Ram Santosh (State) vs State Of U.P.Through Secretary ...
2016 Latest Caselaw 1875 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No.24
 
                                                                            Reserved
 

 

 
Writ Petition No. 2389 of 1992 (SS)
 
Ram Santosh                                                ...Petitioner
 
Versus
 
State of U.P. And other                                   ...opposite parties.
 

 
Hon'ble Dr. Devendra Kumar Arora,J.

Heard learned Counsel for the petitioner and learned Standing Counsel for respondents.

Petitioner, who was engaged purely on temporary basis from time to time on the post of Peon in the office of Tehsildar, Gonda, apprehending his retrenchment/removal, knocked the door of this Court by filing instant writ petition and this court while entertaining the writ petition passed an ad-interim order dated 22.4.1992, which reads as under:-

"In the meantime, it is provided that the petitioner who has been working on the post of Peon in Nazarat, Tehsil Gonda from December, 1988 with artificial breaks shall be allowed to continue to work, if work and post is available."

It appears from the records that after the interim order, referred to above, the petitioner was allowed to continue and vide order dated 6th August, 1996 the District Magistrate gave the petitioner temporary appointment against the vacancy caused due to transfer of one Sri Meharwan Ram, Peon to District Udhamsingh Nagar, subject to the order of this Court to be passed in the instant writ petition. Unfortunately, nearly after twenty years, his writ petition was dismissed for want of prosecution on 25th April, 2012 which came to his knowledge on 9th February, 2015 when a letter was written by the Nazarat Section of the respondents about the dismissal of writ petition for want of prosecution. The recall application of the aforesaid order dated 25.4.2012 was dismissed on 17.4.2015 observing that the application was moved with a delay of nearly two years and ten months.

Aggrieved by the aforesaid orders, the petitioner filed Special Appeal Defective No. 183 of 2015; Ram Santosh vs. State of U.P. and others and a Division Bench of this Court vide its judgment and order dated 14.5.2015 while allowing the Special Appeal and setting- aside the order dated 17.4.2015, restored the writ petition to the file of the Single Judge.

The trivial question now left is with regard to regularization of the petitioner on the post of Peon.

Learned Counsel for the petitioner has argued that he has continued on the post of Group D since his engagement in the year 1996 and had been been paid his salary till the month of January, 2015. The work of the post of the Chowkidar/peon is still being taken and in view of the engagement as daily wager on Class IV post w.e.f 15.12.1988, he is entitled for regularization on the post in question under Uittar Pradesh Regularization of Daily Wages Appointments on Group "D' Posts Rules, 2001 ( in short referred to as '2001 Rules' ).

It has also been contended by the learned Counsel for the petitioner that in identical situation, this Court has passed the judgment and order dated 18.9.2015 in Writ Petition No. 4052(SS) of 2014 wherein it has been held that an employee, who had been appointed as daily wager on Group D post before 29.6.1991 and is continuing on his post on 21.12.2001, are fully eligible and entitled to be considered for regularization. Therefore, denial of regularization to the petitioner is wholly unjustified and in breach of the provisions of the aforesaid Rules.

In contrast, learned Standing Counsel has submitted that the petitioner was engaged in exigency of work on a Class IV post in Nazarat, which was vacant, belongs to Scheduled Caste Category. As the aforesaid post has been filled in by regular incumbent, therefore, the petitioner is not entitled for any relief as sought for by him.

Having considered the submission, made by the parties and perused the material on record, there is no quarrel on the point that the petitioner was engaged by respondents way back in the year 1988 in exigency of work and vide order dated 6th August, 1996, referred to above,the District Magistrate gave the petitioner temporary appointment against the vacancy caused due to transfer of one Sri Meharwan Ram, Peon to District Udhamsigh Nagar, subject to the order of this Court in the instant writ petition. Thus, the petitioner has continued on the post of Group- D since his temporary appointment and had been paid his salary till the month of January, 2015. It has been asserted by the Counsel for the petitioner that the work of the post of the Chowkidar/peon is still being taken and this fact has not been rebutted by the respondents.

At this juncture, it would be useful to point out that the petitioner was engaged in the year 1988 and is litigating for his right to be regularized in service since last twenty years as the State Government has issued orders and framed rules for regularization of daily wagers from time to time but on account of lackadaisical attitude of the authorities, such a benefit was not extended to the petitioner. The Apex Court, while considering the sufferings of such employees/daily wagers, noticed in the case reported in 1991 Supplementary (Vol-I) SCC 600 Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress and others, which reads as under:

"The employment under the public undertakings is a public employment and a public property. It is not only the undertakings but also the society which has a stake in their proper and efficient working. Both discipline and devotion are necessary for efficiency. To ensure both, the service conditions of those who work for them must be encouraging, certain and secured, and not vague and whimsical. With capricious service conditions, both discipline and devotion are endangered, and efficiency is impaired."

