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Allahabad High Court · body

2019 DIGILAW 736 (ALL)

Dinesh Kumar v. State of U. P.

2019-03-15

SAURABH LAVANIA

body2019
ORDER : Saurabh Lavania, J. 1. By means of the present writ petition, the petitioners have challenged the order dated 22.04.2017 whereby, the claim of the petitioners for regularization of services on Group 'D' Post has been rejected by the opposite party No. 2- Chief Development Officer, District Unnao and also sought the relief for grant of minimum of pay scale. 2. The facts, in brief, of the case are that earlier the petitioner approached this Court by means of the Writ Petition No. 6068 (SS) of 2013 on the issue of regularization of their services and this Court, as an interim measure, vide order dated 09.10.2013, permitted the petitioners to move a representation before the opposite party No. 3 for redressal of grievance and the opposite party No. 3 was directed to consider and dispose of the representation of the petitioners by a reasoned and speaking order. 3. Pursuant to order dated 09.10.2013, the petitioners preferred a representation before the opposite party No. 3 and in compliance of order dated 09.10.2013, the opposite party No. 3 considered the representation of the petitioner for regularization and rejected the same vide order dated 09.12.2013. 4. The petitioners challenged the order dated 09.12.2013 by amending the writ petition. The writ petition No. 6068 (SS) of 2013 was finally disposed of vide order dated 22.08.2016 with direction to the opposite party No. 2 to consider the grievance of the petitioners, which relates to regularization of services of the petitioners on Group-D Post, within a period of four months from the date of communication of order. In compliance of the order dated 22.08.2016 passed by this Court in Writ Petition No. 6068 (SS) of 2013, the opposite party No. 2 considered the claim of the petitioners for regularization on Group-D Post and rejected the same vide impugned order dated 22.04.2017. 5. With regard to the claim of regularization, the case of the petitioners is that the petitioner Nos. 1, 2 and 3 were engaged as daily wager on 09.04.1990, 01.04.1991 and 27.04.1998 as Mali, Electrician and Waterman respectively and since their initial engagement they are continuing as daily wager till date and opposite party No. 2 has wrongly rejected the claim of the petitioners for regularization. The petitioners are fully entitled for regularization and the petitioners are also entitled to the minimum of pay scale. 6. The petitioners are fully entitled for regularization and the petitioners are also entitled to the minimum of pay scale. 6. The fact of initial engagement of the petitioners is evident from the table appended to the letter No. 2920/ ukftj¼fo-½nS-os-deZ@ 2014-15 dated 20.12.2014 (Annexure No. 13 to the writ petition) sent to Commissioner, Gram Vikas, Uttar Pradesh. The engagement of the petitioners with effect from the date mentioned hereinabove, is also evident from the Annexure No. 2 to the writ petition which is duly signed by Executive Engineer, Rural Engineering Service, Prakhand-Unnao/Opposite Party No. 4. 7. In the counter-affidavit filed by the opposite parties, it has been stated that the petitioners were engaged on daily wages for maintenance and cleanliness of Vikas Bhawan and were paid from the maintenance fund of Vikas Bhawan by the opposite party No. 4 and from 31.10.2012, the payment of wages for which work of maintenance of Vikas Bhawan is being done by opposite party No. 3. In paras 6, 7 and 8 of the counter-affidavit, it has also been stated that the petitioners were engaged on daily wages and are being paid wages with increase in wages from time-to-time. 8. It has also been stated in the counter-affidavit that the post of Mali, Electrician and Waterman is not available in the Department of Rural Development and due to the same, the petitioners are not entitled to the regularization. 9. It has also been stated in the counter-affidavit that the case of the petitioners are not covered under the Government Order dated 24.02.2016. 10. In the rejoinder affidavit to the counter-affidavit filed by the opposite parties, the petitioners have reiterated their earlier stand. 