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2010 DIGILAW 2943 (ALL)

Rajendra Singh v. State of U. P. and others

2010-09-22

A.P.SAHI

body2010
Amreshwar Pratap Sahi,J.:- The petitioner has been discontinued as a daily wager in the Forest Department and simultaneously an order has been passed on 15th March 2005 refusing the benefit of regularization to the petitioner on the ground that the petitioner's claim does not fall within the provisions of The Uttar Pradesh Reguarisation of Daily Wages Appointments on Group D Posts Rules 2001. 2. Learned counsel for the petitioner contends that the impugned order proceeds on erroneous assumption of facts and law inasmuch as the petitioner was working as a daily wager since 1990 prior to the cut off date of 29th June 1991 and was also working on the date of the 2001 Rules which were enforced on 21st December 2001. He submits that in view of the provisions of the aforesaid rules particularly Rule 4(1)(a), the petitioner is entitled for regularization and the facts in support of such a claim have been completely ignored as such the impugned order is vitiated. 3. Learned Standing Counsel on the other hand contends that factually the petitioner has been unable to establish his case with regard to functioning so as to entitle him the benefit of regularization and therefore the impugned order does not suffer from any infirmity. He submits that in the absence of any proof of his functioning in the manner as provided for under the rules the petitioner cannot be allowed the benefit of regularization. 4. I have perused the records and the affidavits have been exchanged between the parties. 5. The petitioner has come out with a clear case that he was working since 1990 and the petitioner relies on a certification by the Forest Range Officer dated 1st June 1994 Annexure-1 to the writ petition. The said certificate recites that the petitioner continuously worked on daily wages from September 1990 to May 1994. The aforesaid annexure has been narrated in Paragraph 5 of the writ petition. The respondents have given their reply in paragraph 8 to the same which is quoted hereinbelow: "Para 8. That, the contends of para no. 5 of the writ petition are not correct as they are stated. The petitioner had never been paid salary by the department but he has been given wages as admissible to the dailywager. The service of the dailywager start from morning and came to an end in evening automatically. That, the contends of para no. 5 of the writ petition are not correct as they are stated. The petitioner had never been paid salary by the department but he has been given wages as admissible to the dailywager. The service of the dailywager start from morning and came to an end in evening automatically. Certificate which has been annexed by the petitioner as annexure-1 to the writ petition is no relevancy with the regularisation of the petitioner on group 'D' post." 6. A perusal of the said reply given in the counter affidavit clearly indicates that the petitioner was given wages as admissible to a daily wager. The said paragraph does not deny the working of the petitioner as certified by the Forest Range Officer from 1990 to 1994, nor is it stated that the said certificate is fake or forged. The petitioner therefore has led evidence to indicate that he has worked as a daily wager on the cut off date. 7. The stand taken is that the certificate is of no relevancy keeping in view the 2001 regularization rules. 8. In the opinion of the Court the aforesaid stand taken in the counter affidavit is untenable in law inasmuch as if the petitioner was factually working in the year 1991 particularly on the cut off date i.e. 29th June 1991 then he falls for consideration for the benefit of regularization and payment of minimum wages as a Group-D employee keeping in view the 2001 Rules as well as the decisions rendered by this Court and by the Apex Court. 9. Coming to the relevancy part as stated in Paragraph 8 of the counter affidavit suffice it to say that such a daily wager has to be continued in service on the date of the commencement of the rules. The rules have commenced on 21st December, 2001. There is no denial that the petitioner was working on 21st December 2001 and has been paid his wages. In view of this the impugned order dated 15th March 2005 and 8th March 2005 Annexure 6 to the writ petition is unsustainable and it is hereby quashed. The matter is remitted back to the respondent no. There is no denial that the petitioner was working on 21st December 2001 and has been paid his wages. In view of this the impugned order dated 15th March 2005 and 8th March 2005 Annexure 6 to the writ petition is unsustainable and it is hereby quashed. The matter is remitted back to the respondent no. 3 for reconsideration of the claim of the petitioner in the light of the observations made hereinabove within a period of three months of the date of presentation of a certified copy of this order before him. 10. So far as the claim of payment of minimum wages is concerned reference may be had to the Division Bench judgment of this Court given in Special Appeal No.1205 of 2010 (Chanchal Kumar Tiwari and others Vs. Shri Hari Shankar). 11. The writ petition is allowed.