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2023 DIGILAW 2191 (ALL)

Adya Shankar Dwivedi v. State of U. P.

2023-09-21

KSHITIJ SHAILENDRA

body2023
JUDGMENT Kshitij Shailendra, J. Heard Shri Pankaj Srivastava, learned counsel for the petitioner, Shri Ashok Mehta, learned Additional Advocate General assisted by Shri Prateek Singh, learned Standing Counsel and perused the record. 2. Various orders were passed in the present writ petition and perusal of order-sheets shows that time and again, original records summoned from the Department and received by this Court were also perused by the learned counsel appearing for both the sides. Recently also the record was again summoned, as the case was taken up after considerable period of time. This case is being heard for the last two days and the learned counsel for the petitioner was permitted to peruse the record with the assistance of office of learned Chief Standing Counsel. 3. This writ petition has been filed challenging the order dated 15.10.2005, whereby the claim of the petitioner for regularization has been rejected by the respondent no.3 i.e. Divisional Forest Officer, Banda on the ground that the petitioner was not continuing in service in the year 2001 and that he has worked intermittently in the years 1997, 1998, 1999 and 2000. 4. Various affidavits have been exchanged between the parties in the present writ petition. However, the controversy being quite limited, the Court focuses on the issue involved and the material referred to by the learned counsel for the parties in relation thereto. 5. The submission of Shri Pankaj Srivastava, learned counsel for the petitioner is that hundreds of writ petitions were filed before this Court in the decade of 1990 when the daily wagers were claiming regularization of their services. The writ petitions were decided and such decisions gave rise to Special Appeal No.653 of 1995 (State of U.P. v. Putti Lal). The said appeal was decided by a detailed judgment and order of this Court on 10.12.1997. The said judgment is reported in (1998) 1 UPLBEC 313. The relevant paragraph no.16 of the said judgment is as follows:- "16. For the reasons given above, these writ petitions and the Appeals are partly allowed. The judgments impugned in the Appeals are set aside. The Government of U. P. is directed to appoint a Committee consisting of Secretaries of Finance and Forest Departments and the Legal Remembrancer or their nominees within a month of production of certified copy of this judgment before the Secretary, Forest Department, Uttar Pradesh. The judgments impugned in the Appeals are set aside. The Government of U. P. is directed to appoint a Committee consisting of Secretaries of Finance and Forest Departments and the Legal Remembrancer or their nominees within a month of production of certified copy of this judgment before the Secretary, Forest Department, Uttar Pradesh. The Committee so appointed will consider the question of framing Scheme for regularisation/absorption of the petitioners and other similarly placed employees working in the Forest Department and the Schemes undertaken by the said Department. The Committee will pass speaking order and will submit its report within a period of three months of the date of its constitution by the Government. It will be open to the Association Union of the petitioners to make representation containing all their grievances in this regard before the Committee and if such a representation is made the same shall also be decided by speaking order by the said Committee within the same time specified above. The Government will thereafter pass appropriate order taking into consideration the report of the Committee and material available on the record, within one month of the receipt of the report of the Committee. The whole exercise by the Committee as well as by the Government should be completed within six months from the date of production of certified copy of this judgment before the Government. Till then the parties shall maintain status quo." 6. A perusal of the aforesaid order shows that the State Government was directed to frame a scheme for regularization of the petitioners and other similarly placed employees working in the Forest Department and direction for the maintenance of status quo was also issued. 7. The State challenged the decision of this Court before the Apex Court, which decided Civil Appeals by judgement and order dated 21.02.2002 in (State of U.P. and others v. Putti Lal) reported in (2002) 2 UPLBEC 1595 . 8. The Apex Court observed that the State Government had already framed Uttar Pradesh Regularization of Daily Wages Appointment on Group 'D' Posts Rules, 2001 and therefore, question of framing any further scheme by the State of U.P. did not arise. 8. The Apex Court observed that the State Government had already framed Uttar Pradesh Regularization of Daily Wages Appointment on Group 'D' Posts Rules, 2001 and therefore, question of framing any further scheme by the State of U.P. did not arise. The Apex Court issued a direction that appropriate Authority would consider the case of the daily wagers sympathetically, who had discharged the duties for various years and so far as the salary is concerned, the direction for payment of minimum of the pay scale was also issued. 9. The case of the petitioner is that he was appointed as a daily wager in the Forest Department in November, 1984 and continued to discharge duties. His further case is that his writ petition was also clubbed with the matters decided in the case of Putti Lal (supra) and while he was entitled to be regularized in service in view of the Rules of 2001, his claim has wrongly been rejected. 