Bharati Sapru, J.@mdashHeard learned Counsel for the petitioners Ms. Sunlta Agarwal, learned standing counsel appearing on behalf of the
respondents No. 2 to 7 and Sri V.K. Singh appearing on behalf of respondents No. 8 to 18.
2. There are five petitioners in the present petition who have challenged the orders dated 1.1.1998 and 8.6.1999 passed by the Chief Engineer,
P.W.D. Lucknow and consequent order passed by the Superintendenting Engineer, Gorakhpur Circle, P.W.D. on 31.8.1999 and the last order
dated 8.9.2006 passed by the Superintendenting Engineer, Gorakhpur Circle, P.W.D., Gorakhpur.
3. By the orders dated 1.1.1998, 8.6.1999 and 31.8.1999, respondents No. 8 to 18 who were work charged cleaners were promoted as work
charged drivers. By the order dated 8.9.2006, respondents No. 8 to 18 who were working as work charged drivers have been regularized to the
post of regular drivers.
4. The facts of the case are that the petitioners No. 1 to 5 were appointed as regular cleaners in the regular establishment of the Public Works
Department, Gorakhpur. The date of the regular appointments are given below:
(1) Rajendra Prasad 1.3.1970
(2) Chanman 1.4.1990
(3) Shambhoo Sharan 1.3.1980
Pandey
(4) Mattan 1.3.1971
(5) Madan Mohan Lal 1.3.1971
5. Other than the regular establishment, the Public Works Department, Gorakhpur also has a work charged establishment. The respondents No. 8
to 18 who were working as work charged cleaners and ''were being paid fixed salary in lump sum Rs. 1,800 per month. The status of respondents
No. 8 to 18 was clearly that of work charged employees.
6. The petitioners who are working as cleaners contend that although they have been appointed as cleaners but all the petitioners No. 1 to 5 had
requisite qualifications to hold the post of driver. They all had in their possession driving licences to drive heavy vehicles such as road roller and
those licences had been issued to them by the competent Road Transport Authority.
7. Now the Public Works Department at any place including Gorakhpur where the present petitioners were situated, has a number of heavy
vehicles to fulfil the work of the construction and repairs, which is line of the business of the Public Works Department. All these vehicles, which
are being used by Public Works Department, are heavy vehicles and the post of driver are of permanent nature. When the work increases, the
Public Works Department has at its disposal a work charged establishment also, which engages both work charged cleaners as well as work
charged drivers. These work charged employees as has been stated earlier are used on project work, i.e., if any, special or extra work, or
exigency occurs then the work charged establishment is brought to aid.
8. The petitioners whose undisputed position is that of the regular cleaners contend that the petitioners have been used from time to time by the
Department to drive heavy vehicles such as rollers and trucks in the regular establishment as well as work charged establishment and therefore, the
petitioners contend that they are fully eligible for being promoted on the post of driver. The petitioners have given details in the writ petition of the
various rollers, which have been driven by them. Having given the details of their experience in driving heavy vehicles such as road rollers, the
petitioners contend that they have both experience and requisite educational qualifications to be appointed as regular drivers in the establishment
and therefore, it is the prayer of the petitioners that they should be promoted as regular drivers.
9. Despite making representations from time to time, the petitioners have not been granted promotion as regular drivers.
10. It is the grievance of the petitioners that although the petitioners are not being given promotions from the post of regular cleaners to regular
drivers in the establishment, the respondents No. 8 to 18 who are work charged cleaners were wrongly promoted by an order dated 1.1.1998 on
the demand raised by the Government Transport Drivers Union, P.W.D., Lucknow.
11. The petitioners'' grievance is that even though this could not have been done by a further order dated 8.6.1999, the qualifications for promotion
to the post of a driver were clarified and it was clarified that no educational qualification was required and only a three years old driving licence and
experience for driving the vehicle would be sufficient.
