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2024 DIGILAW 300 (UTT)

Shivraj Singh Rawat v. State Of Uttarakhand

2024-05-02

PANKAJ PUROHIT

body2024
JUDGMENT : (Pankaj Purohit, J.) : By means of this writ petition, petitioner has sought the indulgence of this Court for quashing the order dated 15.09.2016 (Annexure No.14 to the writ petition), and further to direct the respondents to consider his case for regularization. 2. The brief facts of the case are that since 23.07.2005, petitioner is discharging his duties as JCB/Robot Operator/Driver in PWD Division, Gopeshwar. It is the case of petitioner that he made a request for giving him appointment on daily wage basis on 06.05.2008. The petitioner has been moving representation since long seeking regularization but of no result. Earlier, he preferred WPSS No.725 of 2013 which was decided on 27.06.2013 permitting petitioner to move a representation and respondent no.3 was directed to decide the same, however, the said representation was decided in negative by order dated 15.09.2016. Hence this petition. 3. 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.3 in violation of Regularization Rules of 2013. 4. Respondent-Department has filed its counter affidavit denying the case of petitioner on the ground that he was not directly appointed but he was appointed through a Contractor. It is further contended in the counter affidavit that since, the petitioner was engaged through registered Contractor and did not fulfill the criteria of the Rule-4 of the Regularization Rules of 2013, he is not entitled for regularization on the post of Robot Operator as no such post is sanctioned or vacant in the departmental structure. It is also contended that the petitioner was engaged on recommendation of the Assistant Engineer vide letter dated 09.06.2005, owing the necessity of work, only for a period of 03 months and further, the petitioner was being paid through Hand Receipt Form-28, which is used only for miscellaneous payments. 5. No rejoinder affidavit has been filed by the petitioner. 6. Heard learned counsel for the parties. 7. 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. 5. No rejoinder affidavit has been filed by the petitioner. 6. Heard learned counsel for the parties. 7. 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. Learned counsel for the petitioner argued that the respondent-department has not denied that the petitioner has been working with the department as Robot Operator since 2005 continuously, which fact makes it clear that there is a necessity of the working of the petitioner in the department and the work, which has been performed by the petitioner is perennial in nature, hence, still the services of the petitioner are needed. Learned counsel for the petitioner further pointed out that the case of the petitioner could be considered under the Regularization Rules of 2013, by which time he had completed 5 years as originally was the requirement, as per Regularization Rules of 2013, but, the said Rules have been stayed in WPSB No.616 of 2018, Narendra Singh and Another Vs. State of Uttarakhand and Others, wherein, a challenge was thrown to the validity of the Rules. The attention of this Court was further drawn to the fact that now, WPSB No.616 of 2018, has been finally decided by a Division Bench of this Court vide judgment and order dated 22.02.2024, whereby, the Regularization Rules of 2013 was upheld and are back in the statute book. Now, the services of the petitioner can be considered for regularization under those Rules by the respondent-department. 8. Per contra, learned counsel for the respondent-State strongly supported the contention raised in the counter affidavit. Apart from this, though, it is admitted that the controversy with regard to the validity of the Regularization Rules of 2013 has been put to an end by the Division Bench of this Court vide judgment and order dated 22.02.2024, it is argued by the learned State Counsel that by the said judgment, in place of 5 years, requirement for Daily Wager Services, 10 years have been replaced by a Division Bench of this Court and in that view of the matter, in order to avail the benefits of Regularization Rules of 2013, the petitioner should have completed at least 10 years of service on the date of commencement of the Regularization Rules of 2013. In another words, the petitioner should have been engaged before 31.12.2003. But, the petitioner is admittedly engaged as Robot Driver with the respondent department on 23.07.2005. Thus, Regularization Rules of 2013 will not come to the rescue of the petitioner for his regularization. 9. Having heard learned counsel for the parties and especially, in view of new fact that the Regularization Rules of 2013, namely, Uttarakhand Regularization of Daily Wager, Work Charge, Contract, Fixed Salary, Part-time and Ad-hoc appointed employees Rules, 2013, challenged in Writ Petition No.616 of 2018(S/B), Narendra Singh and Another Vs. State of Uttarakhand and Others, have 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 back 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 JCB/Robot Operator/ Driver with the respondent-Department, as he has been rendering service continuously since 2005. Mere changing the nomenclature is nothing but a camouflage to deprive the petitioner of his rightful claim. Therefore, it appears to this Court that there is no hurdle to regularize the services of the petitioner with the respondent-Department keeping in view the long standing service rendered as a daily wager and his entire youth and life spent in the services of the respondent-Department. 10. Therefore, it appears to this Court that there is no hurdle to regularize the services of the petitioner with the respondent-Department keeping in view the long standing service rendered as a daily wager and his entire youth and life spent in the services of the respondent-Department. 10. So far as the argument of the learned State Counsel is concerned that after the judgment by this Court in case of Narendra Singh (Supra), the requirement of minimum qualifying service for regularization is 10 years from the date of promulgation of 2013, the same is fallacious for the reason that if the Regularization Rules were taken as it is, the petitioner was engaged on 27.07.2005 as Daily Wager with the respondent-department, was within the zone of consideration for regularization having been put in 5 years continuous and satisfactory services on the date of promulgation of the Regularization Rules of 2013 i.e. on 31.12.2013, but the 10 years’ period, as directed by the Division Bench is to be taken after the judgment dated 22.02.2024 in Narendra Singh (Supra) Case from 04.12.2018, if taken the way, it is being construed by the learned State Counsel, in that case, the petitioner would become ineligible as in that event, he should have been engaged prior to 31.12.2003. This cannot be the import and intent of the judgment passed by a Division Bench. 10 years’ period shall be taken from 04.12.2018, thus, any person, who is engaged on or before 04.12.2018 would be eligible for consideration for regularization under the Regularization Rules of 2013. The reason being that due to interim order passed on 04.12.2018 by a Division Bench of this Court in the case of Narendra Singh (Supra), all the proceedings for regularization of the daily wagers etc. were stopped. No one was regularized due to stay of Regularization Rules of 2013. 11. I do not find any force in the submission made by learned State Counsel, the same is rejected. 12. Accordingly, writ petition is allowed. The rejection order dated 15.09.2016 (Annexure No.14 to the writ petition) is hereby quashed. A writ of mandamus is issued commanding the respondent-State to consider the case of petitioner for regularization with the respondent-department 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. 13. A writ of mandamus is issued commanding the respondent-State to consider the case of petitioner for regularization with the respondent-department 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. 13. Pending application(s), if any, stands disposed of accordingly.