Jagdish Prasad Verma vs State Of U.P. Thru ...
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HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 18
 

 
Case :- SERVICE SINGLE No. - 171 of 2017
 

 
Petitioner :- Jagdish Prasad Verma
 
Respondent :- State Of U.P. Thru Prin.Secy.Labour & Employment Lko. & Ors.
 
Counsel for Petitioner :- Satya Prakash Srivastava
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Chandra Dhari Singh,J.

The petition seeks issuance of a writ in the nature of certiorari quashing office order dated 28.11.2016 passed by respondent no.2, which is appended with the petition as Annexure - 1.

Learned counsel for the petitioner has submitted that while passing the impugned order dated 28.11.2016, the concerned authority has not taken into consideration the direction and order passed by Division Bench of this Court dated 10.07.2014 in Special Appeal No.339 of 2004.

It is submitted that the Division Bench of this Court vide order dated 10.07.2014 passed in Special Appeal No.339 of 2004 modified judgment and order dated 16.02.2004 passed by Hon'ble Single Judge in Writ Petition No.5683 (SS) of 1995 to the extent that since the members of the association have been regularized in service much earlier, their regularization shall be treated to have been made under the provisions of U.P. Regularization of Daily Wage Appointment on Group 'C' post (Outside the purview of the U.P. Public Service Commission) Rules, 1998 and not under the provisions of U.P. Regularization of Ad hoc appointments (on post within the purview of the Public Service Commission) Rule, 1979.

Learned counsel has submitted that by means of order dated 19.09.2005 passed by Director, Training & Employment, Directorate, U.P. Lucknow, petitioner's services were regularised. The said order was passed in compliance of order dated 16.02.2004 passed in Writ Petition No.5683 (SS) of 1995, which has been modified vide order dated 10.07.2014 passed by Division Bench. It is submitted that pursuant to order dated 19.09.2005, the petitioner has been working in regular capacity continuously and he has also been paid his service benefits as regular employee during this period. The impugned order dated 28.11.2016 (supra) has been passed observing therein that the petitioner did not fulfill the requisite qualification in terms of 1998 Rules. It has further been observed in the impugned order that the petitioner will be treated to have been regularized on the post of Instructor (Wireman) w.e.f. the date of passing of the order dated 28.11.2016.

Learned counsel has submitted that the impugned order does not disclose any reason as to how the petitioner was not covered under 1998 Rules for being regularized. The said order has been passed in contravention of judgment and order passed by Division Bench dated 10.07.2014 (supra). Hence, the impugned order is illegal and contrary to law, and deserves to be quashed.

Per Contra, learned counsel for the State has vehemently opposed the submissions advanced by petitioner's counsel and submitted that at the time of appointment/engagement of the petitioner as Instructor, the eligible criteria of Instructor was as mentioned in Government Order dated 28.05.1975, which was applicable in the year 1991, which as follows :

Essential

(a) High School or equivalent education

(b) Diploma or Certificate in Confrontmanship which is recognized in N.C.V.T. Business

(c) After passing Diploma or Certificate, 03 years practical or 03 years teaching experience.

(d) Ability for working in organization and maintaining discipline.

(e) Knowledge of working in Hindi

(f) Age between 21 to 30 years.

Preference

(a) Passed in training in Central Training Institute

(b) Have National Apprenticeship Certificate

Learned counsel for the State has further submitted that 1979 Rules as amended 2001 is not applicable in the case of the petitioner as he was not initially appointed on adhoc basis. It is further submitted that the case of the petitioner is also not covered under 1998 Rules as he was not having requisite essential qualifications of Instructor at the time of his initial appointment in the year 1991. It is submitted that the Government Order dated 13.08.2015 has been issued in respect of those who have been appointed/engaged up to 31.03.1996 as daily wager, work charge or on contract basis and were having minimum qualification for the post. As such considering the case of the petitioner, petitioner's services have been regularised vide order dated 28.11.2016 in accordance with law.

Learned counsel for the State has submitted that the petitioner was not having essential qualification which is provided under the 1998 Rules, as such, his services could not be regularized under 1998 Rules. Therefore, petitioner's case was considered for regularization as per Government Order dated 13.08.2015 and he has been regularized on the post of Instructor (Wireman) vide order dated 28.11.2016.

