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2011 DIGILAW 957 (ALL)

State of U. P. and others v. Deshraj

2011-04-13

PRADEEP KANT, VEDPAL

body2011
Pradeep Kant and Vedpal, JJ.- Heard the learned Counsel for the appellants Sri Vivek Shukla and Sri Mohd. Ali, learned Counsel appearing for the private respondent. - 2. The delay in filing the instant Special Appeal, is hereby condoned. 3. Learned Counsel for the appellants has submitted that the learned Single Judge has fell into an error in issuing a direction to consider the case of the respondent for regularization in accordance with U.P. Regularization of Daily wages Appointments on Group 'D' post, Rules, 2001 (hereinafter referred to as the Rules, 2001), though he did not fall within the eligibility conditions. Submission is that on the date of enforcement of the Rules, 2001 i.e. on 21st December, 2001 the respondent was not working. The respondent's contention is that the aforesaid statement of fact made by the State, in the impugned order as well as before the Court is not correct and as matter of fact, the respondent had been working throughout right from March, 1988 to May, 2002 with some breaks. His submission is that right from July, 1997 to December, 2002 he has continuously been working and therefore, to say that he was not working on the date of enforcement of Rules, 2001 is not correct. 4. Learned Counsel relies upon a letter dated 26th September, 2003 which was filed in the writ petition and has been placed before this Court also as Annexure No. 5 to the Special Appeal. This letter is written by the Divisional Director, Social Forestry, Raebareli to the Regional Director, Social Forestry, Awadh Circle, U.P. Lucknow. In this letter, it is mentioned that the matter was examined in view of the application given to the Chief Conservator of Forest, U.P. on 2nd September, 2003 by the State and it has been informed on the basis of the record that the respondent had worked as daily wager, right from March, 1988 to November, 1991 in Salon Range, then from January, 1992 to November, 1992 and 7th September, 1993 in Lalgaj Range and from July, 1997 to May, 2002 again in Salon Range and from August, 2002 in Tiloi Range. The letter further says that the respondent had been working in different ranges but before 29th September, 1991 since there were no Rules, therefore, no information was being sent with respect to his working and that is why his name could not be included in the list of daily wagers of the Department. 5. The impugned order, however, gives different dates of functioning of the respondent. The learned Single Judge has taken into account the eligibility conditions given in Rule 4 of the Rules, 2001 and has observed that in view of the fact that the respondent had been working right from the year 1988 though with some breaks but was allowed to continue till 2008 and therefore, incidentally, if he is not working in December, 2001, when the Rules, 2001 had come into force, it would not mean that he is not eligible for being considered for regularization. 6. The learned Single Judge observed that the purpose of the Rules, 2001 is to regularize the service of such daily wagers, who had been working for a considerable period of time, both before the Rules had come into force and even thereafter and therefore, simply because the respondent was not working for a very short time, on the date, when the Rules had come into force, his case cannot be rejected. 7. Learned Counsel for the appellant however, submitted that since the benefit of the Rules is to be given only to those persons, who actually fall within the eligibility conditions, therefore the observation made aforesaid cannot assist the respondent. 8. We do not intend to enter into the controversy aforesaid for the reason that in view of clear working shown by the Divisional Director in his letter addressed to the Regional Director, which has been sent in pursuance of the inquiry conducted as per directive issued by the Chief Conservator of Forest on 26th September, 2003 where the respondent has been found to be working continuously from July, 1997 to May, 2002 meaning thereby that he fulfils all the eligibility conditions as given in Rule 4 (1) of the Rules, 2001, his case ought to have been considered for taking into account the period of functioning mentioned therein. 9. The attention of the Court has been drawn to the pleadings in the writ petition. 9. The attention of the Court has been drawn to the pleadings in the writ petition. In para 14 of the Writ petition, in which mention of aforesaid letter dated 26th September, 2003 which was annexured with the writ petition had been made and in paragraph 15 of the counter affidavit, filed by the State, wherein reply to the aforesaid para had been given, we find that there is no denial of the statement of fact, regarding to working days of the respondent made in the said letter and rather it was stated that information regarding working of the respondent was not available, therefore, his name was not included in the record. 10. That being so, there remained no occasion for the appellants, to consider the working days as against the days as given by the Divisional Director, as far back as on 26th September, 2003 and to pass the impunged order. 11. We, therefore, do not find any ground to interfere with the impugned order passed on 13th January, 2011 by the learned Single Judge but clarify that the respondents regularization shall be considered as according to the Rules, as per the working days as mentioned by the Divisional Director, in his letter addressed to the Regional Director on 26th September, 2003 after getting them verified. Care has to be taken that as per own statement of fact made by the appellants that there was no record maintained with respect to working, prior to the enforcement of the Rules, 2001, and such a record was not available, merely on the basis of non-availability of record, the claim of the respondent would not be rejected. Consideration for regularization of the respondent shall be done within a period of one month. 12. Subject to the aforesaid clarification, the instant appeal is dismissed. Appeal dismissed.