Allahabad High Court
Ram Babu Kushwaha vs State Of U.P. And 3 Others on 16 July, 2019
Equivalent citations: AIRONLINE 2019 ALL 2320
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 38 Case :- WRIT - A No. - 10033 of 2019 Petitioner :- Ram Babu Kushwaha Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Santosh Kumar Mishra Counsel for Respondent :- C.S.C. Hon'ble Ashwani Kumar Mishra,J.
This is the third writ petition filed by the same petitioner in respect of his grievance relating to non-consideration of his claim for regularization in the employment of respondents.
It transpires that petitioner first approached this Court by filing Writ Petition No. 12168 of 2018 which came to be disposed of vide following order passed on 21.05.2018 :-
?The petitioner is seeking consideration of his claim for regularization under the 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 with the assertion that the petitioner is working on the post of Driver since much before the cut off date under the aforesaid rule i.e. 31.12.2001 With reference to the details of working of the petitioner at page '17' appended as Annexure no.'2' to the writ petition, it is contended that the petitioner has continuously been engaged as driver in the forest department in different schemes/projects.
Submission in paragraph no.5 of the writ petition is that the petitioner is discharging the duties of Jeep Driver till date.
During the course of argument, learned counsel for the petitioner submits that respondent no.3 namely Chief Conservator of Forest, Jhansi Division Jhansi may be directed to consider the claim of the petitioner for grant of regularization in the light of the relevant provision of Rules' 2016 within stipulated period.
To this submission, learned Standing Counsel raises no objection.
In view thereof, without expressing any opinion on the merits of the claim made by the petitioner, the writ petition is disposed of with the direction to the respondent no.3 namely Chief Conservator of Forest, Jhansi Division Jhansi to consider and decide the claim of the petitioner strictly in view of the provision pertaining to the regularization by passing reasoned and speaking order under due intimation to the petitioner.?
The claim of the petitioner was however, rejected by the Chief Conservator of Forest vide his order dated 24.12.2018. The authority concerned observed that petitioner was first appointed as a Class IV employee in the year 1997 and he continued to work as such till December, 2002 against a Group 'D' post. After 2002, the petitioner was permitted to work as a Driver which is a Group 'C post. Petitioner, therefore, was found to have continued on a Group 'C' post till the date of passing of the order by this Court. His claim for regularization on a Group 'C' post was declined on the ground that on the cut off date i.e. 31.12.2001, the petitioner was not employed on a Group 'C' post but was working against a Group 'D' post. The expression used 'as such' in Rule 6 of the 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 (herein after referred to as Rules of 2016) was relied upon to hold that the working has to be on one post on the first cut off date i.e. 31.12.2001 and also on the date when the Rule itself was enforced i.e. 12.09.2016. Petitioner's claim was accordingly rejected.
This order was then challenged again before this Court by means of Writ Petition No. 3357 of 2019 wherein following order was passed on 12.03.2019 :-
?Heard learned counsel for the petitioner and Sri J.S. Bundela learned Standing Counsel for the State.
The claim of the petitioner for regularization in accordance with the provisions made in the 2016 Regularization Rules has been negatived by the order impugned. The sole ground which has weighed with the respondents in refusing the prayer for regularization, as is evident from a reading of the order impugned, is that the petitioner was not working as a Driver prior to 31 December 2001 which is the cut off date prescribed under the 2016 Rules.
Before this Court it is stated on behalf of the petitioner that his claim was with respect to regularization on any Group-D post and not necessarily that of Driver. Learned counsel in view of the above submitted that his claim would merit consideration since the working details as set forth in the order impugned itself establishes that he has continually worked right from 1996-97.
Learned Standing Counsel submits that in view of the statement made on behalf of the petitioner that his claim for regularization may be considered against any Group-D post, the matter may consequently be remitted to the second respondent for fresh consideration in accordance with law.
Accordingly with the consent of parties, this petition shall stand disposed of with a direction to the second respondent to re-evaluate the claim of the petitioner for regularization on any Group-D post and to pass a reasoned and speaking order dealing with it within a period of three months from the date of presentation of a certified copy of this order. The order impugned dated 24 December 2018 shall consequently stand set aside.
