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2017 DIGILAW 259 (ALL)

RASHMI BHATNAGAR v. STATE OF UTTAR PRADESH

2017-01-18

SANGEETA CHANDRA, V.K.SHUKLA

body2017
ORDER : 1. Rashmi Bhatnagar is before this Court, assailing the validity of the judgement and order dated 29th November, 2010 passed by learned Single Judge in Civil Misc. Writ Petition No. 78821 of 2005 (Rashmi Bhatnagar v. State of U.P. and others) wherein learned Single Judge has proceeded to non-suit the claim of the petitioner-appellant on the premises that petitioner-appellant was ineligible for according benefit of regularization and accordingly, the regularization in question has rightly been refused by the Authority concerned. 2. The factual matrix of the case in brief is that petitioner had been engaged on daily wage basis for the period starting with effect from 01.01.1991 to 18.10.1992 and at the relevant point of time, petitioner-appellant claims to have worked in the office of Deputy Director, Horticulture & Food Preservation, Allahabad Division, Allahabad, and it appears that her services in question on being disengaged, led to raising of an industrial dispute and the matter travelled before the Labour Court wherein the Labour Court in Adjudication Case No. 25/1993 proceeded to pass an award on 31.7.1996, declaring the dispensation/termination of services to be illegal and as such she was directed to be reinstated with all consequential benefits. The said award was subjected to challenge before this Court by the employers by means of Writ Petition No. 25283 of 1997 and the said award in question of the Labour Court, has been affirmed as the writ petition in question has been dismissed on 28.2.2000. 3. Petitioner-appellant, based on the award in question, continued to serve the establishment in question and thereafter, it appears as the human nature is, the petitioner/appellant intended that she be extended the benefit of regularization and in this direction, petitioner came to file Civil Writ Petition No. 49939 of 2004 and this Court on 24th November, 2004, asked the respondent no. 2, Director of Horticulture & Food Preservation, Lucknow to consider the claim of the petitioner-appellant for regularization in accordance with law within two months from the date of production of certified copy of this order filed before him. 4. 2, Director of Horticulture & Food Preservation, Lucknow to consider the claim of the petitioner-appellant for regularization in accordance with law within two months from the date of production of certified copy of this order filed before him. 4. Thereafter, the claim of the petitioner-appellant for regularization has been considered on the parameters of U.P. Regularization of Daily Wages Appointment on Group 'C' Posts (Outside the Purview of U.P.P.S. Commission) Rules, 1998 and had been rejected by the Director after recording a finding that the petitioner-appellant was not possessed of prescribed qualifications for the post of Supervisor. This action of the Director led the petitioner-appellant to file the Writ Petition No. 78821 of 2005 and the said writ petition in question has also been dismissed with the finding that the petitioner-appellant is ineligible to be extended the benefit of regularization and accordingly, the matter has come up before us. 5. Sri C.K. Parekh, Advocate appearing for the petitioner-appellant contended before us that both the Director as well as Learned Single Judge have erred in law in applying the eligibility criteria that was prescribed by means of U.P. Horticulture & Food Processing Sub-ordinate Services Rules, 1993 whereas the eligibility of petitioner-appellant was to be seen in context of the date of appointment that has been holding the field of engagement at the said point of time and accordingly matter requires re-visiting by the Director concerned at the earliest. 6. Learned Standing Counsel on the other hand contended that rightful decision has been taken by the Director as well as learned Single Judge in the matter, as such no interference whatsoever should be made. 7. In order to appreciate respective arguments that have been so advanced before us, we proceed to examine the provisions of Rule 4 of the U.P. Regularization of Daily Wages Appointment on Group 'C' Posts (Outside the Purview of U.P.P.S. Commission) Rules, 1998 which reads as follows: 4. Regularisation of Daily Wages Appointment on Group 'C' Posts. 7. In order to appreciate respective arguments that have been so advanced before us, we proceed to examine the provisions of Rule 4 of the U.P. Regularization of Daily Wages Appointment on Group 'C' Posts (Outside the Purview of U.P.P.S. Commission) Rules, 1998 which reads as follows: 4. Regularisation of Daily Wages Appointment on Group 'C' Posts. (1) Any person who- (i) was directly appointed on daily wage basis on Group 'C' posts in the Government service before June 29, 1991 and is continuing in service as such on the date of commencement of these rules ; and (ii) Possessed requisite qualifications prescribed for regular appointment for that post at the time of such appointment under the relevant service rules on daily wages basis, shall be considered for regular appointment on Group 'C' post in permanent of temporary vacancy as may be available 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. A bare perusal of the Rules quoted above would go to show that in order to consider for extending the benefit of regularization, an incumbent who has been directly appointed on daily wage basis on Group-'C' posts in the Government Service before June 29, 1991 and is continuing in service as such on the date of commencement of these rules, then in that event, claim is liable to be considered for regularization, provided he/she possessed requisite qualification prescribed for regular appointment for that post at the time of such appointment under the relevant service Rules on daily wage basis. Here from the record and the Order passed by the learned Single Judge, this much is reflected that claim of petitioner-appellant has been considered in reference to the criteria that has been prescribed under U.P. Horticulture Service Rules, 1993, and not at all in reference to the date i.e. 1.1.1991 when petitioner had been appointed for the first time on daily wage basis. 9. 9. Once, claim of the petitioner-appellant was being considered for extending the benefit of regularization, then fact of the matter is that as to whether petitioner-appellant fulfilled pre-requisite criteria for extending the benefit of regularization, then the eligibility parameter that was prescribed when the appointment has been made had to be seen and not at all in reference of Rules, namely, U.P. Horticulture & Food Processing Sub-ordinate Service Rules, 1993 that has been introduced subsequent to the same. 10. Once such is the factual situation that claim of the petitioner-appellant has been decided and tested on the principle that was not at all correct criteria, then the decision making process is wrong on the face of it, then in our considered opinion, the matter requires revisiting by the Director. 11. Consequently, order dated 10.03.2005 passed by the Director of Horticulture & Food Preservation, Lucknow and Order dated 29.11.2010 passed by the learned Single Judge are hereby quashed and set aside and we proceed to ask the Director of Horticulture & Food Preservation, Lucknow to revisit the matter in accordance with law, preferably within a period of next three months from the date of production of certified copy of this order. At the point of time, when the claim of petitioner-appellant is to be considered, the Director of Horticulture & Food Preservation, Lucknow should keep in mind that eligibility criteria of petitioner is to be seen qua the point of time when she was offered appointment as envisaged at the said point of time under Service Rules and not vis-a-vis the subsequent Rules. 12. Coupled with this, during the course of argument, it has been contended before us that even as on date Rashmi Bhatnagar-appellant is being continued on the aforesaid post on meagre sum, and accepting for the sake of argument that the benefit of regularization is not admissible, even then minimum pay scale should be extended to her in view of judgement rendered by Apex Court in the case of State of Punjab v. Jagjit Singh in Civil Appeal No. 213 of 2013 decided on 26.10.2016. Consequently, at the point of time of considering the claim of the petitioner-appellant for extension of benefit of regularization, the claim of petitioner-appellant for grant of minimum pay scale should also be considered within the same time period. 13. With the above, present Special Appeal stands allowed. No order as to cost.