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2020 DIGILAW 336 (ALL)

Annu v. State Of U. P.

2020-01-31

SHAMIM AHMED

body2020
JUDGMENT : 1. This writ petition under Article 226 of the Constitution of India has been filed by the petitioner with the following prayer:- (i) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 16.07.2016 and order dated 20.11.2015 passed by the respondent no.3 in rejecting the claim of the daily wager sweeper of the petitioner. (ii) Issue a writ order or direction in the nature of mandamus directing the respondent authorities to treat the petitioner as daily wager sweeper from part time sweeper in pursuance of the circular dated 01.11.1999 made by the Chief Engineer, U.P. P.W.D., Lucknow in the department and to give all the benefits to the petitioner since the date on which Junior has been benefited in the department. (iii) Issue any other suitable writ, order or direction as this Hon'ble Court may deem fit and proper under the facts and circumstances existing in the present case. (iv) Award the cost of this writ petition in favour of the petitioner throughout. 2. Learned counsel for the petitioner argued that the petitioner was appointed and performing his duties as part-time sweeper in the department since 10.07.1998 and has been allowed to work time to time in Government residential colony of the department, in this regard experience certificate dated 30.08.2007 was issued by the Assistant Engineer, Nirman Khand-1, P.W.D., Banda. 3. Learned counsel for the petitioner further argued that the Engineer-in-Chief U.P. Lok Nirman Vibhag, Lucknow issued a circular on 01.11.1999 to ensure for making appointment of part-time sweeper and other Class-IV employees on the post of Daily Wager Employee for the purpose of regularization in the Public Works Department, copy of the circular dated 01.11.1999 is annexed as Annexure No.1 to the writ petition. After the above circular, the petitioner moved an application on 04.01.2002 before the respondent no.3-Executive Engineer, Nirman Khand-1, P.W.D. Banda for getting appointment on the post of Daily Wager Employee in the department and on the application of the petitioner the Superintending Engineer, Banda Circle, P.W.D. Banda wrote a letter dated 06.05.2002 to the Engineer-in-Chief, Viyav "ga" Verg, P.W.D., Lucknow with the request grant of permission to appoint the petitioner on daily wager in the department but no action was taken by the respondents for appointing the petitioner on daily wager basis. 4. 4. Learned counsel for the petitioner further argued that the junior part-time sweeper to the petitioner namely Suresh Kumar working in the Public Works Department, Banda filed a Writ Petition No.47604 of 2012 before this Court to treat him as daily wager in spite of part-time sweeper as per Circular dated 01.11.1999 and this Hon'ble Court vide judgment and order dated 27.11.2012 disposed of the writ petition with the direction to decide the case of the petitioner-Suresh Kumar and in pursuance of the order dated 27.11.2012 the respondent no.3 by an order dated 12.03.2013 appointed the Suresh Kumar as daily wager employee and was being paid the benefit of payment of daily wager employee in the department. 5. Learned counsel for the petitioner further argued that since the petitioner has been working on the post of sweeper since long time as part-time and several post of sweeper were falling lying vacant. The petitioner was also entitled for regular post in the department and since the petitioner has been engaged as part-time sweeper and is entitled to be treated as daily wager employee in the department as per Circular dated 01.11.1999 but he was deprived of his rights and whereas juniors have been given the benefit. Respondent did not consider the claim of the petitioner for treating him as daily wager sweeper, therefore, the petitioner approached this Hon'ble Court and filed Writ Petition No.41417 of 2015 with the request that he may be treated as daily wager sweeper in spite of part-time sweeper as per Circular dated 01.11.1999 and this Hon'ble Court vide order dated 24.09.2015 finally disposed of the writ petition. Relevant portion of the judgment and order dated 24.09.2015 is reproduced hereinbelow:- "Learned Counsel for the petitioner has drawn the attention of the Court to a communication which has been issued by the Chief Engineer, Public Works Department, U.P., Lucknow dated 1st November, 1999 wherein it is mentioned that the practice of engaging part-time sweeper is highly objectionable as these employees are denied the benefit of regularization on the ground that they are working as part-time. The direction has been issued to discontinue such practice. It is contended by the learned Counsel for the petitioner that in spite of the said clear direction of the Chief Engineer, the petitioner is being engaged as a part-time sweeper. The direction has been issued to discontinue such practice. It is contended by the learned Counsel for the petitioner that in spite of the said clear direction of the Chief Engineer, the petitioner is being engaged as a part-time sweeper. From the record it appears that the petitioner, for redressal of his grievance, has made a representation dated 6th July 2015 which is on the record as annexure12 to the writ petition. Having regard to the facts and circumstances of the case, I am of the view that the ends of justice would be subserved by issuing a direction upon the third respondent to consider the cause of the petitioner and pass appropriate order in accordance with law expeditiously, preferably within three months from the date of communication of this order. The writ petition is, accordingly, disposed of. There shall be no order as to costs." 6. Learned counsel for the petitioner further submits that the copy of the order dated 24.09.2015 was served by the petitioner before the respondent no.3 with a representation dated 05.10.2015 but the respondent no.3 was not passing any order in compliance of the direction issued by this Court, therefore, the petitioner filed a Contempt Petition No.1342 of 2016 before this Hon'ble Court, in which notices were issued against the respondent no.3 with a direction to comply with the order of writ court. 