11. Assailing the order dated 22.04.2017, the submission of counsel for the petitioners is that the opposite party No. 3 has rejected the claim of the petitioners for regularization in an arbitrary manner and without considering the Government Order dated 24.02.2016 as well as the U.P. Regularization of Persons Working on Daily Wages or on Work Charge or on Contract in Government Departments on Group 'C' and Group 'D' Posts (Outside the Preview of the Uttar Pradesh Public Service Commission) Rules, 2016, (in short "Rules of 2016") in its true spirit. 12. 12. Further submission of the counsel for' the petitioners is that after admitting the engagement of the petitioners as daily wager and also admitting the fact that the petitioners were called with nomenclature as Mali, Electrician and Waterman and the claim of the petitioners for regularization has been rejected on the ground that the post of Mali, Electrician and Waterman is neither created nor available in the Department and a contrary finding has also been recorded while rejecting the claim of the petitioners that the petitioners were never engaged as daily wager/work charge/contract basis. 13. The finding recorded for rejecting the claim of the petitioners, is unsustainable as the petitioners were engaged on daily wages and this is undisputed fact and petitioners are still working as daily wager and accordingly, the petitioners are entitled for regularization under "Rules of 2016" on Group-D Post. 14. Per contra, the counsel for the opposite parties submits that the petitioners are not entitled for regularization on Group-D Post of Mali, Electrician and Waterman is not available in the Department of Rural Development. 15. On query being made, the counsel for the opposite parties, on the basis of the contents of the counter-affidavit, could not dispute the fact that the petitioners were engaged on daily wages, as mentioned in the letter dated 20.12.2014 of opposite party No. 3, which relates to engagement of petitioner Nos. 1, 2 and 3 as daily wager on 09.04.1990, 01.04.1991 and 27.04.1998 respectively with the opposite parties. 16. Considered the pleadings on record and submissions made by the counsel for the parties. 1, 2 and 3 as daily wager on 09.04.1990, 01.04.1991 and 27.04.1998 respectively with the opposite parties. 16. Considered the pleadings on record and submissions made by the counsel for the parties. This Court has to scrutinize the validity of the order dated 22.04.2017 passed by opposite party No. 2, in the facts of the case, accordingly, the relevant portion of the order dated 22.04.2017 is reproduced as under:- ^^ekuuh; mPp U;k;ky; [k.M ihB y[kuÅ ds vkns'k fnukad 22-08-16 ds leknj esa ;kphx.k Jh 'kchgqy glu tSnh ¼bySfDVªf'k;u½] Jh fnus'k dqekj ¼ekyh½ o Jh eukst dqekj ¼okVjeSu½ }kjk izLrqr fd;s x;s rF;ksa o lk{;ksa rFkk 'kklukns'k la[;k 9@20016@os0vk0&2&201@nl&2016&8 ¼eq0l0l0@2011 Vh0lh0 fnukad 24] Qjojh 2016 ij lE;d fopkj fd;k x;kA fopkjksijkUr ;g ik;k x;k fd Jh 'kchgqy glu tSnh ¼bySfDVªf'k;u½] Jh fnus'k dqekj ¼ekyh½ o Jh eukst dqekj ¼okVjeSu½ dks fodkl Hkou ds vuqj{k.k lEcU/kh dk;ksZa ds lEiknu gsrq lkekU; dk;Z o vuqHko ds vk/kkj ij nSfud etnwjh ij dk;Z djk;k x;kA ekg ds dk;Z fnolksa ds vk/kkj ij bu ;kph x.kksa dks nSfud etnwjh dk Hkqxrku fd;k x;k gSA rRdkyhu eq[; fodkl vf/kdkjh o ftyk fodkl vf/kdkjh }kjk fofHkUu i=ksa es lkekU; iz'kklfud dk;ksZa ds lEiknu gsrq ;kphx.k Jh 'kchgqy glu tSnh] Jh fnus'k dqekj rFkk Jh eukst dqekj dh lsok,a nSfud etnwjh ds vk/kkj ij yh x;h gSA bySfDVªf'k;u okVjeSu rFkk ekyh 'kCnksa dk iz;ksx ek= izrhdkRed :i ls fd;k x;k gSA bySfDVªf'k;u okVjeSu rFkk ekyh ds inksa dh miyC/krk ds lEcU/k esa ftyk fodkl vf/kdkjh] mUuko ls vk[;k izkIr dh x;hA ftyk fodkl vf/kdkjh] mUuko us vius i= fnukad 17-01-17 }kjk voxr djk;k fd xzkE; fodkl foHkkx us bySfDVªf'k;u okVjeSu rFkk ekyh ds in l`ftr ugha gSA 'kklukns'k la[;k&9@20016@os0vk0&2&201@nl&2016&8 ¼eq0l0l0@2011 Vh0lh0 fnukad 24] Qjojh 2016 es Hkh nSfud osru] odZpktZ ,oa lafonk ds vk/kkj ij fu;qfDr fd;s tk pqds ,sls dkfeZd tks orZeku esa mlh Lo:i esa dk;Zjr gS rFkk fu;qfDr ds le; in ij HkrhZ gsrq fu/kkZfjr vgZrk dh iwfRkZ djrs Fks] dks fofu;fer fd;s tkus dh Lohd`fr iznku dh x;h gSA xzkE; fodkl foHkkx esa bySfDVªf'k;u okVjeSu rFkk ekyh ds in l`ftr ugh gS vkSj u gh ;kphx.kksa dks nSfud osru] odZpktZ ,oa lafonk ds vk/kkj ij fu;qDr gh fd;k x;k gSA ;kphx.kks ds ikl nSfud osru ij dk;Z izkjEHk djus ds lEk; Hkh fu/kkZfjr rduhdh@'kSf{kd ;ksX;rk ugh FkhA^^ 17. From the above quoted part of the order dated 22.04.2017, it is evident that opposite party No. 2 in order dated 22.04.2017 has categorically made a statement to the effect that the petitioners were engaged on daily wages and they were symbolically called as Mali, Electrician and Waterman and the said posts are not available in the Department and in the later part of the order dated 22.04.2017, the opposite party has recorded the finding that the petitioners were never engaged as daily wager or work charge or contract basis and on the basis of this finding and the fact with respect to non-availability of posts of Mali, Electrician and Waterman, the claim of the petitioners has been rejected. 