Allahabad High Court
Brij Bhan 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. - 7604 of 2008
Petitioner :- Brij Bhan
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 Bar Social Forestry Division, Lalitpur in January, 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) which are to be seen are that incumbent has been appointed 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 worked has not been disputed. However, it is stated that he has not worked from April, 2000 till formation of Rules 2001.
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 since he has not worked continuously and was not working at the time of promulgation of Rules 2001 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 has 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 worked. In the counter affidavit, it has been stated that since he has not working from April, 2000 till formation of Rules 2001 as such he is not entitled. This fact has been denied in the rejoinder affidavit. Thus, it is a disputed question of fact. Either of the parties have not brought on record any document or material in support of their allegations. It is thus difficult for this Court to decide the controversy.
In view of the aforesaid facts and discussions, the writ petition stands finally disposed of with a direction to the respondents to consider the case of the petitioner for regularization in accordance with the Rules 2001 and the observations made herein above and pass suitable reasoned order after consideration of record and opportunity to the petitioner to produce evidence in respect of his claim. The exercise may be carried out within a period of three months from the date of production of a certified copy of this order.
Order Date :- 1.8.2011
Dcs
