Allahabad High Court
Surendra Kumar Lal vs State Of U.P. And Others on 5 February, 2015
Author: Yashwant Varma
Bench: Yashwant Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Reserved on 17.01.2015
Delivered on 05.02.2015
Writ Petition No. 29378 of 2009
Surendra Kumar Lal
Vs.
State of U.P. And Others
==================
Court No. 59
Hon'ble Yashwant Varma, J.
By means of the instant petition, the petitioner has sought the issuance of a writ commanding the respondents to absorb him as a regular Seenchpal in the Irrigation Department of the State of U.P. Shorn of unnecessary details, the facts of this case are as follows. As per the petitioner's own contention, he is said to have worked as a Seenchpal on daily wage basis between 1.7.1985 to 1.6.1986. He further averred in the writ petition that thereafter he worked from 2.6.1986 to 30.11.1986. In support of the above contention he relies upon the certificate purported to have been issued by the Assistant Engineer, Deokali Pump Nahar, Prakhand-II, Ghazipur. The writ petition is completely silent and there is no averment thereafter of the petitioner having discharged any work in the Department either on daily wage or as a Muster Roll employee.
What is submitted is this--the petitioner had completed 240 days of service in a year and as per the Government Order dated 24.09.1997, he was entitled to be absorbed in the Department. He is said to have thereafter made various representations between 1998 to 2008 and having received no response, filed the instant writ petition during the Summer Vacations of the Court in 2009.
The State has in its Counter Affidavit stated that the Certificates which are relied upon by the petitioner are clearly suspect inasmuch as they carry no dates, no dispatch numbers and copies thereof are not available in the records. It is further averred that between the period January, 1986 to April 1986, the petitioner worked for 117 days and between October, 1986 to December, 1986 for 67 days. According to the State-respondents the above work discharged by the petitioner is evident from a perusal of the Muster Roll for the said period and it is, therefore, evident that the petitioner has not worked for 240 days. The above facts which are stated categorically in Paragraphs 4 and 6 of the Counter Affidavit have not been materially traversed by the petitioner.
The learned counsel for the petitioner submitted that the petitioner was entitled for regularization in terms of the Government Order dated 24.09.1997. He submitted that he had completed 240 days in a calendar year and, therefore, was entitled to be absorbed in the Department. He further submitted that various persons who were working on daily-wage basis/Muster Roll had been absorbed in the Department and that therefore the action of the Department was violative of the guarantees conferred upon him by Articles 14 and 21 of the Constitution of India.
Per contra, the learned Standing Counsel has submitted that no relief is liable to be granted to the petitioner inasmuch as, as per his own case he had worked as a Muster Roll employee in 1986 and for the purposes of absorption made an application only in 1997-98. He further contends that mere filing of representations between 1997-2008 would not enure to the benefit of the petitioner and that the petition clearly represents a stale claim. He has further reiterated the contentions taken in Paragraphs 4 and 6 of the Counter Affidavit to submit that even otherwise the petitioner being only a Muster Roll employee, who had not worked for 240 days, was not entitled to be regularized/absorbed by the Department concerned either under the Government Order or under any other provision of law.
It is relevant to note here that the learned counsel for the petitioner has rested his case only on the Government Order dated 24.09.1997 and has not drawn the attention of this Court to any other Scheme or Rule under which such Muster Roll employees were entitled to the relief of regularization/absorption.
Undisputedly, the petitioner appears to be a Muster Roll employee who had worked for an intermittent period in the year 1986. As per the statement made in the Counter Affidavit, the petitioner had worked for two spells of 117 days and 67 days. He, therefore, did not even meet the pre-conditions imposed under the Government Order referred to above. The Respondents categorically deny the veracity of the certificates relied upon by the Petitioner. It is therefore not possible for this Court to go into this factual dispute.
