Allahabad High Court
State Of Up And Anther vs Gyandas And 26 Others on 1 April, 2024
Author: Mahesh Chandra Tripathi
Bench: Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:54573-DB Court No. - 40 Case :- SPECIAL APPEAL No. - 280 of 2024 Appellant :- State of UP and anther Respondent :- Gyandas and 26 Others Counsel for Appellant :- C.S.C.,Chandra Shekhar Singh Counsel for Respondent :- Abhishek Bhushan Hon'ble Mahesh Chandra Tripathi,J.
Hon'ble Anish Kumar Gupta,J.
1. We have heard Sri C.S. Singh, learned Additional Chief Standing Counsel appearing for the appellants and Sri Anil Bhushan, learned Senior Advocate assisted by Sri Abhishek Bhushan, learned counsel for the petitioners-respondents.
2. Present intra court appeal is preferred assailing the validity of the judgement and order dated 31.7.2023, whereby learned Single Judge had proceeded to allow the Writ A No.632 of 2020 (Gyandas and 26 others vs. State of UP and another) with following directions:-
"9. Having heard learned counsel for the respective parties and their arguments raised across the bar and having perused the order impugned as well as relevant rules of regularization 2016, I find that the core issue is only as to the availability of posts. The claim for the regularization is dependent upon answer to the above issue. The factual background of each case has to be taken into consideration while considering the claim for regularization.
10. It is a very correct argument advanced by learned Senior Advocate that the State being a model employer would not be acting arbitrarily in its discretion while considering the claim of the employees working for over 30 years as a daily wage employee. The very aim and object behind incorporation of the regularization rules has been to ensure by the State that the work being perennial or permanent in nature, those who are discharging duties since have spent maximum of their life in service, they should be conferred with the benefit of permanence in the establishment so as to protect to their family by brining in proper rules to the aid and benefit of such employees.
11. In this case there is no dispute by the respondents that petitioners have been discharging duties as drivers in the office of District Panchayat Raj Office of various districts and they have been continued since 1982. The State, therefore, cannot justify that they have been engaged in employment only as to the availability of work from time to time. Continuance of drivers in the office of the District Panchayat Raj Officer even in the absence of vacancy would denote this particular aspect that there is a permanent nature of work.
12. In view of the above, therefore, the rules are to be taken into consideration with the aims and objects with which they have been framed in the fact background of this case. Rules as I find clearly by virtue of Rule 5 provide for creation of supernumerary posts with the approval of the Government. Rule 5 of Rules, 2016 runs as under:
?5. Subject to the provisions of rule 2, regularization under these rules shall be done on available vacant post in a Government Department:
Provided that if vacant post is not available then, as and when required, a supernumerary post may be created with the approval of the Government.?
13. Petitioners do not stand covered under any scheme as has been referred in Rule 2 and, therefore, it is very much within the domain of the State Government to provide for creation of posts and till such posts are created to provide supernumerary posts to accommodate these petitioners who have worked on daily wage basis over last 30 years. The conditions as have been referred to, otherwise, in Rule 6 is to the effect that a person should be directly engaged or deployed or employed or working on a daily wages or workcharge or contract basis in the Government department in group 'C' or group 'D' posts outside the purview of Public Service Commission, on or before 31st December, 2001 and are still engaged or deployed or employed for working as such on the date of commencement of these rules. Rule 6(1) (i) is reproduced hereunder:
?6. (1) Any person who -
(i) was directly engaged or employed or deployed or working on daily wages or on work charge or on contract in a Government Department on Group ?C? or Group ?D? post (outside the purview of the Uttar Pradesh Public Service Commission) on or before December 31, 2001 and is still engaged or employed or deployed or working as such on the date of the commencement of these rules;?
14. Now, it is to be seen, therefore, whether petitioners were working when the rules came or not and whether they are still discharging the duties or not. Petitioners' appointment order has been brought as Annexure-1 and they claim to be working since 1992 onwards regularly in the office of District Panchayat Raj Officer of different districts. This averment has come to be made in paragraph 3 and paragraph 6 of the writ petition. It has been stated that they have been working as on date i.e swearing of the present writ petition meaning thereby 8th January, 2020.
