Ram Nath Verma & 3 Ors. vs State Of U.P. Through Prin. Secy. ...
2017 Latest Caselaw 892 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Court No.- 20
 
Case :- SERVICE SINGLE No. - 2766 of 2014
 

 
Petitioner :- Ram Nath Verma & 3 Ors.
 
Respondent :- State Of U.P. Through Prin. Secy. Deptt. Of Forest Lko. & Or
 
Counsel for Petitioner :- Mahendra Singh Rathore,Akash Dikshit,Amar Nath Dubey,Om Prakash Verma,S.P. Singh "Somvanshi"
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Pradeep Kumar Singh Baghel,J.

1. This writ petition has been preferred by four petitioners aggrieved by the order of the third respondent, Divisional Forest Officer, Social Forestry Division, Pratapgarh dated 29.3.2014 rejecting their claim regarding regularization.

2. A brief reference of the factual aspects would suffice. All the petitioners claim that they were engaged on daily wage basis on the post of Watcher and they have worked for more than twenty years. The petitioner no. 1 claims that he was initially appointed on 1.9.1983, the petitioner no. 2 on 1.9.1981, the petitioner no. 3 on 1.1.1985 and the petitioner no. 4 on 1.7.1988. Earlier, they preferred Civil Misc. Writ Petition No. 3800 (S/S) of 2000 for quashing their termination order and direction upon the opposite parties to regularize their services on class-IV posts. The said writ petition was disposed of on 16.5.2005 giving the benefit of another writ petition of similarly placed persons Vijay Shankar Singh v. State of U.P. and others, Writ Petition No. 6055 (SS) of 1999, wherein a direction was issued to the opposite parties that the petitioner shall be entitled to minimum of the pay scale of Class-IV employees without any increment and a further direction was issued to consider his regularization.

3. It is stated that in compliance of the directions of this Court dated 16.5.2005 the respondents considered the case of the petitioners for regularization and rejected their claim vide order dated 17.2.2006 only on the ground that there were breaks in their service.

4. Dissatisfied with the order dated 17.2.2006 the petitioners preferred Civil Misc. Writ Petition No. 3201 (S/S) of 2007. The said writ petition was allowed and the order dated 17.2.2006 was set aside by this Court on 11.2.2009. The respondents in compliance of the order of this Court dated 11.2.2009 constituted a selection committee and found that in absence of the clear position regarding the vacancies it was not possible to consider their regularization till the facts regarding vacancies are cleared and in the meantime the petitioners were granted minimum pay scale. The respondents also finalized a list of daily wagers who were engaged prior to 29.6.1991. In the said list the names of the petitioners were shown at Serial Nos. 22, 13, 29 and 48 respectively.

5. In the meantime the State Government issued a Government Order dated 8.9.2010 to consider the claim of regularization of daily wage and work charge employees who were engaged before 29.6.1991 and are continuing in service. It is stated that the third respondent submitted details of daily wagers, who were engaged before 29.6.1991 and are continuing in service.

6. On 23.6.2011 the State Government created 2022 posts of Group-D, however the claim of the petitioners was not considered in terms of the said Government Order in view of the two orders issued by the second respondent, Chief Conservator of Forest (Administration) dated 23.6.2011 and 24.6.2011. In the aforesaid orders certain conditions were imposed amongst other; (i) the daily wagers who are getting minimum of pay scale in pursuance of the direction issued by the High Court are not eligible and their candidature will not be considered; (ii) in case the matter is subjudice before the High Court or any other Court their services would not be considered for regularization.

7. The petitioners aggrieved by the aforesaid conditions mentioned in the order of the respondent no. 2 preferred Writ Petition No. 6615 (SS) of 2011. This Court set aside both the aforesaid conditions holding that the conditions mentioned by the second respondent were not in consonance with Rule-4 of the Uttar Pradesh Regularization of Daily Wages Appointments on Group 'D' Posts Rules, 2001 (for short, "the Rules, 2001"). The Court further issued a direction to the Divisional Forest Officer, Social Forestry Division to pass a fresh order. In compliance of the said order, the impugned order has been passed.