18. On the issue of engagement of petitioners as daily wager, this Court considered the own document of the opposite parties i.e. letter dated 20.12.2014 (annexed as Annexure No. 13 to the writ petition), which categorically says that the petitioners were engaged as daily wager on 09.04.1990, 01.04.1991 and 27.04.1998 respectively and the first part of order dated 22.04.2017, quoted above, wherein the opposite party No. 2 himself admitted that the work was taken from the parties on daily wages as well as the contents of counter-affidavit wherein the opposite parties have admitted that the petitioner were engaged on daily wages and they are being paid wages and on the basis of the same, this Court comes to the conclusion that the finding recorded by the opposite party No. 2, while rejecting the claim of petitioners for regularization, in the order dated 22.04.2017 that petitioners were never engaged as daily wager, is completely perverse and incorrect. 19. 19. The pleadings and documents on record, particularly the contents of order dated 22.04.2017 wherein the opposite party No. 2 has specifically stated rather admitted the fact that the work was taken from the petitioners on daily wages and they were symbolically called as Mali, Electrical and Waterman and the contents of paras 6, 7, and 8 of the counter-affidavit, wherein it has been stated that petitioners were engaged as daily wager and are being paid their wages and Rule 5 of the Rules of 2016 are relevant on the issue of non-availability of posts of Mali, Electrician and Waterman and rejection of the claim of petitioners for regularization on account of the same and on the basis of the same, this Court feels that the case of the petitioners for regularization ought to have been considered on the Group 'D' posts other than the post of Mali, Electrician and Waterman or for regularization the procedure of Rule 5 of Rules of 2016 should have been resorted/adopted for regularization of services of petitioner and ought not have rejected on the ground of non-availability of posts. 20. Needless to say that under Rule, 5 of Rules of 2016 for regularization supernumerary posts can be created. 21. On the basis of the pleadings and documents on record, this Court holds that the petitioners were engaged on daily wages prior to cut-off date i.e. 31.12.2001 provided under Rule 6 of Rules of 2016 and are still working as daily wager and being so are entitled for regularization on Group 'D' posts. 22. With regard to the relief of grant of minimum of pay scale, this Court after considering the fact that the petitioners were initially appointed on 09.04.1991, 01.04.1991 and 27.04.1998 and are still working with the opposite parties and law laid down by the Hon'ble Apex Court in the case of State of U.P. v. Putti Lal, reported in (2006) SCC (L&S) 1819: (AIR Online 2002 SC 151) and in State of Punjab v. Jagjit Singh, reported in (2017) 1 SCC (L&S) 1 : (2016 AIR SCW 5176) holds that the petitioners are entitled to minimum of pay scale till their regularization. 23. For the reasons and findings recorded hereinabove, this Court feels that the impugned order dated 21.04.2017 is unsustainable. 24. Accordingly, the order dated 22.04.2017 is hereby quashed. 23. For the reasons and findings recorded hereinabove, this Court feels that the impugned order dated 21.04.2017 is unsustainable. 24. Accordingly, the order dated 22.04.2017 is hereby quashed. The competent authority is directed to consider the claim of petitioners for regularization on Group 'D' posts other than the posts of Mali, Electrician and Waterman, which according to opposite parties are not created/available in the Department or, if required, procedure of Rule 5 of the Rules of 2016 be resorted for regularization of petitioner keeping in view the observations and findings recorded hereinabove. The entire exercise be carried out within two months from the date of production of certified copy of this order. The opposite parties are directed to pay the minimum of pay scale of Group 'D' Post, in the department, to the petitioners w.e.f. the date of this order. Writ petition is, accordingly, allowed.