Learned counsel for the State has submitted that the impugned order dated 28.11.2016 (supra) has been passed in accordance with law after duly considering the relevant government order and service rules. There is no illegality in the impugned order. The petitioner has failed to establish any case for invoking extraordinary writ jurisdiction under Article 226 of the Constitution of India. The petition is devoid of merit and be dismissed as such.

I have heard learned counsel for the parties and perused the record.

Relevant portion of the impugned order dated 28.11.2016 (supra) is reproduced hereinbelow for ready reference:-

"माननीय न्यायालय के उपरोक्त निर्णय के अनुसार उत्तर प्रदेश (लोक सेवा आयोग के क्षेत्र के बाहर) तदर्थ नियुक्तियों के विनियमितीकरण नियमावली 1979 यथासंशोधित 2001 के नियम-4(1)(दो) साथ पठित उत्तर प्रदेश औद्योगिक प्रशिक्षण संस्थान(अनुदेशक) सेवा नियमावली 1991 के अनुसार उक्त विनियमितीकरण आदेश को निरस्त करते हुए उत्तर प्रदेश (लोक सेवा आयोग के क्षेत्र के बाहर) समूह "ग" के पदों पर दैनिक वेतन नियुक्तियों का विनियमितीकरण नियमावली 1998 में दिए गये प्राविधानों के अन्तर्गत किया जाना है।

श्री जगदीश प्रसाद वर्मा उत्तर प्रदेश (लोक सेवा आयोग के क्षेत्र बाहर) समूह के पदों पर दैनिक वेतन नियुक्तियों का विनियमितीकरण नियमावली 1998 में दी गयी अर्हता/शर्तो को पूर्ण नहीं करते हैं। श्री जगदीश प्रसाद वर्मा को उक्त नियमावली में दिये गये प्राविधानों के अनुसार विनियमित नहीं किया जा सकता है। दैनिक वेतन कर्मचारियों के विनियमितीकरण के सम्बन्ध में वित्त वेतन आयोग के शासनादेश 44/2015/वे00-2-795 / दस-54(एम) /2008 टी०सी0 दिनांक 13-8-2015 (यथा संशोधित) भी जारी किया गया है। उक्त शासनादेश में निम्न व्यवस्था दी गयी है "...... दिनांक 31 मार्च 1998 तक विभिन्न विभागों तथा विभागों के अन्तर्गत विद्यमान स्वशासी संस्थाओं, सार्वजनिक उपक्रमों, स्थानीय निकायों, विकास प्राधिकरणों एवं जिला पंचायतों आदि में दैनिक वेतन, वर्कचार्ज एवं संविदा के आधार पर नियुक्त किये जा चुके ऐसे कार्मिक, जो वर्तमान में उसी स्वरूप में कार्यरत हैं तथा नियुक्ति के समय पद पर भर्ती हेतु निर्धारित न्यूनतम अर्हता की पूर्ती करते थे................. इस शासनादेश से श्री जगदीश प्रसाद वर्मा आच्छादित होते हैं।

अतः श्री जगदीश प्रसाद वर्मा पुत्र श्री राम लखन वर्मा को शासनादेश दिनांक 13-8-2015 में दी गयी व्यवस्थानुसार अनुदेशक वायरमैन के पद पर वेतनमान रू0 9300-34800 ग्रेड पे रू० 4200 में आदेश जारी होने की तिथि से नियमानुसार विनियमित किया जाता है।

It is admitted fact that the petitioner was initially appointed against the vacant post of Instructor (Wireman) in order to selection made by Selection Committee under the direction given by respondent no.2 vide Letter No.697/T-1/0307/Dai.Ve. dated 20.10.1987 on the basis of list forwarded by the office of District Employment Exchange for a period of four months and he has joined the said post in the year 1991. In such circumstances, it is evident that 1979 Rules as amended 2001 is not applicable on the petitioner as the petitioner was not initially appointed on ad-hoc basis.

Further, the petitioner is not covered under 1998 Rules because at the time of his appointment in the year 1991, the petitioner was not having 03 years of experience which was the essential qualification for the post of Instructor.

Perusal of the impugned order reveals that the Government Order dated 13.08.2015 has been issued in respect of those who have been appointed/engaged up to 31.03.1996 as daily wager, work charge or on the contract basis and were having minimum qualification for the post. As such considering the case of the petitioner, his services have been regularised vide order dated 28.11.2016.

In view of the above, I do not find any reason to interfere in the impugned order. The writ petition is devoid of merit and is accordingly dismissed.

Order Date :- 08.1.2021

nishant/-