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2019 DIGILAW 792 (ALL)

Ram Singh v. State of U. P.

2019-03-29

MANISH MATHUR

body2019
ORDER : 1. Heard Sri Shivam Sharma, learned counsel for the petitioner and the learned standing Counsel appearing on behalf of the opposite parties. 2. At the outset, learned counsel for the petitioner has submitted that he is not pressing the petition with regard to petitioner No. 1, Ram Singh, as such, only eligibility, with regard to petitioner No. 2, Balastar Singh is being considered in the present petition. Accordingly, the present petition stands dismissed as not pressed so far it relates to petitioner No. 1, Ram Singh. However, it is made clear that not pressing the petition on behalf of petitioner No. 1, Ram Singh shall not have any detrimental effect on continuance of the services of petitioner No. 1, Ram Singh in case he is still continuing in the department. 3. The present petition, initially, has been filed for grant of regular pay scale on the post of Beat Watcher in the Forest Department with other prayers for regularisation on the said post. Subsequently, during pendency of the writ petition, the order dated 17.06.2017 has been passed rejecting the claim of the petitioner for regularisation which has been challenged by amending the Writ Petition. Counter affidavit to the amended portion of the Writ Petition has also been filed. 4. As per the averments made in the Writ Petition, the petitioner was appointed on the post of Beat Watcher in April, 1991 and after having completed ten years' of service on the said post as a Daily Wage employee, was entitled for regularisation under the relevant Regularisation Rules of 2001 but when his case for regularisation was not considered he was compelled to file the present Writ Petition. During pendency of the Writ Petition, the impugned order dated 17.06.2017 has been passed rejecting claim of the petitioner, primarily, on the ground that he has not worked continuously for more than 240 days in a year during the period of his service as a daily wage employee. During pendency of the Writ Petition, the impugned order dated 17.06.2017 has been passed rejecting claim of the petitioner, primarily, on the ground that he has not worked continuously for more than 240 days in a year during the period of his service as a daily wage employee. Learned counsel for the petitioner submits that the aforesaid provision has already been interpreted in a number of judgments of this Court holding that the words "continuing in service as such on the date of commencement of the Rules" do not imply continuous service from the date of initial appointment and would mean only that the person is continuing in service as a daily wager on the date of commencement of the Regularisation Rules having been appointed prior to the cut off date indicated therein. To substantiate this argument, learned counsel for the petitioner has relied upon the judgment and order dated 26.04.2016 passed in Writ Petition No. 7108 (S/S) of 2016, Munna Lal vs. State of U.P. and Others, the decision in Janardan Yadav vs. State of U.P. 2008 (1) ADJ 60 : 2008 (2) All LJ (NOC) 447 and the judgment and order dated 21.08.2014 passed in Writ Petition No. 3091 (S/S) of 2009, Ajay Kumar Saxena vs. State of U.P. and Another in which interpreting the U.P. Regularization of Daily Wages Appointment on Group-D Posts Rules, 2001 (hereinafter referred to as Rules of 2001), it has been held that the Rules of 2001 do not require the incumbent to have worked continuously from the date of initial engagement till the date of commencement of the Rules and that the only requirement was that the person should have been appointed prior to the cut off date and should have been working as such on the date of implementation of the rules of 2001. He submits that in the present case, even the impugned order states that the petitioner was appointed prior to the cut off date of 31.12.2001 and he was continuing as such till 12.09.2016 when the Uttar Pradesh Regularization of Daily Wages Appointments on Group-C and D Posts Rules, 2016 (hereinafter referred to as Rules of 2016) came into effect. As such, he submits that the petitioner Balastar Singh was entitled for regularisation under the Rules of 2016. 5. As such, he submits that the petitioner Balastar Singh was entitled for regularisation under the Rules of 2016. 5. The learned Standing Counsel opposing the submissions made by learned counsel for the petitioner has drawn attention of the Court to a chart annexed along with counter-affidavit indicating that the petitioner had not worked continuously during the period of his engagement and was, therefore, disentitled for regularisation on the post. To substantiate his argument, the learned Standing Counsel has relied upon the judgment and order dated 24.09.2015 passed in Special Appeal No. 1016 of 2005, Surendra Singh and Another vs. State of U.P. and Others. I have heard learned counsel for the parties and perused the record. 6. It is an admitted fact that petitioner Balastar Singh was appointed as a Daily Wage Employee in the Department prior to 31.12.2001, which is the cut off date indicated in the Rules of 2016. The impugned order itself also indicates that petitioner Balastar Singh was working as such in the Department on 12.09.2016, which is the date on which the Rules of 2016 were implemented. A perusal of the impugned order also indicates that the only reason for disentitling the petitioner for regularisation is that he had not worked continuously as a daily wage employee in the department during the period of his engagement in service. In view of the judgments relied upon by learned counsel for the petitioners, the said fact is no longer res Integra and it has already been held that the only requirement as per the regularisation rules is that the person should have been appointed prior to the cut-off date and should have been working as such on the date of implementation of the regularisation rules. The aforesaid judgments also clearly hold that there is no requirement under the regularisation rules for an incumbent to have been working continuously in the department during the period of his service. Although the said judgments pertain to the Regularisation Rules of 2001 but the same can be taken into account in view of the fact that the Regularisation Rules of 2016 are pari materia with the Regularisation Rules of 2001. Although the said judgments pertain to the Regularisation Rules of 2001 but the same can be taken into account in view of the fact that the Regularisation Rules of 2016 are pari materia with the Regularisation Rules of 2001. So far as the judgment relied upon by learned State Counsel is concerned, a perusal of the same would indicate mat the said judgment is distinguishable on account of the fact that the dispute therein pertained to the fact that the writ petitioners of the said petition were not working in the department on the cut-off date mentioned in the Regularisation Rules of 2001. On account of the said fact, the said judgment passed in Surendra Singh and another (supra) is inapplicable in the present case. 7. In view of the admitted position that the petitioner was working in the department prior to the cut-off date on daily wage basis and continued as such till the implementation of the Rules of 2016, the writ petition is allowed so far it relates to petitioner Balastar Singh. A writ in the nature of certiorari is issued quashing the impugned order dated 17.06.2017 and a writ in the nature of Mandamus is issued directing opposite part No. 3, i.e. Divisional Forest Officer, South Kheri Forest Division, Forest Department, Lakhimpur Kheri to consider the case of petitioner Balastar Singh for regularisation under the Rules of 2016, in terms of the observation made herein above by a reasoned and speaking, order, within a period of four weeks from the date a copy of this order is produced before him.