15. In reply to the paragraph 3 of the writ petition the denial of the appointment has not been made. The only thing that has been stated that their services are liable to be terminated at any point of time without any notice. In respect of paragraph 6, in paragraph 8 of the counter affidavit it has been stated that reply has been made in the proceedings paragraphs but I do not find any reply either in paragraph 5 or in paragraph 6 of the counter affidavit to the paragraph 6 of the writ petition nor, any denial of petitioners' continuance as on date. Thus it is clear that applying the rule of regularization, as per Rule 6 (i), the claim of the petitioner was to be considered in the light of Rule 6(4). Rule 6(4) is reproduced hereunder:
?6(4). The appointing authority shall, having regard to the provisions of sub-rule (1), prepare an eligibility list of the candidates, arranged in order of seniority as determined from the date of engagement or employment or deployment on daily wages, on work charge or on contract and, if two or more persons are engaged or employed or deployed together, from the order in which their names are arranged in the said engagement or employment or deployment order. The list shall be placed before the Selection Committee alongwith their character rolls and such other relevant records, pertaining to them, as may be considered necessary to assess their suitability.?
16. The only thing as per Rule 6(4) (supra) is to prepare the list of candidates arranged in the order of seniority from the date of engagement or employment. From the order impugned it is absolutely clear that no such list had been prepared for the purposes of regularization.
17. It is worth pertinent to mention here that in matters of engagement of daily wage employees, the rules normally do not provide for any procedure to be followed. As a matter of fact the Government establishment decides to make engagement of such employees as per the need but since they continued such employees continuously for such substantially long period that they have brought into force the regularization rules. Therefore, it will be quite contrary to the object of rules framed by the State to reject the claim of the petitioners on the ground that there was no procedure prescribed for their initial engagement in employment. There is no such condition under the rules either.
18. In such above view of the matter, therefore, the respondents are found not justified in rejecting the claim of the petitioners and even if the posts were not there the petitioners were liable to be adjusted against the supernumerary posts.
19. From the order impugned it is reflected that no such exercise was done by the respondents to create supernumerary posts in compliance of the rules framed by the State itself.
20. The last ground which is taken is that as per Rule 12 petitioner could not have set up the claim for regularization. It is right that nobody has a fundamental right for regularization but everybody in the establishment has a statutory right to be considered for regularization while in employment, if rules are there. It is a case where even a consideration has not been accorded and claim has been rejected virtually on the ground that there were no posts. This ground cannot be said to be available to the respondents in view of the relevant provisions of the regularization rules as I have discussed above in the judgment.
21. In the circumstances, therefore, when the order has been passed by this Court earlier setting aside the order passed by the authority, such repeated grounds to reject the claim, cannot be sustained.
22. The law is well settled that when a matter is remitted for consideration in the light of the observations made and discussions held in the judgment then authority is required to meet those points which have been discussed in the judgment. I find that the judgment of this Court dated 19th November, 2018 has virtually escaped the eyes of the authorities who proceeded to reject the matter of the petitioners for regularization. In a sense it is a case made out for contempt. However, since the very object is to confer the benefit of regularization as per the rules, the Court refrains itself from framing any charges against the erring official who have repeated mistakes despite the order of this Court passed earlier quashing one such identical order. Thus the impugned order dated 20th August, 2019 is hereby quashed.
23. State respondents are directed to immediately create supernumerary posts first to accommodate the petitioners and regularize them within a period of two months from the date of presentation of certified copy of this order. Thereafter the State Government will consider to create substantive vacancies to adjust these petitioners. If the petitioners have not been paid salary and have discharged their duties, their arrears of salary shall also be paid within the same period."
3. Brief background of the case is that the petitioners-respondents were engaged as Drivers in the office of District Panchayat Raj Officer of different districts of the State since the year 1982 on adhoc/daily wage/temporary basis. They were regularly working since the year 1982 and were given Pay Grade of the Drivers working in different departments of the State Government i.e. Rs.3050-75-3950-50-80-4590. Meanwhile, the State Government had framed "U.P. Regularization of Daily Wages Appointments on Group 'D' Post Rules, 2001" (hereinafter referred to as 'Rules, 2001). However, in spite of petitioners working since prior to the cut off date prescribed for under the Rules, 2001 as 29th June, 1991, the petitioners were not considered for regularization. Later on, the State Government had framed another Rule in supersession to Rules, 2001 namely, "Uttar Pradesh Regularization 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 'Rules, 2016'), which provide for regularization of those employees, who are working on Group 'C' and Group 'D' posts outside the purview of Uttar Pradesh Public Service Commission since prior to 31st December, 2001.
