Allahabad High Court
Rishipal Singh vs State Of U.P. And Others on 3 September, 2014
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 34
Case :- WRIT - A No. - 3804 of 2011
Petitioner :- Rishipal Singh
Respondent :- State Of U.P. And Others
Counsel for Petitioner :- A.M. Zaidi
Counsel for Respondent :- C. S. C.
Hon'ble Sudhir Agarwal,J.
1. Heard Sri A.M.Zaidi, learned counsel for the petitioner, learned Standing Counsel for the respondents and perused the record.
2. The petitioner's claim for regularization under U. P. Regularization of Daily Wages Appointments on Group 'D' Posts Rules, 2001 (hereinafter referred to as the "Rules, 2001") has been declined by Divisional Forest Officer, Divisional Director, Social Forestry, Forest Department, Bijnor by impugned order dated 6.10.2010 only on the ground that though the petitioner was engaged prior to 29.6.1991 and was also working on the date of commencement of Regularization Rules, 2001 but has not continuously worked for several years in as much as from the year 1993, 94, 95, 96, 97 and 98 he has not shown to have been worked for a single day, therefore, there was no continuity of service and hence petitioner is not entitled for payment of wages and regularization.
3. It is contended that under the rules, there is no such requirement and impugned order is patently illegal. Reliance is placed on a decision of this Court dealing with this very issue in Writ Petition No.70640 of 2011 (Ram Gopal Singh Vs. State of U.P. & Ors.) decided on 19.11.2013 as also Pakhandi Vs. State of U.P. & Ors., 2014 (1) UPLBEC 279.
4. The question as to whether the above Rule requires "continuous service through out" came to be considered by this Court in Janardan Yadav Vs. State of U.P. & others, 2008 (2) ESC 1359 and this Court in paras 5, 6 and 8 of the judgment said as under:
"5. Since the facts are not is dispute and it is also not disputed that the petitioner was engaged on daily wage basis in 1984, i.e., before 29.6.1991 and was also working on the date of commencement of Rules 2001, i.e, on 21.12.2001, thus it is evident that he was entitled to be considered for regularization under the said Rules. The only question up for consideration is whether the said Rules require continuous service throughout, i.e., from the date of initial engagement till the commencement of the Rules. In my view, there is no such requirement under the Rules as is apparent from perusal thereof....
6. 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."
"8. The said stand is contrary to the Rules and it amounts to reading certain words in Rule 4(1) which is not provided therein by the Rule framing authority. The rule framing authority has not framed the aforesaid Rules in manner as are being read by the respondents. Since the Rules are applicable only to daily wage employees, the Rules framing authority was aware that such employee could not have worked continuously throughout and, therefore, has clearly provided that the engagement must be before 29.6.1991 and he is continuing as such on the date of commencement of the Rules. If a daily wage engagement has been made before 29.6.1991 and was continuing on 21.12.2001, meaning thereby the daily wage engagement remained necessity of the department or the requirement thereof for more than 10 years, for such a person only, the benefit of regularization under 2001 Rules has been provided, and it nowhere requires further that the incumbent must have worked continuously from the date of initial engagement till the commencement of these Rules and to read these words would amount to legislation, which is not permissible in law. While interpreting the statute, it is well settled that neither any word shall be added nor be subtracted but if a plain reading of the statute is clear and unambiguous, the same has to be followed as such. This Court does not find any ambiguity in Rule-4(1) providing as to which kind of persons would be entitled for regularization and it nowhere requires that the incumbent must have worked throughout from the date of initial engagement till the date of commencement of the Rules."
5. In view of the law laid down in Janardan Yadav (supra) it is evident that continuous service through out is not a requirement in the Rules, 2001 and thus, the reason given by respondents that the petitioner did not work for certain period is wholly incorrect and misconceived for the reason that Rules, 2001 nowhere require that a daily wage employee ought to have worked continuously to get the benefit of the said Rules. The order impugned in this writ petition has been passed by the respondents by reading something in the Rules which in fact is not provided therein. The respondents, therefore, have acted wholly without jurisdiction and exceeding the powers by reading a statutory provision in his own way and to the extent of reading certain words therein though it is not there. The respondents cannot sit over the wisdom of the rule framing authority to find out something which is not in the rule. The manner in which the respondents have considered this aspect is wholly erroneous and, therefore, the impugned order cannot sustain.
6. In the result, writ petition is allowed. Impugned order dated 6.10.2010 (Annexure 4 to writ petition) is hereby quashed. The matter is remanded to the concerned competent authority to look afresh the claim of petitioner for regularisation under Rules, 2001 in accordance with law and in the light of discussion made hereinabove.
Order Date :- 3.9.2014
SKS
