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2018 DIGILAW 553 (ALL)

Ashok Babu Pandey v. State of U. P.

2018-03-06

VIVEK KUMAR BIRLA

body2018
JUDGMENT : Vivek Kumar Birla, J. 1. Heard Sri Pradeep Kumar, learned counsel for the petitioner as well as learned Standing Counsel appearing for the State respondents and perused the record. 2. Pleading between the parties have been exchanged and with their consent, the present petition is being decided finally at the admission stage itself. 3. Present petition has been filed challenging the impugned order dated 28.5.2012 passed by the respondent no. 3. A further prayer in the nature of mandamus has been made to direct the respondents to permit the petitioner to work as regular employee as other tube well operators have been regularized. 4. By the impugned order, the representation of the petitioner regarding regularization has been rejected on the ground that Nal Koop Chalak cadre has been declared a dying cadre and that the representation was received at a belated stage. 5. Submission of the learned counsel for the petitioner is that initially services of fifteen part time tube well operators were terminated vide order dated 21.4.1990. Ten such aggrieved persons have filed a writ petition being Writ Appeal No. 10388 of 1990, Kranti Singh and Others vs. Executive Engineer Lift Irrigation Division and Another (including the petitioner whose name stood at serial no. 9). In the aforesaid petition, a supplementary counter affidavit dated 6.9.2011 was filed wherein identical grounds as taken in the impugned order that representation of the petitioners was received vide letter dated 4.12.1999 and 6.4.2002 at a belated stage, were taken and therefore, he was not working and that part time tube well operator cadre was declared a dying cadre. This fact was taken note of by this Court while disposing of the above Writ A No. 10388 of 1990 vide order dated 14.3.2012 by condoning the delay and permitted the petitioner to file an application before the respondent no. 1 for regularization at par with other petitioners. Submission is that under such circumstances, case of the petitioner is liable to be considered at par with other petitioners, who were regularized by the department on their own during the pendency of the aforesaid writ petition being Writ Appeal No. 10388 of 1990. 1 for regularization at par with other petitioners. Submission is that under such circumstances, case of the petitioner is liable to be considered at par with other petitioners, who were regularized by the department on their own during the pendency of the aforesaid writ petition being Writ Appeal No. 10388 of 1990. It was additionally pointed out that as a matter of fact the part time tube well operators were treated as regularly working tube well operators and in this regard the Labour Court directed that the part time tube well operators be paid the same salary (prospectively) as was being drawn by the regular tube well operators. This was carried out to Hon'ble Apex Court wherein special leave petition filed by the State against the order of High Court as well as labour court was dismissed. Submission, therefore, is that there is no ground for rejecting the representation of the petitioner. 6. Learned counsel for the petitioner has further drawn attention of this Court to annexure no. 1 to the rejoinder affidavit, which is an order passed by the Executive Engineer whereby certain tube well operators whose appointment raised from 1994 to 2011 have been made permanent in the year 2014. Submission, therefore, is that the case of the petitioner is still liable to be considered and allowed. 7. Per contra, learned Standing Counsel appearing for the State respondents has supported the impugned order and submitted that since the petitioner was not working whereas other petitioners have moved their representation for reinstatement and while allowing their representation they were permitted to work in the department and since they were working continuously, therefore, they were covered under the regularization rules and the petitioner's representation was filed after coming into force the regularization rules and that the petitioner was not working and as such, his claim has rightly been rejected. 8. I have considered the rival submissions and perused the record. 9. On perusal of the record, I find that in the supplementary counter affidavit filed in earlier writ petition being Writ Appeal No. 10388 of 1990 identical grounds have been taken by the respondents and thereafter it was directed that there was no justification for not treating the petitioner (petitioner no. 9) similarly only because a separate application for the said purpose has not been filed by him. 9) similarly only because a separate application for the said purpose has not been filed by him. For ready reference, paragraph 3 of the supplementary counter affidavit filed by the respondent no. 1 dated 6.9.2011 in the earlier writ petition is quoted as under: 3. That in reply to the allegations made in paragraph 7 and 8 of the supplementary rejoinder affidavit it is