Allahabad High Court
Ravindra Kumar Srivastava vs State Of U.P. Thru Prin.Secy.Deptt.Of ... on 27 March, 2023
Author: Karunesh Singh Pawar
Bench: Karunesh Singh Pawar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 21 Case :- WRIT - A No. - 2716 of 2017 Petitioner :- Ravindra Kumar Srivastava Respondent :- State Of U.P. Thru Prin.Secy.Deptt.Of Forest Govt.Of Up Andors Counsel for Petitioner :- Virendra Kumar Dubey Counsel for Respondent :- C.S.C. Hon'ble Karunesh Singh Pawar,J.
Heard Sri V.K. Dubey, learned counsel for the petitioner and Sri Manish Singh, learned Standing Counsel for the State-respondent.
The petitioner has prayed for the following reliefs:-
"(i) to issue writ order or direction in the nature of certiorari quashing the impugned order dated 17.10.2016 as communicated vide letter dated 20.10.2016 contained as Annexure No. 1 to the writ petition.
(ii) to issue writ order or direction in the nature of mandamus directing and commanding the opposite parties to regularize the services of the petitioner on Class-IV post (Group-D) w.e.f. the date the services of Sri Radhey Shyam were regularized vide order dated 31.03.2012 with all consequential service benefits.
(iii) to issue writ order or direction in the nature of mandamus directing and commanding the opposite parties to make the payment of salary to the petitioner regularly as well as the arrears of salary as the petitioner has been though allowed to join the services in compliance of the judgment of this Hon'ble Court dated 02.11.2015 passed in Special Appeal (Defective) No 809 of 2009: Sadhu Saran Yadav & Others Vs. State of UP & Others yet the petitioner is not being paid salary.
(iv) to issue writ order or direction in the nature of certiorari quashing the order dated 26.04.2016 passed by the opposite party no.3, contained as Annexure No.12 to the writ petition brought by way of amendment.
(v) to issue any other writ order or direction which this Hon'ble Court may deem just fit and proper under the circumstances of the case.
(vi) to allow the cost of the writ petition."
Earlier, it appears that the petitioner and others have filed a writ petition No.2581 (S/S) of 1997 [Rama Kant Dubey & Ors. vs. State of U.P. & Ors.] before this Court which was disposed of vide order dated 18.08.2008. Against the order dated 18.08.2008, the petitioner filed the review petition which was dismissed vide order dated 17.10.2008. Thereafter, he filed a Special Appeal Defective No.809 of 2008 [Sadhu Saran Yadav vs. State of U.P. & Ors.] before this Court challenging the order dated 18.08.2008 passed in Writ Petition No.2581 (S/S) 1997. The said S.L.P. has been decided by this Court vide order dated 02.11.2015. The operative part of the order is extracted below:-
".........We accordingly allow the special appeal and set aside the orders dated 18.8.2008 and 17.10.2008 passed by the learned Single Judge and direct the opposite parties to permit the appellants to continue in service with all consequential benefits, which relief was given in the order dated 2.7.2008 passed in Writ Petition No.3313 (SS) of 1993."
By the aforesaid order, the petitioner was granted the benefit of the order dated 02.07.2008 passed in Writ Petition No.3313 (S/S) of 1993 (Radhey Shyam Yadav vs. State of U.P. & Ors.). The operative part of the aforesaid order dated 02.07.2008 is also extracted below:-
"The writ petition deserves to be and is hereby allowed. Oral order of termination, if any, or the decision taken by the opposite parties terminating the petitioner's services is quashed. A writ of mandamus is issued commanding the opposite parties to permit the petitioner to continue in service with all consequential benefits and also consider the petitioner's case for regularisation in accordance with the Regularisation Rules, expeditiously.
The writ petition is allowed accordingly.
No order as to costs."