10. Shri Pankaj Srivastava, learned counsel for the petitioner has referred to various documents to demonstrate that the petitioner was continuing in service on the date when the Uttar Pradesh Regularization of Daily Wages Appointment on Group 'D' Posts Rules, 2001 came into existence, inasmuch as, it is clearly provided in the rules that the services of that daily wager would be regularized, who was directly appointed on daily wages basis on a Group 'D' post in the Government service before 29.06.1991 and is continuing in service as such on the date of commencement of these rules. 11. The dispute in the present case is only with respect to actual working of the petitioner in the Department and his alleged continuance or discontinuance in service on the date when the aforesaid rules came into existence. 12. Learned counsel for the petitioner, on the basis of original record produced before this Court, submits that there is continuity in services on the date of commencement of rules. 13. The Court has perused the order-sheets of this case and finds that when on earlier occasions the records were produced before this Court, few registers were there, in which there are hundreds of entries made in the hand-writing of the petitioner. The said registers were maintained at the concerned Forest Barrier, where the petitioner was working. 13. The Court has perused the order-sheets of this case and finds that when on earlier occasions the records were produced before this Court, few registers were there, in which there are hundreds of entries made in the hand-writing of the petitioner. The said registers were maintained at the concerned Forest Barrier, where the petitioner was working. The same registers have been produced during the course of arguments of this case before this Court yesterday and today also. Without mentioning much about the said registers, it is to be noted that there is a clear admission on behalf of the respondents that these registers were filled up and maintained in the hand-writing of the petitioner. However, the dispute is that the same did not contain signatures of the petitioner as two persons namely; Uday Narayan Singh and Hari Narayan Singh were working as daily wagers on the concerned Forest Barrier and under what circumstance, the petitioner was filling up those registers in his hand-writing is not clear. It is also argued on behalf of the State that the petitioner, in paragraph no.18 of the writ petition, has stated that the petitioner is still performing the duties in Murka Forest Barrier but he is being paid only Rs.1600/- fixed by the barrier in-charge, whereas his signatures are still available in Cash Registers Page-3 and other documents in the department. The submission of the State is, therefore, to the effect that the barrier in-charge was himself paying some amount settled in between petitioner and himself and it is under the said arrangement that the petitioner was allowed to work at the concerned Forest Barrier. 14. Two cash books have also been produced before this Court. These cash books contain entries with regard to payment of wages to daily wagers. Apart from other the submissions, the argument of the State side is to the effect that the petitioner worked only for 90 days in January, 1999, 76 days in the year 2000 and 102 days in the year 2001-02 and did not work w.e.f. January, 2001 to December, 2001 and, thereafter, also again remained out of service from January, 2002 to March, 2002 and, then, again came on duty in April, 2002 onwards. A chart with regard to working of the petitioner has been appended as annexure C.A-1. to the counter affidavit. A chart with regard to working of the petitioner has been appended as annexure C.A-1. to the counter affidavit. The submission therefore, is that when in December, 2001 the Regularization Rules came into existence, the petitioner was not working. The State has also relied upon a counter affidavit of July, 2015, which is accompanied by various lists. These lists are, in fact, seniority list prepared in the year 2002, in which the name of the petitioner stands articulated. However, the submission is that though the working of the petitioner stands substantiated over a number of years even as per the seniority list, there is a mention of "000" in the relevant column pertaining to the years 2000-01, which shows that in the said two years, the petitioner was not working. 15. To the above submission, learned counsel for the petitioner relied upon annexure no.10 to the rejoinder affidavit, which is the copies of the seniority lists prepared in the year, 2001 and 2002. In both the said lists, name of the petitioner stands articulated and, in fact, they also disclose physical parameters relating to the health check-up of the petitioner along with various other daily wagers. The submission, therefore, is that once as per the Rules of 2001, the department had proceeded to prepare the lists as per Rule 4 sub-Rule (4) and also examined the merits of the candidates including the petitioner, it is apparent that the petitioner's case was being considered for regularization in service in the year 2001-02 and, hence, it cannot be said that the department was treating the petitioner out of service. 16. During the course of arguments another type of dispute was raised by the State and that is to the effect that though the petitioner was directly appointed on daily wage basis on a Group 'D' post, w.e.f. 1998 onwards, he started working on a Group 'C' post and, therefore, his claim is beyond the zone of consideration under the Rules of 2001, which are meant for 'Daily Wagers Appointed on Group 'D' Posts' alone. 17. In this regard, learned counsel for the petitioner has referred to Forest Account Rules and has referred to rules 123 and 124, which contain classification of employees as labour and those, who are not included in the category of labour. 