Siya Ram Yadav vs State Of U.P. And Others
2012 Latest Caselaw 2600 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 

 
Court No. - 2
 

 
Case :- WRIT - A No. - 65408 of 2006
 

 
Petitioner :- Siya Ram Yadav
 
Respondent :- State of U.P. and Others
 
Petitioner Counsel :- D.S.P. Singh
 
Respondent Counsel :- C.S.C.
 

 
Hon'ble Sudhir Agarwal,J.

1. Sri D.S.P. Singh, learned counsel for petitioner and Sri Chandra Shekhar Singh, learned Addl. Chief Standing Counsel appearing for respondents were heard. Since pleadings are complete, as requested and agreed by learned counsels for parties, this Court proceed to decide this matter finally under the Rules of the Court.

2. Writ petition is directed against the order dated 26.6.2006 passed by respondent no. 1 and 17.11.2006 passed by respondent no. 2. Copy of the order dated 26.6.2006 is not on record. The order dated 17.11.2006 is Annexure 24 to writ petition and thereby the petitioner has been terminated since he could not be regularized under the provisions of U.P. Regularization of Daily Wages Appointment on Group 'C' Posts (Outside the Purview of the Uttar Pradesh Public Service Commission) Rules, 1998 (hereinafter referred to as "1998 Rules").

3. The facts in brief, giving rise to present dispute, may be narrated as under.

4. The petitioner was engaged on daily wage basis to function as Ex Officio Stamp Vendor on account of promotion of one Sri Satyavrat Nigam as Deputy Cashier. The aforesaid order was issued by Treasurer, Jaunpur on 28.8.1987. The Government directed for termination of all daily wage employees and accordingly the petitioner was ceased to work vide Treasurer, Jaunpur's order dated 6.1.1988 with effect from 8.1.1988. Again there was a leave vacancy for a period of 28 days on which District Magistrate engaged petitioner on daily wage basis as Assistant Cashier. The aforesaid order of District Magistrate was communicated by Treasurer, Jaunpur by his letter dated 24/26.12.1988. Petitioner however continued to function even after 28 days without any order of appointment or extension. By order dated 13.4.1989 he was transferred to Sub-Treasury, Kerakat, District Jaunpur in the same capacity i.e. Assistant Cashier (Daily wage basis).

5. Petitioner, claiming regularization, having worked for about three years, filed Writ Petition No. 10603 of 1992 which was disposed of on 15.1.1998 with the following order:

"The prayer of the petitioner is for regularization. In this connection he has made representation dated 29.5.1990 and he may make much other representation as is advised and the same may be decided within the months from production of a certified copy of the order before the authority concerned in accordance with law. Petition is disposed of."

6. The District Magistrate, Jaunpur considered the claim of petitioner for regularization in the light of U.P. Regularisation of Ad Hoc Appointments (On Posts Outside the Purview of the Public Service Commission) Rules, 1979 (hereinafter referred to as "1979 Rules") and found that he did not qualify so as to be regularized under the aforesaid Rules, having failed to fulfil the requirement of Rule 4 thereof. Accordingly his claim for regularization was rejected by order dated 31.3.1998 (Annexure 8 to writ petition).

7. Petitioner challenged the aforesaid order dated 31.3.1998 in Writ Petition No. 14121 of 1998 stating that he is a daily wage employee and, therefore, his claim ought to have been considered under 1998 Rules instead of 1979 Rules which were applicable to ad hoc employee and petitioner being a daily wage employee, he ought to have been considered under 1998 Rules. This Court vide order dated 20.9.2004 set aside order dated 31.3.1998 and directed the District Magistrate to consider petitioner's claim for regularization under Rules 1998.