4. Meanwhile, some of the Drivers, who were appointed long back and were getting same pay scale as available to the regular drivers and Class-III employees in the State Government, retired from service but they were not provided the benefits of pension, gratuity, group insurance, etc. The petitioners raised their claim for regularization before the competent authority. Once the competent authority did not look into their grievance then they approached this Court by preferring Writ A No.44091 of 2012 (Gyan Das & others vs. State of UP & others) wherein learned Single Judge vide order dated 1.8.2017 directed the Principal Secretary (Panchayat Raj) to file his personal affidavit in consultation with the Finance Department and the Law Department. Finally, the respondents had rejected the petitioners' claim for regularization on the post of Driver in Panchayat Raj Department vide order dated 6th July, 2018, firstly on the ground that the petitioners were neither daily wage employees, nor work charge employees/contract employees so as to confer upon them the benefit of regularization under Rules, 2016 and secondly, the petitioners were not appointed by following any prescribed procedure. The said order was again assailed by petitioners in the aforesaid Writ - A No.44091 of 2012 and finally, learned Single Judge vide order dated 19.11.2018 had proceeded to dispose of the writ petition with following observations:-
"The State Government has taken note of the Rules subsequently framed for regularisation i.e. '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 The Uttar Pradesh Public Service Commission) Rules, 2016'.
The reason specified for rejecting the petitioners' claim is that they had not been appointed on Daily Wage / Work Charge / Contract basis and are also not receiving wages on daily rate basis and, therefore, the Rules of 2016 would not be applicable upon the petitioners.
Learned counsel for the petitioners submits that the order impugned suffers from complete non-application of mind inasmuch as in the second page of the order impugned i.e. paragraph no. 2, it is clearly recited that petitioners were appointed in 1982 and they continued from 1982 to 2001 on temporary basis and were paid wages on daily wage basis. The status of petitioners was subsequently altered and that were treated as fixed pay employees.
The further submission of learned counsel for the petitioners is that nature of engagement of petitioners is clearly covered within the ambit and scope of the Rules of 2016 and the contrary view taken is arbitrary. It is also argued that once the petitioners' claim are covered by the Rules, the authorities, on flimsy grounds, cannot deny the benefit of regularization to the petitioners.
Counter affidavit has been filed in which the factum of petitioners continuing in service from 1982 to 2001 onwards, till the date the Rules of 2016 got introduced is not denied.
The objection that opinion or approval of certain departments is awaited is also not material once the claim is otherwise shown to be covered under the Rules for regularization.
The State Government while rejecting the claim has completely failed to advert itself to the first part of the order itself wherein it is clearly mentioned that petitioners were appointed on daily wage basis. The mere fact that they were subsequently granted fixed scale of pay would not take their claim out of purview of Daily Wage / Contract / Work Charge employees. This Court cannot approve the action of State in passing orders without verifying its own records, and thereby forcing the petitioners to approach this Court time and again.
Consequently, the order impugned dated 6 July 2018 cannot be sustained and is hereby quashed.
The State Government is directed to take a fresh decision in the light of the above discussion within a period of two months from the date of filing the certified copy of this order.
The writ petition is, accordingly, disposed of."
5. Aggrieved with the aforesaid order, the State Government had preferred Special Appeal Defective No.668 of 2019 (State of UP and 31 others vs. Gyan Das and 28 others) and a Division Bench of this Court vide order dated 25.7.2019 had proceeded to dismiss the appeal with the aforesaid observations:-
"Learned Single Judge vide judgment and order dated 19.11.2018 after recording the relevant facts and also the decision taken earlier in other petitions, quashed the order dated 6th July, 2018 and thereafter directed the State Government to take a fresh decision in the light of the discussion made in the order within a period of two months from the date of filing of certified copy of the order.
