Anil Kumar And Another vs State Of U.P. And Others
2013 Latest Caselaw 6203 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 27 
 
AFR
 
Case :- WRIT - A No. - 2408 of 2008
 
Petitioner :- Anil Kumar And Another
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- Vinod Kumar Singh
 
Counsel for Respondent :- C.S.C.,R.P.Maurya
 

 
Hon'ble B. Amit Sthalekar,J.

This writ petition has been filed by the petitioners challenging the order dated 8.8.2007 by which the claim of the petitioners for regularisation in service has been rejected.

According to the petitioners, the petitioner no.1 was appointed in the Forest Department in the year 1989, i.e. on 1.2.1989 on the post of Cattle Guard as a daily wager. The petitioner no.2 was appointed in the year 1987 on the same post as a daily wager.

The case of the petitioners is that they have working continuously up to the commencement of U.P. Group 'D' Regularisation of Daily Wager Rules, 2001(hereinafter referred to as the Rules, 2001).

Reliance has been placed on Rule 4 (1) of the Rules, 2001 in order to seek regularisation. It is also claimed that the petitioners had worked upto the year 2003. From the chart, filed as Annexure-1 to the writ petition, it is noticed that the petitioner no.1 had worked for various periods, namely, 1.2.1989 to 30.1.1992 , 1.2.1989 to 1.1.1994 and 1.4.1994 to 30.5.1998. The next copy which has been filed at page 21 of the writ petition shows that he had worked from February, 1989 to January, 1994. Then again a copy of work certificate has been filed which shows that he was working from 01.4.1994 to 30.5.1998. A chart which has been filed at page 23 shows that he was working from April, 2001 to September, 2001. Thereafter there is nothing on record to show that the petitioner was working after September, 2001.

So far as the petitioner no.2 is concerned, according to the Annexure-2 to the writ petition he has been shown working from 1987 to 31.9.1991. Then again from 1.1.1992 to 31.1.1998 and the chart at page 26 shows that he was working from April 2002 to August 2002. There is nothing on record to show that he was working after the said period. These dates have been noted by the competent authority in the impugned order dated 8.8.2007. The two orders dated 8.8.2007 passed in the case of the two petitioners the reason given by the respondents is that the petitioners were not in service on the cut of date of the commencement of the Rules, 2001. A similar controversy came up before learned Single Judge of this Court in the case of Jag Lal Vs. Director of Horticulture, U.P. Lucknow, reported in 2003 (3) ESC, Allahabad 1745, wherein, this Court in para 25 gave the following directions:

"(1) The appointing authority shall prepare an eligibility list of all the 22 candidates and arrange their seniority from the date of order of their appointment on daily wage basis in the Horticulture department, irrespective of the fact that they were working at any other place in the department prior to the establishment of the Centre. Their seniority shall be determined on the basis of the date of order of appointment on daily wages with effect from the year they were appointed and not on the basis of the number of days they have worked on daily wages.

(2) The Selection Committee shall consider all the candidates for regularisation who were appointed and working before June 29, 1991 and were continuing in service on the date of commencement of the Rules, i.e. 21st December, 2001. Any break in service, in between, or after which they were allowed to work shall be ignored. Since it is admitted by respondents that all the petitioners were in service as daily wagers before 29th June, 1991 and were continuing in service on 21st December, 2001, all of them irrespective of any break or breaks in service shall be considered for regularisation, and their seniority will be determined from the date of initial appointment as directed above."

From a perusal of the judgment, it will be established that what is required for the purpose of regularisation is that the employee should have been continuing in service on the date of commencement of the Rules i.e. on 21.12.2001.

A Division Bench of this Court in the case reported in 2004 (1) AWC 867, Shiva Ji Singh Vs. High Court of Judicature at Allahabad and another interpreting the provisions of the Uttar Pradesh Regulation of Ad-hoc Appointments (On Posts Outside The Purview Of Public Service Commission) Rules, 1979 has held the cut of date for regularisation to be 30.6.1998. Para 19 of the said judgment reads as follows:

" So far as the aforesaid aspect of the matter is concerned, the submission made is based on sub clause (3) of Rule 1 which had been substituted vide the Third Amendment Rules, 2001. The newly substituted Rule 1 has to be read as a whole and all the three conditions contemplated therein have to be satisfied before an ad hoc employee can be taken to be eligible for regularisation of his services adjusting him as against a permanent or temporary vacancy which had to be filled up otherwise by making a regular appointment. In order to defeat the claim of any person for appointment as against an existing permanent or temporary vacancy according to the provisions contained in the relevant service rules regulating the recruitment and appointment, the person appointed on ad hoc basis seeking the regularisation of his service and consequential absorption against that vacancy has to satisfy all the three conditions out of which the first on is to the effect that such an ad hoc appointee had been directly appointed on ad hoc basis on or before June 30, 1998 and was continuing in service, as such, on the date of commencement of Uttar Pradesh Regularisation of Ad-hoc Appointments (On Posts Outside the Purview of the Public Service Commission) (Third Amendment) Rules, 2001."

These rules were also interpreted by the Supreme Court in the case reported in (1998) 1 SCC 183, Ramchander and Others Vs. Additional District Magistrate and Others, wherein, Rule 4 (1) (i) has been considered which for purposes of regularisation provided that any person who was directly appointed on ad hoc basis before January 1st, 1977 and is continuing in service as such on the date of commencement of these Rules.............shall be considered for regular appointment. However, the Supreme Court while interpreting the provisions of Rule 4 (1) (i) held that those who are not in service cannot be regularised. Para 5 of the said judgment reads as follows:

"We are not examining the correctness or otherwise of this interpretation because, in the present case, the appellants did not fulfil the basic requirement of Rule 4 (i) namely that they should be continuing in service as ad hoc employees in order to be eligible for regularisation. The services of at least some of the appellants were terminated in February 1984. The services of others were terminated in June 1984. In view of the fact that the services of the appellants had been terminated, they will not be eligible for regularisation under the amended Rules of 1984. Those who are not in service cannot be regularised. In the writ petition which was filed, the appellants who were the petitioners, prayed for regularisation. Although they made averments relating to their termination passed in their cases. So long as the orders of termination stand, they cannot get the benefit of regularisation under the amended Rules of 1984."

Admittedly on the own showing of the petitioners, the petitioners were not in service as on the commencement of the Rules, i.e. on 30.6.1998. Moreover even if the petitioner is considered for regularisation they are required to be in service as regularisation cannot be considered in the case of a person who is not in service on the cut of date as per Rules, 2001.

Para 4 of the Rules, 2001 reads as follows:

"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 ...................

Learned counsel for the petitioner has also relied upon the judgment of the Supreme Court in the case of State of Karnataka and others Vs. M.L. Kesari and Others reported in (2010) 9 SCC 247. That was the case where the Court while considering the case of appointment of qualified persons made against sanctioned posts held such appointment to be irregular appointment and that writ petition is disposed of on other grounds which is not the issue to be considered in the present case. Therefore, the judgment of the Supreme Court in the case of M.L. Kesari (supra) has no application to the facts of the present case.

For reasons stated above, I do not find any illegality or infirmity in the two orders, both dated 8.8.2007. The writ petition lacks merit and is accordingly dismissed.

Order Date :- 1.10.2013

N Tiwari