In compliance of the order dated 02.11.2015, it appears that the petitioner was allowed to work on 16.04.2016 by the competent authority. In compliance of the order passed by this Court, the case of the petitioner was considered for regularization under U.P. Regularization of Daily Wages Appointment on Group-D Posts Rules, 2001 (hereinafter referred to as, "the Rules, 2001") but he was not found eligible for regularization under the aforesaid Rules hence he was communicated with his decision vide order dated 28.06.2016 then the petitioner filed Writ Petition No.20727 (S/S) 2016 before this Court which has been allowed vide order dated 01.09.2016. The operative part of the order dated 01.09.2016 is extracted below:-
"........Accordingly, the writ petition is allowed. The impugned order dated 28.06.2016 as is contained in annexure no.1 to the writ petition, is hereby quashed. The authorities are directed to reconsider the matter for regularization of services of the petitioner in accordance with law and also taking into account the observations made herein above in the body of this judgment expeditiously, say within a period of two months from the date of production of certified copy of this order.
There will be no order as to costs."
In compliance of the order dated 01.09.2016, the impugned order dated 17.10.2016 has been passed ( Annexure 1). The order dated 17.10.2016 is extracted below:-
"??? ?????? ??????-20727 / ??0??0/2016 ???????? ????? ?????????? ???? ?0???0 ????? ? ???? ??? ??? ???? ????????, ???? ???? ?????? ?????? 01.09.2016 ?? ????? ?????? ????? ???? ??? ??? ??? ???? ????????, ???? ???? ?????? ????? ?????? ?????? 01.09.2016 ?? ??????? ??? ????? ?????? ??-
??..Accordingly, the writ petition is allowed. The impugned order dated 28.06.2016 as is contained in annexure no. 1 to the writ petition, is hereby quashed. The authorities are directed to reconsider the matter for regularization of services of the petitioner in accordance with law and also taking into account the observations made herein above in the body of this judgment expeditiously, say within a period of two months from the date of production of certified copy of this order....?
??? ???? ????????, ???? ???? ???? ?????? ????? ???? ?????? ?????? 01.09.2016 ?? ??????? ??? ???? ???? ???????? ????? ?????????? ?? ???????????? ?? ??????? ??? ???????? ?????????, ?????? ?? ??????, ?????? ?? ????????? ??? ??? ????? ?? ??? ???? ???? ??? ????? ?????? ??? ???? ????????, ???? ???? ?????? ????? ???? ?????? ??? ???????? ????? 02 ???????? ?? ?????? ?? ???? ?? ???????????? ?? ????? ????-
1. Janardan Yadav Vs. State of UP and others reported in [ (2008) 1 UPLBEC 498 ]
2. Desh Raj Vs State of UP and others, Writ Petition No. 1278 (S/S ) of 2007 ???? ????????, ???????????? ???????? ??? ???? ???? ???????? ?? ??? ????? ???????/ ?????? ?? ??????? ????? ?????? ??????? ??? ??? ???-
1- ???? ???? ???????? ????? ?????????? ?? ???????????? ?? ????? ???? ?????? 24.06.2016 ?? ????? ?? ???? ?? ???, ????? ?????? ???? ?? ???????????? ???? ???? ???? ???? ???, ??????? ?????? ???? ? ?? ???? ?? ????? ???? ??????????? ?? ???????????? ????????-2001 ?? ??????????? ?? ?????? ???? ???? 29 ??? 1991 ?? ???????? ??????????? ???? ?? ???? ?? ??????? ???? ??? ???
2- ?? ???????? ?? ???? ??????-4734/16-1 ?????? 28.06.2016 ?????? ????? ?????? ?????? ???? ???? ?? ???? ???? ???????? ????? ?????????? ?? ???????????? ???? ?????? ???? ???, ????? ??????? ???? ?????? ??? ???? ????????, ???? ???? ??? ??? ?????? ??????-20727 / ??0??0 / 2006 ????? ?? ???? ???? ??? ??? ????? ?????? ?????? 01.09.2016 ?????? ???????? ?????????, ?????? ?? ???? ?????? - 4734 / 16-1 ?????? 28.06.2016 ?? ?????? (Quashed) ???? ???, ???? ???? ???????? ????? ?????????? ?? ?????? ?? ??? ??????? ?? ?????????? ???????????? ?? ????????? ???? ?? ???? ????? ???? ????
