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2022 DIGILAW 1570 (ALL)

Ramraj Pandey v. State of U. P.

2022-09-27

SANGEETA CHANDRA

body2022
JUDGMENT : 1. Heard Sri Raj Kumar Mishra, learned counsel for the petitioner, Learned Standing Counsel for the State Respondents No. 1, 2, 4, and 6 and Sri Mata Achal Mishra, learned counsel for the respondent no.5. 2. This petition has been filed with the following main prayers:- “(i) Issue a writ, order or direction in the nature of CERTIORARY quashing the impugned order dated 02.12.2021 (Annexure No.01) passed by the respondent no.5. (ii) Issue a writ, order or direction in the nature of CERTIORARY quashing the regularization order dated 24.05.2011 (Annexure No:09) passed by the respondent no.5. (iii) Issue a writ, order or direction in the nature of MANDAMUS commanding the the respondents to modify/correct the regularization order dated 24.05.2011 in pursuance of the Order/Judgment dated 24.10.1997 (Annexure No. 5) passed by this Hon’ble Court in C.M.W.P. No. 22313 of 1991. (iv) Issue a writ, order or direction in the nature of MANDAMUS commanding the respondents to modify/correct the regularization order dated 24.05.2011 in the light of Government Orders namely G.O. No. 1076/9-1-92,95Sa/91 dated 03-02-1992, G.O. No. 4094/ Nau-1-92-95Sa/91 dated 01 05-1992 and G.O. No. 4980/ Nau-1-92 dated 20.05.1992 (Annexure No.3) issued by the Government of Uttar Pradesh. (v) Issue a writ, order or direction in the nature of MANDAMUS commanding the respondents to calculate and pay the pension, gratuity, leave encashment, G.P.F., insurance and other emoluments along with back wages and interest since 05.01.1985.” 3. It is the case of the petitioner that he was appointed as Daily Wage Worker on 05.01.1985 in Nagar Panchayat, Khamariya, District Bhadohi and continued to work as Safai Karamchari and paid on daily wage basis till his illegal termination in 1991, a photocopy of his order of engagement has been filed as Annexure-02 to the petition. In 1992, the State Government issued three Government Orders i.e. G. O No. 1076//9-1-92,Sa/91 dated 03.02.1992, G.O. No. 4094/Nau-1-92-95Sa/91 dated 01.05.1992 and G.O. No. 4980/Nau-1-92 dated 20.05.1992 for Regularization of Daily Wage Workers. In the said Government Orders, it was provided that if a daily wage worker continued for three years or more and had rendered 240 days of service, in each of such three years, he shall be considered for appointment, if he was engaged before 11.10.1989. In the said Government Orders, it was provided that if a daily wage worker continued for three years or more and had rendered 240 days of service, in each of such three years, he shall be considered for appointment, if he was engaged before 11.10.1989. The petitioner had completed more than four years of service with 240 days in each year before the cut-off date dated 11.10.1989, and therefore, he was entitled to be regularized, but the Nagar Panchayat, Khamariya did not pass any order for Regularization, as the service of the petitioner had been terminated in 1991 itsself, on the ground that the Nagar Panchayat, Khamariya was facing a financial crisis and was unable to pay even its regular employees. 4. The petitioner and three others filed a Writ Petition No. 22313 of 1991 challenging the termination order dated 20.07.1991. The Court by its judgement and order dated 24.10.1997 directed the respondents to look into the matter of Regularization of the petitioners in the light of aforesaid Government Orders. The petitioner made many representations to the concerned authorities, but no heed was paid. 5. The petitioner has mentioned in Paragraph-8 of the Writ Petition that he continued to work without any wages in Nagar Panchayat, Khamariya on the basis of mercy of the officers of the Nagar Panchayat, Khamariya, even though no orders for reinstatement were passed, on the basis of an interim order dated 09.08.1991 in Writ Petition No. 22313 of 1991 even after the Writ Petition was decided. The petitioner pursued the authorities and ultimately the Additional District Magistrate, passed an order on 30.01.2008 on the basis of report submitted by the Executive Officer, Nagar Panchayat, Khamariya reintating the petitioner on the post and in the pay-scale held by him earlier. A consequential order was passed on 15.02.2008, reinstating the petitioner on earlier post and pay-scale and that it is clear from both the Orders passed by the Additional District Magistrate dated 30.01.2008 and 15.02.2008 passed by the Respondent No.5 that the petitioner was reinstated in service on the same post from which he had been terminated in 1991. In