Research › Search › Judgment

Allahabad High Court · body

2017 DIGILAW 827 (ALL)

RAKESH CHANDRA v. STATE OF U. P.

2017-03-23

DEVENDRA KUMAR ARORA

body2017
JUDGMENT Hon’ble Dr. Devendra Kumar Arora, J.—Heard Sri A.P.Singh, learned Counsel for the petitioner and Sri Badrul Hasan, Additional Chief Standing Counsel. 2. Feeling aggrieved by the oral termination and non-regularization on the post of Peon on which, it is said that petitioner was working in Government Inter College,Unnao, he has filed the instant writ petition inter alia on the ground that petitioner had worked as daily rated Peon for the last more than 13 years, but he has been denied regularization and has also asserted that his claim has wrongly been rejected vide order dated 23.7.2002. According to the learned Counsel for the petitioner Rules relating to regularization of daily rated Group ‘’D’ employee has been notified in the year 2001 whereby cut off date i.e. 20.6.1991 has been prescribed for regularization and the Government Order has also been issued on 8.9.2010 whereby and whereunder it has been provided that the daily rated employees shall be regularized and if there is no post, supernumerary post be created. Therefore, the action of the respondents in denying the benefit of regularization is wholly unjust and illegal and to strengthen his arguments, reliance has been placed on a judgment rendered by this Court in the case of Munna Lal v. State of U.P. and others, 2016(34)LCD 1382. 3. Refuting the allegations of the petitioner, learned Additional Chief Standing Counsel has vehemently argued that the petitioner was not engaged by the competent authority by a written order rather he was engaged as Part Time Worker on honorarium basis. No work has been taken from the petitioner continuously or without interruption. It has further been pointed out that against the regular and substantive post of class IV, the regular incumbents are already working and no post is available or vacant in the college against which, his services could be regularized. In these circumstances, there is no question of regularizing services of the petitioner and to allow him to work against a regular post. 4. At the out-set, I would like to mention that during the pendency of the writ petition, the petitioner moved an application for amendment in August, 2013 challenging an order which was passed around 11 years ago i.e. the order dated 23.7.2002 passed by the Director of Education, whereby the representation of the petitioner was rejected. 4. At the out-set, I would like to mention that during the pendency of the writ petition, the petitioner moved an application for amendment in August, 2013 challenging an order which was passed around 11 years ago i.e. the order dated 23.7.2002 passed by the Director of Education, whereby the representation of the petitioner was rejected. In the affidavit filed in support of the application for amendment, no explanation has been offered with regard to delay of 11 long years in assailing the order dated 23.7.2002. However, without entering into this aspect of the matter, I proceed to decide the matter on merits. 5. Having considered the material on record, one thing is crystal clear that the petitioner is not working in the College after December, 2000. It also transpires from the record that in compliance of the order dated 10.1.2001 of this Court, the Director of Education, U.P. had considered the representation but the same was rejected by a speaking order dated 23.7.2002 clearly mentioning therein that the work was taken from the petitioner according to necessity of the College and he has been paid wages for the work till December, 2000. From January, 2001 till date, no work has been taken from the petitioner. The petitioner has failed to point out that he was engaged by a written order and he continued to work regularly rather from the record it emanates that the petitioner was engaged in exigency of service as a part timer. Therefore, the claim of the petitioner for regularization is untenable. As far as the applicability of the judgment in Munna Lal’s case is concerned, in that case regularization was denied on the ground that there were breaks in his service whereas in the instant case neither any appointment letter was issued in favour of the petitioner engaging him on the post of Peon nor any service book was ever prepared as alleged by him. Therefore, the said case is of no avail to the petitioner. 6. Therefore, the said case is of no avail to the petitioner. 6. At this juncture, it may be pointed out that a question cropped up as to whether by issuing executive orders, or certain guidelines, a regularization is permissible where recruitment is not consistent with Article 16, and, in Accounts Officer (A&I) APSRTC and others v. P. Chandra Sekhara Rao and others, 2006 (7) SCC 488 , it was held that no regularization is permissible even in exercise of powers conferred under Article 162 of the Constitution if the appointment has been made in contravention of the statutory rules or Article 16 of the Constitution. Earlier even in State of Haryana and others v. Piara Singh and others, AIR 1992 SC 2130 , the Apex Court declined to accept the contention that general directions can be issued by the Court for regularization observed as under: “The Court cannot obviously help those who cannot get regularized under these details, for their failure to satisfy the conditions prescribed therein. Issuing general declaration of indulgence is no part of our jurisdiction. In case of such persons we can only observe that it is for the respective Governments to consider the feasibility of giving them appropriate relief, particularly in case where persons have been continuing over a long number of years, and were eligible and qualified on the date of their ad hoc appointment and further whose record of service is satisfactory.” 7. In view of the above discussed authoritative pronouncements, it is too late in the day to direct for regularization of an employee, who was engaged as a part-timer,without any selection process and without complying the requirement of Article 16 of the Constitution and the procedure for regular appointment. 8. At this stage it would be appropriate to consider another argument raised by the learned counsel for the petitioner that having worked for several years, denial of regularization to the petitioner would be illegal and arbitrary since the security of tenure after such a long time is necessary for an employee, otherwise the action of the employer would be illegal. However, the submission has to be rejected as in Secretary, State of Karnataka and others v. Umadevi and others, 2006 (4) SCC 1 , the Constitution Bench of the Apex Court has categorically held that an engagement/appointment not made in consistent with Article 16 of the Constitution cannot be regularized. However, the submission has to be rejected as in Secretary, State of Karnataka and others v. Umadevi and others, 2006 (4) SCC 1 , the Constitution Bench of the Apex Court has categorically held that an engagement/appointment not made in consistent with Article 16 of the Constitution cannot be regularized. The said declaration of law is applicable irrespective of any length of service since an appointment made in violation of Article 16, is void. A similar issue came for consideration in Principal Mehar Chand Polytechnic and another v. Anu Lamba and others, JT 2006 (7) SC 322, where also the direction was issued by the High Court to consider regularization of the workers since they have continued for long time i.e. ten years and more. In the appeal preferred by the employer, the employees argued that long period of engagement itself is sufficient to warrant a direction for regularization of service. Negativing the said contention, the Apex Court held that in the absence of any legal right such direction cannot be issued. 9. For the reasons aforesaid, the writ petition lacks merits and is hereby dismissed. Costs easy.