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2021 DIGILAW 409 (ALL)

Kailash Singh Yadav v. State of U. P.

2021-03-17

ASHWANI KUMAR MISHRA

body2021
JUDGMENT : 1. Petitioner has retired from the post of Junior Engineer in Jalkal Vibhag, Nagar Nigam, Prayagraj, and is aggrieved by an order dated 28.2.2018/5.3.2018, contained in Annexure-6 to the writ petition, whereby his objection to the tentative seniority list has been rejected. The petitioner’s seniority is fixed w.e.f. 15.11.2007, when he was regularized as Junior Engineer. A further prayer is made to treat the petitioner's initial appointment from the date of his initial engagement on adhoc basis and to extend the benefit of pension and other retiral benefits, accordingly. 2. The writ petition was entertained and time was granted to learned Standing Counsel to file counter affidavit on 4.2.2021. No counter affidavit, however, has been filed. Considering the nature of order proposed to be passed, no further opportunity is required to be given for filing counter affidavit and the writ petition is disposed of finally, at the stage of admission, by this order. 3. Admitted facts, which emerge on record, are that the petitioner was initially appointed as adhoc Junior Engineer in the Jal Sansthan, Jhansi on 23.5.1990. He continued to work as such continuously till his services were regularized by the respondents on 15.11.2007. The petitioner’s seniority is accordingly indicated in the tentative seniority list. Petitioner objected to the provisional seniority on the ground that persons junior to him since have been regularized prior in point of time, therefore, his placement in seniority list must refer to his initial adhoc appointment and not 15.11.2007. It is this objection which has been rejected by the order impugned. 4. It is not in issue that services of petitioner are governed by the U.P. Palika (Centralized) Service Rules, 1966 (hereinafter referred to as the ‘Rules of 1966’). It is this objection which has been rejected by the order impugned. 4. It is not in issue that services of petitioner are governed by the U.P. Palika (Centralized) Service Rules, 1966 (hereinafter referred to as the ‘Rules of 1966’). The Rules of 1966 have been amended vide notification dated 10.4.2003 and Section 21-A has been introduced, which is reproduced hereinafter:- ^^21&d rnFkZ fu;qfDr;ksa dk fofu;ferhdj.k %& ¼1½ fdlh O;fDr dks %& ¼,d½ tks lsok esa 30 twu] 1998 ds iwoZ rnFkZ vk/kkj ij lh/ks fu;qDr fd;k x;k gks vkSj bl fu;ekoyh ds ÁkjEHk ds fnukad dks ml :i esa fujUrj lsokjr gksA ¼nks½ tks ,slh rnFkZ fu;qfDr ds le; fu;e 12 ds v/khu fu;fer fu;qfDr ds fy;s visf{kr fofgr vgZrk,a j[krk gksA ¼rhu½ ftlus] ;FkkfLFkfr rhu o"kZ dh fujUrj lsok iwjh dj yh gks] ;k iwjh djus ds i'pkr] fdlh LFkk;h ;k vLFkk;h fjfDr esa] tks miyC/k gks] fu;fer fu;qfDr ds fy;s ,slh fjfDr esa bl fu;ekoyh esa fufgr micU/kksa ds vuqlkj] dksbZ fu;fer fu;qfDr djus ds iwoZ mlds lsok vfHkys[k vkSj mi;qDrDrk ds vk/kkj ij fopkj fd;k tk;sxkA ¼2½ bl fu;ekoyh ds v/khu fu;fer fu;qfDr djus esa] vuqlwfpr tkfr;ksa] vuqlwfpr tutkfr;ksa] fiNM+s oxksZ vkSj vU; Jsf.k;ksa ds vH;fFkZ;ksa ds fy, vkj{k.k HkrhZ ds le; Áo`r ljdkjh vkns'kksa ds vuqlkj fd;k tk;sxkA ¼3½ mifu;e ¼1½ ds Á;kstukFkZ] ljdkj ,d p;u lfefr dk xBu djsxh vkSj vk;ksx ls ijke'kZ djuk vko';d u gksxkA ¼4½ LFkkuh; fudk; funs'kd vH;fFkZ;ksa dh ,d ik=rk lwph ml T;s"Brk Øe esa rS;kj djsaxs tSlk fd mudh rnFkZ fu;qfDr ds vkns'k ds fnukad ls vo/kkfjr gks] vkSj ;fn nks ;k vf/kd O;fDr ,d lkFk fu;qDr fd;s tk;sa rks ml Øe esa rS;kj djsaxs] ftl Øe esa muds uke mDr fu;qfDr ds vkns'k ls Øec} fd;s x;s gksaA lwph dks vH;fFkZ;ksa dh pfj= iath;ksa vkSj muds lEcU/k esa ,sls vU; vfHkys[kksa lfgr] tks mudh mi;qDrDrk dks fu/kkZfjr djus ds fy, vko';d le>k tk;s] p;u lfefr ds le{k j[kk tk;sxkA ¼5½ p;u lfefr vH;fFkZ;ksa ds ekeyksa ij mifu;e ¼4½ esa fufnZ"V muds vfHkys[kksa ds vk/kkj ij fopkj djsxhA ¼6½ p;u lfefr p;u fd;s x;s vH;kfFkZ;ksa dh ,d lwph rS;kj djsxh] lwph ds uke T;s"Brk Øe esa j[ks tk;saxs vkSj og mls ljdkj vkSj LFkkuh; fudk; funs'kd dks HkstxhA ¼7½ jkT; ljdkj ;k LFkkuh; funs'kd bl fu;e ds mifu;e ¼2½ vkSj fu;e 6 ds mifu;e ¼1½ ds mica/kksa ds v/khu jgrs gq,] bl fu;e ds mifu;e ¼6½ ds v/khu rS;kj dh xbZ lwph ls fu;qfDr;ka ml Øe esa djsaxs ftl Øe esa muds uke mDr lwph esa j[ks x;s gksaA ¼8½ mifu;e ¼7½ ds v/khu dh