8. The competent authority found vide order dated 21.7.2006 that petitioner did not satisfy the requirement of 1998 Rules also and accordingly terminated him under Rule 8 of 1998 Rules holding that he was not entitled for regularization. Again the matter was taken to this Court in Writ Petition No. 40804 of 2006 contending that the order is wholly unreasoned and non speaking and has failed to show exact consideration whereupon the petitioner has been non suited. The argument favoured with this Court and writ petition was allowed vide judgment dated 1.8.2006. The order passed by District Magistrate was set aside (the judgment mentioned the date of District Magistrate's order as 26.6.2006 while the Annexure 10 to the writ petition shows the date of order is 21.7.2006). The competent authority was directed to take a fresh decision. It is pursuant to this judgment dated 1.8.2006, the impugned order dated 17.11.2006 has been passed by District Magistrate, Jaunpur. He says that no vacancy was available whereagainst petitioner could be regularized inasmuch there existed only six vacancies whereagainst the candidates selected by U.P. Subordinate Services Selection Commission have been appointed and they have joined in October, November and December' 1997 i.e. before the enforcement of 1998 Rules. Since the vacancies stood exhausted and in presenti there existed no vacancy in Class III or that of Cashier on the date of commencement of 1998 Rules, petitioner cannot be regularized in Treasury, Jaunpur. It has also observed that cash wing of Treasury has been declared dying cadre by State Government's order dated 22.9.2000, therefore no fresh appointment can be made therein.

9. Sri D.S.P. Singh, learned counsel for petitioner, contended that on the one hand respondents are still allowing one Sri Manoj Kumar Yadav, who was engaged in the same manner as petitioner though junior to petitioner, to work and is also being paid salary, yet the petitioner has been singled out for arbitrary and illegal treatment and hence the impugned order is liable to be set aside. He also referred to the averments made in para 17 of writ petition that some other juniors have also been retained while petitioner has been terminated.

10. Respondents have filed counter affidavit and have justified the orders impugned in this writ petition for the reasons stated therein. So far as engagement of Sri Manoj Kumar Yadav is concerned, it is said that he was also engaged on daily wage basis and was terminated long back but there is an interim order dated 10.2.1993 in his favour pursuant whereto he is continuing. The averment made in para 17 of writ petition that some persons junior to petitioner have been allowed to continue has been denied and it is said that no daily wage employee is working in Jaunpur Treasury and the averments contained in para 17 of writ petition are incorrect. It is also said that since there was no vacancy whereagainst the petitioner could have been regularized hence he has rightly been terminated as contemplated in Rule 8 of 1998 Rules.

11. In the rejoinder affidavit, though the averments contained in writ petition have been reiterated but nothing substantial has been said and the explanation furnished by the respondents for continuance of Sri Manoj Kumar Yadav has not been controverted.

12. From the pleadings, petitioner has completely failed to demonstrate the case of discrimination. It is not shown that any person junior to petitioner has either been regularized or is being continued in service discriminating the petitioner without any reason. Sri Manoj Kumar Yadav is continuing pursuant to an interim order passed by this Court though respondents had already ceased his job long back and the dispute is pending before this Court. Therefore it cannot be said that continuance of Sri Manoj Kumar Yadav is an act of discrimination on the part of respondents vis-a-vis petitioner.

13. Now the only question up for consideration is whether denial of regularization to petitioner under 1998 Rules is justified or not. Rules 4 (1) of 1998 Rules reads as under:

"4. Regularisation of daily wages appointment on Group 'C' Posts.- (1) Any person who-

(i) was directly appointed on daily wage basis on Group 'C' posts in the Government service before June 29, 1991 and is continuing in service as such on the date of commencement of these rules; and

(ii) possessed requisite qualifications prescribed for regular appointment for that post at the time of such appointment under the relevant service rules on daily wages basis, shall be considered for regular appointment on Group 'C' post in permanent or temporary vacancy as may be available on the date of commencement of these rules, on the basis of his record and suitability before any regular appointment is made in such vacancy in accordance with the relevant service rules or orders.

(emphasis added)

14. The first contingency is that the regularization would be permissible against a vacancy available on the date of commencement of 1998 Rules. Thus, such a vacancy must be available on the date of commencement of Rules. The 1998 Rules came into force on 9.7.1998. The regularization under 1998 Rules therefore is virtually a one time arrangement and not a situation which can be allowed to operate in perpetuity. The vacancies, may be permanent or temporary, on Group 'C' post, if available on 9.7.1998 i.e. the date on which 1998 Rules came into force, could have been considered for regularisation under 1998 Rules and not otherwise. Any vacancy, if becomes available subsequently, shall not be governed by 1998 Rules.

