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2012 DIGILAW 41 (ALL)

SHYAM RANG DWIVEDI v. STATE OF U. P.

2012-01-05

DEVENDRA KUMAR UPADHYAYA

body2012
Devendra Kumar Upadhyaya, J.;- By means of the instant writ petition, the petitioner has challenged the Circular dated 23.06.2011 issued from the office of the Chief Conservator of Forest, Administration, U.P., Lucknow, which has been addressed to all the officers in the department of Forest requiring them to make available the details of those daily wage employees, who were/are working on the minimum of the pay scale, for the purpose of regularization of their services. The petitioner has also challenged another Circular dated 24.06.2011 issued from the office of the Chief Conservator of Forest, Administration, U.P., Lucknow, wherein it has been stated that only those daily wagers are to be regularized who were/are being paid their emoluments in the minimum of the pay scale. Also under challenge is another order dated 19.10.2011 passed by the Divisional Forest Officer, Bahraich whereby the claim of the petitioner regarding regularization of his services has been rejected. I have heard Sri Ramesh Kumar Srivastava, learned counsesl for the petitioner and Sri Manjeev Shukla, learned counsel for the respondents. So far as the challenge to the Circulars dated 23.06.2011 and 24.06.2011 are concerned, learned counsel for the petitioner relying upon the judgement dated 20.08.2011 passed by this Court in a bunch of writ petitions ( leading Writ Petition No. 3841 ( S/S) of 2011 Mahesh Prasad Awasthi and Others Vs. State of U.P) has submitted that the condition mentioned in the aforesaid two circulars to the effect that only those daily wagers shall be considered for regularization under theU.P..Regularization of Daily Wages Appointment on Group 'D' Post Rules, 2001 who are being paid their emoluments in the minimum of the pay scale, is not sustainable. In this regard, it is relevant to observe that the aforesaid Regularization Rules, 2001 nowhere stipulate any condition to the effect that only those daily wagers shall be regularized, who were/are being paid their emoluments in the minimum of the pay scale. The Regularization Rules have been issued by the Governor in exercise of his powers conferred on him under the proviso appended to Article 309 of the Constitution of India, and as such the Circulars dated 23.06.2011 & 24.06.2011 cannot be sustained in the face of the aforesaid statutory provisions contained in the Regularization Rules ( supra). The Regularization Rules have been issued by the Governor in exercise of his powers conferred on him under the proviso appended to Article 309 of the Constitution of India, and as such the Circulars dated 23.06.2011 & 24.06.2011 cannot be sustained in the face of the aforesaid statutory provisions contained in the Regularization Rules ( supra). Moreover, this Court in its judgment dated 20.08.2011 has also provided for consideration of the cases of daily wage employees irrespective of the fact as to whether their emoluments being paid in the minimum of the pay scale or on daily wage basis. A perusal of the impugned order dated 19.10.2011 reveals that the Divisional Forest Officer while considering the case of the petitioner for regularization under the Regularization Rules, 2001 has proceeded on a premise that the State Government has issued Government Order creating supernumerary posts only for the purpose of regularizing only those daily wagers, who were/are being paid their emoluments in the minimum of the pay scale. Two reasons have been assigned by the Divisional Forest Officer, Bahraich for rejecting the claim of the petitioner for being regularized under the Regularization Rules, 2001, namely, 1.) That the petitioner was initially engaged after 29.06.1991 i.e. after the cut off date mentioned in the Regularization Rules; and 2.) That the petitioner has not discharged any function in the financial year 2011-12.For the aforesaid two reasons and also proceeding on the premise that supernumerary posts have been created only for regularization of those daily wagers, who are/were being paid their emoluments in the minimum of the pay scale, the claim of the petitioner for regularizing his services has been rejected. As regards, the very basic premise on which the Divisional Forest Officer has proceeded to consider the case of the petitioner that since the supernumerary posts have been created for regularization of only those daily wagers who were/are being paid their salary in the minimum of the pay scale, suffice it would be to say that in absence of any such stipulation in the Regularization Rules, the Divisional Forest Officer, proceeding on the said premise has clearly erred in law which vitiates the decision. It is well settled principle of law that even a single vitiating factor in the mind of the administrative authorities if