Pursuant to the order passed by the second respondent, the third respondent has proceeded to pass an order dated 08 January 2019 terminating the services of the petitioner in purported exercise of powers conferred under Rule 10 of the 2016 Rules. It is relevant to note here that the provisions of Rule 10 stands attracted in a case where an employee is found unsuitable for regularization. However as has been noted above, the respondents have not found the petitioner to be unsuitable. Rather all that has been held to deny his claim for regularization is that he was not working as Driver prior to 31 December 2001. This, in the considered view of the Court, does not lead to the respondents being entitled to hold that the petitioner was unsuitable. Learned Standing Counsel does not dispute the above position and consequently concedes that the impugned order of termination dated 08 January 2019 cannot be sustained.
Accordingly the order dated 08 January 2019 is also set aside.?
It is thereafter that petitioner's claim has been considered and rejected by the order impugned dated 20.05.2019 and 31.05.2019. These orders record that petitioner was not working against a Group 'D' post on the date the Rules of 2016 got enforced i.e. 12.09.2016 and therefore, his services cannot be regularized on a Group 'D' post either. Aggrieved by these orders, petitioner is before this Court.
While entertaining the present writ petition following order was passed on 09.07.2019 :-
?This Court had allowed petitioner's earlier Writ Petition No. 3357 of 2019 vide following orders:-
"Pursuant to the order passed by the second respondent, the third respondent has proceeded to pass an order dated 08 January 2019 terminating the services of the petitioner in purported exercise of powers conferred under Rule 10 of the 2016 Rules. It is relevant to note here that the provisions of Rule 10 stands attracted in a case where an employee is found unsuitable for regularization. However as has been noted above, the respondents have not found the petitioner to be unsuitable. Rather all that has been held to deny his claim for regularization is that he was not working as Driver prior to 31 December 2001. This, in the considered view of the Court, does not lead to the respondents being entitled to hold that the petitioner was unsuitable. Learned Standing Counsel does not dispute the above position and consequently concedes that the impugned order of termination dated 08 January 2019 cannot be sustained.
Accordingly the order dated 08 January 2019 is also set aside."
A fresh order has been passed by the same officer which virtually reiterates the same contents. It is submitted that the order is absolutely contemptuous in nature and otherwise shows complete lack of application of mind on part of the authority concerned. It is submitted that the petitioner has been victimized inasmuch as his engagement has been discontinued.
Prima-facie, this Court finds substance in the contention advanced on behalf of the petitioner. The specific ground which was rejected in the earlier writ petition has been reiterated.
Let this matter be placed as fresh, once again, on 16.7.2019.
Respondent no. 3 shall remain present before the Court along with records. The officer shall explain as to why his personal responsibility be not fixed in the matter and adverse remarks be made for have passed an identical order, even after similar order has been quashed earlier by this Court. Petitioner shall be allowed to continue in the meantime and the order of termination dated 31.5.2019 shall be kept in abeyance.?
Divisional Forest Officer, Mahoba has filed an affidavit in compliance of the aforesaid order and is also present in the Court.
Learned Standing Counsel has invited attention of the Court to Rules of 2016, particularly Rule 6(1), which is quoted herein after :-
?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 21, 2001 and is still engaged or employed or deployed or working as such on the date of commencement of these rules; and.........?
With reference to use of expression 'as such' on the date of commencement of Rules i.e. 12.09.2016, learned Standing Counsel submits that since the petitioner was not in employment of the respondents on the second cut off date i.e. 12.09.2016 on a Group 'D' post, therefore, his claim cannot be considered for regularization against Group D post.
I have heard learned counsel for the petitioner and Shri V.B.Yadav, learned Standing Counsel for the State-respondents.
What appears, in the facts of the case, is that the authorities while following the letters of the Rule have completely failed to observe and implement the purport of the Rule itself.