3- ??? ???????? ?? ???? ???? ?? ????? ??? ?????? 17.10.2016 ?? ????? ?? ???? ?????? ?? ???? ????? ?????? ???? ?? ?????? ?? ?????????? ???? ??? ????? ???????? ?? ?????? ??????? ???? ???? ?????????????? ?? ?????? ??? ?? ?? ???? ?? ??? 09/1989?? ????? ???????? ???? ?? 09/1995 ?? ??????? ???? ???? ???????? ?????? ?????? ??? 02, 08. ?? 12/1995 ?? 06 ??? ??? 01 ?? 04/1996, ?? 04 ??? ?? ?????? ????? ???? ??? ??? ??? 11/2009 ?? 4/ 2010 ?? ??? 6/10 ??? ????? ???? ??? ?????? 25.04.2016 ?? ?? ?? ???? ?????? ???? ??? ????? ?? ??? ???? ???? ???????? ????? ??????????, ????? ?????? ??? 5/1996 ?? 10/2009 ??? 07/2010 ?? 04/2016 ?? ??????? ???? ??? ????
4- ?????? ???? ? ?? ???? ?? ????? ???? ??????????? ?? ???????????? ???????? - 2001 ?? ???? - 4(1) ????? ?????? ??-
?4(1) Any person who-
(a) was directly appointed on daily wage basis on a Group 'D' post in the Government service before June 29, 1991 and is continuing in service as such on the date of commencement of these rules, and
(b) possessed requisite qualification prescribed for regular appointment for that post at the time of such appointment on daily wage basis under the relevant service rules, shall be considered for regular appointment in permanent of temporary vacancy, as may be available in Group 'D' post, 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."
???? ???? ?? ?????? ?? ?? ???? ???????? ??????????? ???? ?? ?????? ?? ???? ??? ??????? ???? ????? ?
5- ?? ??????? ??? ??? ???? ????????, ???????? ?????? Janardan Yadav Vs State of UP and others reported in [(2008) 1 UPLBEC 498] ??? ????? ?????? ?? ??????? ??? ????? ?????? ??-
??..The only requirement under Rule 4(1)(a) are that the incumbent was directly appointed on daily wage basis on a Group 'D' Post in a Government Service before 29.06 1991 and is continuing in service as such on the date of commencement of the said Rules. The further requirement under Clause (b) of Rule 4(1) is that he must have possessed requisite qualification required for regular appointment on the post at the time of such employment on daily wage basis....?
??..In the result, the writ petition succeeds and is allowed. The impugned order 10.09.2004, Annexure-5 to the writ petition, is quashed. The respondents are directed to re-consider the case of the petitioner for regularization in accordance with 2001 Rules and the observations made hereinabove, afresh, and pass appropriate order within three months from the date of production of certified copy of this order."
6- ?? ??????? ??? ??0 ???? ????????, ???? ???? ???? ?????? Desh Raj Vs State of UP and others, Writ Petition No 1278(S/S) of 2007 ??? ????? ?????? ?? ??????? ??? ????? ?????? ??- "
??..According to the State a strict interpretation has to be given to these rules according to which if the petitioner is not working exactly on December 21, 2001 then he will loose his right to consideration for regularization. After giving careful thought this proposition appears to be totally unrealistic. Take a situation where a person has worked since June, 1988 till December 20, 2001 and has not worked on the date of December 21, 2001 but has been continued from the date of December 22, 2001 for further employment. Will this absence of one day be taken as a rigorous requirement and the case of the person be rejected on the ground that he was not present on the particular date of December 21, 2001. Where thousands of persons are working, any person can fall ill or fall prey to an accident. There can be numerous situations where he may be debarred to join duties on the particular date. A reasonable thing will be that the employee should be working in and around that date?..?
