Allahabad High Court
Ram Kailash vs State Of U.P. Thru. Prin. Secy. ... on 24 January, 2024
Author: Manish Kumar
Bench: Manish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2024:AHC-LKO:6923 Court No. - 18 Case :- WRIT - A No. - 5175 of 2023 Petitioner :- Ram Kailash Respondent :- State Of U.P. Thru. Prin. Secy. Horticulture Lko. And 2 Others Counsel for Petitioner :- Mohd. Ateeq Khan Counsel for Respondent :- C.S.C. Hon'ble Manish Kumar,J.
1. Heard learned counsel for petitioner as well as learned State counsel and perused the record.
2. The present writ petition has been preferred for quashing of the impugned order dated 27.03.2023 passed by respondent no. 2/Director, Horticulture & Food Processing, Uttar Pradesh, whereby the claim of the petitioner for regularization on the post of Driver Grade-IV has been rejected on the ground of non-availability of the post and a further prayer has been made to direct the opposite parties to regularise services of the petitioner under 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 (hereinafter referred as Rules 2016)
3. Learned counsel for petitioner has submitted that the petitioner was initially appointed on the post of Driver in the year 2000 on daily wages and since then, the petitioner has continuously been functioning on the said post with few artificial breaks in service.
4. It is further submitted that the petitioner has also been granted a minimum of pay-scale by order dated 22.03.2017 in compliance of the judgment and order dated 01.02.2008 passed in Writ Petition No. 8244 (SS) of 2007 preferred by the petitioner.
5. It is further submitted that on 09.04.2019, the petitioner has made a representation for considering his candidature for regularization on the post of Driver Grade-IV under Rules 2016. When no decision was taken, the petitioner had approached this Court by filing Writ-A No. 1017 of 2023 (Ram Kailash versus State of U.P and others). The said writ petition was disposed of vide judgment and order dated 03.10.2023 with a direction to respondent no. 2 to consider and decide the representation of the petitioner for regularizing his service.
6. It is further contended that in compliance of the order of this Court, as mentioned above, the representation of the petitioner for regularization has been rejected on the point that there are 31 posts of Driver Grade-IV in the department and all are filled up and one employee is working on the supernumerary post therefore, no post of Driver Grade-IV is vacant in the department and as per Rules 2016, the regularization has also been considered on the vacant post.
7. It is further submitted that the said ground for rejection of candidature of the petitioner for regularization is against the proviso to Rule-5 of Rules 2016.
8. On the other hand, learned State Counsel has submitted that due to non-availability of the post, the case of the petitioner for regularization has rightly been rejected by respondent no. 2, as per Rule-5 of Rules 2016.
9. After hearing learned counsel for parties, going through the record of the case, the candidature of the petitioner for regularizing his services on the post of Driver Grade-IV has been rejected on the ground of non-availability of the post by placing reliance on provisions of Rules 2016 which requires that the regularization under these Rules shall be done on available vacant post. The respondent no. 2 has ignored the proviso to Rule-5, which is quoted herein below:-
"Subject to provisions of Rule-2, regularization under these rules shall be done on available vacant post in a Government Department: Provided that if vacant post is not available then, as and when required, a supernumerary post may be created with the approval of the Government."
10. The proviso to Rule-5 is very clear that if post is not available then, the supernumerary post may be created with the approval of the Government. Respondent no. 2, in place of making any effort for creation of supernumerary post has rejected the claim of the petitioner only on the ground of non-availability of the post of Driver Grade-IV in the department though placing reliance on the same Rule 5 of Rules of 2016 but failing to taking into account the proviso to Rule 5.
11. It is further submitted that the petitioner is working since last 23 years and now rejecting the claim of the petitioner for regularization on the ground of non-availability of the post is arbitrary and unreasonable.
12. The object of regularization rules is to provide succor to such employees who have been continuously working since long and in order to do justice to such persons a specific provision has been incorporated in the rules for supernumerary post to be created.
13. In view of discussion made hereinabove, the writ petition is allowed.
14. The impugned order dated 27.03.2023, passed by respondent no. 2, is hereby quashed.
15. Respondent no. 2 is directed to take necessary action as per proviso-2 Rule-5 of Rules 2016, within a period of two months.The proposal so forwarded to the State Government for the purpose of approval, it is expected that the State Government shall take the decision within a period of one month thereof, and in case, the supernumerary post is created, the petitioner shall be regularized on the same.
Order Date :- 24.1.2024 DiVYa