12. The petitioners'' other grievance is that in furtherance to the order dated 8.6.1999, another order was passed which is also impugned in the
present writ petition, i.e., the order dated 31.8.1999 by which the Superintendenting Engineer, Gorakhpur Circle, Gorakhpur passed an order for
promotion of 11 work charged cleaners, i.e., respondents No. 8 to 18 as work charged drivers.
13. The petitioners'' further grievance is that the act of promotion completed by the respondents on 31.8.1999 was illegal and arbitrary and could
not have been done and in further perpetuation of the illegality, another order has been passed on 8.9.2006 issued by the Superintendenting
Engineer, Gorakhpur Circle, Gorakhpur, by which the respondents No. 8 to 18 who were promoted on 31.8.1999 had been working as work
charged drivers in the work charged establishment, have been regularised in the regular establishment by the impugned order dated 8.9.2006.
14. The petitioners'' grievance is that the order dated 8.9.2006 is wholly illegal and arbitrary and such regularization of the work charged
cleaner/driver is wholly arbitrary and de hors the rules. Such regularization of the work charged cleaner/driver as regular driver in the establishment
has prejudiced the case of the petitioners severely because they have been denied the opportunity of being considered as regular drivers because
the vacancies, which occurred, were not advertised and made open to the public at large resulting in denial to all concerned.
15. Learned Counsel for the petitioners has argued that it is well-settled that the work charged establishment and regular establishment are two
separate and distinct establishments and the employees of the two establishments belong to two separate classes/cadres. The work charged
employees cannot be treated at par with regular employees and all benefits available to regular employees cannot be given to them.
16. Learned Counsel for the petitioners has placed reliance on the decision of the Hon''ble Supreme Court in the case of Jaswant Singh and Others
Vs. Union of India (UOI) and Others, and also the case of State of Rajasthan Vs. Kunji Raman, in which the Hon''ble Supreme Court has held
that a work-charged establishment differs from a regular establishment which is permanent in nature. Setting up and continuance of a work charged
establishment is dependent upon the Government undertaking a project or a scheme or a ""work"" and availability of funds for executing it. So far as
employees engaged in work charged establishments are concerned, not only their recruitment and service conditions but the nature of work and
duties to be performed by them are not the same as those of the employees of the regular establishment. As stated earlier, a regular establishment
and a work-charged establishment are two separate types of establishments and the persons employed in those establishments come from two
separate and distinct streams.
17. Learned Counsel for the petitioners further submit that in the present case, respondents No. 8 to 18 who were work charged cleaners engaged
in the work charged establishment, were in fact, placed on a better footing than the petitioners who are cleaners in the regular establishment. Even
though the nature of work and duties performed by the work charged cleaners were not permanent in nature.
18. Learned Counsel for the petitioners submit that the respondents No. 8 to 18 have in fact entered through the back door and were firstly given
the benefit of promotion as the work charged drivers on 31.8.1999 and a further illegality was perpetuated by regularizing their illegal appointments
by passing the order of regularlzation dated 8.9.2006.
19. Learned Counsel for the petitioners has argued that such regularization of respondents No. 8 to 18 as regular drivers could not have been done
as the procedure for appointment of drivers in Government Department is governed by U.P. Government Departments Drivers Service Rules,
1993 and under these rules, direct recruitment is only the source of recruitment for the post of drivers in the Government Department and statutory
rules have been framed for the appointment of drivers, which are exhaustive and the Service Rules, 1993 do not contemplate promotion of even
regular cleaners as regular drivers, much less that of work charged cleaners to work charged drivers. There is no channel of promotion from
cleaner to driver and therefore, since the rules are exhaustive on this point that the procedure is well established that is all. direct recruitment
through determination of vacancies, notification through the Employment Exchange and advertisement in leading newspapers. No other procedure
could have been followed except the procedure as laid down in Rules 16 and 17 of the Service Rules, 1993, which are quoted hereinbelow:
16. Determination of vacancies.--The appointing authority shall determine the number of vacancies to be filled during the course of the year as also
the number of vacancies to be reserved for candidates belonging to Scheduled Caste, Scheduled Tribes and other categories under Rule 8. The
appointing authority shall, notify the vacancies to the Employment Exchange in accordance with the rules and orders of the Government for the time
being in force, and he may also advertise the vacancies in the leading newspapers.
