Allahabad High Court
Avadhesh Kumar Tiwari & Others vs State Of U.P. Thru. Secy. Rajya Sampatti ... on 23 June, 2021
Bench: Ritu Raj Awasthi, Dinesh Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 1 Case :- SPECIAL APPEAL DEFECTIVE No. - 208 of 2021 Appellant :- Avadhesh Kumar Tiwari & Others Respondent :- State Of U.P. Thru. Secy. Rajya Sampatti Vibhag & Another Counsel for Appellant :- Phool Bux Singh Counsel for Respondent :- C.S.C. Hon'ble Ritu Raj Awasthi,J.
Hon'ble Dinesh Kumar Singh,J.
Order on C.M. Application No.66040 of 2021: Application for Condoantion of Delay in filing Special Appeal:
The case is taken up through Video Conferencing.
Heard.
There is a reported delay of 104 as on the date of filing of appeal.
Learned counsel for the appellants-applicants submits that special appeal is accompanied with an application for condonation of delay. The cause shown in the affidavit filed in support of application for condonation of delay is sufficient and more particularly considering the Apex Court's order dated 27.04.2021, passed in Misc. Application No.665 of 2021 in SMW (C) No.3 of 2020; Cognizance for Extension of Limitation Vs. XXXX, we find it appropriate to condone the delay. Application for condonation of delay is accordingly allowed. Delay in filing of special appeal is hereby condoned. Order on memo of Special Appeal:
This intra court appeal has been filed challenging the order dated 8.2.2021, passed in Writ Petition No.680 (SS) of 2013, whereby the learned Single Judge has dismissed the writ petition on merit.
As per facts of the case in brief, the appellants-petitioners were initially appointed on different posts belonging to Class-III category on daily wages in the Estate Department of Government of U.P. Their services were terminated against which writ petitions [Writ Petition No.3786 (SS) of 1995, Writ Petition No.1958 (SS) of 1995, Writ Petition No.172 (SS) of 1996, Writ Petition No.1723 (SS) of 1996 and Writ Petition No.4319 (SS) of 1996] were filed in this court. All these writ petitions were clubbed and heard together and vide judgment and order dated 6.11.2000 the termination orders were quashed by the Court. Some of the petitioners, feeling aggrieved had filed Special Appeal No.207 of 2001; Rama Singh Vs. State of U.P. and others, challenging the judgment and order dated 6.11.2000. Special Appeal No.207 of 2001 was dismissed vide order dated 17.01.2011. For convenience order dated 17.01.2011, passed in Special Appeal No.207 of 2001 is reproduced below:
"Learned counsel for the appellants does not press the relief for restoration of the appeal in view of the orders to be passed.
In the petition, the orders of termination have been set aside and the petitioners have also been regularized. There seems to be some dispute regarding inter se seniority, that can be raised independently and dismissal of this appeal will not stand in the way of those persons, who have a claim for seniority.
The appeal is accordingly dismissed."
Learned counsel for the appellants-petitioners submits that the appellants were regularized vide orders dated 28.09.2001, 16.03.2005, 17.03.2005 and 5.4.2005 on the recommendation of the Selection Committee constituted for the purpose of considering regularization of daily wagers under U.P. Regularisation of Daily Wages Appointment on Group 'C' Posts (Outside the Purview of the Uttar Pradesh Public Service Commission) Rules, 1998 (hereinafter referred to as "Rules of 1998").
Learned counsel for the appellants-petitioners submits that certain posts were sanctioned for appointment/regularization of daily wagers including the petitioners and, as such, they were entitled to get the seniority from the date of their initial appointment. The appellants-petitioners had preferred Writ Petition No.680 (SS) of 2013; Avedhesh Kumar Tiwari and others Vs. State of U.P. and others, wherein this court vide order dated 7.2.2013 had directed the respondents to decide the representation of the petitioners with respect to their claims of seniority. The representation of the appellants-petitioners was rejected vide office order dated 10.04.2013. This order was challenged in the writ petition by moving amendment application which was allowed. It is submitted by learned counsel for the appellants-petitioners that the learned Single Judge has not properly appreciated the controversy involved in the writ petition and has erred in dismissing the writ petition.
We have considered the submissions made by parties' counsel and gone through the records.
It is to be noted that the appellants-petitioners were regularized under Rules of 1998 vide orders dated 28.09.2001, 16.03.2005, 17.03.2005 and 5.4.2005. The appellants-petitioners in case were aggrieved by their regularization then they should have challenged the same, however, there was no challenge to the said regularization orders by the appellants-petitioners.
The U.P. Regularisation of Daily Wages Appointment on Group 'C' Posts (Outside the Purview of the Uttar Pradesh Public Service Commission) Rules, 1998 clearly provides that a person appointed under these Rules shall be entitled to seniority only from the date of order of appointment after selection in the light of these Rules. Clause 7 of the said Rules is relevant which is reproduced below:
" 7. Seniority.--(1) A person appointed under these rules shall be entitled to seniority only from the date of order of appointment after selection in accordance with these rules and shall, in all cases, be placed below the persons appointed in accordance with the relevant service rules, or as the case may be, the regular prescribed procedure, prior to the appointment of such person under these rules.
(2) If two or more persons are appointed together their seniority inter se shall be determined in the order mentioned in the order of appointment."
The appellants-petitioners had come in the regular cadre of Class-III post from the date of their regularization and, as such, as per Clause 7 of Rules of 1998 they were to be given seniority from the date of their regularization. The appellants-petitioners have been given seniority as per Clause 7 from the date of their regularization order.
Learned Single Judge has right considered Clause 7 of Rules of 1998 and has come to conclusion that the appellants-petitioners are entitled for seniority only from the date of their regularization under Rules of 1998 and not from any date prior to the same.
We do not find any infirmity or illegality in the order impugned.
The special appeal being devoid merit is accordingly dismissed.
Order Date :- 23.6.2021 Ram.