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2011 DIGILAW 73 (ALL)

RAM DAYAL v. STATE OF U. P.

2011-01-12

SUDHIR AGARWAL

body2011
JUDGMENT Hon’ble Sudhir Agarwal, J.—Heard Sri G.D. Mishra, learned counsel for the petitioner, learned Standing Counsel for respondent Nos. 1 to 7 and Sri B.C. Nayak, Advocate who has put in appearance on behalf of respondent No. 17. The respondent Nos. 8 to 16 were issued notice. Considering the service report dated 14.11.2007 and 16.10.2009, service on the respondents is deemed sufficient. They have not put in appearance nor are represented by any counsel. 2. The short question involved in this case is whether petitioner was entitled to be considered for regularisation in preference to respondent Nos. 8 to 17 in view of the provisions contained in U. P. Regularization of Daily Wages Appointments on Group ‘D’ Posts Rules, 2001 (hereinafter referred to as the “Rules, 2001”) which came into force on 21.12.2001; as directed by the Apex Court in State of U.P. and others v. Putti Lal, (2002) 2 UPLBEC 1595. 3. The petitioner was denied regularisation on the ground that he did not work continuously from 1991 till 2001 hence cannot be considered for regularisation. It was challenged by petitioner in Writ Petition No. 46429 of 2004. vide judgment dated 7.9.2005 this Court held, since the petitioner was engaged on daily wage basis from August, 1985 till December, 2001 and he was also working on both the cut off dates, i.e., 29.6.1991 and 21.12.2001, hence he was entitled to be considered for regularisation in accordance with Rules, 2001. 4. The official respondents still did not consider him for regularisation hence the petitioner filed a Contempt Petition No. 193 of 2006 wherein notices were issued and pursuant thereto surreptitiously the respondents passed an order on 5.7.2006 regularising petitioner without recording any reason whatsoever and simply giving reference to this Court’s judgment dated 7.9.2005 and the order passed by this Court on 5.5.2006 in contempt proceeding and pursuant thereto the Divisional Forest Officer issued order on 5.7.2006 regularising petitioner on the post of ‘Mali’ on minimum pay of Rs. 2550/- per month, based on equal pay for equal work subject to decision of this Court in Special Appeals No. 219 of 2006 and 220 of 2006. 5. 2550/- per month, based on equal pay for equal work subject to decision of this Court in Special Appeals No. 219 of 2006 and 220 of 2006. 5. Since the petitioner was placed on the minimum pay and not in the regular pay scale, and his regularisation was treated to be effective from the date, order was passed, he filed this writ petition stating that persons junior to him were regularised much earlier and hence he is also entitled for the same benefit and be regularised from the date his juniors were regularised. 4. In the counter-affidavit filed by respondent Nos. 1 to 7, they have basically referred to pendency of special appeals and also have reiterated their defence taken in the earlier case that petitioner had not worked continuously hence was not considered for regularisation. Though they have passed order of regularisation but it has specifically been pleaded in the counter-affidavit that petitioner having not worked continuously from 29.6.1991 to 21.12.2001 he is not entitled for regularisation. The selection committee found 18 other daily wagers entitled for regularisation and passed orders accordingly. 5. So far as respondent No. 17 is concerned, he has chosen not to file any counter-affidavit but adopts the defence taken by respondent Nos. 1 to 7. 6. Having considered the rival submissions, I am constrained to observe that Forest Officials are behaving and acting in most irregular and illegal manner in the matter of considering daily wagers for regularisation in accordance with 2001 Rules pursuant to the direction issued by the Apex Court in Putti Lal (supra) causing spate of litigation before this Court and also giving occasion to Forest Officers to indulge in activities other than lawful and bona fide. This is what this Court has experienced in a lon of cases which have come before this Court. 7. The official respondents could not tell as to whether they prepare any list of daily wage employees who were eligible to be considered for regularisation under 2001 Rules in order of seniority so that they may be considered in order of seniority for regularisation against the available vacancies under 2001 Rules. It also appears that they have not clearly understood the conditions precedent for applying regularisation under 2001 Rules. It also appears that they have not clearly understood the conditions precedent for applying regularisation under 2001 Rules. Different Divisional Officers are proceeding in different manner and according to their own whims, causing a lot of dissatisfaction amongst the daily wage employees of forest department in U.P., which has also resulted in multiplicity of cases before this Court. 8. 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 alongwith 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 alongwith 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.” (emphasis added) 9. A bare perusal thereof shows that in order to attract and consider an incumbent for regularisation three things are necessary: (1) must have employed on daily wage basis before 29.6.1991; (2) was continuing to work on the date of commencement of Rules, i.e., 1.12.2001; and (3) vacancies were available on the date of commencement of Rules against which such incumbent could have been considered for regularisation. 10. If the aforesaid three conditions are satisfied, those persons who possess the requisite qualifications on the date when they were engaged on daily wages; prescribed under the Rules for regular appointment, are entitled to be considered for regularisation by a selection committee. 