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2006 DIGILAW 1121 (ALL)

SURAJ PAL v. STATE OF UTTAR PRADESH

2006-04-26

A.P.SAHI

body2006
JUDGMENT Hon’ble A.P. Sahi, J.—This writ petition and the other connected matters arise out of claims of regularisation of Forest Guards in the Forest Department of the State of U.P. and they claim benefits similar to the benefits extended to the petitioners in the case of Sanjai Kumar Srivastava v. Principal Chief Conservator of Forest and others decided on 17.10.2005 reported in 2005(4) ESC 2633 (All). 2. Learned Standing Counsel has taken an objection to the reliefs claimed by the petitioners on the ground that they are in the process of filing a special appeal against the decision of Sanjai Kumar Srivastavas case and secondly the correctness of the said decision is sought to be re-agitated on the strength of the answer given by the Full Bench to question No. 2 in the case of Dr. Vinay Kumar v. Director, Higher Education, 2005(4) ESC 2953 (FB). 3. Learned Standing Counsel has urged that so far as the directions and the ratio of the decision in Sanjai Kumar Srivastavas case as contained in paragraphs 16 to 18 of the said judgment are concerned, they run counter to the principles of law laid down in the Full Bench decision pointed out herein above. He further contends that regularisation under the rules is permissible in respect of only such candidates who possess the minimum educational qualifications of High School as prescribed and therefore, without striking down the said provision this Court could not have issued a mandamus for considering the regularisation of the petitioners and such similarly situate candidates by ignoring the provisions of minimum educational qualifications of High School. 4. On the other hand Shri Pankaj Srivastava learned Counsel for the petitioner has urged that the petitioners have been engaged for a fairly long period and most of them have served the respondents for more than two decades, and as such after such a long span of time this Court was fully justified in directing the respondents not to insist upon the fulfilment of the educational qualifications for consideration. 5. Shri Pankaj Srivastava urges decision of Sanjay Kumar Srivastava directly covers the case of the petitioner, and the mere preparation of the special appeal cannot in any way prevent the applicability of said decision to the petitioners. 5. Shri Pankaj Srivastava urges decision of Sanjay Kumar Srivastava directly covers the case of the petitioner, and the mere preparation of the special appeal cannot in any way prevent the applicability of said decision to the petitioners. The orders passed in favour of several such candidates, who were petitioners in the case of Sanjai Kumar Srivastava have been given the benefit of regularisation by implementing the judgment dated 17.10.2005. 6. Shri Srivastava has further submitted that the aforesaid action of the respondents will amount to exercise of the power of relaxation contained in the rules in favour of such persons and therefore once the respondents have chosen to implement the directions of the Court dated 17.10.2005 then they cannot be permitted to discriminate the petitioners. Hence, the petitioners are also entitled to a mandamus in terms of the decision dated 17.10.2005. 7. Shri Srivastava has further invited the attention of the Court to the decision of this Court dated 28.5.2004 in Writ Petition No. 949 of 2003 against which a special appeal has been filed being Special Appeal No. 974 of 2004 wherein a detailed order after exchange of affidavits was passed on 22.3.2005 and directions have been issued for continuing the engagement of the appellants therein together with the benefits of payment of the minimum of pay scale applicable to their regular counter parts and for a further direction to consider the petitioners for regularization. 8. Shri Pankaj Srivastava, therefore, contends that in view of the specific orders passed in the aforesaid matters arising out of the cases of Forest Guards there is absolutely no occasion for the respondents to deny the same to the petitioners by relying on the Full Bench decision referred to herein above and which Full Bench decision does not apply on the facts of this case. The issue which is being directly canvassed in the present proceedings now stands settled with the decision dated 17.10.2005. He further contends that so long as the judgment in the case of Sanjai Kumar Srivastava is maintained the respondents are bound to implement the same uniformly as the petitioners stand on an identical footing. 9. The aforesaid propositions advanced on behalf of the petitioners are prima facie correct. He further contends that so long as the judgment in the case of Sanjai Kumar Srivastava is maintained the respondents are bound to implement the same uniformly as the petitioners stand on an identical footing. 9. The aforesaid propositions advanced on behalf of the petitioners are prima facie correct. Apart from this, the apex Court in the case of Secretary, State of Karnataka and others v. Uma Devi and others decided on 10.4.06 has indicated that the question of regularisation of services of employees who have worked for more than 10 years and whose claims are not covered by any order of the Court or tribunal shall be considered by the State Government in the event they have completed more than 10 years of service. In the instant case, it is, therefore, apparent that so long as the ratio of the decision in the case of Sanjai Kumar Srivastava is not set aside or modified by a higher or superior Court, this Court sitting singly would be bound by the same in view of the law laid down by the Full Bench of this Court in the case of Rana Pratap Singh v. State of U.P., 1995 ACJ 200. 10. Learned Standing Counsel then contended that in the event this Court was of the opinion that the directions contained in paras 16 to 18 of Sanjai Kumar Srivastava’s case were not in conformity with law then it is open for this Court to refer the matter to a Larger Bench in case a valid distinction in law can be established.. The question as to whether the case deserves to be referred or not does not appear to arise at this stage when the respondents themselves have chosen to implement the said decision dated 17.10.2005 the fact whereof has been brought on record through a supplementary affidavit filed on record. 11. In the circumstances indicated herein above and in view of the decisions referred to herein above, including the decision in the case of Sanjai Kumar Srivastava’s case, for the time being, I do not find any reason to defer with the same and therefore, the respondents by way of an interim mandamus are commanded to extend the same benefits to the petitioners herein within a period of six weeks from today or show cause by filing a counter affidavit. List after six weeks. Order Accordingly. ———