Allahabad High Court
Shailendra Kumar Shukla vs District Magistrate And Ors. on 4 September, 2002
Equivalent citations: 2002(4)AWC3141
Author: Rakesh Tiwari
Bench: Rakesh Tiwari
JUDGMENT Rakesh Tiwari, J.
1. Heard learned counsel for the parties and perused the records.
2. The petitioner by means of the present writ petition has prayed for direction in the nature of mandamus directing the respondents to regularize his service on the post of Tahbazari Sangrahak in Nagar Palika, Ballia and to issue any other writ, order or direction which this Court may deem fit and proper in the circumstances of the case.
3. The case of the petitioner is that he was engaged as class-IV employee on daily wage to collect the Tahbazari, i.e.. to collect the weighment and market charges from the small shop keepers within the market area of Nagar Palika, Ballia, as he has completed 240 days continuous service in each of the three years and his name is at serial No. 20 of the list of employees dated 16.7.1992. for regularization.
4. On 16.7.1992, respondent No. 2 wrote a letter to respondent No. 1 that under G.O. No. 4094/9.1.1992-95 Ta/91 dated 1.5.1992. 68 employees of class-IV working in Nagar Palika. Ballia, may be regularised. It is urged by the learned counsel for the petitioner that the petitioner was fully entitled for regularization.
5. In paragraph 8 of the writ petition, it is averred that all the 67 employees of the list dated 16.7.1992, except the petitioner were regularized, who has not been regularized in service due to mala fide. It has been vehemently argued that the said act of the respondents is discriminatory and against Articles 14 and 16 of the Constitution of India.
6. The petitioner moved representations before the respondents on 25.8.1992 and 24.9.1992 for regularising him in service, which have been annexed as Annexures-II-A and II to the writ petition, but there was no response from the respondents. Thereafter the petitioner preferred Writ Petition No. 43610 of 1992 before this Court in which the following order was . passed on 30.9.1992 :
"Petitioner has approached this Court for issuing a writ of mandamus commanding the respondents to regularize his service.
From paragraph 10 of the writ petition, we find that the petitioner has already filed representation to respondent No. 2 on 24th September, 1992 for redress of his grievance and therefore, we are not inclined to interfere in our extraordinary writ jurisdiction at this stage. However, considering the facts of the case, we direct respondent No. 2 to decide the pending representation of the petitioner within three months, by a reasoned order from the date of production of the certified copy of this order before him.
With these observations, the writ petition is dismissed."
7. The aforesaid order dated 30.9.1992 was also served on the respondents on 16.12.1992. but it is alleged that respondent No. 2 refused to accept the same.
8. Standing counsel states that, the petitioner had .absented himself from the job from 18.5.1991 and as such, his service is no more required. He further submitted that one Pradeep Kumar Singh was appointed in place of the petitioner, which is apparent from the order dated 16.7,1992, passed by Sri Siresh Pratap Singh Executive Officer, therefore, the petitioner has no claim for regularization of his service. From the perusal of the counter-affidavit, it is apparent that the respondent has sworn paragraphs 9, 16 and 17 of the counter-affidavit on the basis of legal advice. In paragraph 9 of the counter-affidavit, it has been stated that the petitioner had absented himself with effect from 18.5.1991, as it is shown on the basis of legal advice and not on the basis of personal knowledge of the deponent of the counter-affidavit. No reliance can, therefore, be placed on these averments made by the respondents in the counter-affidavit.
9. It is noteworthy that all the 67 employees of class-IV working in Nagar Palika, Ballia, except the petitioner have been regularised in service and the petitioner has been made to run from pillar to post and filed writ petition for regularisation of his service. It has not been denied in the counter-affidavit that all the 67 other employees except the petitioner have been regularised on their posts.
10. It has been contended that the Sri Siresh Pratap Singh, Executive Officer had appointed Pradeep Kumar Singh in place of the petitioner with some ulterior motive and the petitioner has not been regularized in order to give undue benefit to Pradeep Kumar Singh.
11. From the record of the writ petition, it is established that the action of the respondents is not fair just and proper. It is made clear that the petitioner had been refused to work and the plea of absence taken by the respondents is based on legal advice only to defeat the rightful claim of regularisation of the petitioner.
12. The respondents are directed to regularise the service of the petitioner in accordance with law and pay the arrears of his salary from the date when 67 other class-IV employees have been regularised. He shall also be given notional seniority by placing him just below the person who joined earlier to him.
13. In view of the facts and the circumstances stated above, the writ petition is allowed. No order as to costs.