The issue then to be considered is whether even if it is assumed that the petitioner has worked for 240 days, would he be entitled to regularization/absorption? The answer obviously has to be in the negative. A Muster Roll employee is not appointed to a post. In fact, it is not even an 'appointment' in the strict sense of the term. The plea of having worked for 240 days and consequently becoming entitled to regularization cannot even be countenanced as working for 240 days has no relevance to a plea of regularization/absorption.
In this connection one may stand reminded of what the Hon'ble Supreme Court held in Post Master General, Kolkata And Others Versus Tutu Das (Dutta); (2007) 5 SCC 317:
"16. The short order which was the subject matter of decision of this Court in Debika Guha (supra) also stood overruled in Umadevi (supra). We may at this stage also notice that the concept of 240 days to be the cut off mark for the purpose of regularisation of services came up for consideration of this Court in Madhyamik Siksha Parishad, U.P. v Anil Kumar Mishra and Others etc. [AIR 1994 SC 1638], wherein it was clearly laid down that the completion of 240 days of continuous service in a year would be attracted only in a case where retrenchment has been effected without complying with the provisions contained in Section 25F of the Industrial Disputes Act , but would not be relevant for regularisation of service."
Insofar as the issue of regularization is concerned, the law now stands authoritatively laid down in State of Karnatka Vs. Uma Devi (3), (2006) 4 SCC 1. Following the dictum laid down in Uma Devi's (supra), the Apex Court in Nand Kumar Vs. State of Bihar And Others, (2014) 5 SCC 300 has reiterated the legal position as follows:
"25. We have consciously noted the aforesaid decisions of this Court. The principle as has been laid down in Umadevi (3) has also been applied in relation to the persons who were working on daily wages. According to us, the daily wagers are not appointees in the strict sense of the term "appointment". They do not hold a post. The scheme of alternative appointment framed for regular employees of abolished organisation cannot, therefore, confer a similar entitlement on the daily wagers of abolished organisation to such alternative employment. (See Avas Vikas Sansthan v. Engineers Assn.) Their relevance in the context of appointment arose by reason of the concept of regularization as a source of appointment. After Umadevi (3), their position continued to be that of daily wagers. Appointment on daily-wage basis is not an appointment to a post according to the rules. Usually, the projects in which the daily wagers were engaged, having come to an end, their appointment is necessarily terminated for want of work. Therefore, the status and rights of daily wagers of a government concern are not equivalent to that of a government servant and his claim to permanency has to be adjudged differently."
Lastly the plea of discrimination as raised by the counsel for the petitioner may be noticed. This plea has been faintly urged in pargraph 27 of the writ petition. However, the averments made therein are bereft of all material particulars. It is therefore not liable to be countenanced.
Be that as it may, the Apex Court considering a similar plea in Post Master General, Kolkata And Others (supra) was pleased to observe as under:-
"12. What was considered to be permissible at a given point of time keeping in view the decisions of this Court which had then been operating in the field, does no longer hold good. Indisputably the situation has completely changed in view of a large number of decisions rendered by this Court in last 15 years or so. It was felt that no appointment should be made contrary to the statutory provisions governing recruitment or the rules framed in that behalf under a statute or the proviso appended to Article 309 of the Constitution of India.
13. Equality clause contained in Article 14 and 16 of the Constitution of India must be given primacy. No policy decision can be taken in terms of Article 77 or Article 162 of the Constitution of India which would run contrary to the constitutional or statutory schemes.
18. There are two distinctive features in the present case, which are:-
(i) Equality is a positive concept. Therefore, it cannot be invoked where any illegality has been committed or where no legal right is established.
(ii) According to the appellant the respondent having completed 240 days, does not fulfil the requisite criteria. A disputed question of fact has been raised. The High Court did not come to a positive finding that she had worked for more than 240 days in a year.
19. Even otherwise this Court is bound by the Constitution Bench decision. Attention of the High Court unfortunately was not drawn to a large number of recent decisions which had been rendered by this Court."
Accordingly, and in view of the above, there is no merit in this writ petition and it is accordingly dismissed.
Order Date :- 05.02.2015 Arun K. Singh (Yashwant Varma, J.)