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2013 DIGILAW 2833 (ALL)

Pakhandi v. State of U. P.

2013-11-19

SUDHIR AGARWAL

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JUDGMENT : Sudhir Agarwal, J. Heard learned Counsel for the petitioner and learned Standing Counsel for the respondents. Petitioner's request for regularization has been turned down by District Horticulture Officer, Chandauli only on the ground that he has never been engaged as a regular Mali or against the post of a regular Mali but since he is a daily wage Mazdoor, therefore, is not entitled for regularization under U.P. Regularization of Daily Wages Appointments on Group D Posts Rules, 2001 (hereinafter referred to as the "Rules, 2001"). Another ground taken for non-suiting petitioner for regularization is that he is not continuously working. 2. Petitioner has specifically stated that he is working as daily wage Mali since May, 1983 till the date of filing of this petition and in this regard he has also placed before this Court Annexure-1 to the writ petition, whereby the Incharge Assistant Horticulture Inspector, Chandauli has verified his working from September, 1993 to 2003-2004. 3. Under Rules, 2001 a daily wage employee is not required to work continuously since it is against the very nature of engagement on daily wage basis. The petitioner has claimed that he was engaged as daily wager before 29.6.1991 and continued to be engaged as daily wage employee on 21.12.2001. This fact as such is not disputed by the respondents. 4. Rule 4 of Rules, 2001 provides for regularisation of daily wage employees appointed in group 'D' post and 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 29.6.1991 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. 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 along with 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. 5. The question as to whether the above Rule requires "continuous service through out" came to be considered by this Court in Janardan Yadav Vs. State of U.P. and Others, (2008) 2 AWC 1193 , and this Court in paras 5, 6 and 8 of the judgment said as under : 5. 5. The question as to whether the above Rule requires "continuous service through out" came to be considered by this Court in Janardan Yadav Vs. State of U.P. and Others, (2008) 2 AWC 1193 , and this Court in paras 5, 6 and 8 of the judgment said as under : 5. Since the facts are not is dispute and it is also not disputed that the petitioner was engaged on daily wage basis in 1984, i.e., before 29.6.1991 and was also working on the date of commencement of Rules 2001, i.e., on 21.12.2001, thus it is evident that he was entitled to be considered for regularization under the said Rules. The only question up for consideration is whether the said Rules require continuous service throughout, i.e., from the date of initial engagement till the commencement of the Rules. In my view, there is no such requirement under the Rules as is apparent from perusal thereof............ 6. The only requirement under Rule 4(l)(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. The further requirement under Clause (b) of Rule 4(1) is that he must have possessed requisite qualification required for regular appointment on that post at the time of such employment on daily wage basis. 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 clearly provided that the engagement must be before 29.6.1991 and he is continuing as such on the date of commencement of the Rules. 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 clearly provided 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. 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. 6. In view of the law laid down in Janardan Yadav (supra) it is evident that there is no requirement in the Rules that in every year from 1991 to 2001 a daily wage employee ought to have been engaged and should have worked continuously. 7. Moreover, the engagement of daily wage employee against regular post is also not contemplated under Rules, 2001 for the purpose of making a daily wage employee otherwise eligible for being considering for regularisation. In view thereof, the writ petition is allowed. The impugned order dated 1.11.2012 is hereby quashed. The respondents are directed to reconsider the claim of the petitioner for regularization under Rules, 2001 in accordance with law and in the light of the observations made hereinabove, expeditiously, and in any case within a period of two months from the date of production of a certified copy of this order.