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2015 DIGILAW 2992 (ALL)

Shiv Poojan Singh v. State of U. P.

2015-09-18

ANIL KUMAR

body2015
JUDGMENT Hon'ble Anil Kumar,J. Heard Sri Ramesh Kumar Srivastava, learned counsel for petitioner, Mrs. Parul Bajpai, learned State counsel and perused the record. 2. With the consent of the learned counsel for parties the Writ Petition No. 4052/SS/2014 (Shiv Poojan Singh Vs. State of U.P. and Anr.), Writ Petition No. 4053/SS/2013 (Ram Chandra Awasthi Vs. State of U.P. and Anr.) and Writ Petition No. 4054/SS/2014 (Asif Rizvi Vs. State of U.P. and Anr.) are being heard and decided together by a common judgment. 3. Facts as submitted by Sri Ramesh Kumar Srivastava, learned counsel for the petitioners are that Sri Asif Rizvi was engaged as daily wage employee in the Collectorate, Lucknow on 10.04.1989, Ram Chandra Awasthi, and Sri Shiv Poojan Singh of writ petition No. 1798/SS/2012 and writ petition No.1763/SS/2012 were engaged as daily wager employee on 20.04.1989 and 01.04.1989 respectively. 4. Later on for regularisation of their services, approached this Court by filing writ petition No. 616/SS/1999 ( Asif Rizvi Vs. State of U.P. and others) on 04.11.2003 order was passed reads as under: - "Heard learned counsel for the petitioners and the learned Standing counsel. Learned counsel for the petitioners submits that petitioner No.1 was engaged in the year 1988 and the petitioners 2 and 8 were engaged in the year 1989 on daily wage basis and they are eligible for regularization under the regularization Rules, 2001. The learned Standing Counsel is not disputing about the Rules framed by the State Government in the year 2001. The opposite party No.2 is hereby directed to consider the case of petitioners 1,2 and 8 for regularization under the provisions of the U.P. Regularization of Daily Wagers Appointment on Group D Posts Rules, 2001, within two months from the date a certified copy of this order is produced. List this petition in the month of February, 2004." 5. The opposite party No.2 is hereby directed to consider the case of petitioners 1,2 and 8 for regularization under the provisions of the U.P. Regularization of Daily Wagers Appointment on Group D Posts Rules, 2001, within two months from the date a certified copy of this order is produced. List this petition in the month of February, 2004." 5. In pursuance of the said order the case of the petitioners have been considered and rejected vide order dated 20.02.2004 passed by District Magistrate/Collector, Lucknow on the ground that on the basis of the evidence and material on record the petitioners were engaged for filling up Surahi and water cooler in the Collectorate as "Majdoor" paid remuneration for the said work, so they are not entitled for regularization of their service as per Rule 4(1)(a) of U.P. Regularization of Daily Wages Appointment on Group "D" Posts Rules, 2001( hereinafter referred to as Rules). 6. Aggrieved by the said order petitioners filed a writ petition No.616 (SS) of 1999 (Asif Rizvi and others Vs. State of U.P. and others) disposed of by order dated 12.03.2010, which reads as under: - "Heard learned counsel for the petitioners and leaned Standing Counsel. With the consent of learned counsel for the parties, I proceed to hear the matter finally. Learned counsel for the petitioners submit that the petitioners were engaged as Class IV employee on daily wage basis in the year 1988 and since then they have been working intermittently but their services have not been regularized and as such, they preferred the instant writ petition. The State of U.P. has framed Uttar Padesh Regularisation of Daily wages Appointment on Group 'D' employees in the year 1998 and the Uttar Pradesh Public Service Commission) rules, 1990 for regularization of category 'D' employees in the year 1998 and the Uttar Pradesh Regularization of Daily Wages Appointments on Group 'D' Posts Rules, 2001. On perusal of Rule 4 of the aforesaid Rules; it will be abundantly clear that a daily wage employees, who has been working on the cut off date, that is, 26th June, 1991 and has been working continuously on the proclamation of the notification of the aforesaid Rules shall be entitled for consideration of the regularization of his services. On perusal of Rule 4 of the aforesaid Rules; it will be abundantly clear that a daily wage employees, who has been working on the cut off date, that is, 26th June, 1991 and has been working continuously on the proclamation of the notification of the aforesaid Rules shall be entitled for consideration of the regularization of his services. In the instant case, the petitioners, as stated by counsel for the petitioners, has been engaged in the year 1988, though has worked intermittently, but on the cut of date i.e. 26th June 1991 as provided under the Rules they were working as daily wagers and further on coming into force of the Rules, 2001 and as such, in view of the provisions of Rule 4 of the said Rules, which specifically provides that the daily wager employees, who has been working on the cut off date and on the proclamation of the notification are entitled for consideration of regularization of his services and as such the petitioners are entitled for consideration of regularization of his services in view of the provisions of Rule 4 of the aforesaid Rules. In view of the above, without entering into the merits of the case the opposite parties are directed to consider the case of the petitioner in accordance with the provisions of the Uttar Pradesh Regularization of Daily Wages Appointments on Group 'D' Posts Rules, 2001 for regularization of their services and with regard to the payment of minimum of the regular pay-scale in accordance with law as well as the law laid down by the Apex Court and by this Court, expeditiously, preferably within three months from the date of presentation of a certified copy of this order. With these observations, writ petition is disposed of finally." 