xbZ fu;qfDr;ka fu;e&21 esa fn;s x;s lqlaxr micU/kksa ds v/khu dh xbZ le>h tk;saxhA ¼9½ bl fu;e ds v/khu fu;qDr dksbZ O;fDr bl fu;e ds vuqlkj p;u ds i'pkr dsoy fu;qfDr ds vkns'k ds fnukad ls T;s"Brk dk gdnkj gksxk vkSj lHkh ekeyksa esa mls bl fu;e ds v/khu mldh fu;qfDr ds iwoZ bl fu;ekoyh ds Hkkx&5 esa lh/kh HkrhZ ds fy, fufgr ÁfØ;k ds vuqlkj fu;qDr O;fDr;ksa ds uhps j[kk tk;sxkA ¼10½ ;fn nks ;k vf/kd O;fDr bl fu;e ds v/khu ,d lkFk fu;qDr fd;s tk;sa rks mudh ijLij T;s"Brk fu;qfDr ds vkns'k esa mfYyf[kr Øe esa vo/kkfjr dh tk;sxhA ¼11½ ,sls O;fDr dh lsok tks rnFkZ vk/kkj ij fu;qDr fd;k x;k gks vkSj tks mi;qDr u ik;k tk;s ;k ftldk ekeyk bl fu;e ds mifu;e ¼1½ ds v/khu u vkrk gks] rRdky lekIr dj nh tk;sxh vkSj ,slh lekfIr ij og ,d ekl dk osru ikus dk gdnkj gksxkA** 5. Admittedly petitioner has been appointed as adhoc Junior Engineer by way of direct recruitment prior to 31st June, 1998. It is also not disputed that petitioner possessed requisite qualification for appointment at the time of his initial appointment. He had also completed three years and was in employment on the date when Rule 21-A was introduced in the Rules of 1966. The respondents were, therefore, required to consider petitioner’s claim for regularization on the date Rule 21-A got introduced in the Rules of 1966. For any delay caused in consideration of petitioner’s claim cannot be allowed to adversely affect the petitioner. Even if the consideration for regularization by the Selection Committee took place later in point of time, yet it would have to relate back to the date of introduction of Rule 21-A in the Rules of 1966. Any other interpretation would lead to an arbitrary situation, inasmuch as similarly placed adhoc employees, entitled to regularization as per Rule 21-A would be placed in the seniority list based upon a fortuitous circumstance i.e. the date of consideration of their claim for regularization. This is what exactly has happened, otherwise. Petitioner’s juniors were considered for regularization on earlier dates and have been extended benefit of seniority/pension etc. but equal treatment has been denied to the petitioner, which is wholly arbitrary. 6. It is not in issue that various other persons have been granted benefit of regularization from the date of initial appointment on adhoc basis and reference is made to the judgment of Lucknow Bench of this Court in Writ Petition No.11198 (S/S) of 2018 (Virendra Kumar Sinha Vs. State of U.P. and others), decided on 12.7.2018. Attention of the Court has also been invited to an order passed by the State Government on 7th August, 2020, whereby benefit of regularization has been granted to one Virendra Kumar Srivastava and others from the date of their initial appointment on adhoc basis. 7. In light of the deliberations and discussions aforesaid this Court is of the considered view that benefit of regularization could not have been denied to petitioner from the date of introduction of Rule 21-A in the Rules of 1966 i.e. 10.4.2003 and he was otherwise eligible for such purposes. Mere delay in consideration of petitioner’s regularization, if is allowed to stand, would amount to putting premium on the inaction of respondents which would clearly be arbitrary and unsustainable. 8. Mere delay in consideration of petitioner’s regularization, if is allowed to stand, would amount to putting premium on the inaction of respondents which would clearly be arbitrary and unsustainable. 8. This writ petition, therefore, is disposed of with the direction upon the second respondent to consider petitioner’s regularization from the date of introduction of Rule 21-A in the Rules of 1966 i.e. 10.4.2003. Respondents, therefore, are also commanded to consider grant of notional seniority to petitioner w.e.f. 10.4.2003 in the cadre. Petitioner’s claim for pension and other retiral benefits would also be considered treating his date of entry into service as 10.4.2003. A fresh order in terms of above direction would be passed within a period of three months from the date of presentation of a copy of this order. The order impugned in the writ petition shall remain subject to the fresh orders to be passed by the Director concerned. All consequential benefits would be granted to petitioner without any further loss of time. 9. No order is passed as to costs.