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2015 DIGILAW 840 (ALL)

Bhondu v. State of U. P.

2015-04-16

SUDHIR AGARWAL

body2015
JUDGMENT Sudhir Agarwal, J. 1. Writ petition has been restored to its original number vide order of date passed on recall application. As requested by learned counsel for the parties, the same is taken up for hearing and is being disposed of finally. 2. Heard learned counsel for the petitioner and perused the record. 3. The petitioner is claiming regulation having been engaged on daily wage basis in 1987 under U. P. Regularization of Daily Wages Appointments on Group 'D' Posts Rules, 2001 (hereinafter referred to as the "Rules, 2001"). However, it is admitted that on the date of commencement of Rules, 2001, i.e., 21.12.2001, no sanctioned post/ vacancy was available whereagainst petitioner may claim regulation. 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 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." (emphasis added) 5. A bare perusal thereof shows that in order to attract and consider an incumbent for regularisation three things are necessary: (1) must have employed on daily wage basis before 29.06.1991; (2) was continuing to work on the date of commencement of Rules, i.e., 21.12.2001; and (3) vacancies were available on the date of commencement of Rules against which such incumbent could have been considered for regularisation. 6. It is evident and in fact admitted by learned counsel for the petitioner that on the date of commencement of Rules, 2001 the petitioner was not in service. If that be so, he cannot be considered for regularisation under the aforesaid Rules as the same are not applicable to him. In order to attract the provisions of regularisation one must fulfil each and every aspect and condition prescribed under the regularisation rules otherwise he cannot be considered for regularisation. The Constitution Bench of the Apex Court in Secretary, State of Karnataka Vs. Uma Devi 2006(4) SCC 1 has held that for the purpose of regularisation one must satisfy the conditions prescribed in the regularisation rules very strictly since it is a kind of appointment not made in accordance with law and, therefore, have to be considered very strictly. This has been followed by the Apex Court recently in the case of State of West Bengal and others Vs. This has been followed by the Apex Court recently in the case of State of West Bengal and others Vs. Banibrata Ghosh and others, 2009(3) SCC 250 ; Council of Scientific and Industrial Research and others Vs. Ramesh Chandra Agrawal and another, 2009(3) SCC 35; State of Rajasthan and others Vs. Daya Lal & others, 2011(2) SCC 429 ; and, State of U.P. and others Vs. Rekha Rani, JT 2011(4) SC 6. 7. In view of above exposition of law and considering the facts and circumstances of the case, I do not find any merit in the writ petition. 8. Dismissed. 9. Interim order, if any, stands vacated.