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2003 DIGILAW 287 (UTT)

Mohan Chandra v. State of Uttaranchal

2003-11-25

RAJESH TANDON

body2003
JUDGMENT Hon'ble Rajesh Tandon J. : Rule. Respondents waive service. 2. Heard the learned counsel for the parties at length. 3. The petitioners have filed the present writ petition for the issue of q writ order• or direction in the nature of mandamus directing the respondents no. 2,3&4 to treat the petitioner as regular employee of the department and pay them salary ,as it is being given to the petitioners in pursuance of the order dated 15.10.1997 with all the benefits available to the regular employees of the department in the corresponding cadre. 4. Brief facts giving rise to the present writ petition are that the petitioners were appointed on daily wages on the posts of Meth and Beldar and they were made work charge employees of the department between 1983 and 1988 and since then they are continuously working in the Department. 5. That State of U.P. has issued a G.O. on 15.10.1997 in respect of Regularisation of the work charge employees of the department who are working continuously for the last several years. According to G.O. as work-charge employees who have rendered continuous satisfactory service of 5 years or more than 5 years till 31 March 1997 shall be regularised on the post held by them. The relevant clause of the G.O. is mentioned below : 6. The petitioners have stated that they have competed more than 5 years of service up to 31st of March 1997 and they were appointed as word charge employees prior to 29.8.1991. 7. On 3.7.1999 respondent no. 2 has passed the order regularising the services of work charge employees on the vacant posts in terms of G.O. dated 15.10.1997 and since then the petitioners have been continuously working on their posts as regular employees and they are being paid salary. 8. All of a sudden respondent no. 3 has passed the order on 10.10.2000 cancelling the Regularisation order of the petitioners. In pursuance of the aforesaid order the petitioners were reverted from regular employees to work charge employees. The petitioners have pointed that the respondents have passed the order without giving any opportunity to the petitioners of being heard. Once order of Regularisation was passed in favour of the petitioners it was necessary that the person who is affected should have been heard before cancelling the same. 9. The petitioners have pointed that the respondents have passed the order without giving any opportunity to the petitioners of being heard. Once order of Regularisation was passed in favour of the petitioners it was necessary that the person who is affected should have been heard before cancelling the same. 9. According to the petitioners cancellation of the order will amount to civil consequences and as such opportunity of the hearing should have been afforded to petitioners before the impugned orders are passed. 10. State of Uttaranchal has filed a counter affidavit and has stated that Regularisation of the petitioners was conditional but as there were limited number of posts approved by the Government, the Executive Engineer, therefore, was bound to revert the junior most work charge employees to their original status. 11. The petitioners have also relied upon the judgment of Apex Court in Writ Petition (Civil) No. 104 of 1989 Raj Narain vs. State of U.P. The Apex Court has observed as under: 'We have carefully perused the proposed scheme in regard to work charged employees and we felt that clause 'D' which talks of regularization as per vacancies arising in regular posts on the establishment, a modification in necessary, it that, there should be d review of the cadre strength from year to year and based on the past requirement and continuity of work charges employees the cadre strength should be increased by a certain percentage of the work charged employees working over a period of time that may be fixed by the Government so that the pace of Regularisation is accelerated and in not the same as obtaining in the past, For example, if 100 work charged employees have been required throughout a period of time it could reasonably be estimated that even if shedding takes place a certain percentage of those employees would certainly be retained and a part of them could be absorbed by increasing the cadre strength to that extent. An exercise of review in the cadre strength from year to year therefore, becomes necessary because while of the one side the financial difficulties of the State has to be kept in view on the side the welfare of the workman who have served the State on different projects has to be balanced. An exercise of review in the cadre strength from year to year therefore, becomes necessary because while of the one side the financial difficulties of the State has to be kept in view on the side the welfare of the workman who have served the State on different projects has to be balanced. Concern is also to be shown for those who have worked for a number of years and have become ineligible for any other employment anywhere, be that the private sector or the public sector. Therefore, a balance has to be struck between the ho competing interests and that can be struck by a periodical revision of the cadre strength from year to year. We must also impression the State Government that if work charged employees have been on the establishment for long period that State should be liberal in the matter of revision of the cadre strength so that the benefit of regularization is available to a reasonably good number of work charged employees who have been associated with State Department for long periods." 