compliance of judgment of this Court dated 24.10.1997, the petitioner took over charge, as he had no hesitation and was confident that since the Government Orders were issued for regularization in 1992, he shall be treated as regularized from 1992. In compliance of judgment of this Court dated 24.10.1997, the petitioner took over charge, as he had no hesitation and was confident that since the Government Orders were issued for regularization in 1992, he shall be treated as regularized from 1992. However, the petitioner came to know that he was only reinstated and not regularized. The petitioner kept working and was ultimately regularized on 24.05.2011 after issuance of Government Order dated 13.05.2011 for regularization of such employees. On 30.04.2020, the petitioner was retired and he was given his G.P.F. and other emoluments, but was not given Pension and Gratuity. 6. The petitioner approached this Court in Writ Petition No. 12744 of 2020, (Ramraj Pandey vs. State of U.P. & Others) and the said Writ Petition was disposed of on 17.12.2020 directing the respondents to decide the representation of the petitioner within three months from the date of production of copy of the order before him. No orders were passed on his representation and the petitioner filed a Contempt Petition No. 3183 of 2020, (Ramraj Pandey Vs. Vijay Kumar Yadav). After bailable warrants were issued, the respondent no.5 filed his reply annexing therewith order passed by him on the representation of the petitioner. The Contempt Petition was disposed of. 7. The Respondent No.5 in the Order dated 02.12.2021 by mis-interpreting the Pension Rules of the Government held that the qualifying service for grant of pension was not rendered by the petitioner. The order impugned queries judgements of this Court where this Court had held that qualifying service shall be calculated from the date of initial appointment of a regularized employee. The petitioner was regularized on the post of Sweeper which post existed on permanent establishment of the Respondents, and the petitioner being appointed in accordance with the provisions of Service Rules, he was entitled for regularization with effect from back date i.e. with effect from 1991, which was not done by the respondent, as a result he had been denied Pension, Gratuity and other retiral benefits. Hence this petition. 8. Hence this petition. 8. The respondent no.5 has filed a counter affidavit, wherein it has been stated that the petitioner was working as a Daily Wage Employee/Safai Jamadar, and his service was terminated on 20.07.1991, after which the petitioner and three others filed a Writ Petition No. 22313 of 1991 and this Court dismissed the Writ Petition by its judgement and order dated 24.10.1997 with a further direction to the respondents to consider the case of the petitioner, in case, it fell within the perview of the Government Orders of 1992 and the financial position of the Zila Panchayat improved. On the basis of application moved by the petitioner to the then Executive Officer, the petitioner was reinstated on the post of Safai Jamadar on daily wage on 05.02.2008. The Government Orders mentioned in paragraph 4 of the Writ Petition issued in February and May 1992 are not applicable to the petitioner as he was reinstated only as a daily wage Safai Karamchari. The contents of Paragraphs 8, 9, 10 of the Writ Petition have been vehemently denied by the respondent no.5 and it had been stated that persuant the order passed by the Additional District Magistrate dated 30.01.2008, the petitioner was reinstated on the post of Daily Wage Safai Jamadar, and his service could not have been regularized under the Government Orders issued in 1992 as his services were terminated in 1991 and he was re-engaged only in 2008 and his Writ Petition filed challenging the termination order was dismissed by this Court. 9. It has been stated further that the petitioner has been paid Leave Encashment, G.P.F. and other dues admissible to him, but Pension and Gratuity cannot be paid to him, as Government has denied entitlement to pension for such persons who have been regularized/appointed after 2005. Insofar as the second Writ Petition filed by the petitioner is concerned, it has been stated that neither the copy of the writ petition was given to the Standing Counsel for the Respondent no.5, nor notice was sent to the Respondent no.5, however, as soon as the order of the Court for deciding representation was served upon the Respondent no.5, it has been complied with. The petitioner having been regularized on the post of Safai Jamadar on 24.05.2011, in pursuance of Government Order dated 13.05.2011 is not entitled for Pension. 