15. In this regard language of Rule 4 (1) of 1998 Rules is pari materia to Rule 4 (1) of U. P. Regularization of Daily Wages Appointments on Group 'D' Posts Rules, 2001 (hereinafter referred to as the "Rules, 2001") which came to be considered in Civil Misc. Writ Petition No. 52534 of 2006 (Ravi Raj Singh Vs. State of U.P. and others) and this Court took the following view:

"... to claim regularisation existence of vacancy was necessary. Rules, 2001 have not been enacted for perpetual obligation but they appears to be a one time measure and applicable to limited number of vacancies i.e. the permanent or temporary vacancy as may be available on Group 'D' post on the date of commencement of the said Rules as is evident from Rule 4 (1) which is reproduced as under:

"4. Regularisation of daily wages appointments on Group ''D' posts.- (1) Any person who-

(a) was directly appointed on daily wage basis on a Group ''D' post in the Government service before June 29, 1991 and is continuing in service as such on the date of commencement of these rules; and

(b) possessed requisite qualification prescribed for regular appointment for that post at the time of such appointment on daily wage basis under the relevant service rules, shall be considered for regular appointment in permanent or temporary vacancy, as may be available in Group ''D' post, on the date of commencement of these rules on the basis of his record and suitability before any regular appointment is made in such vacancy in accordance with the relevant service rules or orders."

18. A perusal of Rule 4(1) shows that only such person would be entitled for regularisation under the Rules, 2001 who satisfy the following requirements:

(i) was directly appointed on daily wage basis on a Group 'D' post in the Government service before 29.06.1991; and

(ii) is continuing in service as such on the date of commencement of Rules, 2001 i.e. 21.12.2001; and

(iii) possess requisite qualification prescribed for regular appointment for that post at the time of such appointment on daily wage basis; and

(iv) permanent or temporary vacancy in Group 'D' post is available on 21.12.2001.

19. The stress on the limited number of vacancies is further evident from Rule 4(1)(b) which in the initial part says "shall be considered for regular appointment in permanent or temporary vacancy, as may be available in Group 'D' post, on the date of commencement of these rules..............before any regular appointment is made in such vacancy."

20. Therefore, it is evident that the claim for regularisation under Rule 4(1) is available only against such temporary or permanent Group 'D' post as exist on 21.12.2001 and not for any vacancy which may be available subsequently. This aspect has already been considered by this Court in Rakesh Chandra Srivastava Vs. State of U.P. and others, 2008(1) ADJ 371 and Yadvendra Singh and others Vs. State of U.P. and others, Civil Misc. Writ Petition No. 37106 of 2006 decided on 14.12.2007 and it has been held that the claim for regularisation under 2001 Rules is limited to the vacancies as were available on 21.12.2001 and not to the subsequent one."

16. Considering the matter in the light of above and clear and unambiguous language of Rule 4 of Rules 1998, the Court finds that before enactment of 1998 Rules, there existed six vacancies which got filled in by the candidates recommended by U.P. Subordinate Service Selection Commission and the candidates joined upto December 1997. The District Magistrate has specifically said in the impugned order that on the date of enforcement of 1998 Rules, there existed no group ''C' vacancy in Jaunpur Treasury whereagainst petitioner could have been regularized. This factum and finding of fact stated in the impugned order has neither been challenged in the entire writ petition nor there is anything to demonstrate that the said finding is perverse or contrary to record. In these circumstances, apparently there is no reason or justification to interfere with the impugned order. The petitioner has failed to demonstrate any patent error in the impugned order warranting interference under Article 226.

17. Sri Singh, learned counsel for petitioner, however, drew my attention to a letter dated 19.1.2004 sent by Special Secretary, U.P. Government to the District Magistrate whereby he had required the District Magistrate to consider petitioner for regularization against any other Group ''C' post if available in any other department or section under the District Magistrate, Jaunpur under Rules 1998 and inform the Government accordingly. The District Magistrate appears to be bold enough not to act mindlessly on such illegal direction of the Special Secretary but sought a clarification whether compliance of such direction contained in letter dated 19.1.2004 would not amount to legal infirmity and sought guidance from the Director, Treasury, U.P. who referred the matter further to Special Secretary (Finance) U.P. Lucknow vide letter dated 16.12.2005 (Annexure 12 to writ petition).However, nothing was placed on record to show whether any clarification was given by the State Government thereto and if so, what. This aspect was also not clarified by the respondents in the counter affidavit. In these circumstances, this Court required the respondents to produce the record of Secretariat to show, how this matter was dealt with thereat.

