Sangam Lal vs State Of U.P. And 4 Others
2017 Latest Caselaw 6805 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 37
 

 
Case :- SPECIAL APPEAL No. - 1856 of 2013
 

 
Appellant :- Sangam Lal
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Appellant :- B.S. Pandey
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Saral Srivastava,J.

(Delivered Oral by Hon'ble Saral Srivastava, J.)

Heard Sri B.S. Pandey, learned counsel for the appellant and Sri V.C. Dixit, learned Additional Chief Standing Counsel for the State.

The present appeal questions the correctness of the judgment of the learned Single Judge whereby the appellant's claim for quashing the order dated 07.09.2013 passed by Chief Medical Officer, Basti rejecting his representation for Regularisation on Group ''D' Post was rejected .

The case of the appellant/petitioner in the writ petition was that he was appointed vide order dated 17.04.1985 Chief Medical Officer, Basti as Cook on Daily Wages in the Community Health Centre, Harraiya, Basti, and has been continuously working. The State Government framed Rules, namely U.P. Regularization of Daily Wages Appointments on Group ''D' Posts Rules, 2001 (hereinafter referred to as the "Rules, of 2001"), and Rule 4(1) of Rules of 2001 provides the eligibility criteria for a person to be considered for regularization on Group ''D' post. The appellant/petitioner possessed the requisite qualifications as provided under Rule 4(1) of the Rules of 2001, and as such is entitled for regularization on Group ''D' Post.

It appears that the appellant/petitioner had approached this Court by filing a Writ- A No. 7478 of 2013 praying for a direction that the Chief Medical Officer be directed to undertake an exercise as contemplated under Rules of 2001 for regularization of Daily Wagers on the Group ''D' Post. This court vide order dt. 12.02.2013 disposed off the writ Petition directing the Chief Medical Officer, Basti to carry out the exercise as required under Rules of 2001 within four months. The appellant/petitioner in pursuance of the order dated 12.02.2013 of this Court approached the authorities, but the authorities did not pay any head to the order passed by this Court, and consequently the appellant/petitioner preferred the Civil Misc. Contempt Petition No. 3337 of 2013, in which, this Court granted one more opportunity to the Chief Medical Officer, Basti to comply with the writ Court order dated 12.02.2013.

It transpires that in compliance of the order dt. 12.02.2013 and order dated 19.07.2013 of this court, the Chief Medical Officer passed an order dated 07.09.2013 rejecting the claim of the petitioner/appellant on two grounds namely, that the Government Order No. G-2-578/10-97-301/85 dated 19th July, 1987, provided the remuneration of Daily Wagers between Rs.35.00 to 42.50 paisa per day, whereas, the petitioner was getting remuneration of Rs.150/- per month which is not as per Rules; and secondly it is not traced out from the records that the petitioner was working as Daily Wager on 20.12.2001. The appellant/petitioner averred in the writ petition that he had submitted an application dated 18.09.2013 under Right to Information Act, to the Chief Medical Officer/ Public Information Officer, Basti with request to provide him the Attendance Register of the petitioner from the year 1991 to 2013.

The learned Single Judge dismissed the writ petition mainly on the ground that one of the essential conditions that a Daily Wage Employee must have been continuing in the service on the date of commencement of Rules of 2001 is not satisfied.

It would be appropriate to notice Rule 4(1) of Rules of 2001 which is extracted herein under:-

"4. Regularization 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

(b) possessed requisite qualification prescribed for regular appointment for that post at the time of such appointment on daily wage 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."

Challenging the finding of the learned Single Judge, the counsel for the appellant/petitioner contended that from the order of Chief Medical Officer, it appears that the record relating to payment of wages to petitioner from the month of October 1998 to June 2003 were eaten up by termite, due to which it could not be ascertained that the petitioner was working on 20.12.2001 as Daily Wager. He submits that since the record with regard to appointment of service of the petitioner had been eaten up by termite, then there were other modes like Attendance Register and Audit Report in the Department etc. where from it could have been easily ascertained about the working of the petitioner on 20.12.2001.

His submission is that since the respondent no. 3 i.e., Chief Medical Officer did not make any effort to verify from the alternative record with regard to working of appellant/ petitioner, therefore, appellant/petitioner submitted an application under Right to Information Act, to the Chief Medical Officer/Public Information Officer, Basti on 18.09.2013 to provide him the Attendance Register from the year 1991 to 2003, but since the Chief Medical Officer/Public Information Officer, Basti, did not provide the Attendance Register to the appellant/petitioner for the period from 1991 to 2003 till the time of filing the writ petition, therefore, he could not file it with the writ petition. He submits that the Chief Medical Officer/Public Information Officer, Basti provided the Attendance Register on 25.11.2013, certifying working of the petitioner /appellant from the year of 1991 to December 2001, therefore, he could file the Attendance Register for the said period with the present appeal.

