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2024 DIGILAW 77 (UTT)

Noor Hassan (male) v. State of Uttarakhand

2024-02-15

PANKAJ PUROHIT

body2024
JUDGMENT : Pankaj Purohit, J. The writ petition was filed challenging the office memorandum dated 26.05.2018 passed by respondent no.2 (Annexure No.1) to the writ petition whereby the claim of the petitioner for regularization on the post of Tube-Well Operator was rejected. 2. Facts of the case shorn of unnecessary details are that the petitioner was initially appointed as part time Tube Well Operator with respondent no.4 on 05.05.1982. The services of the petitioner was brought to an end by an order dated 08.08.1985. The petitioner took the disengagement of his services as part time Tube Well Operator by challenging it to the Labour Court by raising an industrial dispute and the Presiding Officer, Labour Court, Haridwar vide judgment and award dated 13.06.2011 allowed the Adjudication Case No.281 of 2009 in favour of the petitioner and he was permitted to be reinstated but was not granted back wages. The said order passed by the learned Presiding Officer, Labour Court, Haridwar dated 13.06.2011 has never been challenged by any of the respondents and the same had attained finality. 3. The petitioner was subsequently reinstated with respondents department vide order dated 21.06.2013 as part time Tube Well Operator. 4. It is the case of the petitioner that during the pendency of Adjudication Case before the learned Presiding Officer, Labour Court, Haridwar, the erstwhile State of U.P. has promulgated Rules known as Uttar Pradesh Irrigation Department Irrigation Regularization of Part Time Tube-Well Operators on the post of Tube-Well Operators Rules, 1996 (hereinafter referred to as the Rules) and as per the Rules the part time Tube Well Operators are entitled to be regularized if they have been engaged prior to cut off date dated 01.10.1986. 5. After his reinstatement, the petitioner submitted a representation to respondent no.2 with a request to regularize him as Tube Well Operator with respondents department. The said representation of the petitioner was rejected by the impugned order dated 26.05.2018. Feeling aggrieved, against the aforesaid order, petitioner is before this Court. 6. The counter affidavits were filed by the contesting respondents raising similar contentions. It has been stated that Rules of 1996, as stated above, will not be applicable to the petitioner, as the State of Uttarakhand has already framed its Rules vide Notification No.1412/XXX(2)/2011-02(1)/2006 dated 21.11.2011 under Article 309 of the Constitution of India for regularization of daily wager, work charge, fixed salary, part time and ad-hoc appointees. It has been stated that Rules of 1996, as stated above, will not be applicable to the petitioner, as the State of Uttarakhand has already framed its Rules vide Notification No.1412/XXX(2)/2011-02(1)/2006 dated 21.11.2011 under Article 309 of the Constitution of India for regularization of daily wager, work charge, fixed salary, part time and ad-hoc appointees. It is further submitted that the representation submitted by the petitioner was not for his regularization rather the same was made for payment of salary at par with the ad-hoc Tube Well Operators pursuant to the judgment dated 18.05.1994 passed in Writ Petition (S/S) No.3558 of 1992. It is further submitted by the State Counsel in its counter affidavit that the petitioner remained disengaged for long span of time i.e. 24 years and was engaged only after the adjudication case was allowed. 7. A rejoinder affidavit was filed by the petitioner to the counter affidavit filed by the State merely contending therein that since the Rules of 1996 were framed especially for the purpose of regularization of part time Tube Well Operators by the erstwhile State of U.P., therefore, the Regularization Rules, 2011 framed by the State of Uttarakhand shall not be applicable 8. Heard learned counsel for the parties and perused the record. 9. It is submitted by the learned counsel for the petitioner very strenuously that once the petitioner was reinstated by virtue of judgment and award dated 13.06.2011 passed by the learned Labour Court, Haridwar, the reinstatement would relate back to the date of disengagement as part time Tube Well Operator with effect from 08.08.1985 and he shall be treated regular in service as part time Tube-Well Operator. It is further submitted that since the Rules of 1996 were framed by the erstwhile State of U.P. for the purpose of regularization of the part time Tube Well Operators, therefore, the Rules of 1996 will be applicable for the purpose of regularization of the petitioner and the Rules of 2011 shall not be applicable. 10. Per contra, learned State Counsel has supported the contention raised in the counter affidavit and stated that the Rules of 2011 would be applicable and in view of the provisions of Section 4 of the Rules of 2011, ten years regular service as part time employee would be required for regularization under the provisions of Rules 2011. 11. 10. Per contra, learned State Counsel has supported the contention raised in the counter affidavit and stated that the Rules of 2011 would be applicable and in view of the provisions of Section 4 of the Rules of 2011, ten years regular service as part time employee would be required for regularization under the provisions of Rules 2011. 11. I have given a thoughtful consideration to the submissions made by the learned counsel for the parties, so far as the applicability of the Rules of 1996 in the case of petitioner is concerned, I do not find any force in the aforesaid submission and the same is rejected, simply for the reason that the Rules of 2011 have been framed by the State of Uttarakhand in supersession of all the existing Rules and Orders framed and promulgated in relation to the regularization of daily wager, work charge, contractual, fixed pay, part time and ad-hoc employees. This Court is of the view that even if the Rules of 2011, which has been promulgated by the State of Uttarakhand regarding regularization of the daily wager, work charge, fixed salary, part time and ad-hoc appointee, the part time services would also be regularized, if a person is on part time service, ten years prior to the cut off date 01.11.2011 as per Rule 4(1) of the Rules of 2011. If the controversy is looked into at this angle that the petitioner was reinstated by virtue of the judgment and award dated 13.06.2011 passed by the Presiding Officer, Labour Court, Haridwar he shall be deemed to be regular in service as part time Tube-Well Operator with respondents and in that view of the matter, he shall be deemed to be in continuation part time service with effect from 05.05.1982 and in this way, the petitioner qualified ten years service required for his regularization. He was engaged as part time Tube-Well Operator before 01.11.2001. 12. Accordingly, the writ petition is allowed. The impugned office memorandum dated 26.05.2018 is hereby quashed. The petitioner is directed to be regularized as Tube-Well Operator with the respondents Irrigation Department immediately under Regularization Rules of 2011. The mandamus is also issued directing the respondents to pay all service benefits to the petitioner as he is entitled under the law except the back wages as directed by the Labour Court.