7. Thereafter petitioners filed a review petition for review of judgment and order dated 15.03.2010 passed in writ petition No. 616/SS of 1999, registered as review petition No. 173 of 2000 (Asif Rizvi and others Vs. State of U.P. and others) allowed by order dated 05.05.2010, reads as under: - "Heard learned Counsel for the applicants and learned Standing Counsel. Thereafter petitioners filed a review petition for review of judgment and order dated 15.03.2010 passed in writ petition No. 616/SS of 1999, registered as review petition No. 173 of 2000 (Asif Rizvi and others Vs. State of U.P. and others) allowed by order dated 05.05.2010, reads as under: - "Heard learned Counsel for the applicants and learned Standing Counsel. "Through the instant review petition under Section 114 and 47 Rule 1 of the Code of Civil Procedure read with Chapter V Rule 12 of the High Court Rules, the applicants have prayed that the order and judgment dated 15.3.2010 may be reviewed only to the extent that the order of rejection of the representation dated 20.2.2004 passed by the opposite party No.2 be quashed. In view of the above, the review application is allowed. The order and judgment dated 15.3.2010 is reviewed only to the extent that the order of rejection of the representation dated 20.2.2004 passed by the opposite party No. 2 is hereby quashed." 8. In pursuance of the said facts the case of the petitioner was considered, rejected by an order dated 11 November 2010 with the following observation: - --Hindi--- 9. Aggrieved by the order dated 11.09.2010 rejecting case of the petitioners for regularization, the petitioner, namely Sri Arif Risif, approached this Court for redressal of this grievances by filing Writ Petition No. 1742 (SS) of 2012 (Asif Rizvi Vs. State of U.P. And others), Shiv Poojan filed Writ Petition No. 1763/SS/2012 (Shiv Poojan Singh Vs. State of U.P. and others) and Ram Chandra Awasthi filed Writ Petition No. 1798/SS/2012 (Ram Chandra Awasthi Vs. State of U.P. and others). All the writ petitions were clubbed together and decided by order dated 26.11.2013, relevant portion quoted as under: - "Reverting to the facts of the case, the position which emerged out to the effect that petitioners are engaged prior to 29.06.1991. Further from the record produced today before the Court, it is also not in dispute that petitioners are working and discharging their duties on the post in question when the said Rules were in force on 20. December 2001. Regularization Rules 2001 have been framed under the proviso of Article 309 of the Constitution of India have statutory force. Further from the record produced today before the Court, it is also not in dispute that petitioners are working and discharging their duties on the post in question when the said Rules were in force on 20. December 2001. Regularization Rules 2001 have been framed under the proviso of Article 309 of the Constitution of India have statutory force. Hcnce 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 is based on factors which are extraneous to the statutory rules has wider ramification. Further the Court in the case reported in [2000(87)FLR179] (Jitendra and others Vs. State of U.P. and another) held as under: - "The fact that the petitioners are continuing since 1982, 1983 and 1984 and so on till date as daily wagers in the department the argument of the learned standing counsel to the effect that the petitioners were appointed or engaged for specified work stands repelled. It is the prerogative of the State Government to employe persons according to the need and for specified purpose and for specific project and scheme and in such matters, the right to hold the post may not be there after the work is completed or the period comes to an end but wherein any department, which is not a temporary nature, the employees are permitted to work continuously for 15 years or more then it can very well be presumed that they are performing work of regular and perennial nature and that they have not been engaged for specified purpose or work. The mere non-recognition of petitioners as temporary or permanent employee would not divest their right to claim absorption or regularisation in the service. The State cannot act arbitrarily and discriminatorily in the matters of appointment or granting benefit of service with respect to conditions of service which should be applicable in the case of Government servants. The mere non-recognition of petitioners as temporary or permanent employee would not divest their right to claim absorption or regularisation in the service. The State cannot act arbitrarily and discriminatorily in the matters of appointment or granting benefit of service with respect to conditions of service which should be applicable in the case of Government servants. It would also not be open for the Government in such cases where the daily wagers have been permitted to work for 15 to 20 years on a particular post to plead that there is no sanction post or there is no vacancy. The continuance of such an employee for such long period arises a presumption that the post and work exists on which such employees can be absorbed. The employees, who had devoted almost the entire youth of their life, and have a family to look after cannot be either permitted to remain in lurch throughout their service tenure, under the peeping fear of being ousted from service as their services have not been regularized nor can they be thrown on streets on the whims of the employer at this late stage of their service career. Of course, if an employee is not otherwise fit for absorption or has Incurred any disqualification or is guilty of any misconduct then he can certainly be taken care of, but in the absence of any such contingency the employee who has served for a long period, deserves to have security of job and protection in service. This security or protection can only be made available, when he is given the benefit of regularization and he