Man Singh vs State Of U.P. And Others
2018 Latest Caselaw 1819 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 28
 

 
Case :- WRIT - A No. - 14443 of 2006
 

 
Petitioner :- Man Singh
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- A.R. Masoodi,Arun Kumar,Y.S.Saxena
 
Counsel for Respondent :- C.S.C.,Abhinav Upadhyay,C.B.Yadav,S.K. Mishra
 

 
Hon'ble Ajay Bhanot,J.

1. The petitioner was a daily wager in the forest department. The services of the petitioner were regularized as a driver by order dated 27.05.2002. The order of regularization of the petitioner was cancelled by order dated 17.2.2006. A prior order was passed by the respondents authorities on 4.2.2006. The order dated 4.2.2006, regularized the petitioner on the post of Ardali, by amending the earlier order dated 27.5.2002.

2. The petitioner is aggrieved by orders dated 4.2.2006 and 17.2.2006. The petitioner has assailed the aforesaid orders in the instant writ petition.

3. Sri Y.S. Saxena, learned counsel assisted by Sri Sanjeev Kumar Yadav, learned counsel for the petitioner submits that after the services of the petitioner were regularized, he became the holder on civil post. His appointment was substantive against a sanctioned vacancy. The order of cancellation of his regularization and the order of 4.2.2006, virtually amount to a reversion and change in the nature of his employment. The orders have been passed in violation of principles of natural justice. The petitioner had requisite qualification for appointment as a driver and the order of his regularization could not have been recalled. 

4. Sri Moti Lal, learned Standing Counsel for the State in opposition to the writ petition submits that the petitioner is not entitled to any hearing since he did not possess the requisite qualifications for appointment as a driver in the year 1991. He further submits that in such circumstances the petitioner is not entitled to protection of Article 311 of the Constitution of India.

5. Heard the learned counsel for the respective parties.

6. Certain facts are beyond the pale of dispute which are relevant for judgment in the instant case.

7. The petitioner was appointed as daily wage employee in the U.P. Forest Department in June, 1991. The petitioner has been working continuously in the aforesaid department since the date of his appointment. There was no break in service of the petitioner.

8. With the promulgation of the U.P. Regularization of Daily Wage Appointment on Group-'C' Posts (Outside the Purview of U.P. Public Service Commission) Rules, 1998, the petitioner became eligible for being considered for regularization. The selection committee for regularization was constituted on 17.5.2002. The petitioner was considered for regularization on 27.5.2002 by the selection committee. The selection committee considered the record of service of the petitioner and his eligibility for being appointed as a driver under the service rules. The petitioner was found eligible for regularization of his services. The petitioner was regularized against a Class IV post of a driver by order dated 27.5.2002. The petitioner continued to discharge his duties attached to the post on which he was regularized. The petitioner started drawing his salary as a regularly appointed driver consequent to his regularization.

9. The petitioner was in possession of valid driving licence with effect from 1995. His services were unblemished and his driving skills were unquestionable. The petitioner was in possession of all the essential skills and qualifications for appointment against the post on which he was regularized. The cancellation of the regularization order visits the petitioner with penal consequences. After the regularization the petitioner became of a holder on civil post and was entitled to the protection of Article 311 of the Constitution of India. The order dated 4.2.2006 virtually demotes the petitioner. The order of cancellation of regularization dated 17.2.2006 alters his status as a holder of a civil post. The said order changes the nature of his employment by reverting the petitioner to a daily wager. Admittedly, the petitioner was regularized on the foot of an unblemished record of service and upon satisfaction of eligibility criteria for regularization.

10. The petitioner has taken a specific plea that the impugned order of cancellation of his regularization dated 17.02.2006 and the order dated 04.02.2006 whereby the post on which he was regularized was altered to a Class-IV post of Ardali were passed without affording any opportunity of hearing to the petitioner. This fact has specifically been pleaded in the writ petition and categorically asserted during the arguments. The learned Standing Counsel for the petitioner could not point out any averments in the counter affidavit which refute the stand of the petitioner.

