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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL Nos.4262-4263 OF 2015

STATE OF UTTAR PRADESH & ORS.             APPELLANTS

VERSUS

MOHD. SULEMAN SIDDIQUI RESPONDENT

J U D G M E N T

Dr Dhananjaya Y Chandrachud, J.

1 A learned  Single  Judge  of  the  High  Court  of  Judicature  at  Allahabad,  by  a

judgment dated 18 April 2014 allowed a Writ Petition instituted by the respondent under

Article 226 of the Constitution. The Single Judge set aside an order passed by the

Inspector General (Registration) rejecting a representation for regularisation, submitted

by the respondent and directed the grant of consequential benefits. The Division Bench

declined to condone a delay of 96 days in filing a Special Appeal as a consequence of

which the order of the learned Single Judge has been maintained.

2 On  7  February  1991,  the  Inspector  General  (Registration),  Jhansi  Division

constituted  a  Selection  Committee  inter  alia for  selection  of  candidates  for  the

Registration Department.  On 24 February 1991, vacancies were notified to the Local

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Employment Exchange.  Candidates were interviewed.  The minutes of the meeting of

the Departmental Selection Committee dated 24 February 1991 indicate that six posts

were available for selection against regular vacancies, of which one post was reserved

for  Scheduled Caste and Scheduled Tribe candidates.  The Departmental  Selection

Committee selected six candidates in order of merit against the regular vacancies.  In

addition, two more candidates were recommended for appointment against vacancies

which were likely to fall vacant before the expiry of the recruitment year.

3 Besides  selecting  the  above  eight  candidates  against  existing  and  probable

vacancies falling within the recruitment year in the office of the District Registrar, the

Committee  noted  that  registration  clerks  were  working  in  the  office  of  the  Deputy

Registrar, Jhansi as daily wagers. Considering the requirement of registration clerks on

a  daily  wage  basis,  a  list  of  the  incumbents  was  prepared  for  appointment  as

registration clerks on daily wage basis. The name of the respondent was among eleven

such candidates.  

4 On  27  May  1991,  the  Inspector  General  (Registration)  addressed  a

communication to all the District Registrars stating that a decision had been taken to

terminate the services of  all  the daily  wage employees who had been engaged for

dealing with pending work in the establishments under their control.  The services of the

respondent were dispensed with together with other daily wage employees.

5 Following the dispensation of their services, the daily wage employees moved

the Allahabad High Court. An interim order staying termination was passed on 1 July

1991.  Adverting to the interim order of the High Court, the District Registrar, Jhansi,

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issued a circular dated 19 July 1991 directing that the eleven daily wage employees

would be permitted to work as before on the same terms and conditions.  The Writ

Petition  before  the  Allahabad  High  Court  was  dismissed  on  8  February  1995.

Proceedings were initiated before this Court under Article 136 of the Constitution.  On

the  grant  of  special  leave,  that  proceeding,  which  was  numbered  as  Civil  Appeal

No.9136 of 1995, was disposed of by a two Judge Bench of this Court on 27 September

1995.   

6 Before  this  Court,  a  submission  was  made  on  behalf  of  the  daily  wage

employees,  who were the appellants, that they had not been employed as registration

clerks on a daily wage basis, but had been duly selected by the Departmental Selection

Committee constituted under the Rules and had been appointed on a regular basis by

the District Registrar, Jhansi. On  behalf  of  the  State,  it  was  urged  that  the

appointments  were  made  without  complying  with  the  provisions  of  Rule  22  of  the

Subordinate Offices Ministerial Staff (District Recruitment) Rules 19851, as a result of

which the selection was void ab initio.   

7 Since this question was not examined by the High Court, the proceedings were

remitted back to the High Court for a decision afresh.  On remand, a Division Bench of

the High Court, by its judgment dated 9 September 1999, set aside the orders that were

impugned in the writ petitions.  The State was directed to give consequential benefits.

The Division Bench of the High Court held that under Rule 22 of the Rules, vacancies

were required to be notified to the Employment Exchange.  Moreover, it was open to the

appointing  authority  to  invite  applications  directly  from persons  registered  with  the

Employment Exchange for which purpose an advertisement was required to be issued

1 “the Rules”

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in the daily newspaper.  The High Court held that since the appointing authority did not

call  for  applications  directly  from  candidates,  there  was  no  need  to  publish  an

advertisement in the newspapers.  The High Court observed that since the vacancies

had  been  notified  to  the  Employment  Exchange,  Rule  22  of  the  Rules  was,  in

substance, complied with.  Though the candidates in question had not been sponsored

by the Employment Exchange, but had directly applied for appointment, in the view of

the High Court, this was not prohibited by Rule 22.  The directions of the High Court are

extracted below :  

“...The judgment of the learned Single Judge is liable to be set aside and the orders impugned in the writ petitions are liable to be quashed, in such view of the matter the question of issuing a direction to the concerned authority to consider the case of  the appellants  for  regularization in  accordance with  the  judgment  of  the  Apex  Court  in  Khagesh  Kumar (supra) does not arise.