becomes the member of the service." In view of the above said fact the only dispute is to be considered in the present case that whether the petitioners were engaged as daily wages employee against a group D posts as submitted by learned counsel for the petitioner, or engaged as a labourer looking into the necessity of the work in the Collectorate. Needless to mention that as per the pleading in the counter affidavit filed on behalf of the State that petitioners have been engaged as daily wager employee looking into the necessity of the work at Collecorate, Lucknow for filling up pots and water cooler. Needless to mention that as per the pleading in the counter affidavit filed on behalf of the State that petitioners have been engaged as daily wager employee looking into the necessity of the work at Collecorate, Lucknow for filling up pots and water cooler. In view of the said fact as well as the fact that Sri Asif Rizvi, Sir Shiv Poojan Singh and Ram Chandra Awasthi are working and discharging their duties in the Collectorate since 15.04.1989, 06.09.1989 & 14.04. 1989 respectively and further they are paid minimum wages. So in the interest of justice the matter needs reconsideration at the end of the opposite party No.2 to consider the case of the petitioners for regularization of services on group D Posts in the Collectorate, Lucknow, in view of the observation made herein above." 10. Lastly by order dated 03.04.2014 District Magistrate, Lucknow rejected the case of the petitioners for regularization on the following grounds: - ---Hindi--- 11. Sri Ramesh Srivastava, learned counsel for petitioner, while challenging the impugned order submits that the reasoning given by the District Magistrate/Collector, Lucknow, rejecting the case of the petitioners for regularization of their services is contrary to the law as laid down by this Court in the case of Janardan Yadav Vs. State of U.P. & others, 2008 (2) ESC 1359 and Pakhandi Vs. State of U.P. And others, 2014 (1) UPLBEC 279 as well as direction given by this Court by an order dated 26.11.2013, so the same is liable to be set aside. 12. Mrs. Parul Bajpai, learned State counsel on the basis of material on record/counter affidavit submits that as the petitioners are engaged as daily wagers labourer, not against the substantive post and they had not worked continuously, the reasoning given by competent authority in the order dated 03.04.2014 rejecting the case for regularization is perfectly valid as per regularization Rules, so there is no illegality or infirmity in the impugned order dated 03.04.204, writ petitions liable to be dismissed. 13. I have heard learned counsel for party and gone through the record. 14. This Court in the case of Pakhandi (supra) after placing reliance on the judgment of Janardhan Yadav (supra) held as under: - "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. 14. This Court in the case of Pakhandi (supra) after placing reliance on the judgment of Janardhan Yadav (supra) held as under: - "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 29.06.1991 and continued to be engaged as daily wage employee on 21.12.2001. This fact as such is not disputed by the respondents. 5. 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 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 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. (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." 6. 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. & others, 2008 (2) ESC 1359 and this Court in paras 5, 6 and 8 of the judgement 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(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. . . . . . . . . . . . 6. 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 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. 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." 7. 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." 7. 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. 8. 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." 15. From the perusal of the aforesaid judgment, the position of law on the point in question which emerged out that the 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. 16. Further, the Regularization Rules, 2001 which has 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 on 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. 17. Exercise of such powers based on factors which are extraneous to the statutory rules has wider ramification. In the instant case, the reasoning which is given by the respondent No. 2/Collector, Lucknow rejecting the case of the petitioner for regularization is de hors to the provisions as provided under Rule 4 of the Regularization Rules. 18. So far as the argument advanced by learned State counsel while defending the impugned order submits that petitioners were engaged as a daily labourer looking into the necessity of work exists in the Collectoriat from time to time filling of Surahi and Water Coolers etc. 18. So far as the argument advanced by learned State counsel while defending the impugned order submits that petitioners were engaged as a daily labourer looking into the necessity of work exists in the Collectoriat from time to time filling of Surahi and Water Coolers etc. thus, they are not engaged against any substantive post which belong to Group-D category, so there are not entitle for regularization of services as per Rule 2001 is contrary to law as laid down by this Court in the case of Pakhandi (Supra). 19. For the foregoing reasons, the impugned order dated 03.04.2014 passed by respondent No. 2/District Magistrate, Lucknow is set aside and the District Magistrate, Lucknow is directed to re-examine the matter in issue, in the light of the observations made hereinabove. The said exercise shall be done by him expeditiously, say, within a period of eight weeks from the date of receiving certified copy of this order. 20. With the above observations, all the writ petitions are allowed.