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Allahabad High Court · body

2010 DIGILAW 1046 (ALL)

Santosh Kumar v. State of U. P. and Others

2010-03-30

A.P.SAHI

body2010
Amreshwar Pratap Sahi, J.:- Heard Sri Narendra Mohan learned counsel for the petitioner and the learned standing counsel. 2. The petitioner contends that he is entitled for being regularised on the post of Driver and that the oral order of termination passed by the authority not to discharge duty w.e.f. 1.2.2002 is illegal. The writ petition was entertained and an interim order was passed on 24.5.2002 calling upon the respondents to either permit the petitioner to continue to work in the same capacity as he has been engaged earlier or to show cause. 3. A counter affidavit has been filed and it has been admitted that the petitioner had been prevented from discharging his duties w.e.f. 1.2.2002. However, in view of the interim order passed by this Court the Member Secretary, Board of Revenue passed an order dated 9.7.2002 for re-engaging the petitioner as he was continuing earlier and he has been paid allowances on daily wage basis. 4. Sri Narendra Mohan learned counsel for the petitioner contends that the petitioner was engaged in the year 1996 and regular posts in the Department were created subsequently vide order dated 5.3.1997. Sri Mohan contends that in view of the Regularisation Rules, 2001 the petitioner's claim should have been considered for regular appointment inasmuch as he was entitled to the post if he fulfills the eligibility conditions as prescribed therein. 5. The counter affidavit recites that the status of the petitioner was that of a daily wager and not of an adhoc employee, therefore he was not entitled for any regularization. Nonetheless through a communication dated 13.8.2000 the Registrar, Board of Revenue, Allahabad has been informed by the Secretary, Board of Revenue that so far as the regularization of daily wagers is concerned, a proposal has been sent to the State Govt for considering their regularization separately. As and when such a proposal is approved the matter shall be considered accordingly. 6. The counter affidavit relying on the said letter recites that if any substantive vacancy comes into existence and if the proposal as mentioned above is accepted by the State Govt the claim of the daily wages employees shall be considered in accordance with law. 7. As and when such a proposal is approved the matter shall be considered accordingly. 6. The counter affidavit relying on the said letter recites that if any substantive vacancy comes into existence and if the proposal as mentioned above is accepted by the State Govt the claim of the daily wages employees shall be considered in accordance with law. 7. The claim of the petitioner in the writ petition was to protect him only against the oral order and the same was granted by an interim order and the respondents themselves proceeded to engage the petitioner and are taking work from him. 8. So far as the second prayer with regard to regularization is concerned, it is admitted position that the petitioner was not appointed on adhoc basis but was engaged on a muster roll as is evident from Annexure 1 to the writ petition. In this view of the matter the status of the petitioner is clearly defined as a daily wage employee and the status of a daily wage employee has been considered and has been explained by the Apex Court in the case of State of H.P. Versus Suresh Kumar Verma and another reported in 1996(7) SCC 562 . 9. In view of the law laid down by the Apex Court and the stand taken in the counter affidavit the claim of the petitioner for regularisation as a daily wage employee in my opinion cannot be considered under the 2001 Regularisation Rules as claimed by the petitioner. At the best if the State Govt. has any set of rules for the regularisation of daily wagers the same can be considered in case the petitioner fulfills the criteria of eligibility for such regulariation under any such rules for the time being inforce. 10. From a counter affidavit it appears that the proposal was made to the State Govt but there is nothing on record to indicate any approval. 11. Apart from this there is a rule known as U.P. Govt. Department Drivers Service Rules,1993. The said rules were enforced after having been formulated under Article 309 of the Constitution of India much prior to the engagement of the petitioner. The appointment to the post of Driver after promulgation of the said rules is therefore to be in accordance with the rules which were already in existence. Department Drivers Service Rules,1993. The said rules were enforced after having been formulated under Article 309 of the Constitution of India much prior to the engagement of the petitioner. The appointment to the post of Driver after promulgation of the said rules is therefore to be in accordance with the rules which were already in existence. The petitioner's engagement was made in 1996 and the post was created in 1997. It is therefore clear that the appointment on a clear vacancy could have been made only in accordance with the said 1993 Rules and not otherwise. The said rules do not make any room for any such engagement as claimed by the petitioner. 12. However as already indicated above since the department had made a proposal for regularisation of daily wage employees, the said question is yet to be examined by the State Govt. For this purpose the petitioner may approach the State Govt for the redressal of his grievances. 13. It has also brought to the notice of the Court through a supplementary affidavit in W.P.No.8004 of 2002 Ram Sajeewan Vs. State of U.P. and others that an order has been passed by the Secretary, Board of Revenue on 27.2.2002 whereby 26 persons have been extended the benefit of regularisation who were working on daily wage basis. This was after publishing a notice on 19.2.2002. These two documents give an indication that some process of regularisation of daily wage was under taken by the Board of Revenue. 14. The petitioner shall bring the aforesaid facts to the notice of the State Govt through the Secretary, Board of Revenue who shall forward his comments to the State Govt for an appropriate decision in the matter. 15. In case the petitioner is still in service on daily wage basis and the work of the petitioner is still requires it will not be necessary for the respondents to disengage the petitioner. 16. With the aforesaid observations, the writ petition is disposed of.