7. Learned counsel for the petitioner further submits that after getting the contempt notice issued by this Hon'ble Court, the respondent no.3 passed the order dated 16.07.2016 which is impugned in the present writ petition and the claim of the petitioner was rejected on irreverent ground. 8. Learned Standing Counsel oppose the argument raised by the learned counsel for the petitioner and submitted that the impugned order dated 16.07.2016 is rightly passed and no interference is required by this Hon'ble Court and the petitioner is not entitled for any relief. 9. In the rejoinder affidavit learned counsel for the petitioner denied the averments made in the counter affidavit. 10. Heard learned counsel for the petitioner, learned Standing Counsel for the respondents and perused the record. 11. 9. In the rejoinder affidavit learned counsel for the petitioner denied the averments made in the counter affidavit. 10. Heard learned counsel for the petitioner, learned Standing Counsel for the respondents and perused the record. 11. From the perusal of the impugned order dated 16.07.2016, which is filed as Annexure No.19 to the writ petition, the ground taken by the respondents while rejecting the claim of the petitioner is that the petitioner was not employed as part-time sweeper in the department but he has been performed the work of sweeper as per requirement from time to time by the Junior Engineer and he was paid cash payment by the department. It was further mentioned in the impugned order that there is a ban on 01.07.1992 by the Engineer-in-Chief against the appointment of the muster role employee in the department and it is further stated that Government Order dated 29.06.1991, 17.07.1991 and 02.09.1992 imposes ban for the appointment of daily wager employee in the department and it was further stated that the full time sweeper is not required in the department, as such, the petitioner is not entitled for being appointed on the post of daily wager sweeper. 12. From the perusal of the impugned order dated 16.07.2016 it is crystal clear that the respondent no.3 did not consider the direction of Circular dated 01.11.1999 issued by the Chief Engineer, Public Works Department U.P. Lucknow, wherein a clear cut direction was issued that the practice of engaging part-time sweeper is highly objectionable as these employees are denied the benefit of regularization on the ground that they are working as part-time. The direction has been issued to discontinue such practice. The respondent no.3 without considering the pith and substance of the Circular dated 01.11.1999 passed the impugned order and reliance has been placed in the Government Order dated 01.07.1992 mentioning therein that there is a ban for engaging a muster role employees whereas the case of the petitioner is not for engaging him as muster role employee. The respondent no.3 without considering the pith and substance of the Circular dated 01.11.1999 passed the impugned order and reliance has been placed in the Government Order dated 01.07.1992 mentioning therein that there is a ban for engaging a muster role employees whereas the case of the petitioner is not for engaging him as muster role employee. The respondent no.3 further referred the G.O. dated 29.06.1991, 17.07.1991 and 02.09.1992 by which he has mentioned that as per above G.O. there is a ban for the appointment of daily wager employee in the department, whereas these G.O. have no relevance regarding the appointment of the petitioner and petitioner is claiming on the basis of Circular dated 01.11.2019 for being considered as daily wager employee in the department, the respondent cannot apply these G.O., retrospectively, in the case of the petitioner. It appears that the respondent no. 3 without application of mind and without considering the direction issued in the Circular dated 01.11.1999 of the Chief Engineer, P.W.D. U.P. Lucknow passed the impugned order dated 16.07.2016. While passing the impugned order, the respondent no.3 has not considered this fact that the petitioner was engaged as part-time sweeper since long and the Assistant Engineer has already issued an experience certificate which means that the petitioner was engaged on regular basis and not on the basis of cash payment as per the requirement of the department and he rendered his services in the department since 10.07.1998 and the authorities have recommended the case of the petitioner for considering his case for regularization on daily wager sweeper. This aspect was at all not considered and dealt with the respondent no.3 while passing the impugned order. 13. It is also not out of place to mention that the respondent no. 3 while passing the impugned order had at all not considered this aspect that the juniors to the petitioner were appointed as daily wager sweeper in the light of the Circular dated 01.11.1999. 14. It is also relevant to mention here that while passing the impugned order the respondent no.3 has not given any opportunity of hearing to the petitioner and the order was passed on surmises and conjectures and no valid reason was given in the impugned order for not considered the petitioner for daily wager sweeper in the light of the Circular dated 01.11.1999. 15. 15. The denial of appointing the petitioner on the post of daily wager sweeper is against the principles of natural justice and also in violation of Article 14, 16 and 21 of the Constitution of India. 16. In view of the above discussion and argument advanced by learned counsel for the parties, the impugned order dated 16.07.2016 passed by respondent no.3 is quashed and the matter is remanded back to the respondent no.3 to consider the claim of the petitioner afresh in the light of the Circular dated 01.11.1999 issued by Chief Engineer, P.W.D. U.P. Lucknow and pass a reasoned and speaking order in accordance with law within a period of two months from the date of production of the certified copy of this order, thereafter , the respondent no.3 shall communicate the order passed by him to the petitioner forthwith. 17. With the aforesaid observations, the writ petition is finally disposed of. 18. No order as to costs.