The right to life includes right to livelihood. The right to livelihood therefore cannot hang on to the fancies of individuals in authority. The employment is not a bounty from them nor can its survival be at their mercy. Income is the foundation of many fundamental rights and when work is the sole source of income, the right to work becomes as fundamental. Fundamental rights can ill-afford to be consigned to the limbo of undefined premises and uncertain applications. That will be a mockery of them."

There is need to minimize the scope of arbitrary use of power in all walks of like. It is all the more improper and undesirable to expose the precious rights like the rights of life, liberty and property to the vagaries of individual whims and fancies. It may be added that daily wagers are appointed in exigencies of work and not against any substantive vacancy after due selection process.

It may further be pointed out that a seven Judge Bench decision of the Apex Court in Maneka Gandhi vs. Union of India and anr.; AIR 1978 SC 597, has held that reasonableness and non-arbitrariness is part of Article 14 of the Constitution. It follows that the Government must act in a reasonable and non-arbitrary manner otherwise Article 14 of the Constitution would be violated.

In Raja Ram Pandey vs. The State of U.P.; 2009(27)LCD 771 this Court held as under"

" Right to consider for regularization is a fundamental right. However, when the regularization is done in order of senioirty subject to fitness, then supersession of seniors on unfounded grounds is an arbitrary act and is also violative of Arts. 14 and 21 of the Constitution of India. In case the petitioner was qualified for regularization, then denial of regularization by respondents against regular vacancy is a highly arbitrary act and violative of Article 14 of the Constitution of India."

In Ishwar Deen vs. State of U.P.(2008(26) LCD 1134; this Court while considering provisions of Regularization Rules of 2001 held as under:-

"Though, the State has got right to fill up vacancies through direct recruitment but while don gso it shall always be necessary for the State to Exercise the statutory power conferred by the Rules (supra) to consider the cases of the employees, who are serving in the department like in the present case for about two deceased or more. Needless to say that the Rules framed under Article 309 of the Constitution of India have got statutory force and one Rule 4(a) of the Rules enable the authorities to consider the cases of the employees for regularization who were appointed prior to 29.6.1991, then it shall always be incumbent upon the authorities to exercise power in just and fair manner to consider the case of the employees for regularization."

After scrutiny of records, there is no quarrel on the point that the petitioner was engaged in 1988 and today also he is working with respondents but his services have yet not been regularized. It may be clarified that the requirement under the the 2001 Rules is that an incumbent was directly appointed on daily wage basis in a government service before 29.6.1991 and is/are continuing in service as such on the date of commencement of the said Rules. The further requirement under the Rules is that the person must have possessed requisite qualification required for regular appointment on that post at the time of such employment on daily wage basis.

It is also relevant to mention that this Court in the case of Janardan yadav vs.State of U.P. [(2008) 1 UPLBEC 498, held that 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. In the situation, such a stand of the State that the employee had not worked continuously or there are breaks in service, would be contrary to the Rules and would amount to adding and reading certain words in Rule 4(1) which have not been inserted by the legislature. As the rules are applicable only to daily wage employees, the Rules framing authority was well 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 Rule.

Needless to observe here that recently the State Government has issued a Government Order dated 13.8.2015 whereby it has been provided that persons working on daily wage/work charge/contractual basis in the department of the State Government, its autonomous bodies, public undertakings/local bodies, development authorities and Zila Pancahyat, who were engaged upto 31.3.1996 shall be regularized. In these circumstances, there is no justification in not regularizing the service of the petitioner when it is an admitted fact that the petitioner was engaged as daily wager before 29.6.1991 and he was continuing on the post on 21.12.2001 and even thereafter. Now, recently the State Government vide government order dated 24th February, 2016 has changed the cut of date to 31.12.2001 and has again provided that if the post is not available then necessary steps be taken for creation of the post.

In view of above, a writ of Mandamus is issued to the respondents to consider the case of the petitioner for regularization under the U. P. Regularization of Daily Wages Appointments on Group 'D' Rules, 2001, read with Government Orders dated 13.8.2015 and 24th February, 2016 and in the light of law laid down in Janardan's case [supra] and pass appropriate orders in this regard within a maximum period of three months from the date of presentation of a certified copy of this order. The order shall also be communicated to the petitioner.

With the aforesaid observations and directions, the writ petition is allowed. Parties to bear their own costs.

Date : 26 April,2016

MH/-