8. A counter affidavit has been filed wherein the stand taken by the respondents is that no post of Watcher is available in Forest Division, Pratapgarh and the petitioners worked in Pratapgarh Forestry Division under different planning works and they have been given the minimum of pay scale of Group-D. It is also stated that they were not regularized for the reason that they were not appointed directly on Group-D posts as the Government servant.

9. It is also stated that the petitioners were not entitled for regularization as they have not worked continuously without break. Since the services of the petitioners being not continuous they were not considered for regularization.

10. In the rejoinder affidavit it is stated that the respondents have stopped the minimum pay scale of the petitioners from the month of March, 2014. It is stated that in compliance of the Government order of the daily wages, work charge and contractual employees have been regularized in different departments as well as in Nigams. But the petitioners have been discriminated.

11. I have heard learned counsel for the petitioners and the learned Standing Counsel.

12. Learned counsel for the petitioners submits that the impugned order has been passed without considering the directions of this Court; the issue of the continuous working of the petitioners could not have been re-opened in view of the direction of this Court in Writ Petition No. 3201 (S/S) of 2007, wherein the continuance of the petitioner was considered by this Court in terms of Rule-4 of the the Rules, 2001. He lastly urged that continuance of service has also been considered by this Court in the case of Janardan Yadav v. State of U.P., (2008) 1 UPLBEC 498; and Sanjay Kumar Srivastava v. Principal, Chief Conservator of Forest, U.P., Lucknow and others, (2005) 3 UPLBEC 2527.

13. Learned Standing Counsel submits that since the petitioners have not worked continuously hence their claim has rightly been rejected. He further submits that a Screening Committee was constituted and on the report of the said committee the impugned order has been passed. He has also taken the Court to various paragraphs of the counter affidavit.

14. I have considered the rival submissions advanced by learned counsel for the parties and perused the record.

15. Indisputably, the petitioners were initially engaged as Watcher on daily wage basis between 1981 to 1988. Their all previous writ petitions were allowed by the Court. Interestingly, the respondents in all the previous litigations have raised the same issue viz. the petitioners were not found to be continuously working. This Court in Writ Petition No. 3201 (SS) of 2007 dealt this issue elaborately in terms of Rule 4 of the Rules, 2001. The Rule-4 of the Rules, 2001 reads as under:

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

(i) 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

(ii) possessed requisite qualification prescribed for regular appointment for that post at the time of such appointment on daily wages 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.

(2) In making regular appointments under these rules, reservations for the candidates belonging to the Scheduled Castes, Scheduled Tribes, Other Backward Classes of citizens and other categories shall be made in accordance with the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 and the Uttar Pradesh Public Services (Reservation for Physically Handicapped, Dependents of Freedom Fighters and Ex-servicemen Act, 1993, as amended from time to time, and the orders of the Government in force at the time of regularisation under these rules.

(3) For the purpose of sub-rule (1) the appointing authority shall constitute a Selection Committee in accordance with the relevant provisions of the service rules.

(4) The appointing authority shall, having regard to the provisions of sub-rule (1), prepare an eligibility list of the candidates, arrange in order of seniority as determined from the date of order of appointment on daily wages basis and if two or more persons were appointed together, from the order in which their names are arranged in the said appointment order. The list shall be placed before the Selection Committee along with such relevant records pertaining to the candidates, as may be considered necessary to assess their suitability.

(5) The Selection Committee shall consider the cases of the candidates on the basis of their records referred to in sub-rule (4), and if it considers necessary, it may interview the candidates also.

(6) The Selection Committee shall prepare a list of selected candidates in order of sub-rule (2) of rule 4, make appointments from the list prepared under sub-rule (6) of the said rule in the order in which their names stand in the list."

16. The Court found that only requirement under Rule 4(1)(a) of the Rules, 2001 is that the incumbent should directly be appointed on daily wage basis before 29.6.1991 and is continuing in service as such on the date of commencement of the Rules.

17. The respondents have admitted in the said case that the petitioners fulfill all the three conditions mentioned in Rule-4 of the Rules, 2001 except their continuous service. This fact clearly demonstrates that the issue in respect of the three conditions i.e. (i) their engagement should be of prior to 1991; (ii) they have requisite qualification required for the regular appointment; and (iii) they are continuing in service, cannot be re-opened by the respondents in subsequent proceedings as the admitted position noted by the Court has not been challenged by the respondents. Hence, the only question which requires consideration is that whether the ground for rejection of their regularization that they are continuously working, is to be considered.

