Devendra Nayak and Another vs State of U.P. and Others

Sudhir Agarwal, J.—Heard Syed Wajid Ali, learned Counsel for the petitioner and learned Standing Counsel for the respondents. The petitioners have sought a writ of mandamus commanding respondents to consider them for substantive appointment on the post of Collection Amin by relaxing age in exercise powers conferred under Rule 31 of U.P. Collection Amins'' Service Rules, 1974 (hereinafter referred to as "1974 Rules").

Relying on Apex Court''s decision in Gujarat Agricultural University Vs. All Gujarat Kamdar Karmachari Union, , learned Counsel for the petitioners contended that the State Government has power under Rule 31 of U.P. Collection Amins'' Service Rules, 1974 (hereinafter referred to as "1974 Rules") to relax any rule and, therefore, the maximum age having already been relaxed by Government Order dated 14.5.2008, petitioners ought to have been considered for substantive appointment on the post of Collection Amin.

It is not disputed that the maximum age up to which a Seasonal Collection Amin can be considered is prescribed in Rule 5(2) of 1974 Rules as amended in 2004. Rule 31 empowers the Government to relax certain Rules and reads as under:

A perusal of 1974 Rules shows that the same has been promulgated under proviso to Article 309 of the Constitution prescribing rules relating to recruitment and conditions of service. The term "recruitment" and "conditions of service" are two different concepts. Article 309 under which such rules have been framed also empower the authorities concerned to make law relating to recruitment and conditions of service. The distinction between "recruitment" and "conditions of service" has been considered by a Division Bench of this Court in Dr. Rajeev Ranjan Misra and Others Vs. The State of U.P., The Chairman U.P. Public Service Commission and The Director Homoeopath Govt. of U.P., , wherein this Court observed:

The distinction between rule of "recruitment" and "condition of service" is no more res integra having already been settled by the Apex Court in a catena of cases. In State of Madhya Pradesh and Others Vs. Shardul Singh, , the Apex Court held that the term "conditions of service" means all those conditions which regulate the holding of a post by a person right from the time of his appointment till retirement and even pension etc. It was reiterated in I.N. Subba Reddy Vs. Andhra University and Others, . In Syed Khalid Rizvi and Others and Ramesh Prasad Singh and Others Vs. Union of India (UOI) and Others, , the Apex Court held where a rule permits relaxation of provisions pertaining to "conditions of service", the same would be applicable to the condition after appointment to the service in accordance with rules. It also held that that "conditions of recruitment" and "conditions of service" are distinct and the latter is preceded by an appointment according to rules, the former cannot be relaxed.

Considering the similar question in Dr. Rajeev Ranjan Mishra (supra) this Court also said:

Part 3, 4 and 5 contain rules of recruitment which includes rules pertaining to reservation, eligibility and other qualifications with respect to nationality, educational qualifications, age, character, marital status, physical fitness etc. and procedure for recruitment. The rules pertaining to ''recruitment'' cannot be relaxed by exercising power under Rule 26 since such rules are not relaxable.

Rule 31 of 1974 Rules empowers the Government to relax only rule relating to conditions of service and not recruitment. The rules relating to qualification, process of recruitment/appointment, age, eligibility etc. relates to the rules relating to recruitment since these are all rules relating prior to appointment in service. Rule 31 does not directed relaxation of rules pertaining to recruitment.

So far as the decision of Apex Court in Gujarat Agricultural University (supra) is concerned, the same has no application to the case in hand since the controversy in the aforesaid case was totally different. The question was whether power totake disciplinary action would include expression conditions of service u/s 33 of the Industrial Disputes Act or not. In this context the Apex Court relying on Lily Kurian Vs. Sr. Lewina and Others, , in para 15 and 16 held:

In Lily Kurian Vs. Sr. Lewina and Others, , this Court said:

The expression "conditions of service" covers a wide range, as explained by the Privy Council in AIR 1949 112 (Privy Council) , which was approved by this Court in The State of Uttar Pradesh and Others Vs. Babu Ram Upadhya, . These decisions and also a later decision of this Court in State of Madhya Pradesh and Others Vs. Shardul Singh, , have made it clear that the expression "conditions of service" includes everything from the stage of appointment to the stage of termination of service and even beyond, and relates to matters pertaining to disciplinary action. Thus, the expression "conditions of services" as explained in the decisions of the Privy Council and of this Court includes the power to take disciplinary action. The rules regarding these matters are contained in Chapter 57 of the ordinances. The management of a private college under Ordinance 33(2) is constituted the appointing and the disciplinary authority in respect of imposition of punishment. In the course of any disciplinary proceeding, a right of appeal before the Vice-Chancellor is given to a teacher dismissed from service under Ordinance 33(4) of the Ordinances. The High Court thus rightly held that the right of appeal conferred by Ordinance 33(4) forms part of the "conditions of service" and, therefore, is valid.

It is true that daily wagers are not the holders of a post but the expression "conditions of service'' occurring in section 33(1)(a) is not restricted to the holders of post. The expression, "conditions of service'' is of wide range and relates to the workmen who may be temporary, adhoc, daily rated, permanent, semi-permanent or otherwise. What section 33 provides is that, inter alia, during the pendency of any proceeding before the Labour Court or Industrial Tribunal in respect of an industrial dispute, the employer shall not in regard to the matter connected with the dispute, change conditions of service prejudicially to such workmen. We find no merit in the contention that since daily rated employers do not hold any post and, therefore, there are no conditions of service for such employees.

The above observations have to be considered in the context of provisions of Industrial Disputes Act which is applicable to all kind of workman whether temporary, casual, ad hoc, regular etc. and make certain provisions for their welfare. In case of a daily wage employee if he has worked for certain period the provisions of Industrial Disputes Act provides that he cannot be disengaged or terminated if he has worked for a particular length of time in a year and so on. Therefore, the Industrial Disputes Act as such is applicable to all kind of workman provided they are the workman as defined under the said Act. There is no distinction in various provisions in reference to recruitment and conditions of service. Therefore, the observations made by Apex Court in Gujarat Agricultural University (supra) in the context of section 33 of Industrial Disputes Act would not apply in a case where the matter is covered by rule which specifically makes a distinction between rules of recruitment and rules relating to conditions of service. In view of above discussion, I find no merit in this writ petition. Dismissed. No costs.