Sri Anil Kumar Srivastava, learned counsel for the respondents placed before the Court copy of the Office Order dated 29th March, 2019 passed by the Secretary, Department of Panchayat Raj, in compliance to the direction issued by the learned Single Judge on 19.11.2018 and submitted that the State having accepted the judgment and order of the learned Single Judge and having acted upon it by taking a decision on 29th March, 2019, the filing of the present special appeal is for ulterior reasons in order to obviate the pending contempt proceedings before the Contempt Court. He also placed before us an order dated 16th May, 2019 passed by the Contempt Court in Contempt Application (Civil) No. 601 of 2019, wherein learned Additional Chief Standing Counsel prayed for one more opportunity to revisit the issue and want to pass fresh orders, as it was the submission of the counsel for the applicant before the Contempt Court that the order dated 29th March, 2019 i.e. the decision taken by the State Government pursuant to the judgment of the Writ Court is willful disobedience of the order of this Court.
Sri M.C. Chaturvedi, learned Additional Advocate General submits that the Court may examine the correctness of the judgment and order of the learned Single Judge irrespective of the fact that the State had already acted upon it. As according to him, the writ petitioners and the applicants in the contempt application are not satisfied with the order dated 29th March, 2019.
In view of the fact that the State Government has already taken a decision in pursuance of the directions given by the learned Single Judge, no cause of action survives for filing the present appeal. The appeal, thus, filed by the State, has no merits and is liable to be dismissed."
6. Once the aforesaid order had not been complied with then the petitioners were compelled to approach the Contempt Court by preferring Contempt Application (Civil) No.601 of 2019 (Gyan Das and 8 others vs. Anurag Srivastava) and the same was disposed of by this Court on 06.11.2019 with following observations:-
"The claim set up by the petitioners/applicants before the Writ Court was to accord the similar benefits as are available to the incumbents working on the post of Driver in different Departments of State Government. The claim of the applicants were considered and rejected by the opposite party vide order dated 6.7.2018. As per record, this is admitted situation that till now no sanctioned post of Driver in the office of District Panchayat Raj Officer has been created. No doubt, in the present matter, certain steps were taken by the State Government to create and sanction the post of Drivers in the offices of District Panchayat Raj Officers but in nutshell except one District Amethi, in remaining 74 districts, no posts were created/sanctioned.
Earlier an affidavit dated 31.7.2019 had been filed in the present matter but due to some defects, the same was withdrawn with the leave to file a better affidavit vide order dated 31.7.2019. In response to the said order, an affidavit of compliance has again been filed on behalf of the Principal Secretary of the Department appending therein the order dated 20.8.2019 whereby claim of the applicants were considered and rejected strictly in consonance with decision based upon a policy of the State Government dated 18.9.2018.
In this backdrop, it has been urged before this Court that in absence of any substantive post available in the department concerned, the claim of the applicants for regularisation cannot be accepted.
In the facts and circumstances, the Court is of the opinion that substantial compliance has been made in the matter and the cause for filing of the contempt application no more survives.
Consequently, the present contempt application stands disposed of. Notice, if any, stands discharged. However, it is always open to the applicants to assail the validity of the order dated 20.8.2019 before the appropriate Forum."
7. In this backdrop Sri C.S. Singh, learned Additional Chief Standing Counsel appearing for the appellants has placed reliance on paragraph-4 of the Office Memorandum dated 20.08.2019 (page-234 of the paper book), wherein it has been indicated that as per Government order dated 18.9.2018 the State Government had taken a policy decision not to engage any person on permanent basis on Class-IV posts including Driver, Mali, Water man, Electrician, Plumber, Mistri, Lift man, A.C. mechanic and others. except two departments and all such services will be taken through outsourcing. He submits that while passing the order impugned learned Single Judge has failed to consider the Government order dated 18.09.2018. He submits that the impugned order, which was subject matter of challenge in the writ petition, was strictly in accordance with relevant Rules/Government orders and as such, the petitioners had no right to press the relief for regularization in the department concerned in absence of any statutory post.
8. Sri Anil Bhushan, learned Senior Advocate, who appears for the petitioners-respondents, has resisted the appeal on the ground that the petitioners-respondents were working as Drivers in the office of District Panchayat Raj Officers of the State. Previously the State Government vide order dated 6th July, 2018 had considered and rejected their claim for regularization on the post of Driver in Panchayat Raj Department, Government of Uttar Pradesh, Lucknow. They had preferred Writ A No.44091 of 2012 seeking a writ in the nature of mandamus directing the respondents to accord benefits given to Drivers working in other Government Department of the State. In the said proceeding the petitioners placed reliance upon a letter dated 22.11.2001 issued by the Director, Panchayat Raj to the District Panchayat Raj Officers reminding them that earlier a letter dated 05.11.2001 was issued from the Directorate asking for details of information with regard to drivers such as petitioners as State Government was proposing to declare such drivers as Government servant. Meanwhile, the petitioners' claim for regularization on the post of drivers in the department concerned, which was turned down by the State Government vide order dated 06.07.2018, was also considered by learned Single Judge in the aforementioned writ petition.
