Allahabad High Court
Ramesh Chandra Avasthi vs State Of U.P. And 2 Others on 18 August, 2022
Author: Jayant Banerji
Bench: Jayant Banerji
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 33 Case :- WRIT - A No. - 7203 of 2022 Petitioner :- Ramesh Chandra Avasthi Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Bijendra Kumar Mishra Counsel for Respondent :- C.S.C. Hon'ble Jayant Banerji,J.
1. Heard Shri Bijendra Kumar Mishra, learned counsel for the petitioner and Shri Sharad Chandra Upadhyay, learned Standing Counsel appearing for the State-respondents.
2. Pursuant to the previous orders passed by this Court, Shri Sharad Chandra Upadhyay has furnished instructions before this Court, which is taken on record.
3. This writ petition has been filed seeking regularization of services of the petitioner under the Uttar Pradesh Regularisation of Persons Working on Daily Wages or on Work Charge or on Contract in Government Departments on Group 'C' and Group 'D' Posts (Outside the Purview of Uttar Pradesh Public Service Commission) Rules, 2016 (hereinafter referred to as the 'Rules of 2016') after exempting artificial break in service, in light of certain judgements passed by this Court.
4. It is alleged that the petitioner was engaged in the Forest Department on daily wage basis in the month of May, 1991, whereafter, he has been discharging his duties continuously till date. It is stated that the petitioner filed Writ Petition No. 4335 of 2006 before this Court claiming regularization which petition was disposed of by means of the order dated 23.1.2006 permitting the petitioners to file representation along with judgements of the Supreme Court and concerned respondent was directed to decide the matter within four months. The petitioner sought information under the RTI Act which was replied on 6.3.2010. Thereafter, the petitioner filed several representations, the last one on 29.1.2021, but no orders have been passed on them. It is stated that similarly situated persons had previously filed writ petitions and they were appointed pursuant to the orders of this Court.
5. Learned counsel for the petitioner contends that proof of the petitioner working from 1991 have been filed with the writ petition and given the provisions of the Rules of 2016, the petitioner is entitled to be regularized. Learned counsel for the petitioner has stated at the bar that the petitioner is engaged for plantation work by the Forest Department.
6. Learned Standing Counsel, while referring to the instructions submitted on behalf of the Forest Department has stated that the petitioner had filed yet another writ petition bearing no. 26486 of 2015 (Ramesh Chandra Avasthi Vs. State of U.P.) in which by the order dated 8.5.2015, the minimum wages were directed to be paid and that writ petition is pending. He contends that the filing of the writ petition of 2015 has been concealed by the petitioner in the present writ petition.
7. In the instructions, it has been stated that neither has the petitioner been appointed from the month of May, 1991 by the competent authority nor is he working continuously from the year 1991. As per need, for purposes of tree plantation and other works under certain schemes the labuorers are paid wages. It has been stated in the instruction that pursuant to the interim order passed by this Court, the petitioner is working as a daily wager. It is contended by the learned Standing Counsel that the documents enclosed with the writ petition allegedly showing the engagement of the petitioner since 1991 are unsigned and need to be duly proved by him. It is further contended that as per the own statement of the learned counsel for the petitioner, the petitioner is being engaged by the Forest Department for tree plantation work which is purely seasonal in nature as tree are planted during the rainy season and therefore, given the provisions of clause (ii) Rule 2 of the Rules of 2016, the petitioner is not entitled to the benefit of Rules of 2016. It is further stated that as per Rule 6 of the Rules of 2016 only such daily wagers or persons engaged or employed or deployed or working on daily wages or on work charge or on contract in a Government Department on Group 'C' and Group 'D' posts (outside the purview of the Uttar Pradesh Public Service Commission) on or before December 31, 2001 and are still engaged or employed or deployed or working as such on the date of commencement of Rules of 2016 would be considered for regular employment. Therefore, the petitioner has to duly prove these facts which are disputed by the respondents.
8. Having heard the learned counsel for the parties and on perusal of the record, it is evident that two writ petitions were filed by the petitioner before this Court. One writ petition was filed in the year 2006 and another in the year 2015. The first writ petition was disposed of with a direction to the concerned respondent to decide the representation of the petitioner. There is no mention in the writ petition whether the representation filed pursuant to the order passed in the aforesaid writ petition of 2006 was decided by the concerned authority and if so, what was the order passed. It is also not known whether any order if passed on the representation of the petitioner pursuant to the order dated 23.1.2006 passed in writ petition of 2006 was challenged before this Court. Apparently, it is only on the basis of an interim order passed by this Court in writ petition of 2015 that the petitioner is continuing to receive minimum wages. The documents enclosed with the writ petition purporting to show the engagement of the petitioner from the year 1991 are seriously disputed by the respondents. Moreover, the fact whether or not the services of the petitioner is covered under the provisions of the Rules of 2016 so as to the entitle him for regularization is also a disputed question of fact. The applicability of the Rules of 2016 for regularization of the services of the petitioner is also dependent on the petitioner demonstrating with hard evidence that he was appointed in the year 1991 as a daily wager and continuously working since then without any break in service.
9. Under the facts and circumstances and in view of the objections raised on behalf of the respondents, I find that there are several disputed questions of fact in this writ petition which can be best adjudicated before the appropriate forum under the provisions of the U.P. Industrial Act, 1947. Therefore, this writ petition is dismissed on the ground of alternative remedy.
Order Date :- 18.8.2022 A. V. Singh (Jayant Banerji, J.)