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2024 DIGILAW 197 (UTT)

Raj Kumar v. State of Uttarakhand

2024-03-14

PANKAJ PUROHIT

body2024
JUDGMENT : Pankaj Purohit, J. By means of this writ petition, petitioner has sought the indulgence of this Court for quashing the rejection order dated 18.10.2022 (Annexure No.6 to the writ petition), whereby, the representation of the petitioner for regularization has been rejected by the respondent No.2. 2. The brief facts of the case are that the petitioner was initially engaged by the Uttar Pradesh Warehousing Corporation in the year 1999-2000 as casual clerk on daily wages. The petitioner continued as such with the Uttar Pradesh State Warehousing Corporation when the said Corporation was divided and Uttarakhand Warehousing Corporation came into existence. The petitioner still continued his service as a casual clerk with the Uttarakhand Warehousing Corporation (hereinafter referred to as Corporation) and is presently posted at Nakroda, Dehradun. 3. Since, petitioner has been continuing his service as a daily wager employee with the respondent-Corporation, therefore, he moved a representation on 10.01.2017 claiming his regularization, but, the prayer of the petitioner did not find favour with the respondent-Corporation and the same was rejected. However, the respondent-Corporation ignored the fact that several similarly situated casual clerks were regularized on 02.01.2017 and respondent No.4 was one of such regularized casual clerks. 4. Feeling aggrieved by the rejection of the petitioner’s claim for regularization, petitioner filed a writ petition (S/S) No.1715 of 2020, which came to be decided by the Coordinate Bench of this Court vide order dated 08.07.2022 giving a liberty to the petitioner to make a fresh representation to the Competent Authority claiming regularization, within two weeks’ from the date of passing of order i.e. 08.07.2022 and the respondent-Competent Authority was directed to decide the representation so made by the petitioner within 8 weeks from the date of receipt of such representation along with the certified copy of that order. 5. The petitioner submitted a fresh representation on 22.07.2022 accompanied with the certified copy of the judgment and order dated 08.07.2022 passed by this Court. The said representation of the petitioner was rejected by the respondent No.2 vide impugned order dated 18.10.2022. 6. The petitioner is now before this Court, aggrieved by the rejection of his representation vide its order dated 18.10.2022. 7. The said representation of the petitioner was rejected by the respondent No.2 vide impugned order dated 18.10.2022. 6. The petitioner is now before this Court, aggrieved by the rejection of his representation vide its order dated 18.10.2022. 7. It is contended by the petitioner in the writ petition that the order of rejection of the representation is highly arbitrary and against the law, as the representation was rejected by the respondent No.2 saying that the Regularization Rules of 2011 have been superseded by new Rules known as the Uttarakhand Regularization of Daily Wager, Work Charge, Contract, Fixed Salary, Part-time and Ad-hoc appointed employees Rules, 2013 (hereinafter referred as “Regularization Rules 2013”) which have been stayed by the order of this Court. Since, Regularization Rules of 2013 are stayed by this Court, the regularization of the petitioner cannot be done and accordingly, the representation dated 22.07.2022 moved by the petitioner, was again rejected. 8. It is brought to the notice of this Court by the learned counsel for the petitioner that now, the ground taken by the respondent-Corporation for rejecting the representation of the petitioner does not exist anymore inasmuch as the writ petition No. 616 of 2018(S/B) Narendra Singh and Another Vs. State of Uttarakhand and Others has now finally decided by the Division Bench of this Court vide judgment and order dated 22.02.2024 and the Regularization Rules of 2013 have been upheld. Thus, the Regularization Rules 2013 have now been revived and are in the statute book and are presently covering the field. In the backdrop of this new development, now, there is no hurdle for regularizing the services of the petitioner with the respondent-corporation. 9. Respondent-Corporation has filed its counter affidavit and in the said counter affidavit, it has been specifically pleaded that the petitioner is no longer the employee of the corporation rather he is working in the corporation through outsourcing agency since 2018 and the outsourcing agency has not been impleaded as party-respondent by the petitioner. 10. It is further stated by the respondent-Corporation in its counter affidavit that since the Regularization Rules 2013 are stayed by this Court’s order dated 04.12.2018, therefore, no regularization policy is in force at present, hence, the services of the petitioner cannot be regularized and further, the Corporation denied the relationship of employer-employee between the Corporation and the petitioner. 11. 10. It is further stated by the respondent-Corporation in its counter affidavit that since the Regularization Rules 2013 are stayed by this Court’s order dated 04.12.2018, therefore, no regularization policy is in force at present, hence, the services of the petitioner cannot be regularized and further, the Corporation denied the relationship of employer-employee between the Corporation and the petitioner. 