11. The impugned orders dated 17.2.2006 and 4.2.2006 have clearly been passed in violation of principles of natural justice. The impugned orders dated 17.02.2006 and 04.02.2006 admittedly visit the petitioner with penal consequences. In these facts the violation of principles of natural justice invalidates the impugned orders dated 04.02.2006 and 17.02.2006.

12. In Assistant Commissioner Commercial Tax Department, Works Contract & Leasing, Kota Vs. M/s Shukla and Brothers, reported at 2010 AIR SCW 3277, succinctly summed up the principles of natural justice, thus:

"9. The increasing institution of cases in all Courts in India and its resultant burden upon the Courts has invited attention of all concerned in the justice administration system. Despite heavy quantum of cases in Courts, in our view, it would neither be permissible nor possible to state as a principle of law, that while exercising power of judicial review on administrative action and more particularly judgment of courts in appeal before the higher Court, providing of reasons can never be dispensed with. The doctrine of audi alteram partem has three basic essentials. Firstly, a person against whom an order is required to be passed or whose rights are likely to be affected adversely must be granted an opportunity of being heard. Secondly, the concerned authority should provide a fair and transparent procedure and lastly, the authority concerned must apply its mind and dispose of the matter by a reasoned or speaking order. This has been uniformly applied by courts in India and abroad.

13. In the light of the facts found in the preceding paragraphs and the law laid down by this Court in Assistant Commissioner Commercial Tax Department (supra) the impugned orders dated 4.2.2006 and 17.2.2006 cannot stand.

14. However, there are other aspects of the matter which also need to be adverted to. The petitioner was in possession of a valid driving licence since 1995. The eligibility criteria as laid out in the aforesaid rules is extracted hereunder:

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15. The petitioner did not have a driving licence in the year 1991. There is no dispute that the petitioner possessed the essential eligibility conditions for appointment as driver as laid out in the said rules on the date he was considered for regularization.

16. Further, for the sake of argument, it is accepted that the petitioner was not in possession a valid driving licence in the year 1991 when he was appointed as daily wage employee. Or for that matter he did not have a valid driving licence in the year 1991, which is the cut of date for regularization of daily wage employees. This does not in any way taint the original appointment of the petitioner or render the regularization invalid. There is no qualification for daily wage employees. The daily wage employees as the nomenclature suggests are employed  to discharge different tasks at the will of the authorities. There is no sanctioned post on which daily wage employees are appointed. There is no fixed charter of duties of a daily wager. Generally, there are no specific minimum qualifications for the post for being appointed as a daily wager. The nature of duties assigned to daily wagers are flexible. The employment of daily wager comes to an end at the end of working day. The daily wager is employed afresh on the next working day. The said attributes of daily wage employment have been discussed in similar terms of the Hon'ble Supreme Court in the case of State of Punjab and others Vs. Jagjit Singh and others, reported at (2017) 1 SCC 148.

17. The petitioner continuously worked as a daily wager from 1989. He was continuously employed as a driver over the years.

18. The relevant date for possession of minimum qualification for appointment/regularization as a driver was the date when the process for regularization commenced, with constitution of the selection committee. The selection committee for regularization was constituted on 17.5.2002. On the said date admittedly the petitioner possessed the essential qualification laid out in the rules, for appointment as a driver on a regular basis or for regularization of his services as a driver.

19. In this view of the matter, the orders dated 17.2.2006 and 4.2.2006 (Annexure Nos. 1 and 2 to the writ petition) are illegal and arbitrary. The orders dated 17.2.2006 and 4.2.2006 (Annexure Nos. 1 and 2 to the writ petition) are quashed. The petitioner has been working as a daily wage employee during the pendency of this writ petition. The petitioner is entitled to all consequential benefits including seniority, regular salary admissible to the regularly appointed driver. The arrears of the salary to the petitioner shall be paid within a period of three months from the date of receipt of a certified copy of this order along with 6% interest.

20. The writ petition is allowed.

Order Date :- 3.8.2018

Ashish Tripathi