The authorities have failed to appreciate the true purpose and object for which Regularization Rules of 2016 itself have been framed. The object of the Regularization Rules of 2016 is to regularise the engagement of those persons who are working on daily wages, work charge basis or on contract in Government department for substantially long period of time as is specified in the Rules of 2016. The petitioner has been working on the cut of date i.e. 21.12.2001 specified in the Rules of 2016, notified on 12.09.2016. It is admitted that petitioner was working on 21.12.2001 and was also in employment of the respondents on 12.09.2016. The continuous working during the aforesaid two periods is also admitted by the respondents. It is this continuous working for a period of nearly 16 years which justifies the regularization of the services of the petitioner.
The justification for regularizing the petitioner's engagement is clearly shown to exist as petitioner's working continuously between the two dates is certified. The question is as to on which post the petitioner ought to have been regularized. Initially claim of the petitioner was that he ought to be regularized on Group 'C' post as the petitioner has been working on Group 'C' post since 2002 onwards. The claim of the petitioner was however, declined on the ground that petitioner was not in employment against a Group 'C' post on the first cut off date i.e. 31.12.2001.
This order of the Chief Conservator of Forest was put to challenge before this Court and a direction was issued to the respondents to consider the petitioner's claim for regularization against a Group 'D' post. The direction issued in Writ Petition No. 3357 of 2019 in that regard has attained finality. The working of petitioner on Group 'D' post on the first cut off date i.e. 31.12.2001 is undisputed. He has continued in the employment of respondents continuously. On the second cut off date i.e. 12.09.2016 the petitioner was working on a higher post i.e. Group 'C' post. Once the order passed by this Court on 12.03.2019 in Writ Petition No. 3357 of 2019 has attained finality, it would not be open for the respondents to reject petitioner's claim on the ground that on the second cut off date i.e. 12.09.2016, the petitioner was not in employment as Group D employee. Admittedly it is for the respondents to have taken particular work from the petitioner and in case the petitioner was given a higher work to perform, he has no other option but to follow the instructions. The expression 'as such' occurring in Rule 6 cannot be construed as limiting the right of petitioner to be regularised on the post on which the petitioner was working on 31.12.2001 and to deny him the benefit of regularization if he was working on a higher post on 12.09.2016. This construction would defeat the very purpose of Regularization Rules of 2016, inasmuch as a person otherwise covered under the Rule would also become ineligible for regularization because the respondents in between changed the post on which he was working. Admittedly, petitioner's working on the second cut off date i.e. 12.09.2016 was on a higher post i.e. Group 'C' post.
This Court in the earlier writ petition has already directed consideration of petitioner's claim against Group 'D' post. Once petitioner was found to be working on the first cut off date i.e. 31.12.2001 and was also working on a higher post on the second cut off date i.e. 12.09.2016, the right of consideration even against a lower post cannot be defeated by the respondents by interpreting Rule 6 (1) in the manner as has been done by them. In case a person was initially employed on the first cut off date i.e. 31.12.2001 on a lower post and is found to be working on a higher post on the second cut off date i.e. 12.09.2016 and his working is otherwise continuous and his claim for regularization is covered under the Rules of 2016, the sight of consideration on the lower post cannot be forfeited.
In order to make the Rule workable, it would be necessary to read the expression ?such post? on including a higher post also on the second cut of date i.e. 12.09.2016. Any contrary interpretation would virtually frustrate the object and the provisions of Rules of 2016. The interpretation placed by the respondents to deny consideration to petitioner's claim, therefore, cannot be sustained. The writ petition succeeds and is allowed. The order dated 20.05.2019 and 31.05.2019 is hereby quashed. The authority concerned is directed to pass a fresh order in light of the observations made herein above within six weeks from the date of production of certified copy of this order.
Before parting, it would be necessary to observe that tendency on the part of the authorities to reject claim to persons even after an order is passed by this Court for consideration of such claim cannot be appreciated. In case the authorities feel that the order of this Court is liable to be challenged, they may do so by taking recourse to law, but it would not be open for an authority of the State to sit in judgment over the directions of this Court. The authority concerned is, therefore, cautioned to remain careful while dealing with such matters in future.
It goes without saying that the petitioner would be allowed to continue till a fresh order is passed and would be entitled to his salary for the period he was denied work under the order impugned. No order as to costs.
Order Date :- 16.7.2019 VR