M. Quddusi, J.
1. Heard learned counsel for the petitioner and learned standing counsel.
2. The instant writ petition has been filed against the order dated 17th October, 2000 passed by District Horticulture Officer. Barabanki, by means of which the petitioner who was working on daily wages basis has been denied regularisation on Group 'C' post on the ground that he was not appointed directly against any available vacancy.
3. The petitioner was appointed as typist on daily wages basis. It is admitted case of the opposite parties that he is continuously working on daily wages basis since July, 1990 but his engagement was not made against any available vacancy in Group C post and was only engaged on muster roll. His representation has been rejected in this regard which was directed to be decided vide order dated 13.1.2000, passed by this Court in his earlier Writ Petition No. 5094 (S/S) of 1990, in which it was directed that since the petitioner is working on dally wages basis since 1987, therefore, his case is squarely covered under Rule 4 of the U. P. Regularisation for Daily Wages Appointment for Group C Post (Outside the Purview of U. P. Public Service Commission) Rules, 1998 and he is to be considered for regularisation.
4. The District Horticulture Officer, interpreted Rule 4 (1) to the effect that any person who was directly appointed against any available vacancy shall be considered for appointment. Since the petitioner was not appointed against any available vacancy in Group 'C' post directly, he would not be considered as the Rules would not be applicable in his case.
5. Before proceeding further it is necessary to peruse the provisions of Rule 4 of the U. P. Regularisation for Daily Wages Appointment for Group C Post (Outside the Purview of Public Service Commission) Rules, 1998 which is reproduced as under :
4. Regularisation of daily wages appointment on Group 'C' posts :
(1) Any person who-
(i) was directly appointed on daily wage basis on Group 'C' posts in the Government service before June 29, 1991 and is continuing in service as such on the date of commencement of these rules ; and
(ii) Possessed requisite qualifications prescribed for regular appointment for that post at the time of such appointment under the relevant service rules on daily wages basis, shall be considered for regular appointment on Group 'C' post in permanent or temporary vacancy as may be available on the date of commencement of these rules, on the basis of his record and suitability before any regular appointment is made in such vacancy in accordance with the relevant service rules or orders.'
6. Since Rule 4 (1) cannot be read all alone and can only be read along with clause (ii) also as such the provisions of Rule 4 (i) read with 4 (ii) would be that, in case any person appointed on daily wages basis on Group 'C' post in the Government service before 29.2.1991 and is continuing in service and possesses requisite qualification prescribed for regular appointment for that post at the time of such appointment and the relevant service rules on daily wages basis, shall be considered for regularisation on Group 'C' post in permanent or temporary vacancy as may be available on the date of commencement of these rules.
7. Daily wages employees have also been categorized as Class IV and Class III employees. In Class III employees, so many has been appointed on daily wage basis to perform the duties for the post which was within the purview of Public Service Commission like Diploma Holders who were assigned the duties on daily wage basis of Overseer/ Junior Engineer. Therefore, the daily rated employees who were not performing the jobs of the nature of those Group 'C' employees whose posts were not within the purview of Public Service Commission were considered to be regularised as they were working since last so many decades. The Legislature has not provided regularisation of those muster roll or daily wage employees who were performing the job of Class IV post.
8. The question, which has arisen for consideration before this Court, is that in case of available vacancies what was the necessity to engage person on daily wages basis against a clear vacancy of Group 'C' post. The other question is that, if the condition imposed in the regularization Rules was that a person who necessarily to be appointed against a vacancy on daily wages basis is only liable to be considered for regularization then why in the second clause of Rule 4 it has been indicated that the regularization shall be considered on permanent or temporary vacancy as may be available on the date of commencement of the Rules as in that case the employee who was appointed on daily wages basis would have held the post under Group 'C' and his regularization can be made against the post held by him. The words 'available vacancy' denotes that there may be chances that vacancies were not available at the time of appointment/engagement of daily wager working according to the need of work, but for that work, no post was sanctioned.
9. It will also be discriminatory if the daily wages employee working without post and engaged prior to the daily wages employee working against an available post is denied regularization on that point as the right of the person engaged earlier on daily wages basis discharging the work related to Group 'C' post is superior in comparison to the person appointed subsequently although against some vacancy.
10. In view of the above discussions, the writ petition succeeds and is allowed. A writ in the nature of certiorari is issued quashing the impugned order dated 17th October. 2000. The opposite party No. 2 is directed to reconsider the matter and consider the regularization of the petitioner on the available vacancy, as directed in the regularization Rules in accordance with law and strictly in accordance with seniority.