11. Construing Rule 4 of 2001 Rules 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 ............. There is no provision under 2001 Rules which permits right of regularization to a daily wage employee against any vacancy which may occur in future or subsequent to 21st December 2001. The rules of regularization being in the nature of exceptional provisions having overriding effect over other provisions of normal procedure of selection in accordance with rules, can be allowed and permitted to apply strictly in accordance with the rules and not otherwise.” 12. This Court also held that the nature of daily wage employment shows that the incumbent could not have been employed regularly and continuously. There is also no requirement under the Rules that one must have worked for 240 days or more in every year in order to claim benefit of regularisation under 2001 Rules. 13. This Court also held that the nature of daily wage employment shows that the incumbent could not have been employed regularly and continuously. There is also no requirement under the Rules that one must have worked for 240 days or more in every year in order to claim benefit of regularisation under 2001 Rules. 13. 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.” 14. The record shows that the respondents have clearly erred in proceeding to consider only those persons eligible and entitled for regularisation who have worked for 240 days and more in every year between 29.6.1991 to 21.12.2001 and have excluded others from the zone of consideration for the purpose of regularisation. This approach to my mind is clearly erroneous and not consistent with specific provisions contained in 2001 Rules as also interpreted by this Court in Janardan Yadav (supra). 15. Besides, in order to cover those cases where the number of available vacancies on the date of commencement of Rules were less than the number of persons eligible for regularisation, it was incumbent upon the officer concerned to prepare a list of daily wage employees in order of seniority, i.e., according to number of days the incumbents were employed and thereafter to consider them for regularisation. Since the daily wage employees are not engaged in a regular manner, there cannot be any method of preparing seniority list except the number of days. However, it is always open to the competent authority to adopt any other valid method for the purpose of preparing seniority list but unless such a seniority list is prepared, it would be difficult to consider the cases of regularisation of Class-III and Class-IV daily wage employees merely on the basis of contingencies that some could get engagement in every year and in case of others though the number of days of engagement is more but did not fall in every year. Such contingencies and fortuitous circumstances have to be ignored. 16. Such contingencies and fortuitous circumstances have to be ignored. 16. From the counter-affidavit filed by respondents, it is also evident that petitioner (there may be some other similarly situated persons) has been excluded from consideration for regularisation under 2001 Rules even though in view of the judgment in Janardan Yadav (supra) he (they) would have been eligible for consideration for regularisation. The judgment dated 7.9.2005 passed by this Court in the earlier writ petition of this petitioner also nowhere shows that petitioner has to be regularised in a mechanical manner without application of mind but what it say is that petitioner having satisfied both requirement of cut off dates, was entitled to be considered for regularisation. 17. Regularisation ought not to flow automatically from the said judgment but the respondents have to consider the petitioner for regularisation treating two conditions satisfied that he was engaged before 29.6.1991 and was continuing in service on the date of commencement of Rules and then rest of the conditions are still to be considered and thereafter an appropriate order is required to be passed which has not been done in the case in hand. 18. In the circumstances, this writ petition is disposed of with the following directions: (1) The respondents shall determine the number of vacancies available on the date of commencement of 2001 Rules, available for regularisation in accordance with Rule 4(1) of 2001 Rules as also the judgment of this Court in Rakesh Chandra Srivastava (supra). (2) The competent authority shall also prepare a seniority list of daily wage employees who fulfill the requirement of two cut off days provided in 2001 Rules, i.e., employment before 29.6.1991 and continuing on 21.12.2001 and also in the light of the judgment of this Court in Janardan Ydav (supra) on the basis of length of engagement, i.e., the number of days on which they were engaged, in descending order. In preparing this list, the respondents shall give due opportunity to all concerned parties. (3) The competent authority shall consider the eligible daily wage employees for regularisation in accordance with 2001 Rules considering their qualifications etc. as provided in such rules in order of seniority and pass appropriate order. (4) The orders of regularisation already passed in respect to petitioner as well as respondent Nos. (3) The competent authority shall consider the eligible daily wage employees for regularisation in accordance with 2001 Rules considering their qualifications etc. as provided in such rules in order of seniority and pass appropriate order. (4) The orders of regularisation already passed in respect to petitioner as well as respondent Nos. 8 to 17 shall not come in the way in passing fresh order and in case any fresh order is passed, the order already passed otherwise would stand nullified. (5) However, the respondents shall give effect the order of regularisation passed pursuant to this judgment from the date initial order of regularisation was passed in respect to the parties in this writ petition. (6) The entire exercise as directed above shall be completed by the concerned respondents within a period of two months from the date of production of a certified copy of this order. 16. There shall be no order as to costs. —————