In view of the above discussion the appeals succeed and are allowed.  The judgment under challenge are set aside and the orders impugned in the writ  petitions are quashed. The respondents are directed to give consequential benefits to the appellants.”

8 The respondent was in the meantime involved in a criminal case, following which

he was prevented from discharging his duties. A representation was addressed by the

respondent  to  the  Inspector  General  (Registration)  on  8  August  2011.   This  was

following the order of the Allahabad High Court in another writ petition2 instituted by him.

The High Court, in its order dated 12 May 2011, observed that one of the grievances of

the respondent was that he had been prevented from discharging his duties due to the

pendency of the criminal case.  The respondent stated that the criminal case had ended

in acquittal, as a result of an order passed by the High Court in a criminal revision.  The

second grievance of the respondent was that other  similarly placed employees had

2  WP 60259 of 2009

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been  given  the  benefit  of  regularization.   The  Allahabad  High  Court  directed  the

Inspector  General  to  deal  with  the  representation.   On  16  August  2011,  the

representation was rejected.   

9 A case had been registered against the respondent under Sections 498A, 323,

504 and 506 of the Indian Penal  Code.   He was convicted by the Additional  Chief

Judicial  Magistrate,  Jhansi  on  28  June  2000 and  sentenced to  six  months’ simple

imprisonment.   In  appeal,  the  conviction  was  confirmed  by  the  Sessions  Judge.

However, on 13 September 2006, in the course of the hearing of Criminal Revision 721

of  2001,  the  High  Court  was  informed that  the  complainant  and  the  respondent  –

accused  had  entered  into  an  agreement  out  of  Court.   Based  on  the  purported

compromise, the High Court allowed the Criminal Revision and set aside the judgment

of conviction.  Based on these facts, the representation submitted by the respondent

was rejected by the Inspector General (Registration). The respondent was held unfit for

joining government  service.  He was also found unfit  for  regularisation and grant  of

consequential service benefits.    

10 The respondent once again instituted a Writ Petition3  before the Allahabad High

Court.  The relief which was sought was the quashing of the order dated 16 August

2011 rejecting his  representation.   During the pendency of  the Writ  Petition,  by an

interim order dated 21 May 2011, the State was directed to permit the respondent to

continue in service pending further orders.

11 The Writ Petition was allowed by a learned Single Judge of the High Court, by

the impugned order dated 18 April 2014.  The learned Single Judge, while allowing the

3 [Civil Miscellaneous Writ Petition 67599 of 2011]

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Writ  Petition  and  setting  aside  the  order  dated  16  August  2011,  granted  all

consequential benefits.  The learned Single Judge of the High Court, during the course

of the judgment took note of the fact that Writ Petition 19357 of 2001 instituted by the

respondent had been disposed of on 11 May 2004.  During the pendency of the Writ

Petition, there was an interim direction to allow the respondent to continue.  Against the

final judgment dated 11 May 2004, Special Appeal 385 of 2005 had been filed, which

was pending. The learned Single Judge held that:

(i) The order  of  conviction  had been set  aside by the High Court  in  a  Criminal

Revision; (ii) The services of the respondent had never been terminated; (iii) The selection of the respondent was on a regular basis and the termination was

found to be illegal and was set aside on 9 September 1999; and (iv) There was no order of termination in accordance with law.

12 A Special Appeal was dismissed by a Division Bench on 23 September 2014 on

the ground of delay.

13 Learned counsel appearing on behalf of the appellants submits that the basis of

the judgment of the High Court is flawed.  The Minutes of the Departmental Selection

Committee indicate  that  the respondent  was appointed on a  daily  wage basis.   As

against  six regular vacancies,  the Departmental  Selection Committee recommended

eight candidates. This list did not include the name of the respondent.  Learned counsel

submitted that consequent upon his termination being set aside by the High Court on 9

September 1999, the respondent was taken back to work.  However, learned counsel

has adverted to the fact that against the judgment of the learned Single Judge dated 11

May 2004, a Special Appeal was filed by the State being Special Appeal 385 of 2005.

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That Special Appeal, together with a batch of appeals, was disposed of by a Division

Bench  of  the  High  Court  on  5  October  2017,  as  a  result  of  which  the  plea  for

regularization  of  daily  wagers  who  were  engaged  as  registration  clerks  has  been

rejected.  Learned counsel submitted that the pendency of the Special Appeal 385 of

2005 was noticed  in  paragraph 7  of  the impugned judgment  of  the learned  Single

Judge.   Since the Special  Appeal  has been disposed of,  it  was submitted that  the

respondent cannot be considered for regularization.

14 Opposing these submissions, it has been urged on behalf of the respondent that

there  was  no  issue  as  to  the  regularization  of  the  respondent  nor  did  he  seek

regularisation.  The contention which has been urged on behalf of the respondent is

that the appointment in the first instance was in accordance with Rule 22 of the Rules.