17. Procedure for direct recruitment.--(1) For the purpose of direct recruitment there shall be constituted a Selection Committee comprising:
(i) Appointing authority Chairman
(ii) An officer belonging to Scheduled Caste or Member
Scheduled Tribes nominated by the appointing
authority, if the appointing authority does not
belong to Scheduled Tribes. If the appointing
authority belongs to Scheduled Castes or
Scheduled Tribes an Officer other than belonging
to Scheduled Castes or Scheduled Tribes, to be
nominated by the appointing authority.
(iii) Two officers nominated by the appointing authority, Member
one of whom shall be an officer belonging to
Minority community and the other belonging to
Backward Class. If such suitable officers are not
available in his department or organization, such
officers shall on the request of the appointing
authority be nominated by the concerned District
Magistrate.
(iv) Regional Transport Officer of the concerned region or Member
his nominee not below the rank of Assistant Regional
Transport Officer.
(2) The applications received directly or through the Employment Exchange shall be scrutinized by the appointing authority, who shall call for an
interview and driving test to such persons as appear qualified under these rules.
(3) The Selection Committee shall, after the interview and driving test prepare a list of candidates in order of their proficiency as disclosed by the
aggregate of marks obtained by them in interview and driving test. If two or more candidates obtain equal marks, the Selection Committee shall
arrange their names in order of merit on the basis of their general suitability for the post. The number of names in the list shall be large (but not large
by more than 25 per cent) than the number of the vacancies. The Selection Committee shall forward the list to the appointing authority.
20. Therefore, the learned Counsel for the petitioners has submitted that there are no regularization rules, which contemplate the regularization of
work charged drivers and their appointments against the vacancies of the regular drivers in the regular establishment. Admittedly the two
establishments are completely separate, not inter-changeable and cannot thus be treated at par.
21. Learned Counsel for the petitioners has further submitted that the regularization cannot be adopted as a mode of the recruitment nor it can
grant permanence to ad hoc employees. Learned Counsel for the petitioners argued that no Government order or notification or any circular can
supplant statutory rules framed for their specific purpose and no appointment can therefore, be made in deviation of or departure of the procedures
as laid down in the Statute. In support of this argument, learned Counsel for the petitioners placed reliance on the decision of the Hon''ble Apex
Court in the case of A. Umarani Vs. Registrar, Cooperative Societies and Others, and the decision in the case of Secretary, State of Karnataka
and Others Vs. Umadevi and Others,
22. Learned Counsel for the petitioners has further argued that prejudice has been caused to the petitioners because by passing of the order dated
8.9.2006, the respondents No. 8 to 18 have been appointed as regular drivers and this has been done de hors the statutory rules, i.e., the
procedure as set out in the U.P. Government Departments Drivers Service Rules, 1993 has not been followed. Thus, the appointments made on
8.9.2006 are de hors the above rules and has resulted in the denial of the fair opportunity to all including the petitioners, who might have applied. In
support of whereof, the learned Counsel for the petitioners has relied decision rendered in the case of Binod Kumar Gupta v. Ram Ashray Mahoto
: AIR2005SC2103 and has argued that because the appointments vide order dated 8.9.2006, has been made de hors the rules and without any
advertisement or without following any selection procedure, it is liable to be set aside.
23. Learned Counsel for the petitioners has argued that the very existence of the respondents No. 8 to 18 from very inception of their entry is in
the nature of an unauthorized entry, since they were never appointed against any sanctioned vacancy but were engaged only as work charged
cleaners on a temporary basis, the question of their regularization against the vacancies in the regular establishment does not arise.