10. The petitioner having been regularized on the post of Safai Jamadar on 24.05.2011, in pursuance of Government Order dated 13.05.2011 is not entitled for Pension. 10. In the rejoinder affidavit filed by the petitioner, he has denied the contents of the counter affidavit and stated that the Respondent no.5 could never dispute the order dated 24.10.1997 passed by the High Court in his earlier Writ Petition, and the petitioner should have been regularized on or after 11.10.1989 in accordance with the Government Orders issued in 1992, but the fact that the Respondent No.5 has admitted that the petitioner was reinstated in service in 2008 shows that the petitioner was working on a sanctioned post and in a regular pay-scale and his Regularization w.e.f. 2011 has denied him the right of pension. The counsel for the petitioner has referred Annexure-05 to the rejoinder affidavit to show that the petitioner was appointed on Ad hoc basis in pay-scale of Rs.315 to 450 on 05.01.1985, and his service book was also opened and maintained treating him to be Ad hoc employee. Therefore, the contention of the Respondent that he was engaged on daily wage basis should be rejected. Moreover, the respondents have not challenged the judgment and order dated 24.10.1997 and having reinstated the petitioner cannot now say that the petitioner was working only as Daily Wage Safai Jamadar. 11. It has also been stated that by a Government Order dated 03.12.1992 three posts of Class-IV employees had been created in Nagar Panchayat, Khamairya, but the petitioner was not regularized, a copy of the Government Order dated 03.12.1992 has been filed as Annexure-03 to the rejoinder affidavit. 12. Having heard the learned counsel for the parties and having gone through the pleadings made in this writ petition, this Court has found that the petitioner places reliance heavily upon judgement rendered by this Court on 24.10.1997 in Writ Petition No. 22313 of 1991 (Ramraj Pandey and Others vs. Apar Jila Adhkari, Prashashan, Gyanpur, Varanasi and Others). It had been submitted before the Writ Court that the petitioners were appointed on Ad hoc basis in Town Area, Khamariya District Varanasi and that they were working continuously on their respective posts and by an order dated 27.01.1991 their services were terminated. It had been submitted before the Writ Court that the petitioners were appointed on Ad hoc basis in Town Area, Khamariya District Varanasi and that they were working continuously on their respective posts and by an order dated 27.01.1991 their services were terminated. In the counter affidavit filed by the Nagar Panchayat, Kamariya, it had stated clearly that the petitioners were appointed on daily wage basis in addition to and over and above, the sanctioned strength of Town Area Committee, but due to financial crisis being faced by the Town Area Committee their services were dispensed with. 13. The Court in its judgement and order dated 29.10.1997 considered the arguments made by the learned counsel for the petitioner that the termination of services of the petitioner were in-violation of Section 6-N of the U.P. Industrial Disputes Act, 1947, and without retrenchment compensation, therefore, they were entitled for reinstatement, but the Court also referred to judgement rendered by the Supreme Court in the case of Madhyamik Siksha Parishad Vs. Anil Kumar Misra and Others 1994 ALJ 389, where the Supreme Court had set aside the High Court’s order for reinstatement and regularization by observing that there were no sanctioned post in existence to which the respondents could be said to have been appointed. The assignment being an ad hoc one, it was difficult to envisage for them the status of workmen on the analogy of the provisions of Industrial Disputes Act, 1947, importing the incidence of completion of 240 days work. The legal consequences that flow from work for that duration under the Industrial Disputes Act, 1947 are entirely different and mere completion of 240 days work in a calender year does not under the law import the right to regularization. It merely imposes certain obligations on the employer at the time of termination of the service. The Court, thereafter, gave its findings from internal page 5 onwards. The Writ Court held that :- “It is admitted fact that all the four petitioners were engaged on daily wage basis. Their appointments, were not made against regular posts. The appointment of the regular employee of the Town Area Committee is governed by the statutory provisions contained in Sections 9, 10, 11, and 12 of the U.P. Town Area Act. The sanctioned strength of the