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2009 DIGILAW 3231 (ALL)

GULAB CHAND v. STATE OF U. P.

2009-10-08

SUDHIR AGARWAL

body2009
JUDGMENT Hon’ble Sudhir Agarwal, J.—The petitioner’s claim for regularization has been rejected by the Executive Engineer, P.W.D. Provincial Division Ist, District Mau by the impugned order date 7.2.2007 on the following two grounds : (1) He was engaged for sometime in 1987 but on 29.6.1991 or prior thereto, he was not continuously engaged. (2) No vacancy, permanent or temporary, is available in the District. 2. Learned counsel for the petitioner submitted that since he was engaged as daily wage employee since1987, i.e., prior to 29.6.1991 and was working even after commencement of the rules, therefore, it could not have been said that he was not eligible to be considered for regularization. He, therefore, submits that the impugned order is illegal and liable to be set aside. 3. Having perused the record, I find that one of the reasons given by the Executive Engineer is that no temporary or permanent post is available in the District against which the petitioner could have been regularized. In the entire writ petition, there is no averment whatsoever that this statement of fact recorded by the respondent No. 2 in the impugned order is incorrect, false or contrary to record. Nothing has been said about the vacancy, in the writ petition. U.P. Regularization of Daily Wages Appointment on Group ‘D’ Posts Rules, 2001 (hereinafter referred to as “2001 Rules”) are not applicable to future vacancies and it is a one time arrangement. 4. Rule 4 of 2001 Rules provides that the Rules are applicable to those vacancies, temporary or permanent, which are vacant on the date of commencement of 2001 Rules. 5. Rule 4 of 2001 Rules reads as under : “4. 4. Rule 4 of 2001 Rules provides that the Rules are applicable to those vacancies, temporary or permanent, which are vacant on the date of commencement of 2001 Rules. 5. Rule 4 of 2001 Rules reads as under : “4. Regularisation of daily wages appointments on Group ‘’D’ posts.—(1) Any person who— (a) was directly appointed on daily wage basis on a Group ‘’D’ post in the Government service before June 29, 1991 and is continuing in service as such on the date of commencement of these rules; and (b) possessed requisite qualification prescribed for regular appointment for that post at the time of such appointment on daily wage basis under the relevant service rules, shall be considered for regular appointment in permanent or temporary vacancy, as may be available in Group ‘’D’ post, on the date of commencement of these rules on the basis of his record and suitability before any regular appointment is made in such vacancy in accordance with the relevant service rules or orders.” (2) In making regular appointments under these rules, reservations for the candidates belonging to the Scheduled Castes, Scheduled Tribes, Other Backward Classes of citizens and other categories shall be made in accordance with the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994, and the Uttar Pradesh Public Services (Reservation for Physically Handicapped, Dependents of Freedom Fighters and Ex-servicemen Act, 1993 as amended from time to time and the orders of the Government in force at the time of regularisation under these rules. (3) For the purpose of sub-rule (1) the Appointing Authority shall constitute a Selection Committee in accordance with the relevant provisions of the service rules. (4) The Appointing Authority shall, having regard to the provisions of sub-rule (1), prepare an eligibility list of the candidates, arrange in order of seniority as determined from the date of order of appointment on daily wage basis and if two or more persons were appointed together, from the order in which their names are arranged in the said appointment order. The list shall be placed before the Selection Committee along with such relevant records pertaining to the candidates, as may be considered necessary, to assess their suitability. The list shall be placed before the Selection Committee along with such relevant records pertaining to the candidates, as may be considered necessary, to assess their suitability. (5) The Selection Committee shall consider the cases of the candidates on the basis of their records referred to in sub-rule (4), and if it considers necessary, it may interview the candidates also. (6) The Selection Committee shall prepare a list of selected candidates in order of seniority, and forward the same to the Appointing Authority.” 6. The question as to whether the regularization could have been considered even against a vacancy available on a subsequent date of commencement of 2001 Rules, was considered by this Court in Rakesh Chandra Srivastava v. State of U.P. and others, 2008(1) ADJ 371 wherein it has been held as under : “........... the vacancy against which right of consideration for regularization is available are only those which were available on the date of commencement of the rules, namely, 2001 Rules.” 7. So far as the first ground taken in the impugned order is concerned, it appears to be incorrect inasmuch a daily wage employee need not to be engaged continuously due to the very nature of the engagement. Considering the nature of daily wage employee qua 2001 Rules, for regularization, this Court in Janardan Yadav v. State of U.P. and others, 2008 (2) ESC 1359 held as under : ” The only requirement under Rule 4(1)(a) are that the incumbent was directly appointed on daily wage basis on a Group ‘D’ Post in a Government Service before 29.6.1991 and is continuing in service as such on the date of commencement of the said Rules.” 8. Once, it is clear that 2001 Rules entitles a daily wager for regularization provided a vacancy on a temporary/permanent post on the date of commencement of Rules i.e. 31.12.2000 was available and where no such vacancy on that date was available, the regularization under 2001 Rules is not permissible. Once, it is clear that 2001 Rules entitles a daily wager for regularization provided a vacancy on a temporary/permanent post on the date of commencement of Rules i.e. 31.12.2000 was available and where no such vacancy on that date was available, the regularization under 2001 Rules is not permissible. If regularization under statutory rules is not permissible, mere length of service would not confer any right in respect to regularization in view law laid down by the Apex Court in the case of Secretary, State of Karnataka v. Uma Devi, 2006 (4) SCC 1 following in catena of decision including State of West Bengal and others v. Banibrata Ghosh and others, 2009 (3) SCC 250 , Council of Scientific & Industrial Research and others v. Ramesh Chandra Agarwal and another, 2009 (3) SCC 35, and General Manager, Uttaranchal Jal Sansthan v. Laxmi Devi and others, 2009 (7) SCC 205 . 9. Had the petitioner been denied regularization only on this ground, the writ petition could have been allowed straight way but since the second ground that there was no vacancy available on the date of commencement of the Rules, which finding has not been challenged in the entire writ petition, it demonstrate that the said finding is neither illegal or incorrect, nor contrary to record. 10. In the result, I do not find any merit in this writ petition. It is, accordingly dismissed. Interim order, if any, stands vacated. ————