24. Learned Counsel for the petitioners has relied on a decision of the Hon''ble Supreme Court in the case of Secretary, State of Karnataka v.
Uma Devi (supra) that for regularization, it is one of the preconditions that the initial entry of the employees must be made against an available
sanctioned vacancy by following the rules and regulations governing such entry.
25. Learned Counsel for the petitioners further argued that initial entry of the respondents No. 8 to 18 as work charged cleaners and their
subsequent promotions as work charged drivers were done without theirbeing any rules and regulations for the same and they were never
appointed against a duly sanctioned vacancy in the regular establishment.
26. Learned Counsel for the petitioners further argued that even assuming without admitting that the respondents No. 8 to 18 had any claim for
regularizaton against the vacancies in the regular establishment then only those appointments could have been saved as per the judgment in the case
of Secretary, State of Karnataka v. Uma Devi (supra), i.e., the employees who had worked more than ten years in the duly sanctioned post and
had continued without any intervention of any order of the Courts or Tribunal. Only irregular appointments have been permitted to be regularized
not the illegal appointments.
27. Learned cousnel for the petitioners has argued that the respondents No. 8 to 18 have not worked for a period of ten years for the work
charged establishment as work charged drivers. They have been illegally promoted as. work charged drivers on 31.8.1999 and have been illegally
regularized against regular vacancies of the drivers by the order dated 8.9.2006. The period intervening is less than ten years and therefore, it
cannot be said that they are entitled to the benefit granted in the case of Secretary, State of Karnataka v. Uma Devi (supra).
28. In fact, the learned Counsel for the petitioners has argued that the order of promotion dated 8.9.2006 was passed after the decision in
Secretary, State of Karnataka v. Uma Devi (supra), which was delivered on 10.4.2006 and therefore, an order of promotion was made in total
disregard of the said decision.
29. Learned Counsel for the petitioners has further argued that even otherwise the respondents No. 8 to 18 were much junior to the petitioners
No. 1 to 5 and has placed on record a chart to show their inter se vacancy position of the seniority.
30. Learned Counsel for the petitioners has also argued that in fact the respondents have admitted the order of promotion passed promoting work
charged cleaners to work charged drivers was wrong, therefore, cancelled the process of promotion of work charged cleaners to work charged
drivers made with effect from 31.5.2000 but have oaved the promotion order of respondents No. 8 to 18 by subsequent crder dated 12.6.2000.
31. Learned Counsel for the petitioners further argued that by the order dated 8.6.1999 the educational qualification for promotion was also
dropped as well minimum required qualification for the post of driver under the Rules, 1993 and therefore, this also renders initial entry of
respondents No. 8 to 18 illegal.
32. Learned Counsel for the petitioners further argues that the petitioners have been seriously prejudiced as even though they are appointed as
regular cleaner in the regular establishment after following the due procedure as per rules and even though they have been doing the work of
regular drivers and have been driving heavy vehicles like road rollers and trucks, no benefit of promotion has been given to the petitioners.
33. Learned cousnel for the petitioners further argues that no regular appointments of driver has been made by the respondent authorities from a
very long time ; no vacancy of the driver has been advertised for direct recruitment as per the Service Rules, 1993, as a result of which, the
petitioners have been deprived of their legal claim for being appointed against the regular post of drivers and on the other hand, the persons such as
the respondents No. 8 to 18 who have not been legally selected, have been given priority by the respondent authorities and have been adjusted
against the regular post in a wholly arbitrary and illegal manner. Learned Counsel for the petitioners has therefore, argued that the respondents
should not be allowed to perpetuate the illegality.