Town Area Committee, Khamariya is seven employees. There are five Safai Karamchari, one Peon and one Clerk. The appointment of the regular employee of the Town Area Committee is governed by the statutory provisions contained in Sections 9, 10, 11, and 12 of the U.P. Town Area Act. The sanctioned strength of the Town Area Committee, Khamariya is seven employees. There are five Safai Karamchari, one Peon and one Clerk. All the seven posts were already manned when the petitioners came to be appointed. It is, thus, clear that the engagement of the petitioners by the Town Area Committee was not against any sanctioned posts. As such the petitioners were not holding any posts in the Town Area Committee, Khamariya. A person engaged on daily wage basis and holding no post is not entitled to relief of re-instatement or regularization of service. -------” 14. The Writ Court, thereafter, considered the judgements of the Hon’ble Supreme Court in the case of State of Himachal Pradesh Vs. Suresh Kumar Varma AIR 1996 SC 1565 ; Director Institute of Management Development U.P. vs. Smt. Pushpa Srivastava 1992 (65) FLR 571 (SC); F.R. Jesu Ratnam Vs. Union of India 1981 (43) FLR 1264 (SC); U.P. Rajya Sahakari Krishi Evem Gramya Vikas Ltd. Vs. Labour Court, Allahabad and Others 1994 (68) FLR 1195 and U.P. State Cooperative Land Development Bank Vs. Taj Mullick Ansari, where the Supreme Court held that a person who is not appointed against any sanctioned post and in accordance with any statutory provisions is not entitled to continuance/ reinstatement and regularization, even if he has rendered 240 days of service in a calender year. 15. The Writ Court further observed in its judgement and order dated 24.10.1987, as follows:- “In the backdrop of the law discussed above, it is clear that the petitioners who were engaged on daily wage basis, did not hold any post and, therefore, they cannot claim regular appointment. Regular appointment of the casual or Ad hoc employees is not automatic on the completion of three years continuous service or 240 days of engagement in every preceding three years.------ The Town Area Committee has taken a specific decision that it was no longer possible to continue with the engagement of the petitioners as the financial condition of the Committee was deplorable. It was with great difficulties that the petitioners as well as other employees were paid salaries upon the period July, 1991. It was with great difficulties that the petitioners as well as other employees were paid salaries upon the period July, 1991. On account of financial crisis, which the Committee was facing, the petitioners could not be retained in service and their Ad hoc appointment was ceased, by issuing termination orders-------in pursuance of the decision of the Committee dated 20.07.1991.” 16. It was after such finding was recorded at internal pages no. 5, 6 and 7 of the judgement, the Court considered the arguments raised by the learned counsel for the petitioners that atleast two Government Orders were issued in January and February, 1992 for the Regularization of Ad hoc employees who had worked for more than three years before the cut-off date of 11.10.1989. The Court considered the argument that additional post had been sanctioned for Town Area, Khamariya in December, 1992. However, this Court observed that the petitioners had ceased to work in the month of July, 1991 much before such orders were issued. In case there were newly created posts, the case of the petitioner may be considered by the Competent Authority and appropriate orders be passed in the light of the subsequent Government Orders. The Court dismissed the writ petition by observing that it fails on merit, but with a further observation that in case the petitioners approached the respondents, the case may be considered in the light of the Government Orders issued subsequently, provided that vacancies are available, and otherwise, the petitioners were found suitable for the posts. 17. This Court having carfully considered the judgement and order dated 24.07.1997 finds that the Writ Petition filed by the petitioner was dismissed, there was no direction for reinstatement. There was only a direction for consideration for fresh appointment in case posts existed and the petitioners were found suitable for the posts. 