Allahabad High Court
Gajendra Singh vs State Of U.P. & Others on 1 August, 2011
Bench: Krishna Murari
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 33
Case :- WRIT - A No. - 7601 of 2008
Petitioner :- Gajendra Singh
Respondent :- State Of U.P. & Others
Petitioner Counsel :- D.S. Srivastava
Respondent Counsel :- C.S.C.
Hon'ble Krishna Murari, J.
Heard Sri D. S. Srivastava, learned counsel for the petitioner and learned Standing Counsel appearing for the State-respondents.
Pleadings have been exchanged between the parties and with the consent of the learned counsel for the parties, this writ petition is being finally disposed of.
Petitioner was engaged as Class-IV employee on daily wage basis in Forest Range Mahrauni Social Forestry Division, Lalitpur in November, 1986 and has been continuing on the said post. On promulgation of U. P. Regularization of Daily Wages Appointment on Group 'D' Posts Rules, 2001 (hereinafter referred to as Rules 2001), the cases of daily wage employees was considered for regularization. However, the case of the petitioner was not considered by the competent authority. Aggrieved, the petitioner has approached this Court seeking a writ, order or direction in the nature of mandamus commanding the respondents to regularize his services with all consequential benefits.
Learned counsel for the petitioner submits that the case of the petitioner has not been considered for regularization by mis applying the Rules 2001 on the ground that there had been artificial break in his service. It is further submitted that the only conditions provided under Rule 4 (1) are to be seen which require that incumbent appointed directly on daily wages on Group 'D' post before 29.6.2001 and continuing in service as such on the date of enforcement of the said Rules. Further requirement under Clause (b) of Rule 4 (1) is that he must have possessed requisite qualification required for regular appointment on that post at the time of such employment on daily wage basis.
Respondents have filed counter affidavit wherein facts stated in the writ petition that petitioner was appointed in November, 1986 and has continuously been working has not been disputed rather it has been admitted that he has worked during the period but on account of paucity of fund he has not received payment from September, 2000 to December, 2001 as such he is not entitled to be considered for regularization. It may be relevant to quote paragraph 18 of the counter affidavit:
"That it is submitted that petitioner has not received payment due to paucity of funds from September, 2000 to December, 2001 for a period which he had worked in the department."
Thus, the only ground either for not considering or rejecting the claim of the petitioner for regularization as set up in the counter affidavit is that though he has worked but since he has not received payment and his name was not found continuously in the cash book hence he is not entitled to regularization as Rules 2001 requires that he must have been working continuously.
The question whether the Rules 2001 requires continuous service throughout i.e. from the date of initial engagement till the commencement of Rules 2001 has been subject matter of consideration by learned single Judge of this Court in the case of Janardan Yadav Vs. State of U. P. and others, 2008 (1) UPLBEC 498. After analyzing the provisions of Rule 4 (1) of Rules 2001, it has been held as under :
"The only requirement under Rule 4 (1) (a) are that the incumbent was directly appointed on daily wage basis on a Group 'D' post in a Government service before 29.6.1991 and is continuing in service as such on the date of commencement of the said Rules. The further requirement under clause (b) of Rule 4 (1) is that he must have possessed requisite qualification required for regular appointment on that post at the time of such employment on daily wage basis."
Learned single Judge clearly held that breaks in between the period prescribed by Rule 4 (1) of Rules 2001 will not disqualify any person for being considered for regularization in as much as there is no such requirement under the Rules. The same view has again been reiterated by another learned single Judge in the case of Sri Ram Yadav Vs. State of U. P. and others, 2008 (2) UPLBEC 1533.
In the case of petitioner, there is no denial of the fact that petitioner has been continuously working. His case has not been considered on account of the fact that he has not received payment for certain period he had worked on account of paucity of fund. Merely because there was paucity of fund with the respondents, on account of which payment could not be made to the petitioner cannot constitute a ground to refuse to consider or to reject his claim for regularization, if otherwise, he falls within the ambit of the conditions prescribed by Rule 4 (1) of the Rules 2001.
In view of the aforesaid facts and discussions, the writ petition succeeds and is allowed. A writ of mandamus is issued commanding the respondents to consider the case of the petitioner for regularization in accordance with the Rules 2001 and the observations made hereinabove and pass suitable orders within a period of three months from the date of production of a certified copy of this order.
Order Date :- 1.8.2011
Dcs
