Allahabad High Court
State Of ... vs Manoj Kumar Singh And Others on 4 August, 2022
Bench: Devendra Kumar Upadhyaya, Rajnish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 2 Case :- SPECIAL APPEAL DEFECTIVE No. - 115 of 2022 Appellant :- State Of U.P.Thru.Prin.Secy.Deptt.Health Family Welfare Civil Secrt.Lko.And Ors(In Wria16397of2021) Respondent :- Manoj Kumar Singh And Others Counsel for Appellant :- C.S.C. Counsel for Respondent :- Prafulla Tiwari Hon'ble Devendra Kumar Upadhyaya,J.
Hon'ble Rajnish Kumar,J.
C.M.Application No.1 of 2022 Having regard to the averments made in the application seeking condonation of delay in preferring the Special Appeal, we are satisfied that the delay has sufficiently been explained. Accordingly, the application is allowed and delay in filing the Special Appeal is hereby condoned.
In Re;Special Appeal Heard learned State counsel for the appellants-State authorities and Dr.L.P.Mishra alongwith Shri Prafulla Tiwari, learned counsel for the respondents-petitioners.
Under challenge in this Special Appeal is the order dated 16th of March, 2022, passed by the learned Single Judge in Writ-A No.16397 of 2021, whereby the order under challenge before the learned Single Judge in writ petition dated 03.07.2021 has been quashed and the Chief Medical Officer, Sitapur has been directed to consider the case of the respondents-petitioners for regularization of their services in terms of the provisions contained in the Uttar Pradesh Regularization of Ad-hoc Appointments (On posts out side the Purview of the Public Service Commission)(Fourth Amendment) Rules, 2021(herein-after referred to as Fourth Amendment Rules 2021).
It has been submitted by learned counsel for the appellants that learned Single Judge while passing the order, under challenge herein, has wrongly held that respondent authorities i.e. the appellants had failed to consider the relevant rules i.e. Fourth Amendment Rules 2021, under which persons who are adhoc appointees are entitled for regularization, whereas on the date when the order impugned in the writ petition dated 03.07.2021 was passed, the Fourth Amendment Rules 2021, as aforesaid, were not available and in the fact the said Rules, 2021 were promulgated only on 16th of December 2021.
It is true that on the date when the case of the respondents-petitioners for regularization was considered the Fourth Amendment Rules 2021 were not notified, however what we notice is that while passing the order dated 3rd July, 2021 the Chief Medical Officer has given two reasons. The first reason assigned by the Chief Medical Officer for not regularizing the services of the respondents-petitioners is that the dispatch number of the initial appointment letters of the respondents-petitioners were not available and the second ground indicated was that the Government Order dated 24th of February, 2016 was not applicable to the respondents-petitioners.
So far as the first reason as aforesaid is concerned, learned Single Judge has recorded a categorical finding that the said issue was not open for the Chief Medical Officer to rely upon for denying the benefit of regularization of services of the respondents-petitioners for the reason that in the earlier round of litigation, namely, in writ petition No.7294 (SS) of 2002 the court had settled the said issue by means of the order dated 28.01.2021.
So far as the second reason assigned by the Chief Medical Officer in his order dated 3rd of July, 2021 is concerned, we may only notice that the Government Order dated 24.02.2016 or the Rules framed in the year 2016 for regularizing the services of daily wagers/contractual/work charge employees, namely, 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 the Uttar Pradesh Public Service Commission) Rules, 2016, may not be applicable in this case for the reason that the respondents-petitioners were neither daily wagers nor work charge employees nor were they contractual employees, however, when the judgment by learned Single Judge was rendered i.e. on 16th of March, 2022 the Fourth Amendment Rules 2021 were available having been notified on 16th of December 2021 itself.
It is also to be noticed that against the order dated 2nd of August, 2021 denying the interim relief to the respondents-petitioners in writ petition No.16397 (SS) of 2021 the respondents-petitioners preferred Special Appeal No.310 of 2021, which was allowed by means of judgment and order dated 29.10.2021, whereby the order dated 2nd August, 2021 was quashed. It is to be noticed that learned Single Judge while rejecting the application for interim relief vide order dated 2nd of August, 2021 had given a prima facie finding that the appointments of the respondents-petitioners appear to be fake. The said order dated 2nd of August, 2021 having been quashed by the Division Bench of this Court by means of order dated 29.10.2021, now the issue relating to non availability of dispatch number etc. in respect of the initial appointment order of the respondents-petitioners is not open to be taken into account while considering the claim of regularization of services of the respondents-petitioners.
The Uttar Pradesh Regularization of Ad-hoc Appointments (On posts out side the Purviews of the Public Service Commission) Rules, 1979 have been promulgated for the purpose of considering regularization of services of those ad-hoc employees who were appointed on or before 31st of December 2001. The cut of date 31st of December 2001 was substituted in Rule 4 of the 1979 Rules by promulgating Fourth Amendment Rules 2021 on 16th of December 2021. In terms of the provisions contained in 1979 Rules as amended vide Notification dated 16th of December 2021, if an employee was engaged on ad-hoc basis on or before 31st of December 2001, his case has to be considered for regularization of his services, provided he fulfills conditions given in the Rules.
In view of the discussions made above what we find is that the Government Order dated 24th of February 2016 promulgated on 12th September 2016 and the Rules 2016 may not be applicable for the purpose of consideration of the claim of the respondents-petitioners for regularization of their services, however their case falls within the purview of 1979 Regularization Rules as amended by way of promulgating Fourth Amendment Rules 2021 vide notification dated 16th December 2021.
In the aforesaid view of the matter, we do not find any error in the judgment and order passed by learned Single Judge in so far as the directions have been issued by the said order that claim of the respondents-petitioners shall be considered in by the Chief Medical Officer concerned accordance with the Forth Amendment Rules 2021 on the basis of the report of the Committee submitted before him, even if the 2021 Rules were not in vogue on 3rd of July 2021 when the Chief Medical Officer had passed the order denying the claim of regularization of services of the respondents-petitioners. However now since the 2021 Rules are available, case of the respondents-petitioners needs to be considered under the said Rules. Non availability of the Fourth Amendment Rules 2021 on 3rd of July, 2021 will not defeat the right of the respondents-petitioners for consideration of their claim for regularization of their services now in terms of Fourth Amendment Rules, 2021.
In view of the discussions made above, we do not find any error so far as the operative portion of the judgment and order dated 16th of March, 2022 passed by learned Single Judge in Writ-A No.16397 of 2021 is concerned. Accordingly, the Special Appeal is disposed of with the direction to the Chief Medical Officer, Sitapur to consider the claim of the respondents-petitioners in terms of the provisions contained in the Uttar Pradesh Government Regularization of Ad-hoc Appointments (On Posts out side the Purview of the Public Service Commission) Rules, 1979 as amended by the Fourth Amendment Rules 2021 by means of the Notification dated 16th of December 2021 within a period of six weeks from today. Learned State counsel shall communicate this order to the Chief Medical Officer, Sitapur and other authorities forthwith.
We make it clear that any defiance of this order shall be treated to be contempt of the court.
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(Rajnish Kumar,J.) (Devendra Kumar Upadhyaya,J.) Order Date :- 4.8.2022 Banswar