17. This Court having carfully considered the judgement and order dated 24.07.1997 finds that the Writ Petition filed by the petitioner was dismissed, there was no direction for reinstatement. There was only a direction for consideration for fresh appointment in case posts existed and the petitioners were found suitable for the posts. However, the then Executive Officer of Nagar Panchayat, Khamariya submitted a report dated 28.11.2007 to the Additional District Magistrate (Administration) saying that the writ petition had been allowed and a direction had been issued that the petitioner should be reinstated in service in view of the Government Order No. 1076 dated 03.02.1992 and regularized, and that the said Government Order and the Writ Court’s Order should be complied with, and that the petitioner had worked for more than six years before his termination, and that the Government Order dated 08.01.1992 and 03.02.1992 directed regularization of service of such employees who had rendered more than three years of service before 11.10.1989, and had worked for 240 days in each preceding year. It was on the basis of such misleading report that the Additional District Magistrate, Finance and Revenue passed an Order on 30.01.2008, reinstating the petitioner on his earlier held post (Purv Dharit Pad). Subsequently, the Executive Officer, also passed an order on 15.02.2008 reinstating the petitioner on his earlier held post and in the earlier held payscale. 18. It is on the basis of such order dated 30.01.2008 and 15.02.2008 that the counsel for the petitioner has claimed that since there is an order of reinstatement on Purv Dharit Pad in Purv Vetanman, it shall be considered that the petitioner has been working continuously since his initial appointment because reinstatement only refers to earlier appointment, it was not a fresh engagement. 19. On the other hand the counsel for the Respondent no.5 has aruged that the Writ Court having found that the petitioners were appointed on daily wage basis. in addition to and over and above, the sanctioned post of Class-IV employees in Nagar Panchayat, Khamariya, the petitioner could only have been said to be reinstated on daily wage basis as Daily Wage Safai Karamchari for performing the work he was earlier performed. 20. in addition to and over and above, the sanctioned post of Class-IV employees in Nagar Panchayat, Khamariya, the petitioner could only have been said to be reinstated on daily wage basis as Daily Wage Safai Karamchari for performing the work he was earlier performed. 20. The question before this Court is whether the petitioner having not challenged the judgement and order dated 24.10.1997, can now claim that the Court had allowed the writ petition and directed reinstatement of the petitioner on Ad hoc basis and in terms of the Government Orders issued in January and February, 1982 as aforesaid? 21. This Court finds that the judgement and order dated 24.10.1997 has given a finding against the petitioner claim of being appointed on Ad hoc basis, and has held the petitioner to have been appointed on daily wage basis and without following the Rules. 22. Learned counsel for the petitioner has placed reliance upon the Division Bench judgement rendered in Special Appeal No. 21 of 2022 on 27.01.2022 in State of U.P. and 2 Others and Raj Bahadur Pastor. 23. This Court has carefully perused the judgement and finds that it stands on an entirely different footing where the writ petitioner was appointed on the post of Junior Engineer in Minor Irrigation Department of State on daily wage basis, on 01.01.1989. The petitioner and several other similarly situated Junior Engineers had approached this Court at Lucknow in Writ Petition No. 1436 (SS) of 1997, it was entertained and on 21.02.1997 directed to be connected with Writ Petition No. 5224 (SS) of 1994, and in the meanwhile, the opposite parties were directed to consider the case of the petitioners for regularization against the existing vacancies as they have completed more than five years of service as daily wagers and that they should be paid atleast minimum of the pay scale to which a regular Junior Engineer is entitled, till their case for regularization is considered. The Chief Engineer of the Minor Irrigation Department issued directions on 03.09.1997 for payment of salary in the pay-scale admissible to Junior Enginner i.e. 1400-2300/- and Writ Petition No. 1436 (SS) of 1997 came to be finally disposed of on 07.01.2009, directing the regularization on the ground that such Junior Engineers had put in more than 20 years of service in the Department under the relevant provisions of the Regularization Rules which have been issued in the meantime. The State of U.P. had by then notified the Uttar Pradesh (posts within the purview of Public Service Commission) Regularisation of Ad hoc Appointments (Third Amendment) Rules, 2001 on 20.12.2001, and the case of the writ petitioner was considered and rejected on 14.01.2011. The petitioner