He further pointed out that when the appeal was heard on 12.02.2015, this Court vide order dated 12.02.2015 granted time to file documents relating to Attendance Register as additional evidence. The order dated 12.02.2015 is extracted herein under:

"Heard learned counsel for the parties.

Learned counsel for the appellant submits that the petitioner moved an application under the Right to Information Act demanding copy of the attendance register but the same could not be furnished to him during the pendency of the writ petition and as such it could not be filed in the writ petition. He has filed the copy of the attendance register received by him under the Right to Information Act along with Special Appeal to support his claim.

As this document amounts to an additional evidence, it cannot be considered in this Appeal without prior permission of Court.

Learned counsel for the petitioner- appellant prays for time to file the aforesaid application along with an application under Order 41 Rule 27 C.P.C.

As prayed, three weeks' time is granted to the appellant to file the application.

List thereafter. ''

He submits that pursuant to the order of this Court dated 12.02.2015; the appellant has filed Misc. Leave Application No. 214708 of 2015 under Order 41 Rule XXVII C.P.C., which was directed to be taken on record by this Court vide order dated 03.03.2016, and the respondents in paragraph 9 of the counter affidavit to the application under Order 41 Rule XXVII C.P.C. has admitted that the petitioner has worked as Daily Wages Employee from the month of July 1985 to August 2014, and also admitted the Attendance Register. Paragraph no. 9 of the counter affidavit of the respondent to the application of leave under Order 41 Rule XXVII C.P.C. is reproduced herein under:

"That the contents of paragraph 11 and 12 of the affidavit need no reply. It is relevant to submit here that as per office documents the petitioner Sangam Lal has worked as daily wage employee from April 1985 to August 2014 and the attendance register annexed with the Leave Application under Order 41 Rule XXVII C.P.C. is correct".

Thus, the submission of the counsel for the appellant/ petitioner is that since the respondents have admitted in the counter affidavit with regard to working of petitioner on 20.12.2001, therefore one of the grounds for rejecting the claim of the appellant/petitioner by the Chief Medical Officer (respondent no. 3) that it is clear from record as to whether petitioner had worked till 20.12.2001 is not correct. He further submits that the petitioner was paid Rs.150/- as remuneration, and it was the fault of the respondents in not paying the revised rate of wages, and further the remuneration which the petitioner was getting is not relevant under Rule 4 (1) of the Rules 2001 to consider his claim for regularization.

The learned Additional Chief Standing Counsel submitted that the order dated 07.09.2013 passed by the Chief Medical Officer is based on correct appreciation of facts on record and the appellant/petitioner could not point out any illegality or perversity in the order dated 07.09.2013 passed by Chief Medical Officer, and therefore, writ petition was rightly dismissed by the learned Single Judge. He submits that the appellant has failed to make out any case for setting-aside the order of the learned Single Judge.

We have heard the rival submissions of the parties and perused the record.

From the record, it transpires that the learned Single Judge, proceeded on the basis that the order dated 07.09.2013 passed by the Chief Medical Officer, Basti, rejecting petitioner's claim was based on correct facts, inasmuch as, the petitioner could not establish that he was continuing in service on 20.12.2001 which is one of the mandatory condition for considering the case of a person for regularization under Rules 2001.

In the instant case the two grounds on which the claim of the petitioner was rejected i.e., the remuneration which the petitioner was getting was not as per Rules, and that it was not clear from record as to whether petitioner was working of on 20.12.2001 are not justified, inasmuch as, Rule 4 (1) of Rules 2001 do not provide any such eligibility condition that if a person is getting lesser wages than the wages fixed would not be considered for regularization. Thus, rejection of the claim of appellant/petitioner by authorities on the ground that he was getting lesser wages was contrary to Rule 4 (1) of Rules, 2001.

So far as the other ground of rejection of claim of the appellant/petitioner that it was not traced out from the record that he was continuing as daily wager on 20.12.2001 is also not tenable in view of the fact that Attendance Register filed by the appellant/petitioner indicating the working of petitioner on the relevant dated 21.12.2001 with application under Order 41 Rule XXVII has been admitted by the respondent in the counter affidavit.

Thus, we set-aside the order dated 29.10.2013 passed by the learned Single Judge, and direct the Chief Medical Officer (respondent no. 3) to consider the case of the appellant/petitioner for regularization afresh in accordance with law within a period of three months.

The appeal is allowed subject to above directions made herein above.

There shall be no orders as to costs.

Order Date :- 14.11.2017

Ishan