12. The petitioners have also placed reliance on the judgment of Prayag Narain and others vs. State of U.P and others (1998) 3 UPLBEC 21251. In this case also the petitioners were employed in P.W.D. and were working on the posts of Beldar/ Meth. All of them were initially engaged on daily wages and later on engaged on master roll therefore, they had prayed that the respondents be directed to pay equal pay for equal work. 13. The learned counsel for the petitioners has referred the judgment of Apex Court in the case State of Haryana and others us. Piara Singh and others AIR 1992 SC 2130. It has been held as under: "So far as the work charged employees and casual labour are concerned, the effort must be to regularise them as far as possible and as early as possible subject to their fulfilling the qualifications, if any prescribed for the post and subject also to availability of work. If a casual labourer is continued for a fairly long spell-say two or three years a presumption may arise that there is regular need for his services. In such situation it becomes obligatory for the concerned authority to examine the feasibility of his Regularisation. While doing so, the authorities ought to adopt a positive approach coupled with an empathy for the person. In such situation it becomes obligatory for the concerned authority to examine the feasibility of his Regularisation. While doing so, the authorities ought to adopt a positive approach coupled with an empathy for the person. As has been repeatedly stressed by this Court security of tenure is necessary for an employee to give his best to the job" 14. On account of cancellation of Regularisation, the petitioners have suffered civil consequences, as held by the Apex Court in the case of State of Orissa us. Dr. Binapani Dei and others AIR 1967 SC 1269. The Apex Court has observed that the administrative orders which involve civil consequences have to be passed consistently with the rules of natural justice. The observations of the Apex Court are quoted below: ''An order by the State to the prejudice of a person in derogation of his vested rights may be made only in accordance with the basic rules of justice and fair play. The deciding authority It is true, is not in the position of a Judge called upon to decide an action between contesting parties, and strict compliance with the forms of judicial procedure may not be insisted upon. He is, however, under a duty to give an opportunity to set up his version or defence and an opportunity to correct or to controvert any evidence .in the possession of the authority which is sought to be relied upon to his prejudice. For that purpose the person against whom an enquiry is held must be informed of the case he is called upon to meet, and the evidence in support thereof. The rule that party to whose prejudice an order is intended to be passed is entitled to a hearing applies alike to judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences. It is one of the fundamental rules of our constitutional set up that every citizen is protected against exercise of arbitrary authority by the State or its officers. Duty to act judicially would, therefore, arise from the very nature of the function intended to be performed: it need not be shown to be super-added. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power. Duty to act judicially would, therefore, arise from the very nature of the function intended to be performed: it need not be shown to be super-added. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power. If the essentials of justice be ignored and an order to the prejudice of a person is made, the order is nullity. That is a basic concept of the rule of law and importance thereof transcends the significance of a decision in any particular case." 15. The cancellation orders could not have been passed without affording opportunity of hearing to the petitioners as held by this Court in Writ petition No. 236 (SS) of 2000, Pooran Singh vs. State of Uttaranchal and others, relying upon the Apex Court in Basudeo Tewari vs. Sido Kanhu University and others (1998) 8 S.C.C. 194 and Gajanan L. Parnekar vs. State of Goa and another (1998) 8 S.C.C. Hon'ble Mr. Justice P.C. Verma has held as under : "It is not disputed that• the cancellation orders has been passed without any notice or pay in lieu of notice as required in condition No.2 of the Regularisation orders contained in annexure No.1, therefore, cancellation orders have been passed without affording any opportunity of hearing to the petitioners. As the Regularisation orders were passed-in implementation of the Scheme contained in Govt. order dated 15.10.1997 after due selection and the petitioners were regularised against the then existing posts , as such, the reason assigned for cancellation that posts have been reallocated by the Chief Engineer vide order dated 10.04.2000 is not acceptable. On account of cancellation of Regularisation, the petitioners have suffered civil consequences, therefore, the cancellation orders could not have been passed without affording opportunity of hearing to the' petitioners as held by the Apex Court in Basudeo Tewari vs. Sido Kanhu University and others (1998) 8 S.C.C. 194. In Gajanan L. Parnekar vs. State of Goa and another. (1998) 8 S.C.C. the Apex Court held that recall of order of absorption without giving notice or opportunity of hearing is violative of principles of natural justice." 16. Admittedly the orders of cancellation have been passed without affording any opportunity to the petitioners. In Gajanan L. Parnekar vs. State of Goa and another. (1998) 8 S.C.C. the Apex Court held that recall of order of absorption without giving notice or opportunity of hearing is violative of principles of natural justice." 16. Admittedly the orders of cancellation have been passed without affording any opportunity to the petitioners. However liberty is given to the respondents to pass fresh orders subject to the availability of the posts after complying with the principles of natural justice and hearing the petitioners. 17. Consequently the writ petition is allowed and the orders passed by the respondents cancelling the Regularisation of the petitioners are quashed with liberty to pass fresh orders in accordance with law. No order as to costs.