Allahabad High Court
Rajendra Prasad Mishra vs State Of U.P. And Others on 6 July, 2012
Bench: Krishna Murari
HIGH COURT OF JUDICATURE AT ALLAHABAD
"Reserved"
Case :- WRIT - A No. - 37940 of 1994
Petitioner :- Rajendra Prasad Mishra
Respondent :- State Of U.P. And Others
Petitioner Counsel :- B. N. Singh
Respondent Counsel :- Standing Counsel
Hon'ble Krishna Murari, J.
Heard Sri B. N. Singh, learned counsel for the petitioner and learned Standing Counsel appearing for the respondents.
The petitioner was appointed as temporary work charge employee by the Executive Engineer, Ground Water Department, Kanpur vide Office Order No. 312 dated 30.04.1977. Thereafter, he was promoted as Data Processor vide Office Memorandum no. 798 dated 15.01.1979 by the same authority. The petitioner approached this Court claiming regularization by filing Writ Petition No. 33285 of 1993. The said writ petition was disposed of vide order dated 05.05.1993 by making following observations :
"There is no doubt that the said department is a permanent department of State Government and the petitioner has been working since 1977 with an expectation of being regularized. But nothing was done. His representation, which was sent to the opposite party no. 2 on 09.07.1981, has not been considered and no order has been passed on the same.
Without expressing any view whether the petitioner is entitled for regularization or not I direct the opposite party no. 2 to consider the case of the petitioner for regularization and pass suitable order and the representation pending before him. It has to be decided within a period of one month from the date of filing of a certified copy of this order before him.
With these observations the writ petition is finally disposed of."
In compliance of the aforesaid order, the respondent no. 2, Director, Ground Water Department passed an order dated 06.09.1994 to the effect that since the representation of the petitioner is not available and he has failed to produce any receipt in proof of having made any representation, there is no question of considering the same. However, as an eye-wash in the end it has been mentioned that since the post of Data Processor is not sanctioned in the establishment as such the services of the petitioner cannot be regularized.
The petitioner again approached this Court by filing instant writ petition.
It is contended that initially when the department came into existence, there was no sanctioned post hence the appointments were made in work charge establishment but even after lapse of considerable time, there is no justification in continuing some of the employees in work charge establishment and denying them facilities which are available to regular Government servant or the regular employees of the same department. It has further been submitted that continuing the petitioner for such a long period leads to the presumption that there is need and warrant for regular appointment and the action of the respondents in not regularizing the petitioner is unfair, arbitrary and discriminatory.
A counter affidavit has been filed on behalf of the respondents stating therein that the work charge employees are appointed depending upon nature and quantum of work required from time to time and the quantum of work is not such so as to appoint persons on permanent basis. It has further been averred that there is no sanction post of Data Processor in regular department as such the services of the petitioner are not liable to be regularized.
The stand taken by the respondents does not appear to be justified. Admittedly, the petitioner was appointed on the post of Data Processor as long back as in 1979 and is continuing up till now and thus, it cannot be said that there is no such quantum of work so as to make regular appointment.
Further from the supplementary affidavit filed on behalf of the petitioner, it appears that vide order dated 27th February, 2004, the petitioner has been absorbed in regular establishment. The question which remains to be considered is the date from which the said benefit is to be extended to the petitioner. This Court directed the respondent no. 2 to decided the representation. The impugned order passed by the respondent no. 2 does not contain any reason for rejecting the representation of the petitioner except on the ground that it was not available and he failed to produced receipt as proof of having moved the same.
Merely mentioning one line that the posts of Date Processor are not sanctioned in regular establishment does not amount to compliance of the order passed by this Court directing the respondent no. 2 to consider the case of the petitioner for regularization.
In such view of the matter, the impugned order dated 06.09.1994 passed by the respondent no. 2, Annexure ''1' to the writ petition, is not liable to be sustained and is hereby quashed. The writ petition stands allowed. The petitioner may make a fresh representation ventilating his grievances along with certified copy of this order within a period of four weeks from the date of receipt of certified copy of this order before the respondent no. 2, who shall proceed to decide the same in accordance with law by means of a reasoned and speaking order in the light of the order dated 05.05.1993 passed in writ petition no. 33285 of 1993 and in the light of the observations made herein above within a period of two months from the date of making of the representation.
Date : July 6 , 2012 (Krishna Murari, J)
Dcs.
