.) ON behalf of the petitioners, two amendment applications have been moved. The order dated 11-7- 1996 passed on the representations of the petitioners during the pendency of the present writ petition has been challenged as illegal and arbitrary. It is also prayed that the provisions of Section 4 of the Rules of 1979 be declared as unconstitutional. To begin with, it may be mentioned that the question of regularization of the services of the employees is dependent upon various imponderables. Regulariza tion cannot be claimed as a matter of right. The appointing authority has to take into consideration the various factors, such as, the availability of funds, need for retention of the employee in service according to the requirements of work, past performance of the employee and the availability of the post after applying Government orders to implement the reservation policy etc. The matter came to be considered in Special Appeal No. 371 of 1995, State of U. P. and others v. Shiv Babu Garg, decided on 24-5-1996. After taking into consideration the various decisions of the Supreme Court as well as this Court, it has been laid down that the Court cannot itself examine the question of regularization of an employee on the post on which he is claiming his right for regularization. The matter may be left for decision by the appropriate authority. Now, therefore, the law is that the order of regularization of the services of an employee cannot be passed by court. The matter, of necessity, has to be left to be considered and decided by the appointing authority. At best, the Court can issue a direction to the appointing authority to consider the question of regularization of the services of employee and no more. Therefore, in this writ petition, no direc tion can be issued for regularization of the services of the petitioners against the posts which they are holding on ad hoc basis since 1990.;