taken into account while taking the decision will vitiate the entire order. It is well settled principle of law that even a single vitiating factor in the mind of the administrative authorities if taken into account while taking the decision will vitiate the entire order. For this reason, this Court observes that the Divisional Forest Officer ought not have proceeded and considered the case of the petitioner for regularization of his services on the premise that supernumerary posts were created only for regularization the employees who were/are being paid their salary in the minimum of the pay scale. As regards the reasons indicated by the Divisional Forest Officer while rejecting the claim of the petitioner in his order dated 19.10.2011, counsel for the petitioner referred to a judgment reported in 2008 ( 1) ADJ page 60 ( Janardan Yadav Vs. State of U.P.). He relies on paragraph 8 of the said judgment which is quoted hereinbelow; 8. The said stand is contrary to the Rules and it amounts to reading certain words in Rule 4( 1) which is not provided therein by the Rule framing authority. The rule framing authority has not framed the aforesaid Rules in manner as are being read by the respondents. Since the Rules are applicable only to daily wage employees, the Rules framing authority was aware that such employee could not have worked continuously throughout and, therefore, has clearlyprovided that the engagement must be before 29.6.1991 and he is continuing as such on the date of commencement of the Rules. If a daily wage engagement has been made before 29.6.2001 and was continuing on 21.12.2001, meaning thereby the daily wage engagement remained necessity of the department or the requirement thereof for more than 10 years, for such a person only, the benefit of regularization under 2001 Rules has been provided, and it nowhere requires further that the incumbent must have worked continuously from the date of initial engagement till the commencement of these Rules and to read these words would amount to legislation, which is not permissible in law. While interpreting the statute, it is well settled that neither any word shall be added nor be subtracted but if a plain reading of the statute is clear and unambiguous, the same has to be followed as such. While interpreting the statute, it is well settled that neither any word shall be added nor be subtracted but if a plain reading of the statute is clear and unambiguous, the same has to be followed as such. This Court does not find any ambiguity in Rule-4( 1) providing as to which kind of persons would be entitled for regularization and it nowhere requires that the incumbent must have worked throughout from the date of initial engagement till the date of commencement of the Rules. A perusal of the aforesaid judgment rendered by this Court in the case of Janardan Yadav ( supra) reveals that Rule 4 of Regularization Rules does not anywhere stipulates that only those daily wagers will be considered for regularization or will be regularized, who have worked throughout with effect from the date of their initial engagement till the date of commencement of the rules or till the date of consideration of their services for regularization is made. In view of above law laid down by this Court in the case of Janardan Yadav ( supra) the reason indicated by the Divisional Forest Officer for denying his claim of regularizing his services that the petitioner has not worked in the financial year 2011-12 is not sustainable. As regards the other reason indicated by the Divisional Forest Officer that the petitioner was engaged after the cut of date mentioned in the regularization rules, counsel for the petitioner dispute the same and submits that he was engaged prior to the said date. Learned Standing Counsel appearing for the State has made a valiant attempt to defend the order dated 19.10.2011 whereby the claim of regularization of services of the petitioner was rejected, submitting that in case the petitioner was not appointed on or before the cut of date i.e. 29.06.1991, then even if the Divisional Forest Officer proceeded onsome wrong premise or wrong presumption of law, the order so passed cannot be quashed if it is sustainable on other reasons shown in the order. He, however, admits the legal position as has been enunciated by this Court in the judgment rendered in the case of Janardan Yadav ( supra). He, however, admits the legal position as has been enunciated by this Court in the judgment rendered in the case of Janardan Yadav ( supra). He further stated that the recital at point no.4 in the impugned order passed by the Divisional Forest Officer to the effect that the State Government issued the Government Order creating the supernumerary posts for regularization of services of only those incumbents who were/are being paid the minimum pay scale, will not make the impugned order bad in law, as the