11. It is further stated in Para 6 of the counter affidavit that a staff restructure has been made in the Corporation vide order dated 21.09.2016 and the benefit of the regularization cannot be extended to the petitioner, as all the post of Corporation meant for the Warehousing have been earmarked to be filled up through outsourcing agency. No rejoinder affidavit has been filed by the petitioner. 12. Heard learned counsel for the parties. 13. Learned counsel for the petitioner strenuously argued that the petitioner has rendered entire youth and life in the service of the corporation since 1999-2000 as a daily wager, therefore, at this juncture, the respondent cannot take a new plea, that since the post have been earmarked to be filled up through outsourcing agencies, the services of the petitioner cannot be regularized. 14. It is further submitted by learned counsel for the petitioner that even after the bifurcation of Uttar Pradesh Warehousing Corporation into the Uttarakhand Warehousing Corporation, the services of the petitioner were continued and he has been continuously working with the Uttarakhand Warehousing Corporation since 2015, even after the bifurcation of the said Corporation. 15. It is submitted by learned counsel for the petitioner that the stand taken by the respondent-Corporation is contrary and a new one to the stand which has been taken by it while rejecting the representation of the petitioner. It is pointed out by him that in the rejection order, whereby, the representation of the petitioner was rejected, only this much was stated that since the Regularization Rules 2013 were stayed by this Court, the regularization of the petitioner was not possible. The respondent-Corporation cannot be permitted to supplement new grounds by filing a counter affidavit. 16. In order to substantiate his argument, learned counsel for the petitioner relied upon the judgment of Hon’ble Apex Court in the case of Mohinder Singh Gill Vs. Chief Election Commissioner rendered in 1978 SCC (1) 405. Relevant Para 8 of the said judgment is quoted herein below:- “8. 16. In order to substantiate his argument, learned counsel for the petitioner relied upon the judgment of Hon’ble Apex Court in the case of Mohinder Singh Gill Vs. Chief Election Commissioner rendered in 1978 SCC (1) 405. Relevant Para 8 of the said judgment is quoted herein below:- “8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Gordhandas Bhanji.” 17. Learned counsel for the petitioner further stated that the status of the petitioner at the time of promulgation of Regularization Rules of 2013 would be relevant for the purpose of regularization irrespective of the changes made in the service of the petitioner later on. 18. Per contra, learned counsel for the respondent-Corporation strongly supported the contention raised in the counter affidavit. 19. Having heard learned counsel for the parties and specially, with the new fact that the Regularization Rules of 2013 stayed in writ petition No.616 of 2018(S/B), Narendra Singh and Another Vs. State of Uttarakhand and Others, has now been revived, as the said writ petition is decided by the Division Bench of this Court by reason of a judgment and order dated 22.02.2024, whereby, the Regularization Rules of 2013 was upheld and are in the statute book, the services of the petitioner can be regularized under Regularization Rules of 2013. The respondent cannot take other plea to deprive the petitioner of its right to claim regularization of his services as a Clerk with the respondent-Corporation, as he has been rendering service continuously since 2001. Mere challenging the nomenclature is nothing but a camouflage to deprive the petitioner his rightful claim. The respondent cannot take other plea to deprive the petitioner of its right to claim regularization of his services as a Clerk with the respondent-Corporation, as he has been rendering service continuously since 2001. Mere challenging the nomenclature is nothing but a camouflage to deprive the petitioner his rightful claim. The reasons which have been cited by the respondent No.2 while rejecting the representation of the petitioner, are not more in existence, therefore, it appears to this Court that there is no hurdle to regularize the services of the petitioner as a Clerk with the respondent-Corporation keeping in view the long service rendered as a daily wager and his entire youth and life spent in the services of the respondent-Corporation. 20. Accordingly, writ petition is allowed. The rejection order dated 18.10.2022 (Annexure No.6 to the writ petition) is hereby quashed qua the petitioner. A writ of mandamus is issued commanding respondent No.2-Managing Director, Uttarakhand Warehousing Corporation, Rudrapur to regularize the services of the petitioner as a Clerk with the respondent-Corporation under the Regularization Rules of 2013, as early as possible but not later than six weeks’ from the date of receipt of certified copy of this order. No order as to costs. 21. Pending application(s), if any, stands disposed of accordingly.