Regularisation can only occur if the employee is in service at the time of consideration.

Pradeep Kant and K. S. Rakhra, JJ.—Heard the learned counsel for the petitioner Sri Sandeep Dixit and Sri Rakesh Nigam for the State.

2. Admittedly, the petitioner’s husband, who was appointed on ad hoc basis on the post of Medical Officer in the State Ayurveda Evam Unani Chikitsa Sewa Samvarg, died prior to the enforcement of the U. P. Regularisation of Ad hoc Appointment (on the posts within the purview of the Public Service Commission) Rules, 2001. These rules have come into force on 20.12.2001, whereas the husband of the petitioner died on 3.5.2000. On the death of the husband of the petitioner, the petitioner was sanctioned family pension at the rate of Rs. 4,825 per month and this pension was paid till June, 2001. It appears that thereafter a complaint was made by one Dr. Misra saying that the petitioner was not entitled for family pension since the matter of regularisation of services of the husband of the petitioner could not be finalised in his life time and the petitioner’s husband thus, being an ad hoc appointee, the pension should not be paid to her. The pension was thus stopped from June, 2001, on the basis of the aforesaid complaint by the Directorate of Pension, communicating vide letter dated 25.6.2001. Since the petitioner was not paid family pension thereafter, she approached this Court by filing Writ Petition No. 10062 of 2002 at Allahabad, which was disposed of vide order dated 11.3.2002 saying that the petitioner’s representation be decided after affording opportunity of hearing to the petitioner within two months. It was thereafter that the present order impugned dated 6.7.2002 (Annexure-6A) has been passed, holding that the petitioner’s husband since was only an ad hoc appointee and his services could not be regularised as he was not covered by the Regularisation Rules of 2001, he was not entitled for pension inasmuch as on the date of enforcement of the said Rules, he was not in service. Aggrieved by the aforesaid decision, the present petition has been filed.

3. Sri Sandeep Dixit, while making challenge to the aforesaid order, has raised a plea that the sub-rule (1) of Rule 4 of the aforesaid Rules, being substituted by means of the third amendment Rules of 2001 in so far it requires that the ad hoc appointee must be continuing in service on the date of the commencement of the Rules, is arbitrarily and discriminatory and, therefore, is hit by the provisions of Articles 14 and 16 of the Constitution. In support of his submission, the learned counsel has argued that the cut off date which has been fixed for applicability of the aforesaid Rules would mean that the persons, who have died one day after the cut off date would be entitled for being considered for regularisation and the persons, who have unfortunately died even a day before, would be deprived of such consideration. The argument lacks substance. His further argument is that requirement of the ad hoc appointee being in service on the date of commencement of the Rules, would defeat the purpose of enactment of the Rules, and that all those ad hoc appointees, who have to their credit three years of service and who are possessed of the qualification prescribed for the post on the date of appointment and fulfil all other conditions, should be considered for regularisation.

4. These are two aspects of the matter. So far the fixation of a cut off date under the Regularisation Rules is concerned, the controversy is no more open. The State has to fix a date, as all the persons, who have been appointed on ad hoc basis, cannot be allowed to be regularised, without fixing any cut off date. It is also to be taken note of, that this cut off date has been changed by the State Government at different intervals, initially when the Rules were promulgated the cut off date was 1.1.1977. Thereafter, it was extended to 1.5.1983 and then to 1.10.1986. Now by means of the present amendment, it has been extended to 30.6.1998. The fixation of cut off date