17. In this regard, learned counsel for the petitioner has referred to Forest Account Rules and has referred to rules 123 and 124, which contain classification of employees as labour and those, who are not included in the category of labour. Various posts as referred to the said Rules have been read out before the Court and it is also argued that the petitioner being a well educated person, the department was taking different kinds of work from him and working in different capacities, sometimes in garden and sometimes at the barrier or otherwise, would not mean that the petitioner would be classified as a Group 'C' employee and that he would still remain as a Group 'D' employee as per the nature of the initial appointment offered to him. 18. Having heard learned counsel for the parties, following things stand established on record:- (i) Framing of rules under the order of the Special Appellate Bench with positive intervention in the judgment of Putti Lal (supra) ultimately led the State Government to frame the aforesaid Rules of 2001. (ii) The Division Bench as well as the Apex Court made all the sympathetic observations in favour of the daily wagers and directed the authorities to consider their claim of regularization. (iii) The petitioner made a claim for regularization before the authorities in terms of the aforesaid judgements. (iv) The name of the petitioner finds place in various seniority lists prepared from time to time including the lists in the year 2000, 2001 and 2002. (v) The petitioner continued to work from 1984 onwards with some breaks as alleged by the State in the years 1997, 1998, 1999 and 2000 and according to the State, he did not work in the year 2000-01 but again started working in the year 2002 onwards. (vi) The registers, which were prepared by the petitioner on the concerned forest barrier, were maintained in the hand-writing of the petitioner with regard to which successive admissions are there on record, as also noticed in the different orders passed by this Court on the order-sheet. (vii) There is no mention of the petitioner's name at certain places in the cash book maintained by the State but in other documents, such as, seniority lists and the list mentioning medical fitness etc., the name of the petitioner finds place. 19. (vii) There is no mention of the petitioner's name at certain places in the cash book maintained by the State but in other documents, such as, seniority lists and the list mentioning medical fitness etc., the name of the petitioner finds place. 19. In so far as the Rule 4(1)(a) of the Regularization Rules, 2001 is concerned, the continuity in service on a Group 'D' post has to be interpreted in the facts of every case. In the present case, merely because the respondents took different kinds of work from the petitioner based upon his competence as an educated person, there being nothing on record that nature of appointment of the petitioner ever changed from Group 'D' to Group 'C' category, merely based upon such functioning, it cannot be presumed that the petitioner ceased to be a Group 'D' daily wager and became an employee of the department under Group 'C' category or post. 20. In so far as the cash books or other documents maintained by the department are concerned, the documents being always in custody, control and supervision of the department, a daily wager cannot have access to the said registers and records and the entries made by the department in one or the other way, every time cannot be explained by a daily wager. Therefore, the Court has to gather the situation in its entirety based upon the entire record and, in the present case, I find that whatever intermittent breaks in service have been noted by the department, either in counter affidavit or in any record maintained by the department, the same do not persuade this Court to accept the stand of the State that the petitioner ceased to be a Group 'D' daily wager or that his continuity in service was broken anyway so as to deprive him the benefits of Regularization Rules, 2001. 21. The decision of the Division Bench and also of the Apex Court in the case of Putti Lal (supra) clearly disclose the soul of the judgements and not only the observations made in the said orders but also the ratio laid down therein lead this Court to read the record and the law in favour of the petitioner and against the State. The artificial breaks noted on record, do not break the continuity in service of the petitioner in the totality of facts and circumstances of the case, particularly in view of the fact that the entire record, read as a whole, reflects that the petitioner was never out of service and the artificial dispute raised by the State is of no significance in the totality of facts of this case. 22. It has also been informed to the Court that the other identically placed persons have been regularized in service. 23. Considering the facts and circumstances of the case, I find that denial of claim of the petitioner for his regularization in service in terms of Rules, 2001 is unjustified. 24. The writ petition succeeds and is allowed and the order dated 15.10.2005 passed by the respondent no.3 i.e. Divisional Forest Officer, Banda is hereby quashed. 25. A Writ of mandamus is issued to the respondent no.3 i.e. Divisional Forest Officer, Banda to regularize the services of the petitioner w.e.f. 01.06.2008, as the writ petition was filed in the year 2008. The petitioner shall be entitled to all the service and consequential benefits including the salary, its arrears and increments, etc. from the said date. 26. The petitioner shall also be entitled to post-retrial benefits based upon the financial benefits, which have been granted under this order, inasmuch as, it has been informed to the Court that the petitioner would attain age of superannuation by the end of year 2023 itself. 27. The original record produced by the State is hereby returned to the learned Standing Counsel.