7- ?? ????? ??? ????? ???????? ?? ????????? ????? ?? ?????? ?? ??????? ??? ??? ???? ???????, ???????? ?????? ????? ???? ?????? - 1016 / 2005 ????????? ???? ??? ???? ???? ????? ????? ??? ???? ??? ?????? 24.09.2015 ?? ????? ?????? ????? ???? ??? ?????? ????? 24.09. 2015 ?? ??????? ??? ????? ?????? ??-
??..In the present case, the writ petitioners had not worked on daily wage basis for a long period of two years. This break cannot be treated to be an artificial break in the service. The writ petitioners did not satisfy the essential requirements contained in the 2001 Rules. They were, therefore, not entitled for regularisation under the 2001 Rules.
There is, therefore, no error in the judgment which may call for any interference in this Special Appeal.
The Special Appeal is, accordingly, dismissed."
???? ?????? ????????????, ????? / ??? ?????????? ?????? ????? ???????? ?? ???????????? ??? ???? ???????? ????? ??????????, ????? ?????? ?? ???????????? ?? ??????? ??? ????? ???????????? ???? ????? ?????? ?? ?????? ???? ??? ?? ?? ????? ?????? ????? ??????? ??????-2 ?? ???????? ??????-15 ??? / ??-2-2001 ?????? 21.12.2001 ?????? ?????? ???? ? ?? ???? ?? ????? ???? ??????????? ?? ???????????? ????????, 2001 ?? ??????? - 4(1) ?? ??????????? ??? ??? ???? ???????? ?????? ????? ???? ???????? ?? ?????? ???? ???????? ????? ??????????, ????? ?????? ?? ???? 29 ??? 1991 ?? ???????? ??????????? ???? ?? ???? ?? ?????? ???? ???? ??? ? ??????? ???? ???? ???? ???????? ????? ?????????? ????? ?????? ??? ?? 1996 ?? 10 /2009 ?? ????? ???? ???? ??? ?? ??? ???????? ?? ??????????? ???? ?? ???? ?? ?? ???? ??-??? ????? ???? ???? ???, ??? ???????????? ???? ????? ???? ???"
A perusal of the order impugned dated 17.10.2016 shows that the case of the petitioner has been considered by a committee constituted on 24.06.2016. The petitioner was not found fit for regularization because his services were not found continuous on the date of promulgation of the Rules, 2001 i.e. on 21.12.2001. It is evident from perusal of para 3 of the impugned order that petitioner started to work in the month of September, 1989 and worked till September, 1995 thereafter in para 11 of the counter affidavit, it has been stated that petitioner has not worked from May, 1996 to October, 2009 as such he was not found eligible for regularization under Rules, 2001. Upon a query being put by the Court, learned counsel for the petitioner could not show from the record any salary slip or attendance register that he has worked from May, 1996 to October, 2009.
A perusal of the Rule 4(1) of the Rules, 2001, quoted in the impugned order, shows that services of those Group-D employees in government service shall be considered for regularization who have been appointed on daily wage basis on Group-D post in the service of government before 29.06.1991 and are continuing in service as such date of commencement of these Rules i.e. 21.12.2001. Admittedly, the petitioner has not worked since May, 1996 to October, 2009 as such he was not entitled for regularization by the impugned order. A perusal of para 12 of the counter affidavit shows that in compliance of the interim order dated 08.02.2017 passed by this Court, the case of the petitioner was again considered and again he has not been found eligible for regularization under the U.P. Regularization of Persons Working on Daily Wages or on work charge or on contract in Government Department on Group 'C' and Group 'D' posts (Outside the Purview of the U.P. Public Service Commission) Rules, 2016 (hereinafter referred to as, "the Rules, 2016") vide order dated 25.02.2017 passed by the opposite party No.3. While re-considering, it was found that petitioner has not worked from May, 1996 to October, 2009 and has not worked again from July, 2010 to 24.04.2016 and as such his case was not fit for regularization under Rules, 2016 also.
On due consideration to the submissions advanced, perusal of the record so also considering the Rules, 2001 and Rules, 2016, this Court is of the view that there is no illegality in the impugned order.
The writ petition is devoid of merits and is accordingly dismissed.
Order Date :- 27.3.2023 Saurabh Yadav/-