thereafter filed a Writ Petition which was allowed. The State of U.P. challenged such decision before this Court at Lucknow and such challenge was rejected. Several similarly situated persons were regularised in the department of Minor Irrigation in accordance with Regularization Rules of 2001, and the petitioner was also considered and regularized on 31.12.2018. The Writ Petitioner, thereafter, retired on 30.09.2020, but pension and other retiral dues were denied on the ground that he has not rendered qualifying service of ten years under the U. P. Retirement Benefits Rules, 1961 and the U.P. Qualifying Service for Pension and Validation Ordinance, 2020. The writ petitioner, thereafter, filed a writ petition which was allowed by the Writ Court placing reliance upon Prem Singh Vs. State of U.P. and Others (2019) 10 SCC 516 . 24. The Division Bench in Special Appeal No. 21 of 2022 considered the judgement rendered in Prem Singh (Supra) and came to the conclusion that it was not applicable to the petitioner, Raj Bahadur Pastor. However, looking to the facts of the case, it observes that since the Government Orders directed regularization of Ad hoc Employees before consideration of regular appointment and the petitioner’s case for regularization was not considered before regular appointments were made by the Minor Irrigation Department on the post of Junior Engineer, he was entitled to be considered as regularized w.e.f. 20.12.2001 when the Third Amendment in the Rules were notified, and denial of timely consideration in accordance with Rules for regularization denies service and other retiral benefits to Ad hoc employees only because the Administrative lethargy on the part of the department concerned in processing the case. 25. 25. It is apparent from a consideration of judgement rendered in State of U.P. and 2 Others. Vs. Raj Bahadur Singh Pastor that the judgement has been rendered on the basis of entirely different facts. 26. Learned counsel for the petitioner at this stage has referred to page no. 66 of this Writ Petition wherein in Annexure-9, it has been stated by the then Executive Officer, Nagar Panchayat, Khamariya in his order dated 24.05.2011 that Government Order No. 307 dated 13.05.2011 permitted regularization of daily wage employees working in local bodies since before 29.06.1991 by creation of supernumerary posts, and the petitioner Ramraj Pandey, Safai Jamadar was intially appointed on 05.01.1985, and therefore, in terms of the conditions mentioned in the Government Order dated 13.05.2011, he was entitled to be regularized and was being regularized in Pay Band-I Rs.5200-20200/- with grade pay Rs.1800/- w.e.f. 13.05.2011. 27. It has been argued that in the order dated 24.05.2011, the Respondent no.5 has admitted that the petitioner has been working continuously from 05.01.1985. He should, therefore, have been regularized soon after the issuance of Government Orders in January and February, 1992, but he was not regularized. Had he been regularized in 1992 or soon thereafter he could have been entitled to pension and his retiral dues. 28. This Court has considered the relief clause as framed in this writ petition, where the petitioner has challenged the Regularization Order dated 24.05.2011 and has prayed for correction of the said Regularization Order in pursuance of judgement and order dated 24.10.1997 passed in Civil Misc. Writ Petition No. 22313 of 1991, and in pursuance of the Government Order No. 1076//9-1-92,Sa/91 dated 03.02.1992, and Government Order No. 4094/Nau-1-92-95Sa/91 dated 01.05.1992 and Government Order No. 4980/Nau-1-92 dated 20.05.1992. 29. The petitioner cannot approbate and reprobate at the same time. On the one hand, he places reliance upon the Order dated 24.05.2011 and on the other hand he has challenged the Regularization Order and prayed for its quashing, in the light of judgement and order dated 24.10.1997 passed in his earlier writ petition. 30. This Court has considered in its entirity the judgement and order dated 24.10.1997, and finds that there is no direction therein for reinstatement of the petitioner. 30. This Court has considered in its entirity the judgement and order dated 24.10.1997, and finds that there is no direction therein for reinstatement of the petitioner. There is a direction for re-engagement in case additional posts have been sanctioned and there is work available and the petitioner is found eligible for the post in accordance with the Rules. The Court had found the petitioner to be engaged on daily wage basis and not on Ad hoc basis and this finding has attained finality 31. Accordingly, the Writ Petition stands dismissed.