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2015 DIGILAW 2862 (ALL)

Inayatullah Siddiqui v. State of U. P.

2015-09-11

ANIL KUMAR

body2015
JUDGMENT Anil Kumar, J. Heard Shri S. A. Khan, learned counsel for the petitioner, learned Standing Counsel and perused the record. 2. Facts in brief of the present case are that the petitioner was initially appointed as Daily Wager Employee on 07.12.1980 on the post of Maali in Mohali Unit of Sitapur. By order dated 20.02.1990, his services were orally terminated. 3. Aggrieved by the same, the labour dispute has been arisen between the parties and the matter has come up before the Labour Court, U.P., Lucknow in I. D. Case No.171 of 1992. Labour Court has passed an award dated 01.11.1994, relevant portion of the same quoted herein below : - ---Hindi--- 4. An award dated 01.11.1994 passed by Labour Court was challenged by the official respondent/Dy. Director Avadh Forest Division by filing Writ Petition No.2163 (SS) of 1995, dismissed by order dated 10.12.2010 passed by this Court, which on reproduction reads as under : - "C.M.Application No.125412 of 2010. This is an application for correction/ modification of order dated 22.9.2010 passed by this Court. Heard. Cause sufficient. The application is allowed. The order dated 22.9.2010 is corrected. The corrected order is reproduced as under: - This is a matter expedited by Hon'ble Single Judge within two months. The learned Standing Counsel has argued that the award dated 1.11.1994 impugned as Annexure no. 1 is not based on correct appreciation of facts. The petitioner was not a regular employee and the termination of the petitioner was valid and legal. The petitioner was working on the post of 'Mali' in the Maholi Unit of Sitapur. He has further argued that petitioner had not completed 240 days in a year hence the provisions of Industrial Disputes Act are not applicable to the petitioner. Counsel for the opposite party has drawn the attention of the court towards paragraph no. 5 of the award in which it has been clearly mentioned that sufficient time was granted to the opposite party to produce the muster-roll which they did not bring before the court. According to the Exhibit w-10 which was a certificate given by the Divisional Forest officer it was proved that the petitioner had definitely worked till February 1989. The petitioner had completed 353 days, as such, he had completed more than 240 days in a calendar year. According to the Exhibit w-10 which was a certificate given by the Divisional Forest officer it was proved that the petitioner had definitely worked till February 1989. The petitioner had completed 353 days, as such, he had completed more than 240 days in a calendar year. Accordingly, it was incumbent upon the opposite party to have given him a notice or one month's salary in lieu thereof but nothing was done. The petitioner also established that the opposite parties had appointed one Rajneesh Kumar Pandey in his place. This fact could not be denied by the opposite parties by their written statement filed before the labour court. The appointment of Rajneesh Kumar Pandey further proves that there was work available and it can not be said that work of the department had come to an end. The case law cited by the employers was also successfully distinguished by the labour court. After going through the order of the Industrial Tribunal I come to the definite conclusion that there is no illegality in the award, therefore, the award is upheld. The writ petition is dismissed. Any interim order against the respondent no. 1 is vacated. Necessary consequences to follow." 5. It is submitted on behalf of the petitioner that the judgment and order dated 10.12.2010 passed in Writ Petition No.2163 (SS) of 1995 was affirmed by Hon'ble the Apex Court. In spite of the said fact, the case of the petitioner for regularization of his services on the post in question has not been considered as per Rules known as U.P. Regularization of Daily Wages Appointment on Group 'D' Posts Rules, 2001 (hereinafter referred to as Rules). 6. On behalf of the respondents, learned Standing Counsel submits that as the petitioner was not working on the post in question on 21.12.2001 when Rules 2001 came into force, so, he is not entitled for regularization of his services on the post of Maali as per Rule 4 of Rules, 2001 because Labour Court has passed the award later on. 7. Rule 4 of U.P. Regularisation of Daily Wages Appointment on Group 'D' Posts Rules, 2001 reads as under: - "4. 7. Rule 4 of U.P. Regularisation of Daily Wages Appointment on Group 'D' Posts Rules, 2001 reads as under: - "4. Regularization 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 in 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." 8. While interpreting the Rule 4 of the Rules, 2001, in order to get the regularisation of services by an employee, this Court in the case of Janardan Yadav Vs. State of U.P., 2008 (1) UPLBEC 498 , 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. 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 wane basis." 9. In the instant matter, it is not in dispute that by virtue of the award dated 01.11.1994 passed by Labour Court in I. D. Case No.171 of 1992, the services of the petitioner has been continued as Daily Wager Employee on the post of Maali . The said award has been upheld by this Court in Writ Petition No.2163 (SS) of 1995. 10. Accordingly, the stand taken by the official respondent thereby not regularizing the case of the petitioner on the post of Maali on the ground that he was not working on the post of Maali as a daily wager employee on 21.12.2001 is contrary to the award given by the Labour Court upheld by this Court as well as Hon'ble the Apex Court. 11. 11. For the foregoing reasons, the writ petition is allowed with a cost of Rs.10,000/- with the direction that the opposite party no.3/Chief Conservator of Forest, Lucknow Division, Lucknow shall consider and decide the case of the petitioner for regularization of his services on the post of Maali in the Forest Department, U.P. as per Rule 4 of U.P. Regularisation of Daily Wages Appointment on Group 'D' Posts Rules, 2001 and keeping in view the observations made herein above. The said exercise shall be done by the authority concerned within a period of eight weeks.