Allahabad High Court
Ummat Ali vs State Of U.P. And 2 Others on 15 November, 2019
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 91 Case :- WRIT - A No. - 29214 of 2014 Petitioner :- Ummat Ali Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Bijendra Kumar Mishra Counsel for Respondent :- C.S.C. Hon'ble Saurabh Shyam Shamshery,J.
Civil Misc. Substitution Application No.11 of 2019.
This is a substitution application for substituting the legal heirs and legal representatives of the deceased Ummat Ali, who died on 08.2.2019.
Grounds given in paragraph 2 of the affidavit filed in support of the substitution application are sufficient.
There is no objection from the side of the respondents.
Substitution application is allowed.
Necessary incorporation be made in the body of the writ petition.
Order on writ petition.
Heard Shri. Bijendra Kumar Mishra, learned counsel for the petitioners and the learned Standing Counsel appearing on behalf of the State and perused the record.
Learned counsel for the petitioners submitted that the petitioners' father was appointed on a muster roll as a Class IV employee in the year 1982 and when he was not regularized under the U.P. Regulariazation of Daily Wages Appointment on Group-D Rules, 2001 (in short "Rules 2001") he approached this Court by way of filing Writ-A No.30348 of 2004, (Ummat Ali Vs. State of U.P. & Ors) which was allowed vide order dated 10.9.2013 with the direction that the claim of the petitioner therein (father of the petitioners) for regularization be reconsidered. The relevant part of the order is mentioned hereinafter:
"Considered the submission of learned counsel for the parties. According to chart submitted along-with rejoinder affidavit, which was prepared by the forest department, the petitioner has worked continuously from the year 1991-92 to 2001-02, however, there was some gap. In the rule U.P. Regularisation of Daily Wages Appointment on Group 'D' Rules, 2001, it has not been mentioned that the same would be applicable, who have worked continuously since or before 29.6.2001 till 21.12.2001. Since the petitioner was working in the department and there was some artificial break hence it is clear that there was requirement of the work and he was working for more than 22 years. According to petitioner, he is still working and getting minimum wages. Hence he is entitled for regularisation The respondents, concerned are directed to reconsider the claim of the petitioner for regularisation, in accordance with Rule, 2001 in terms of the judgment of this Court passed in case of Janardan Yadav Vs. State of U.P., 2008 (1) UPLBEC 498 and Sanjay Kumar Srivastava Vs. Principal, Chief Conservator of Forest, U.P., Lucknow and others 2005 (3) UPPLBEC 2527 and will pass a fresh appropriate order as expeditiously as possible, preferably, within three months from the date of production of certified copy of this order.
Accordingly, present writ petition is allowed. No order as to costs."
In pursuance of the abovementioned order, the respondent department issued a fresh appointment letter whereby the petitioners' father was appointed purely on temporary basis vide order dated 16.1.2014 on the post of 'Mali'. The petitioners' father thereafter approached the respondents vide representation dated 16.1.2014 with the prayer that he be appointed as a Forest Guard with the further request that he may be regularized with effect from 21.12.2004. It is undisputed that the petitioners' father thereafter joined as a 'Mali.' In these circumstances, the father of the petitioners approached this Court by way of filing the present petition with the following reliefs:
"i) issue a writ, order or direction in the nature of mandamus commanding the respondents to given appointment to the petitioner on the post of Forest Guard instead of Mali for which he is fully eligible and qualified.
ii) issue a writ, order or direction in the nature of mandamus commanding the respondents to given regularization to the petitioner w.e.f. 11.8.2004 when respondents have provided minimum of the pay scale to the petitioner in pursuance of the interim order dated 11.8.2004 for purposes of pensionary benefits etc.
iii) issue a writ, order or direction in the nature of mandamus commanding the respondents to consider and decide the representation of the petitioner dated 17.1.2014 within specific time granted by this Hon'ble Court.
iv) issue any other writ, order or direction in suitable nature which this Hon'ble Court may deem fit and proper under the circumstances of the case.
v) award the cost of the writ petition to the petitioner."
During the pendency of the present petition, the sole petitioner (Ummat Ali) died and their legal representatives have moved a substitution application for substituting them in the writ petition which has been allowed.
Learned counsel for the petitioners submits that the services of the petitioners' father were regularized on the post of 'Mali' instead of 'Forest Guard' ignoring the fact that the petitioners' father was fully eligible and qualified for the post of Forest Guard. He has further submitted that many of the petitioners' father's juniors had already been regularized on the post of Forest Guard, however, the petitioners' father had been left and as such it is a clear case where Article 14 of the Constitution of India is violated.
A counter affidavit as well as rejoinder affidavit has been filed.
Learned Standing Counsel appearing on behalf of the State has relied upon the counter affidavit filed on behalf of the respondents and stated that there is no pick and choose policy as the petitioners' father was regularized when he was given fresh/temporary appointment in the year 2014. He further submitted that there is no direction of this Court that the petitioners' father ought to have been regularized from the year 2002 or 2004.
It is evident from the chart (Annexure No.2) to the writ petition showing the days of working that the petitioners' father had worked from 1987 to 2001. However, there is no document on record that the petitioners' father had worked after 2002 till 2014 when he was granted fresh temporary appointment on the post of 'Mali'.
This Court while allowing the earlier Writ Petition No.30348 of 2004, directed the respondents to reconsider the claim of the petitioner in terms of Rules, 2001.
Rule 4 of the Rules, 2001 provides for regularization of the employees who were directly appointed on daily wage basis on Group-D post in the government service before June 1991, and were continuing in service as before commencement of these Rule and it further provides that he should possess requisite qualifications also.
However, in the present matter, there is huge break in the services of the petitioners' father after 2001, therefore, the respondents have rightly regularized/given temporary appointment to the petitioner's father from the date of his appointment in the year 2014.
The fact that there was big break in the services of the petitioners' father from 2001 to 2014, therefore, the petitioners' father could not be regularized from the year 2002 or 2004, therefore, there is no illegality in the impugned order.
It is also relevant to note that the petitioners have not challenged the order dated 16.1.2014, whereby the petitioners' father was regularized/temporary appointed with effect from the date of joining, therefore, no relief could be granted to the petitioners in the present petition.
The writ petition lacks merit and it is accordingly dismissed.
Order Date:-15.11.2019 SB