This was accepted in the judgment of the High Court dated 9 September 1999.  Hence,

it  was urged that  as a matter  of  fact  the submission of  the State is  misconceived.

Learned counsel submits that the Writ Petition filed by the respondent was tagged with

a group of petitions which were heard by a learned Single Judge.  Even the Special

Appeal by the State was heard together with a batch of connected matters.  Though by

the judgment of the Division Bench dated 5 October 2017, the plea for regularization

has been rejected,  it  was urged that  the case of  the respondent  not  being one of

regularization, the matter was distinct from the connected cases which were disposed

of by the Division Bench.

15 We have heard learned counsel appearing on behalf of the contesting parties

and, with their assistance, perused the record.

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16 The record indicates that the initial appointment of the respondent in pursuance

of the proceedings of the Departmental Selection Committee held on 24 February 1991,

was on a daily wage basis.  The Minutes (Annexure P-1) categorically indicate that

against the six posts available for selection against regular vacancies, the Committee

selected six candidates and indicated the names of two more candidates having regard

to  the  probable  vacancies  which  were  likely  to  arise  during  the  recruitment  year.

However, the Selection Committee noted that the office of the District Registrar had

engaged daily  wagers  as  registration  clerks.   Eleven  such persons were  engaged,

including the respondent.  Before this Court, in the judgment which was delivered on 27

September 1995, it was asserted by the State that the respondent was not engaged on

a regular basis.   The respondent contended that  his appointment  was on a regular

basis and not as a daily wager. This Court remanded the proceedings to the High Court

for considering whether the appointment was made in a manner consistent with Rule 22

of the Rules.  The High Court, by its judgment dated 9 September 1999, concluded that

the appointment was not in breach of Rule 22 of the Rules.  Consequently, the order of

termination was set aside with a direction for grant of consequential benefits. There is

no finding of fact to the effect that the appointment of the respondent was on a regular

basis.  The record clearly indicates that the initial engagement was only on a daily wage

basis.   

17 The services of  the respondent  were discontinued due to the pendency of  a

criminal case.  This led the respondent to institute fresh proceedings, in which, as we

have noted, there was an interim order in his favour.  However, the significant fact which

emerges from the record is that, firstly, the engagement of the respondent at all material

times was only as a daily wager and, secondly,  there is no order by which he was

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treated to be in the regular service of the District Registrar.   

18 The order by which the respondent was disengaged was challenged before the

High Court.  That has culminated in the judgment of the Division Bench dated 5 October

2017 in State of U P v Raj Kumar Srivastava4.  In that batch of cases, Special Appeal

385 of  2005 pertained to the respondent.   This  was noticed in  paragraph 7 of  the

judgment of the learned Single Judge dated 18 April 2014.  The plea for regularization

was specifically negatived.

19 The status of  the respondent  at  all  material  times has been of  a daily  wage

employee. He has not been appointed on a regular basis. He has no vested right to

claim regularization in service. The plea for regularisation has in fact been rejected in

the judgment of the Division Bench in Special Appeal 385 of 2005.   The order of the

learned Single Judge, quashing the rejection of the representation of the respondent

dated 16 August 2011, will not amount to a mandamus to regularize the respondent or

to treat him in the regular employment of the State.  All  that the High Court will  be

construed to have held is that once the respondent was reinstated in service following

the earlier order dated 9 September 1999, his services could not have been dispensed

with without an order of termination in accordance with law.  In the absence of an order

of termination, the respondent may be treated to be in the employment of the State,

albeit on a daily wage basis.  

20 We have noted the submission of the respondent that though Special Appeal 385

of 2005 instituted by the State was tagged with a batch of appeals which was disposed

of by the High Court on 5 October 2017, the respondent was not raising an issue of

4 Special Appeal No.767 of 2004

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regularization and, hence, that judgment ought not to apply to his case.  As at present

the judgment of the Division Bench concludes the Special Appeal instituted by the State

against  the  order  of  the  learned  Single  Judge  in  the  Writ  Petition  filed  by  the

respondent.

21 For  the  above  reasons,  we  dispose  of  the  appeals  by  holding  that  the

engagement of the respondent is as a daily wage employee.  The respondent has not

been appointed on a regular basis in the services of the State of Uttar Pradesh.  Any

arrears of wages that are due and payable to the respondent on that basis shall be

computed  and  paid  over  to  him within  a  period  of  three  months  from today.   The

respondent would be entitled to arrears with effect from the date of the institution of Civil

Miscellaneous Writ Petition 67599 of 2011 before the learned Single Judge of the High

Court of Judicature at Allahabad.  However, there shall be no order as to costs. Pending

applications stand disposed of.

…......................................................................J.                   [DR DHANANJAYA Y CHANDRACHUD]

..........................................................................J.                   [HEMANT GUPTA]

NEW DELHI; FEBRUARY 12, 2019.