18. The record show on page 55 of the order sheet that Sri Pitambhar Bhatt, the then Special Secretary (Finance) himself observed that there existed no vacancy in the Treasury of District Jaunpur whereagainst petitioner can be regularized and the question is upto what date and for what period petitioner can be allowed to continue as daily wage employee and whether can be terminated with or without compensation or not and on this aspect legal opinion may be sought. Thereafter it does not appear that the matter was referred for legal opinion. On the contrary, the same appears to have been discussed with Secretary (Finance) and then a decision was taken on 8.1.2004 to require the District Magistrate to consider petitioner for regularization against any Group ''C' post available in the entire District and petitioner's case may not be confined only to the Treasury. Consequently the letter dated 19.1.2004 was issued by Sri Pitambar Bhatt, Special Secretary. A decision was taken on 15.9.2004 to send a reminder to District Magistrate to inform the action taken pursuant to Government Letter dated 19.1.2004. The noting dated 29.9.2004 thereafter shows that the Senior Treasury Officer, Jaunpur informed the Government that no Class III vacancy is available but is likely to occur in near future and consequently consideration of petitioner for regularization was deferred till vacancy in future is available. Thereafter on the clarification sought by District Magistrate by letter dated 11.8.2005, the issue appears to have been re-considered as is evident from the noting dated 12.9.2005 of Under Secretary (Personnel), concurred by Joint Secretary, Principal Secretary etc. and it was decided to have opinion of Personal Department on the question whether petitioner could have been considered for regularization against any other Group ''C' vacancy as decided by the Finance Department on 19.1.2005. The Karmik Department rendered its opinion otherwise vide noting dated 1.12.2005, approved by Special Secretary (Karmik) on 13.12.2005, and thereafter a decision was taken to direct the District Magistrate to follow 1998 Rules strictly and if no regularization is possible, to terminate the petitioner.

19. From the record it is thus evident that something which was so obvious, clear and unambiguous, was made complicated by certain officials of the Finance Department including Sri Pitambar Bhatt, the then Special Secretary, who issued letter dated 19.1.2004. It is the bold and correct intelligensia of District Magistrate to adhere to rule of law that wholly erroneous and illegal direction of Government was not obeyed blindly but when he requested for further guidance, the matter was re-examined by competent authorities in the Government and they realized error in issuing earlier direction and rectified the same. It is the honest and bold lawful decision of the then District Magistrate, Jaunpur which prevented a wholly illegal and unauthorized act to get accomplished. What is surprising is that various authorities in decision making process initially did not hesitate to twist the rules in a particular manner so as to favour somebody without realizing that such an approach on the part of Government may cause serious inroad in honest and straight application of rule of law. It would result and also may cause in a chain of wholly illegal acts. While taking the decision in such matters, the authorities in the Government are supposed to act with more caution, objectivity, seriousness and carefulness. Since the things ultimately have been rectified, I refrain from expressing anguish of the Court on such unmindful decision of the Government issued on 19.1.2004 with a hope that this kind of erroneous approach shall not be repeated.

20. Coming back to the issue raised and argued by learned counsel for petitioner, it is now obvious that the decision taken on 19.1.2004 by Government was revoked and rectified by itself taking a decision otherwise and, therefore, reliance placed by petitioner on the letter dated 19.1.2004 is of no consequence.

21. In view of above, it is evident that petitioner has miserably failed to show any error in the impugned order. The respondents have rightly held that petitioner is not entitled for regularization under 1998 Rules. Also in view of discussions made above, this Court is satisfied that the claim of petitioner for regularization under 1998 Rules has not been substantiated. Thus in my view this writ petition is bound to fail. It is, accordingly, dismissed.

22. No order as to cost.

Dt. 3.7.2012

PS

Hon'ble Sudhir Agarwal,J.

The original record submitted by learned Standing Counsel for perusal of Court be returned forthwith.

Dt. 3.7.2012

PS