34. Learned Counsel for the respondents No. 8 to 18 has made submissions as well as has filed his written submissions. Out of the several
contentions as raised by the learned Counsel for the respondents No. 8 to 18, his main contention is that the respondents No. 8 to 18 are working
in the work charged establishment and the post of driver in work charged division is ad hoc and the respondents No. 8 to 18 were getting his
salary on contract basis. His argument is that the petitioners were holding regular posts of cleaners in the regular establishment, therefore, they
could not have been promoted on the post of drivers in a work charged establishment.
35. Learned Counsel for the respondents has also argued that right to promotion in a service is a fundamental right and if a vacancy arises on the
post of driver in the work charged establishment, then there could be no illegality in promoting such cleaner on the post of drivers.
36. Learned Counsel for the respondents No. 8 to 18 has however made no submissions with regard to the order dated 8.9.2006 by which the
respondents No. 8 to 18 who have been absorbed as regular drivers in the regular establishment.
37. State has filed counter-affidavit as well as made its written submissions. In reply to the first contentions as made by the petitioners that the
respondents No. 8 to 18 were wrongly promoted from work charged cleaners to work charged drivers, the State has filed response saying that it
is not open to the petitioners to raise such contention because under the rules framed for the appointment of the drivers working in Government
department and including their service conditions, there is no provision for appointment of regular drivers by way of promotion from any cadre
below noted. The State submits that under Rule 7 of the aforesaid Service Rules, 1993, there was only provision for direct recruitment of drivers.
38. The State has also stated on record that the order of promotion dated 1.1.1998 was issued by the respondents permitting the promotion of the
work charged cleaners to the post of work charged drivers. The basis in the order of promotion made on 1.1.1998 was a demand raised by the
employees union. After passing, the impugned order of promotion on 1.1.1998, the State has clarified vide clarification issued by Engineer-in-Chief
on 24.8.1999, indicating that the regular cleaners cannot be promoted to the post of regular drivers as there is no provision in the Service Rules for
any such promotion but only work charged cleaners can be promoted to the post of work charged drivers.
39. The State has again clarified that this power too was withdrawn by way of the circular dated 31.5.2000. The system of promoting a work
charged cleaner to a work charge driver was withdrawn and finally by the Government order dated 13.12.2000 which contemplates promotion of
the work charged cleaner to the post of work charged driver was finally stopped.
40. The State admits that the work charged cleaners were wrongly promoted as work charged drivers but because some promotions such as that
of respondents No. 8 to 18 were made prior to the circular dated 31.5.2000, the same were saved.
41. In response to the other submissions as made by the petitioners, the State has submitted that there is no channel of promotion in the Service
Rules, 1993, which are applicable to the petitioners who are work charged regular cleaners, could have been promoted as regular drivers. The
only source of recruitment to the post of a regular driver in the regular establishment is by way of regular selection, as contemplated in Rules 16
and 17 of the Rules, 1993.
42. Learned standing counsel has produced before this Court rules in respect of the work charged establishment in the Government, which are
followed, which are known as ""Work Charged Establishment Rules, 1978"", which have been laid down in the Uttar Pradesh Irrigation Department
Work Charged Establishment and thus is applicable for the PWD also. Under this Work Charged Establishment Rules, 1978 only provisions have
been made for appointment and conditions of the employment in the work charged establishment. There is no provision in these Rules for
promotion from one cadre to other.
43. The Financial Hand Book Chapter XXI has been produced and Clause 667 provides conditions of employment in work charged
establishments, which is quoted hereinbelow:
667. Work-charged establishment will include such an establishment as is employed upon the actual execution as distinct from the general
supervision, of a specific work or of sub-works of a specific project or upon the subordinate supervision of departmental labour, stores and
machinery in connection with such a work or sub-works. When employees borne on the temporary establishment are employed on work of this
nature their pay should be for the time being, be charged direct to the work.