stated that the petitioner no. 9 has not been discriminated. In fact, the representations filed by Sri Ashok Babu Pandey, the petitioner no. 9 have been received through superior authority along with letter dated 4.12.99 and 6.4.2002 at the belated stage, although, the representations of following five petitioners were received on the dates mentioned in the present paragraph and consequently they were appointed on different dates. The names, dates of representations and dates of appointment of five petitioners are as follows: In further reply it is stated that in the government order dated 12.4.1999, it is provided that:- Hence firstly the representation of the petitioner no. 9 Sri Ashok Babu Pandey were received along with letters dated 4.12.99 and 6.4.2002 in the office of the deponent and secondly the cadre of Tube-well operator/part time tube operator was declared as dying cadre, hence the petitioner no. 9 could not be appointed. The photo stat copies of the representations of petitioner no. 9 along with letters dated 4.12.99 and 6.4.2002, copies of the representations of five petitioners and their appointment letters and the Government Order dated 12.4.99 are being filed herewith and marked as Annexure 1 collectively to this supplementary counter affidavit." 10. In the light of the aforesaid assertion, it is also necessary to take into account the order dated 14.3.2012 passed in Writ Appeal No. 10388 of 1990, Kranti Singh and Others vs. Executive Engineer Lift Irrigation Division and Another, which is quoted as under:- "I have heard learned counsel for the parties and have examined the records. The interim order passed in this writ petition reads as follows: "Three weeks further time is granted to the Standing Counsel for filing counter affidavit List in the last week of August 1990. Supplementary affidavit be taken on record. The interim order passed in this writ petition reads as follows: "Three weeks further time is granted to the Standing Counsel for filing counter affidavit List in the last week of August 1990. Supplementary affidavit be taken on record. If the petitioners' termination order has not been made effective and if they are rendering work of Tube-well Operators they shall be paid salary for the work which they have already rendered and for which they have not been paid salary." This Court finds that the only reason stated by the respondents for not regularizing the petitioner no. 9 only is that he did not make an application as was made by the other nine petitioners of this petition. The stand so taken appears to be too technical. The petitioner no. 9 and other petitioners were similarly situated and their claim for regularization is pending consideration before this Court since 1990. There is little or no justification for not treating the petitioner no. 9 similarly only because a separate application for the said purpose had not been filed by him. In view of the aforesaid the present writ petition is disposed of by permitting the petitioner no. 9 to file an application before respondent no. 1 for regularization at par with other petitioners. The respondent no. 1 shall decide the same by means of a speaking order within eight weeks from the date the application is filed along with a certified copy of this order is filed before him." 11. On perusal of the aforesaid order, it is very much clear that the stand taken by the petitioner has been considered by this Court and a positive observation has been made that there is no justification for discriminating the petitioner and his application for regularization is also to be treated at par with the other petitioners. 12. In such view of the matter, when the grounds that have been taken in the impugned order have already been considered by this Court and rejected and observation was given in favour of the petitioner, the impugned order dated 28.5.2012 passed by the respondent no. 12. In such view of the matter, when the grounds that have been taken in the impugned order have already been considered by this Court and rejected and observation was given in favour of the petitioner, the impugned order dated 28.5.2012 passed by the respondent no. 3 is not sustainable in the eye of law and case of the petitioner is liable to be considered as the petitioner is at par with the other petitioners who have applied prior to coming into force the regularization order and by ignoring with the fact that there had been delay in filing the representation before the concerned authority. 13. It may also be noticed that an interim order grated by this Court in the earlier writ petition was continuing and as such, there is no justification for rejecting the claim of the petitioner on the same grounds, which have already been held to be not justified by this Court in its earlier order 14. Accordingly, present petition stands allowed. The impugned order dated 28.5.2012 passed by the respondent no. 3 is set aside. The matter is remanded back to the respondent no. 2 for passing fresh reasoned and speaking order within a period of two months from the date of production of certified copy of this order.