Research › Search › Judgment

Allahabad High Court · body

2014 DIGILAW 804 (ALL)

CHHEDI LAL v. STATE OF U. P.

2014-03-07

DINESH GUPTA

body2014
JUDGMENT Hon’ble Dinesh Gupta, J.—The present writ petition has been filed by the petitioner under Article 226 of the Constitution of India, inter alia, praying for following reliefs: (i) issue a writ, order or direction in the nature of mandamus commanding the respondents to regularise the services of the petitioner in terms of Niyamawali 2001 on the post of Class-IV employee and be paid their salary month to months. (ii) issue a writ, order or direction in the nature of mandamus commanding the respondents to be paid their salary as minimum pay scale as being paid to the other employee of the department. (iii) issue a writ, order or direction in the nature of mandamus commanding the respondents not to dispense with the services of the petitioners during pendency of the WP. (iv) issue any other writ order or direction of this Hon’ble Court as may deem fit and proper in the facts and circumstances of the case. (v) allow the petition with cost in favour of the petitioner. The brief facts which give rise to this writ petition are that: 2. The petitioner was appointed on the post of Class-IV employee in the Forest Department as muster-roll employee in the month of October, 1984 and continuously performing his duties till date. 3. The only ground taken by the respondents in the counter-affidavit for rejecting the claim of the petitioner for regularization during the period is that petitioner has not worked for more than 240 days in a year. 4. Heard the learned counsel for the parties. Learned counsel for the petitioner submitted that according to the U.P. Regularization of Daily Wages Appointments on Group ‘D’ Post Rules, 2001 (hereinafter referred to as the ‘Rules’), Rule 4 of the said Rules provides for procedure for regularization of service, which clearly provides that a person shall be regularized, who was directly appointed on daily wage basis on a Group-D post in the Government service before 29th June, 1991 and is continuing in service as such on the date of commencements of these rules. There is no mention in the said Rules that person should have worked continuously for more than 240 days in a year. 5. Learned counsel for the petitioner has relied upon certain case laws, which is as follows: 1. Sri Ram Yadav v. State of U.P. and others, 2008 (3) ADJ 19 . 2. There is no mention in the said Rules that person should have worked continuously for more than 240 days in a year. 5. Learned counsel for the petitioner has relied upon certain case laws, which is as follows: 1. Sri Ram Yadav v. State of U.P. and others, 2008 (3) ADJ 19 . 2. Ram Sajeewan v. State of U.P. and others, 2013 (3) ADJ 574 . 3. Janardan Yadav v. State of U.P., 2008 (1) ADJ 60. 6. Learned counsel for the petitioner submitted that the case of the petitioner is squarely covered by these decisions. 7. Learned counsel for the respondents submitted that since the petitioner is not in continuous service throughout the period from 29.6.1991 and he has not worked continuously, hence, he cannot be considered for regularization and the respondents have rightly rejected the claim of the petitioner for regularization. 8. I am unable to accept the contention raised by the learned counsel for the respondents. Rule 4 of the U.P. Regularization of Daily Wages Appointments on Group ‘D’ Post Rules, 2001, which is as under: 4.(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 order. A perusal of clause (a) of Rule 4 of the said Rules indicates that a person, who was directly appointed as daily wage basis on a Group-D post in the Government service before 29th June, 1991 and was continuing in service, would be considered for regularization. 9. In Ram Sajeewan case (supra), the Court has also considered the break in service or artificial break in service. Paragraph 5 of the said judgement reads as under: 5. The question is, whether break in service or artificial break in service would constitute a disability for ousting the claim of the petitioner. 9. In Ram Sajeewan case (supra), the Court has also considered the break in service or artificial break in service. Paragraph 5 of the said judgement reads as under: 5. The question is, whether break in service or artificial break in service would constitute a disability for ousting the claim of the petitioner. Rule 4 does not indicate anything, nor does it indicate that a daily wager should be in continuous service. All that Rule 4 (a) of the Rules of 2001 provides is that a person should be appointed on a daily wage basis prior to 29th June, 1991 and is continuing in service on the date of commencement of the Rules of 2001. Artificial break in service is to be ignored and cannot be taken into consideration nor does the Rule provide that the person should be in continuous service. The very nomenclature of the term “daily wager” does not indicate continuous service. 10. In Sri Ram Yadav case (supra), the question of artificial break was also considered. Paragraph 5 of the said Judgment, which reads as under: 5. The contention of the learned counsel for the petitioner is that the rejection of the petitioner’s representation on the above ground is against the record and the order is based on incorrect facts. He has placed the report of the Forest Range Officer, Kalakanker, which was submitted by him in pursuance of the letter of the Divisional Director, Social Forestry dated 25-10-2004. In the said report he had given the break up of the petitioner’s working. It shows that the petitioner has worked for 348 days in the year 1990-91, 350 days in the year 1991-92, 351 days in the year 1992-93, 355 days in the year 1993-94, 353 days in the year 1994-95 and 230 days in the year 1995-96. He has also drawn my attention to the counter-affidavit of respondents in earlier with petition No. 19670/02 filed by the petitioner, wherein it was clearly admitted by the respondents in paragraph 5 of the Counter-affidavit that the petitioner had regularly worked from the year 1978-79 to 1994-95 and had also worked for 230 days in the year 1995-96 and 180 days in the year 1996-97. Therefore, in view of the admission of respondents on record the recital in the impugned order that the petitioner had not worked for a single day between the year 1991 and 1996 is factually incorrect and against the records. Accordingly, the rejection of the representation of the petitioner on the above ground is wholly unsustainable and, as such, the impugned order deserves to be quashed. 11. In Janardan Yadav case (supra), this Court while considering the matter of regularization of a class-IV employee under the U.P. Regularization of Daily Wages Appointment on Group ‘D’ Posts Rules, 2001 has held that for the purpose of regularization, the only requirement is that the incumbent should have been appointed directly on the daily wages before 29.6.1991 and should be continued, as such, on 21.12.2001. The said rules nowhere requires that such an incumbent seeking regularization would have worked throughout continuously from the date of his initial appointment till the date of enforcement of the rules. 12. From a perusal of number of working days as mentioned by the petitioner in his writ petition as Annexure 1, which clearly shows that the petitioner was appointed earlier in the year 1984 and remained in service and worked continuously till 2002 even-after the enforcement of the Regularization Rules. The matter is remanded again to the authority concerned to reconsider the matter. In view of the above, the writ petition is allowed and the respondents are directed to reconsider the matter of the petitioner for regularization in the light of the observations made above within six weeks from the date of production of a certified copy of this order. The writ petition is accordingly allowed. —————