44. This simply provides for the manner in which payments to be made.
45. I have heard learned Counsel for the parties at length. The position which emerges from the facts and materials on record is thus
(i) There are two kinds of establishments in the P.W.D. departments-one is the regular establishment and the second is the work charged
establishment. The petitioners No. 1 to 5 were appointed as regular cleaners in the regular establishment.
(ii) Respondents No. 8 to 18 were initially appointed as work charged cleaners in the, work charged establishment.
(iii) There is no channel of promotion under the Rules, 1993 by which the regular cleaners may be promoted as regular drivers.
(iv) A regular driver in the regular establishment can only be appointed as per the procedure set out in the Rules, 1993.
(v) In the rules for work charged establishment also, there is no channel of promotion provided by which a work charged cleaner can be promoted
to a work charged driver.
(vi) In fact by the circular dated 31.5.2000, it is clear that a work charged cleaner could not have been promoted as work charged driver.
(vii) The order of regularization dated 8.9.2006, regularizing the respondents No. 8 to 18 as regular drivers is de hors the rules.
In view of the above, the impugned orders dated 1.1.1998 and 31.8.1999 deserve to be set aside.
46. If there is a vacant post in the regular department concerned, the same should be advertised in accordance with the Rules of 1993.
47. If any regularization is to be made, it may now be done in accordance with the dictum as laid down by the Hon''ble Supreme Court in the case
of Secretary, State of Karnataka v. Uma Devi (supra).
48. From the position, which has emerged above, I come to the conclusion that the respondents have acted completely arbitrary and illegally. They
have contrived to do indirectly what they could not have directly, i.e., to say that the order of promotion given to the respondents No. 8 to 18 on
1.1.1998 and the consequent order dated 31.8.1999 is wholly illegal and is not supported by the observance of any kind of rules or procedure
even for the work charged establishment.
49. It is a trite law that what cannot be done directly, cannot be done indirectly. For this purpose, I rely on the decision of the Hon''ble Apex Court
rendered in the case of N. Birendra Singh Vs. L. Priyo kumar Singh and Others, Therefore, if there was no channel of promotion from the cadre of
regular cleaner to a regular driver and from a work charged cleaner to a work charged driver, then it could not have been done in the case of both
the regular cleaner, i.e., the petitioners and the work charged cleaners the respondents. The only possible way for appointment of regular driver
was by way of procedures as set out in the Rules 16 and 17 of Rules, 1993, other than that promotions could not have been made.
50. Consequently the order of regularization passed on 8.9.2006 by which the respondents No. 8 to 18 were regularized as regular drivers in the
regular establishment is also de hors the rules and is therefore, illegal and is liable to be set aside.
51. Learned Counsel for the petitioners has argued that in the last the petitioners No. 1 to 5 amongst who the petitioner No. 1 is dead have
worked in the P.W.D. department as regular cleaner for more than 25 years and in fact for even substituted on many occasions as drivers who
have driven the road rollers and trucks. In fact the petitioner No. 5 has received some increments and although the regular cleaners are being given
in pay scale of Rs. 2,750 to 14,000. The petitioner No. 5 received pay scale of Rs. 4,000-6,000. The other petitioners have received pay scale,
which was fixed for them.
52. Learned Counsel for the petitioners prays that equity be done and the salary of the petitioners be protected and no money be recovered from
them in case they have paid in excess, particularly in view of the fact that even though the petitioners were fully qualified for being considered as
drivers, they have not been considered for regular establishment of the drivers nor being promoted but instead the entire process had been
circumvented and the work charged employees such as the respondents No. 8 to 18 have been unfairly benefited.
53. The last submission of the learned Counsel for the petitioners is accepted by this Court that their salary may be protected and no recovery may
be made from them.
54. The conclusions drawn by this Court are that the submissions as made by the learned Counsel for the petitioners are fully justified. The order of
promotion dated 1.1.1998 and the consequent order dated 31.8.1999 are quashed. The order of promotion dated 8.9.2006 is also quashed.
55. The writ petition is allowed as above.