recorded by the Divisional Forest Officer nor does it constitute a reason for rejecting the claim of the petitioner for regularization. The Court is unable to agree with the contention of the learned counsel appearing for the State for the simple reason that one of the reasons assigned in the impugned order for not regularizing the services of the petitioner is absolutely not tenable, in view of the law laid down by this Court in the case of Janardan Yadav ( supra). So far as the other reason that the petitioner was engaged only after the cut of date and the other factual aspects are concerned, the same are being disputed by the petitioner. What is noticeable is the impact of vitiating the factor which was present in the mind of the Divisional Forest Officer while passing the order and considering the case of the petitioner for regularization of his services. The said vitiating factor appears to be weighing in the mind of the Divisional Forest Officer, which is apparent from point ( 4) of the impugned order whereby he proceeded to consider the whole matter on the very basic premise that the supernumerary posts have been created for regularizing the services of only those incumbents, who were/are being paid minimum of the pay scale. The said vitiating factor would vitiate the entire order as the same can not be treated to be a properexercise of power vested in the appointing authority under Rule 4 of the Regularization Rules, 2001. As observed above the Regularization Rules, 2001 having been framed under proviso to Article 309 of the Constitution of India have statutory force. Hence the power to be exercised under Rule 4 for regularization of the services of daily wagers is to be exercised within the four corners of the Rules. Nothing can be read in the Rules which the Rules do not provide. Hence the power to be exercised under Rule 4 for regularization of the services of daily wagers is to be exercised within the four corners of the Rules. Nothing can be read in the Rules which the Rules do not provide. Exercise of statutory power by a public authority within the confines of statutory rule is not a mere formal intellectual nicety. Exercise of such power based on factors which are extraneous to the statutory rules has wider ramification. In the instant case it is worth noticing that the Divisional Forest Officer while passing the impugned order bore in his mind a factor which is extraneous to the Regularization Rules, 2001, namely that supernumerary posts created by the Government were available for regularizing the services of only those daily wagers who were paid in the minimum of the pay scale. The regularization Rules do not differentiate between daily wagers on the basis of mode of payment of their emoluments. Thus, proceeding on the aforesaid vitiating premise can not be accepted as proper exercise of power of regularization of services by the Divisional Forest Officer as he took into account something which is extraneous to the Regularization Rules, 2001. As regards other two reasons given by the Divisional Forest Officer for rejecting the claim of the petitioner, in view of the discussion above, the same are also not sustainable. For the reasons aforesaid, the impugned order dated 19.10.2011, deserves to be quashed, which is hereby quashed. The appointing authority, namely, Divisional Forest Officer, Bahraich is directed to reconsider the case of the petitioner for regularization of the services of the petitioner in accordance with Regularization Rules, 2001, keeping inview the observations made hereinabove and ignoring the conditions mentioned in the circulars dated 23.06.2011 & 24.06.2011. Consideration of the case of the petitioner for regularizing his services shall be made by the Divisional Forest Officer, Bahraich within a period of eight weeks from the date a certified copy of this judgment is produced before him. Consideration of the case of the petitioner for regularizing his services shall be made by the Divisional Forest Officer, Bahraich within a period of eight weeks from the date a certified copy of this judgment is produced before him. It is further directed that case of the petitioner for regularization of his services shall be considered by observing the provisions of Rule 4( 3), 4( 5), 4( 6) and Rule 5 of the Regularization Rules, 2001 i.e. a committee as envisaged in Rule 4( 3) shall be constituted and the said committee after considering the case of the petitioner on the basis of record and the observations made in this judgment shall forward its recommendation to the appointing authority as provided under Rule 4( 5) and 4( 6). The recommendation so made by the selection committee shall be considered by the appointing authority as per Rule 5 of the Regularization Rules, 2011 and accordingly the matter shall be finalized. With these observations, the writ petition is allowed with no order as to costs.