9. Sri Anil Bhushan, learned Senior Advocate further submits that the reasons specified for rejecting the petitioners' claim while passing the order dated 06.07.2018 were that as the petitioners were not appointed on daily wage/work charge/contract basis and were also not receiving wages on daily rate basis, therefore Rules 2016 would not be applicable upon the petitioners. Learned Single Judge vide order dated 19.11.2018 had passed the detailed order and after quashing the order dated 06.07.2018 the matter was relegated to the State Government to take a fresh decision in the light of observations made in the order dated 19.11.2018. He submits that even though the said order was challenged by the State Government in Special Appeal Defective No.668 of 2019 and the Division Bench vide order dated 25.07.2019 had dismissed the appeal. Again the claim of the petitioners was rejected by the State Government vide an order dated 20.08.2019, which was subject matter of challenge in Writ A No.632 of 2020 and learned Single Judge had considered the two grounds, which were taken by the State (appellant) while passing the order dated 6th July, 2018, firstly that as per the administration, Department of Communication, the petitioners were neither daily wages employees, nor work charge employees/contract employees so as to confer upon them benefit of regularization under Rules, 2016 and secondly, the petitioners were not appointed by following any prescribed procedure. Further, the stand was taken by the State respondents that the petitioners' cases were not liable to be held as covered under the Rules, 2016 as per conditions laid down therein for being appointed prior to 31.12.2001 and continued working till the date of superannuation for regularization. He submits that each and every ground has been considered in detail by learned Single Judge and he had also taken note of Rule 5, 6 (1) (i) of Rules, 2016. He submits that it is not in dispute that the petitioners were working as drivers in the office of District Panchayat Raj Officer of different district since 1982 and were continued to work in the department at the time of filing the writ petition in the year 2020. He submits that sound reasoning is given by learned Single Judge while passing the order dated 31.7.2023, which warrants no interference.
10. Heard rival submissions and perused the record.
11. We have proceeded to examine the record in question and find that in the previous litigation, the Court had considered each and every aspect of the matter and disposed of the writ petition on 19.11.2018, which is not in dispute. The said order was challenged by the State respondents (appellants) in Special Appeal Defective No.668 of 2019 and the Division Bench had dismissed the said appeal on 25.7.2019 and affirmed the order passed by learned Single Judge on the ground that the State Government has already taken a decision in pursuance of the directions given by learned Single Judge. In the impugned judgement, learned Single Judge has also considered Rule 5 of Rules, 2016, which provides that subject to the provisions of rule 2, regularization under these rules shall be done on available vacant post in a Government department, provided that if vacant post is not available then, as and when required, a supernumerary post may be created with the approval of the Government. Learned Single Judge has also recorded a finding that no exercise was done by the respondents to create supernumerary posts in compliance of the Rules framed by the State Government itself and the claim of the petitioners has been rejected virtually on the ground that there were no posts. This is admitted position that the petitioners-respondents were engaged in the department concerned since the year 1981 and they were continued in service for a long time. Admittedly, their claim falls under the relevant Rules and only on hyper technical ground, the claim of the petitioners has been rejected by the appellants.
12. After considering the submissions advanced by learned counsel for the parties and upon perusal of the impugned jugdment and order dated 31.7.2023 passed by learned Single Judge, we notice that same has been rendered by learned Single Judge with cogent and justifiable reasons. In an Intra-Court Special Appeal, no interference is usually warranted unless palpable infirmities or perversities are noticed on a plain reading of the impugned judgment and order. In the facts and circumstances of the instant case, on a plain reading of the impugned judgement and order, we do not notice any such palpable infirmity or perversity, which may warrant any interference in the impugned judgement and order dated 31.07.2023.
13. For the reasons stated above, the Special Appeal is liable to be dismissed and stands, accordingly, dismissed.
Order Date :- 1.4.2024 RKP