18. In the said writ petition [Writ Petition No. 3201 (SS) of 2007] the Court recorded a finding that if the daily wage engagement remains necessity of the Department for more than ten years the benefit of Rules, 2001 nowhere requires that the incumbent must have worked continuously as the said condition cannot be read in Rule-4 of the Rules, 2001. Relevant part of the judgment reads as under:

"...If a daily wage engagement has been made before 29.6.2001 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."

19. From the aforesaid finding it is manifestly clear that this Court has recorded its finding that Rule-4 of the Rules, 2001 does not require that incumbent must have worked uninterruptedly from the date of initial engagement till the commencement of the Rules, 2001.

20. Regard being had to the fact that this order dated 11.2.2009 has attained finality. The respondents did not challenge the above findings, therefore, in my view the said finding cannot be re-opened by the authority concerned when the matter was sent back for reconsideration.

21. In spite of the said finding when the matter was remitted back to decide the matter afresh, the respondents did not pass the order of regularization and took the decision that till the postwise vacancy is determined they will be paid minimum pay scale. This order indicates that their claim for regularization was deferred and in the meantime they were given protection of the minimum pay scale. The said order was again challenged by the petitioners and it was set aside by this Court in Writ Petition No. 6615 (SS) of 2011 and the matter was remitted to the authority concerned to reconsider it within six weeks.

22. The Divisional Forest Officer, the third respondent has again rejected the claim of the petitioners. From the order it appears that vide order dated 3.3.2014 a Screening Committee was constituted which has submitted its report on 15.3.2014. The Committee has given details of working of each petitioner which has been extracted in the impugned order. It has been admitted that however their claim has been rejected on the ground that the petitioners have not specified against which post they want to be regularized and it has been found that they have worked less than 240 days in each calendar year and they were not found working against any post; they do not have essential qualification hence their claim has been rejected.

23. I find that all the reasons mentioned in the impugned order for rejecting the claim of the petitioners are not only incorrect but contrary to the findings recorded by this Court in the judgment dated 11.2.2009 in Writ Petition No. 3201 (SS) of 2007.

24. As noted above, the respondents had admitted before this Court that all the petitioners fulfill three conditions; (i) they were working prior to 1991; (ii) they have essential qualification; and, they are working on the post have been found to be fulfilled. The only issue raised before this Court was regarding continuance of their service which has been rejected by this Court by a categorical finding that the word "continuous" is not mentioned in Rule-4 of the Rules, 2001 hence this plea was rejected.

25. Since the said judgment dated 11.2.2009 has attained finality as the Department did not challenge the said finding, in my view, the authorities are bound by this finding and they cannot re-open it. In fact, the impugned order is self-contradictory. The details of working of the petitioners from 1991 onwards itself indicate that they have worked in each year for a considerable long period. As regards the finding that they have not submitted the supporting documents, it is an admitted case that the petitioners have been found to be working with breaks. The petitioner no. 1 has admittedly worked 266, 348, 312, 300, 324 days. Similarly, the petitioner no. 2 has worked 309, 332, 309, 312, 312, 259 days. It cannot be said that they had not worked continuously.

26. The words "continuous service throughout" fell for consideration before this Court in the case of Janardan Yadav (supra). Relevant part of the judgment reads 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 29.6.2001 (sic 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."

27. The same word fell for consideration in the case of Raisuddin v. State of U.P. and others, Writ-A No. 1184 of 2011. Relevant part of the judgment reads as under:

"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."

28. In view of the conspectus of the aforesaid facts and circumstances, I am of the view that the reason mentioned in the impugned order that the petitioners have not worked continuously is unsustainable, thus the impugned order dated 29.3.2014 is set aside. The matter is remitted back to the authority concerned to decide the matter afresh.

29. The Court hopes and trusts that the authority concerned shall pass the fresh order in the light of the observations made herein above and keeping in view the findings recorded by this Court in the judgment dated 11.2.2009 passed in Writ Petition No. 3201 (SS) of 2007 which has attained finality between the parties.

30. The writ petition is, accordingly, allowed. No order as to costs.

Order Date :- 19.5.2017

DS/-